Leach Co.

In the Matter of LEACH COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL No. 291 (CIO) Case No. 0-1311.-Decided April 20, 1940 Truck Body, Concrete Mixer, and Tool Manufacturing Industry-Interference, Restraint, and Coercion: anti-union statements : deprecating the need for a union among its employees ; depreciating the ability of the Union to secure gains for its employees ; disparaging the national organization, with which the Union is affiliated ; expressing its antipathy to unions; informing its employees that it would not deal with the Union but would deal with them individually ; individ- ual bargaining in disregard of negotiations with Union ; circulation of anti-union petition on company property; refusing to deal with the Union because its agent had prevailed upon a majority of the employees to sign said anti-union petition- Di-scrimination: with respect to hire and tenure of employment: discharges for union membership and activity ; charges of, dismissed as to four employees- Reinstatement Ordered: for employees discriminatorily discharged-Back Pay: awarded to discharged employees. Mr. William R. Consedine, for the Board. Boucle, Hilton, Klwwin c r Dempsey, by Mr. Ray C. Dempsey, of Oshkosh, Wis., for the respondent. Mr. John C. McRee, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE 'Upon charges and amended charges duly filed by the United Auto- mobile Workers of America, Local No. 291, herein called the Union, the National Labor Relations Board, herein called the Board, by the Acting Regional Director for the Twelfth Region (Milwaukee, Wis- consin), issued its complaint dated February 14, 1939, against Leach Company, Oshkosh, Wisconsin, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and notice of hear- ing were duly served on the respondent and the Union. 22 N. L. R. B., No. 100. 1168 LEACH COMPANY 1169 In respect to the unfair labor practices, the complaint alleged in substance (1) that during the months of December 1937 and February 1938 the respondent discharged twelve named persons employed in its plant at Oshkosh, Wisconsin, because of their membership in and ac- tivities on behalf of the Union,' thereby discriminating in regard to the hire and tenure of employment of said persons and discouraging membership in a labor organization; and (2) that by these and other means, including threats, warnings, and acts in violation of a written contract with the Union, it interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. On March 2, 1939, the respondent filed its answer, denying that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held at Oshkosh, Wisconsin, from March 6, through 20, 1939, before Gustaf B. Erickson, the Trial Examiner duly designated by the Board. The Board and the re- spondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all parties. During the course of the hearing counsel for the Board moved that the complaint be dismissed as to Frank Ruechel. At the conclusion of the hearing counsel for the Board made a motion to conform the pleadings to the proof. Both motions were granted by the Trial Examiner. During the course of the hearing the Trial Examiner made numerous other rulings on motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. On April 11, 1939, the respondent filed a brief with the Trial Examiner. On June 13, 1939, the Trial Examiner issued his Inter- mediate Report, copies of which were duly served upon all parties, finding that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from engaging in unfair labor practices and that it reinstate 11 employees with back pay. On June 26, 1939, the respondent filed exceptions to the Inter- mediate Report. The Board has reviewed the exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. "The names of these employees are as follows : Frank C Buechel, Clarence Frihart, Carl F. Dreyer, Earl E Luker, Frank Curd, William Foust, Henry Millard, Robert Millard, Eugene Hetzel , William Beson , Frank C. Klosterman, Jr , and Leo C. Miller 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, a Wisconsin corporation with its principal place of business and plant at Oshkosh, Wisconsin, is engaged in the manu- facture, sale, and distribution of logging tools, concrete mixers, gar- bage or refuse getters, reels, poleline tools, and ladders. The chief raw materials used by the respondent are wood, cast iron, and steel. During the year 1938 it used raw materials valued at over $100,000, more than 80 per cent of which were shipped to it from States other than Wisconsin. During the year 1938 the respondent's products were valued at approximately $370,000, approximately 95 per cent of which were shipped to States other than Wisconsin. The respondent admits that it is engaged in interstate commerce and is subject to the provisions of the Act. II. THE ORGANIZATION INVOLVED United Automobile Workers of America, Local No. 291, is a labor organization admitting to membership persons employed at the re- spondent's plant. It is affiliated with the International Union, United Automobile Workers of America, an affiliate of the Congress of Industrial Organizations. III. THE UNFAIR LABOR PRACTICES A. Background; interference, restraint, and coercion Prior to the establishment of .the Union among the respondent's employees, E. C. Leach, the respondent's president, expressed him- self as being opposed to the formation of a union among his em- ployees. In November 1936 Leach conversed with Frank Ruechel, an employee in the shipping department, concerning the strikes which were then, current throughout the country and their effect on busi- ness in general. Leach stated that there had been a union in his plant at one time but that he had broken it up and that if the men ever organized again he "would break it up like he did the last time." Leach denied having made these remarks to Ruechel. The Trial Examiner, who observed the demeanor of the witnesses, did not credit Leach's denial. We find that Leach made the remarks attributed to him by Ruechel. Leach also expressed his views on labor organization to Fred 0. Kile in the spring of 1937 when there were, strikes in other plants in the vicinity. Leach inquired of Kile, who was superintendent LEACH COMPANY 1171 from 1930 until May 1937, whether he had heard of any organiza- tional activity among the respondent's employees and told him that he did not think there should be any organization in the. plant as he did not care to have any dealings with a union. Kile testified at the hearing that Leach appeared to be agitated about the matter and during the conversation stated that there would not be any union in the plant. Leach admitted at the hearing that he had asked Kile whether he had heard of any organizational activity and did not deny making the above statements attributed to him by Kile. We find that he made them. About May 1, 1937, William Foust, Frank Curd, Henry Millard, and Robert Millard, who were all employed in the machine shop, dis- cussed the formation of a union among the respondent's employees. Curd communicated with the president of the Union and was told that the respondent's employees were eligible for membership therein and that they would be welcome at a meeting to be held on May 5. At this meeting and at a meeting on May 10 approximately 93 of the respondent's 96 employees signed applications, for membership in the Union. On May 10 the following employees were elected to serve on the bargaining committee : Frank Curd, Carl Dreyer, Earl E. Luker, Harold Schabloski, Henry Koch, Gordon Malouf, William Beson, and William Foust, chairman. This committee presented the Union's demands to the management on May 11 and began negotia- tions on May 13, at which time the respondent presented a counter- proposal. During the conference on May 13 Leach asked why the employees had to join an organization to talk to him. He explained that the doors of his office were always open to his employees, that he had always dealt fairly with therh and' saw no reason for an organization. These statements were not denied by Leach. At a meeting on the night of May 13 the Union rejected the re- spondent's counterproposal and threatened to strike if the respond- ent would not make a better offer. On May 17, after two further meetings, and after informing the respondent of the strike vote, the employees went on strike because the respondent would not meet the Union's demands. On June 17, at a conference with the bargaining committee, Leach asked the members of the committee if they had seen the morning paper and had read what Tom Girdler had done to the C. I. O. When the committee replied that they had not read the paper, Leach said that the C. I. O. were a bunch of Communists. Beson, a mem- ber of the committee, then asked if Leach was through dealing with the C. I. 0., and Leach replied that he was. Beson then inquired if Leach would deal with the employees if they belonged to the A. F. of L Leach answeredthat it did not make any difference whether the employees belonged to the C. I. O. or the A. F. of L., or any 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other union ; that he would deal with his employees individually as he had always done. Although Leach denied making the foregoing statements, the Trial Examiner , who, from his observation of the demeanor of the witnesses , had an opportunity to form a trustworthy opinion as to their credibility , found that such statements were made by Leach. The subsequent actions of Leach in destroying the Union further convince us, and we find , that he made the statements recited above. During the strike Leach had his cost analyst and office manager, Robert Baker, call on Frank Ruechel, a member of the union bar- gaining committee , in an attempt to arrange a meeting between Leach and Ruechel, or between Leach and one or two members of the bargaining committee . Ruechel testified that when he refused to talk with Leach alone, or unless the other committee members were present, Baker asked him why he wanted a union in the plant. Baker also stated, according to Ruechel, that Leach desired to deal with the employees individually and that they would be more successful as individuals than they would be if they bargained through a union; that Leach did not want to have anything to do with unions. Baker admitted going to see Ruechel after Leach had said he wanted to get in touch with some of the members of the committee but denied ask- ing Ruechel why he wanted a union. We find, as did the Trial Ex- aminer, that Baker made the foregoing statements substantially as related by Ruechel. The desire of the respondent to deal with individual employees rather than with the Union was further demonstrated during the strike when Leach, in the company of John Spanbauer, a foreman, went to the home of Harold Schabloski , another member of the union bargaining committee, anc asked him why the old employees had turned against him (Leach ) and joined in the strike. When questioned by counsel for the Board as to why he called on Scha- bloski Leach testified as follows : Q. Now, as a matter of fact, you went down to see Mr. Schabloski about getting some kind of a settlement of the strike, did you not? A. Well, I wanted to find out what the trouble was because nobody seemed to know. Following Baker's request , Ruechel arranged for five members of the union bargaining committee to meet with Leach. At the meeting they were given a letter addressed to the chairman of the committee withdrawing an offer of a 10-per cent increase in wages which the respondent had previously made as a counterproposal to the Union's demands. Leach then explained that he was mailing to each em- ployee a copy of another letter which stated that the prior offer of a . LEACH COMPANY 1173 10-per cent wage increase had been withdrawn, but which showed the new wage rate the employee receiving the letter would receive. The letter also advised that this was the respondent's final offer. Through the efforts of Harry Sheck, a Federal conciliator, negotia- tions between the respondent and the Union were renewed. On July 21, 1937, the parties entered into a signed contract and the strike was settled. The contract provided, among other things, for recog- nition of the Union as the sole bargaining agency, for seniority in lay-offs and rehiring, and for the establishment of a grievance pro- cedure which placed the ultimate decision on a disputed grievance in the hands of an arbitrator. The contract was to continue in effect only until February 1, 1938, unless prior to that it was extended or renewed. After the resumption cf operations, the Union's shop committee first met with the respondent on August 25. Monthly meetings were held thereafter. At each meeting the shop committee, after present- ing its grievances, asked Leach if he had -any grievances or com- plaints. Leach never raised any problems with the Committee. In December 1937 and January 1938 the respondent made exten- sive lay-offs, the number of employees being reduced from approxi- mately 96 to 44 by the middle of January. Most of the active members of the Union were included in the group laid off. The cases of eleven of them will be discussed in detail below. During the early part of January 1938 Fred Frandsen, foreman of the shipping department circulated in the plant a petition to the effect that the employees were dissatisfied with the hours and other working conditions which were in effect by reason of the respond- ent's contract with the Union. The petition asked the respondent to deal with the employees as a group independently of the Union. On January 24 the petition, which was signed by 39 of the 44 em- ployees who were working at the time, was presented to Leach. On January 26 the Union, represented by a committee of three, approached the respondent to discuss the renewal of its contract which, unless renewed, was to expire on February 1. The respondent refused to discuss this matter, claiming that, in view of the petition, the Union no longer represented a majority of its employees. Conclusions as to interference, restraint, and coercion We find that the respondent, by deprecating the need for a union among its employees, by depreciating the ability of a union to secure any gains for its employees, by disparaging the C. I. 0., with which the Union is affiliated, by expressing its antipathy to unions, by informing its employees that it would not deal with a union but would deal with them individually, by attempting to deal with its 233033-41-v,J1 22-75 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees individually in preference to their duly authorized rep- resentatives, by permitting its agent, Frandsen, to circulate a peti- tion in opposition to the Union in the plant, and by refusing to deal with the Union because its agent had prevailed upon a majority of its employees to sign said petition, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Discrimination in regard to hire and tenure of employment The complaint alleged that the respondent, in the period between December 3, 1937, and February 23, 1938, discharged or laid off Frank C. Ruechel, Clarence Frihart, Carl F. Dreyer, Earl E. Luker, Frank Curd, William Foust, Henry Millard, Robert Millard, Eugene Hetzel, William Beson, Frank C. Klosterman, Jr., and Leo C. Miller, and has since refused to reinstate them, because of their membership in, and activities on behalf of, the Union. The respondent admitted that it discharged or laid off said employees; but denied that it was because of their union membership or activities. At the hearing, the complaint was dismissed, on motion of counsel for the Board, with respect to Frank C. Ruechel. In his Intermediate Report the Trial Examiner found that the remaining 11 employees had been laid off or discharged because of their union membership and activi- ties. The respondent excepted to these findings. The respondent contends that after the strike production slowed down and labor costs rose, particularly in the machine shop ; that upon investigation it was reported by the superintendent and the various foremen in the machine shop that the slow-down was caused by the refusal of the employees to cooperate; that in December when production was slack and many of the employees had been laid off it reexamined its personnel with a view to eliminating the offending employees ; and that, as a result, most of the complainants in this proceeding were not recalled. E. C. Leach, the respondent's president, and Ewold Hoeft, the production manager, testified that production costs rose in the ma- chine shop in the fall of 1937. Leach testified, on the basis of the respondent's records, that the labor cost to produce bucket arms for refuse gatherers almost doubled between July and December 1937. Hoeft testified that there was an increase in labor costs in the ma- chine shop generally. He identified a list, compiled from the re- spondent's records, which showed the lowest and highest cost of producing certain articles before the strike, and the lowest and highest cost of producing identical articles following the strike. This list tends to show that production costs rose after the strike. Certain facts must be noted, however, in connection with the list. LEACH COMPANY 1175 In the first place, Hoeft explained that the list did not include all items produced by the respondent and that some articles were pro- duced at lower costs after the strike than they were before. Second, the list does not show the average cost before the strike of the articles listed as compared with their average cost after the strike, but only shows the cost of a particular order of the articles listed. Third, the cost figures are computed by adding the cost of materials, the cost of labor, and overhead. When questioned as to whether there was any change in the cost of materials, Hoeft replied, "Noth- ing more than the usual changes in prices which come up." As to labor costs, it is undisputed that the contract between the respondent and the Union provided for wage increases ranging from 10 to 20 per cent. Hoeft testified, however, that the labor costs were higher than the wage increase justified. As to overhead, Hoeft testified it was figured the same way before and after the strike, at 200 per cent of the labor cost. Since no figures were given as to total pro- duction before and after the strike, the actual overhead costs attributable to the various articles produced cannot be accurately ascertained. Obviously, an increase in production might result in increased labor costs per unit, but might also substantially reduce the overhead cost per unit. In view of all of the evidence it may well be that the respond- ent's labor costs increased after the strike. We are not convinced, however, that this was as serious a problem as the respondent would have us believe, or that there is any correlation between the increase in costs and the strike, other than the increase in wages provided for in the contract signed at the termination of the strike. Superintendent Lisek and Hoeft testified that when they became aware of the increased costs they talked to Pfeil, Gibson, and Robl, who served successively as foremen of the machine shop after the strike, and learned that the difficulty was that the men were not cooperating. Pfeil, Gibson, and Robl testified to the same effect. In particular, they testified that certain named individuals, members of the Union, would not cooperate. The basis of Pfeil's conclusion that the men did not cooperate was, for the most part, the further conclusion that they did not work as fast as they could have. The following colloquy between Pfeil and counsel for the Board is enlightening : Q. Now, what in particular did you have to call to Mr. Curd's attention ? A. It would take him too long to bore the pumps out. Q. That was sometime in the summer of 1937? A. I wasn't foreman in the summer. 1176' DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. When were you foreman? A. Well, the last part of the summer I was. Q. Was that in the summer of 1937 that you brought that to his attention? A. Yes. They were complaining on account of the cost of the pumps being too high. Q. What did you do about that? A. I asked him if he would speed his machine up a little. Q. What did he say? - A. He said his tool wouldn't stand up. Q. Oh, there was some difficulty with the tool? A. That's what he claimed. Q. Did you, as foreman, investigate to see if that was true? A. No, sir. Q. You just took his word for it? A. Yes, sir. Q. Do you know whether or not there was some difficulty with the tool? A. I didn't see it. Q. Oh, you don't know? A. No, sir. Q. That is the only reason you say those fellows were uncoop- erative? A. They didn't work fast enough. Much of the testimony with respect to the uncooperative character of the employees was stated as conclusions. In so far as it is based on more specific testimony it w ill be considered below. On the whole we do not think the respondent's employees were un- cooperative. Commencing on August 25, and monthly thereafter, the shop committee of the Union, which represented all of the employees, met with Leach. At each meeting the shop committee asked Leach if he had any grievances or complaints. Each time Leach said that he had none. On one occasion "he said lie takes care of things as they come up." On another occasion when "he was asked if he had any complaints, or if there was something we [the shop committee] could do to promote a better feeling between the employer and the em- ployees," he replied, "that he was still running the business and that he would take care of things when they came up." We find no sub- stantial merit in the respondent's contention that its employees were uncooperative. Nor do we believe that the alleged lack of cooperation by the em- ployees was responsible for any increase in production costs. This conclusion is in part based upon the unconvincing character of the testimony relating to the lack of cooperation. It is independently LEACH COMPANY 1177 justified by other facts. After the strike the respondent employed a new superintendent. It also employed a new foreman, Pfeil, in the machine shop, where most of its difficulties arose. Pfeil was replaced after about 6 weeks by Gibson, who was in turn replaced by Robl about 8 weeks later. We think that the change in supervisory per- sonnel may well have been responsible for increased production costs. After the strike the respondent had a larger volume of business than usual. The record does not show how it compared with the volume of work befoie the strike, but approximately 95 employees were working as compared with the usual force of 60 to 75 employees. It is not unnatural for production costs to have risen in the course of handling a large volume of work, especially since the workweek had been re- duced from 50 to 45 hours under the contract with the Union. In addition to the general defenses discussed above, the respondent advanced other reasons, applicable only to individual employees, for the lay-off or discharge of the complainants herein. Bearing in mind the respondent's general defenses, we turn to a consideration of the circumstances surrounding the lay-off or discharge of each of the 11 employees involved. William Foust and Frank Curd. William Foust was employed by the respondent on March 17, 1934, at which time he had had 16 years of experience as a machinist. He worked in the machine shop until he was laid off on December 17, 1937. As stated above, Foust was one of the four employees who were responsible for the organi- zation of the Union among the respondent's employees. On May 10, 1937, he was elected chairman of the bargaining committee. Thereafter he met with the respondent's officials in that capacity on various occasions. Frank Curd was first employed by the respondent in January 1935. He worked as a machinist until he quit in March 1936. He was reemployed as a machinist on April 26, 1937, and worked until he was laid off on December 17, 1937. As mentioned above, Curd was another of the four employees who started the organization of the Union. He served on the grievance committee from May 10, 1937, until he was laid off. At the time Foust and Curd were laid off several other employees with less seniority were retained in the machine shop. The respond- ent's contract with the Union provided, inter alia, "Those last hired shall be the first to be laid off and those last laid off shall be the first to be re-hired." Foreman Robl told both Foust and Curd when they were laid off on December 17, 1937, that they would be recalled as soon as work was available. As was customary in cases of temporary lay-offs, both men left their tools in the machine shop. During the first part of January 1938 Foust discovered that Krause, an employee with less 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority than himself, was working in the machine shop. Foust inquired of Robl why Krause was working and he was not. Robl replied that Krause was a valve specialist and was working on some valves. Foust testified that while employed in the shop he had made most of the valves. Robl also told Foust that he would be recalled when work was available. On February 1, 1938, however, the day the Union's contract with the respondent expired, Superintendent Lisek had Robl send the tools Curd and Foust had left in the shop to their homes by taxicab. At the hearing the respondent claimed that about January 1, 1938, it was discovered that Curd and Foust had spoiled 18 out of 50 pump covers on which they had performed certain operations in November, and for this reason they were not reinstated. The labor cost in salvaging the pump covers was $16.07. Their machines were checked by Robl and Pfeil, a machinist and ex-foreman of the machine shop, at the time the spoilage was discovered. These two men testified that the defective work was caused by a dowel pin whicli had been filed down on one side, and which should have been observed and removed by Curd and Foust. Foust testified that when he, was working on the pump covers he discovered that some were defective in that the holes in which the dowel pins were to be inserted were too large; that the defective holes were called to Robl's attention and that Robl, Pfeil, and Leo Miller, another machinist, examined the castings and instructed him how to machine them. Curd testified that he found a note on his machine from Foust explaining the difficulty and how he was to proceed, and that subsequently Robl came to his machine and told him how to ma- chine the defective pump covers. Both Curd and Foiist testified that they followed the instructions given by Robl. This explanation was contradicted by Robl and Pfeil. Although Leo Miller was called as a witness by the counsel for the Board, he was not questioned con- cerning the pump covers. We do not find that Foust and Curd were blameless in spoiling the pump covers. We are persuaded, however, that their work on the pump covers was not the actual reason for their discharge. The respondent's answer, filed on March 2, 1939, denied that each employee named in the complaint had been discharged for union activity, and alleged (1) that the discharges of Ruechel, Frihart, and Miller were caused solely by negligence and inefficiency; (2) that Dreyer and Luker were laid off "in the interest of efficiency and economy" and because they refused to complete work and carry out orders; and. (3) "That the same facts are true of the complainants Frank Curd, William Foust, Henry Millard, Robert Millard, Eugene Hetzel, William Beson and Frank C. Klosterman." It is clear that the respondent did not feel at the time it prepared its sworn answer LEACH COMPANY 1179 that Curd and Foust, among others, were guilty of acts of negligence and inefficiency which justified their discharge or the respondent's refusal to reinstate them. The respondent's claim concerning the spoilage of the pump covers is clearly an afterthought. The respondent contends, further, that Curd was not returned to work because he was frequently away from his work, was reluctant to take orders from his superiors, and had spoiled another job in addition to the pump covers. The respondent asserts, as an addi- tional reason for not reinstating Foust, that he was uncooperative.' The record does not support the respondent's contentions with re- spect to either Foust or Curd. Moreover, these criticisms of Foust and Curd, with the exception of the spoilage on the part of Curd, were all based on their work prior to the time that they were laid off, yet at that time neither was criticized and both were told that they would be recalled as soon as work was available. On the basis of the entire record we find that the respondent did not lay off or refuse to reinstate Foust or Curd for the reasons it asserts. We find that the respondent discharged Curd and Foust on Decem- ber 17, and did not at that time intend to reinstate them. Although the respondent claims that the pump covers were not discovered until January 1, as mentioned above, the tools which these amen had left in the shop were not returned to them at that time, but were returned only after the Union's contract expired on February 1. Such action on the part of the respondent convinces us that the respondent was determined to rid its plant of the active union members before it was time to negotiate another contract with the Union. To prevent the union members so discharged from exercising their rights under the contract, which provided for arbitration of disputed grievances, the respondent told them that they were being temporarily laid off and would be reinstated as soon as their services were needed. Foust's long record of satisfactory service prior to the strike, ' which was admitted by the respondent at the hearing, supports our conclusion that his discharge, as well as that of Curd, was caused by his union activity. 2 In its brief to the Trial Examiner , the respondent stated "Our position on Mr Foust is that above all else his conduct on rebuttal and the testimony he gave warrants his dis- charge from the employ of Leach Company regardless of his Union affiliations or his length of service with the company" Fiom the brief it is apparent that the respondent adopted this position because it considered Foust 's testimony with respect to the pump covers to be a "fabrication " While we have found that Foust was not blameless in the production of the faulty pump covers, we find nothing in his testimony which indicates that it was knowingly false, or that it was even inaccurate The Trial Examiner , who, from his observation of the demeanor of the witnesses, had an opportunity to form a trustworthy opinion as to their credibility, credited the testimony of Foust and rejected that of the respondent 's witnesses on this point It should be noted , moreoser. that Section 8 (4) of the Act declares that it is an unfair labor practice for an employer "to discharge or other- wise discriminate against an employee because he has . . . given testimony under this Act." 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent discharged William Foust and Frank Curd on December 17, 193,7, and thereafter refused to reinstate them, because of their union membership and activities , thereby discourag- ing membership in the Union, and by such acts has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Curd has had some temporary employment and has worked on W. P. A. since he was discharged . He desires reinstatement. Foust has had no regular employment since he was discharged . He desires reinstatement. Henry Millard, and Robert Millard. Henry Millard was hired by the respondent as a machinist on April 26 , 1937. Prior to that time he had served a 4-year apprenticeship in railroad shops in Chicago and had followed his trade for 3 years . While working for the respondent there were no complaints about his work and he continued in his regular employ until he was laid off on December 17, 1937. Robert Millard had served an apprenticeship of 4 years in the rail- road shops in Chicago and had followed the machinists' trade for a few months prior to his employment by the respondent on April 26, 1937. He testified that he told his superintendent when he was hired that he had had very little experience and did not hold himself out as a skilled machinist . This was not denied by the respondent. Robert Millard was also laid off on December 17, 1937. As mentioned above, the Millards were two of the four employees who started the organization of the Union among the respondent's employees. They came out on strike and were active on the picket line. The Millards were laid off on December 17, 1937, together with Foust and Curd, the other two instigators of organization for the respondent's employees . When the Millards were laid off Robl told them that they would be recalled as soon as work picked up. On the same afternoon Robl told Henry Millard and Krause, another ma- chinist, "I had hoped you two boys would come back because it is a hard job bringing in new men." Neither of the Millards was recalled to work although work was available. The record does not show whether or not the Millards left their tools in the shop as did Foust and Curd. The respondent contends that the Millards were not reinstated because they were not competent machinists . In support of this con- tention it introduced a number of time cards showing that Henry Millard required more time to perform certain operations than other employees, and that on one occasion his time for performing an operation in October was much shorter than required on the same operation in December. The cards represent work done by a ma- chinist on a particular job and do not reflect the circumstances which LEACH COMPANY 1181 were existing at the time the job was done. Henry Millard testified that often additional time was required on a job since the time re- quired by the machinist to get his materials or blueprint varied, and further, that no credit was revealed on the time card for a partially completed job. Although these cards show that Henry Millard was slower on particular jobs than other employees, we are not satisfied that they afford a true reflection of the speed of his work. A machinist might require considerable time to perform a certain operation on one occasion due to unusual circumstances and on other occasions per-' form the same job without requiring excessive time. It should be noted, moreover, that one of Henry Millard's cards is dated in July and others are dated in October and November, while Millard con- tinued to work until he was laid off on December 17. Although the respondent undoubtedly knew of these instances on December 17, Mil- lard was not criticized at the time he was laid off or told that he was being discharged. Rohl claimed that when discussing the men in the machine shop with Superintendent Lisek about the last of December 1937, he did not ask that the Millards be recalled because, although he had told the Millards that they would be recalled, he did not classify either of them as skilled machinists and thought that he could get better men. Everett Gibson testified that Henry Millard was slow and required help on most of his jobs. He testified that Robert Millard was slow but could be depended upon to turn out his work after the foreman had shown him what to do. No time cards were introduced concerning Robert Millard. The record does not show whether Robert Millard was paid the same wage as a skilled machinist and, except for the slowness which would be expected of a man of limited experience, we find that he performed his duties satisfactorily. As with Foust and Curd, we find that the respondent discharged the Millards on December 17, 1937, and did not at that time intend to recall them. The fact that Robl, on December 17, told them that they would be recalled does not negative the respondent's discrimina- tory intent, since we find that such statements were made in order to lull the men's suspicions and prevent them from exercising their rights under the contract between the respondent and the Union. Although the record does not show that the respondent returned tools to the Millards after the contract expired on February 1, as it had in the cases of Foust and Curd, the respondent nonetheless prevented the Millards from exercising their rights under the con- tract by refraining from informing them that they were discharged until after the contract expired. We find that the Millards' dis- 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges were part of the respondent's plan to rid its plant of the active members of the Union before it was time to negotiate another contract with the Union. The deficiencies in the work of the Mil- lards, if any, existed for a considerable period prior to the time that they were laid off, yet their employment continued until December 17, when they were laid off without criticism and informed that they would be recalled. The Millards were not discharged because of the alleged deficiencies in their work. On the basis of the entire record we find that the respondent dis- charged Henry Millard and Robert Millard on December 17, 1937, and has since refused to reinstate them, because of their union mem- bership and activities, thereby discouraging membership in the Union. We also find that by such acts the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Henry Millard has had no work other than on W. P. A. since his discharge. He desires reinstatement. Robert Millard secured tem- porary employment with the Central Wisconsin Canning Company after his discharge, and later worked on W. P. A. He desires rein- statement. Clarence Frihart. Frihart worked for the respondent in the black- smith shop in 1923 and 1924 until he voluntarily terminated his em- ployment. He returned in 1926 as a machinist, but quit again in the summer of 1928. He worked approximately 2 weeks in the blacksmith shop while on vacation from another job in 1934. On February 26, 1937, he was reemployed as a machinist and continued to work in that capacity until he was discharged on December 3, 1937. Frihart joined the Union on May 6, 1937, and remained an active member until his discharge. In the fall of 1937 Frihart talked to Baker, the office manager, concerning his claim for overtime under the Walsh-Healy Act. This discussion eventually led to all employees in the machine shop receiving retroactive pay for work performed on Government contracts. On December 3 Foreman Robl discovered that a set of rollers on which Frihart had performed certain operations had been spoiled. Superintendent Lisek told Frihart he was discharged. Frihart asked to see the work slip which had been attached to the spoiled rollers. The work slip was identical with Frihart's time card. Frihart testified that he had performed certain operations on a set of 24 rollers in November; that another machinist, Seidel, had per- formed the same operations on an identical set of rollers; and that both sets had remained on one truck in the machine shop until the spoilage was discovered on December 5. Frihart claimed that the work slips could have been inadvertently changed on the two sets of rollers. Foreman Robl testified, however, that he was positive Frihart LEACH COMPANY 1183 had been responsible for the spoilage. While the record is not clear, it appears that Frihart performed the operations in question on both sets of rollers, although Seidel did some work on one of the sets. Frihart claimed that Robl told him, on the day of his discharge, that he had orders from the office "to get something on you so as to get rid of you." This statement was denied by Robl. Robl's oppo- sition to the Union, as evidenced by his statements to Leo Miller which will be related below, and by his testimony at the hearing, do not indicate that he would have made such a statement to a union member he was discharging and whom he had only known for a few months. rhis conclusion is buttressed by other evidence. Gibson, a fellow machinist and ex-foreman, testified that Frihart told him on December 3 that he was being discharged for spoiling the rollers. This conver- sation was not denied by Frihart. We find that Robl did not make the statement attributed to him by Frihart which is recited above. The contract which the respondent had signed with the Union pro- vides that if a discharged employee believes he has been unjustly dealt with, his complaint will be treated as a grievance and handled by the shop committee and the company. "Failing to settle in this manner, then it shall be by conference between the International Organization and the company; and thereafter failing a settlement, the matter will be referred to the local Regional Director of the National Labor Rela- tions Board, whose decision shall be final and binding upon both parties." As this contract was in full force and effect at the time of Frihart's discharge, his failure to submit his discharge as a complaint to be handled under the procedure outlined above, is strong evidence, we believe, that Frihart thought that he had been discharged because he had spoiled the rollers in question and not because of his union membership and activities. We find that Frihart was discharged for reasons other than his union membership and activity. We shall dismiss the complaint as to him. Carl F. Dreyer and Earl E. Luker. Dreyer was employed as a painter in the year 1934, and was employed steadily from that time until he was laid off on December 3, 1937. He was recalled on De- cember 11, 1937, for approximately 20 hours of work. He joined the Union about May 10, 1937, and was elected shop steward. Luker worked for the respondent on three occasions prior to 1936, and each time voluntarily left its employ. He was reemployed about February 12, 1936, as a painter and worked in that capacity until he was laid off on December 3, 1937. He was recalled on December 11, along with Dreyer, and received about 20 hours' work before he was laid off on December 13, 1937. He joined the Union about May 6, 1937, and was elected a member of the bargaining committee, in which capacity he served until he was laid off. 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As mentioned above, the respondent's answer alleges that these two men were discharged in the interest of efficiency and economy. In addition, at the hearing there was considerable testimony offered by the respondent to show that Dreyer was guilty of insubordination, that he refused to take orders from his foreman. It was also claimed that Luker was guilty of insubordination, but the only testimony to support this is merely to the effect that Luker followed in the foot- steps of Dreyer. It is clear from the record that the only painters who have been employed by the respondent since December 13, 1937, are Foremen Clifford Young and Louis Morton. Morton has been employed by the respondent since January 1, 1929, and therefore has seniority over both Dreyer and Luker. The record also shows that after December 1937 the respondent's painting processes were materially changed, the result being that the need for additional painters was eliminated. Although there is evidence in the record that men have been trans- ferred from other departments to perform common labor in the paint shop, it also appears that this was customary prior to the change in the painting process and the lay-off of Dreyer and Luker. There is also some evidence in the record that one or two men from the assembly department have done some painting in emergencies, but that there has been no need for additional painters since Dreyer and Luker were laid off. We, therefore, find that Dreyer and Luker were not discharged for union activities, but were laid off because their services were no longer needed. We shall dismiss the complaint as to them. Eugene Hetzel. Hetzel was employed as a machinist in April 1934 and continued in that capacity until he was laid off on December 24, 1937. He had had approximately 14 or 15 years' experience as a machinist prior to his employment by the respondent. He joined the Union in May of 1937 and was active in the strike. Following the strike, he was elected a member of the bargaining committee and served in that capacity until he was laid off. When Hetzel was laid off Foreman Robl told him that it was due to slack business and that as business was picking up he would be recalled in a short time. Hetzel, as was customary for laid-off em- ployees, left his tools in the machine shop. He returned to the plant in January 1938 and talked with E. C. Leach, president of the re- spondent, concerning reinstatement. At that time three machinists with less seniority than Hetzel were working although the contract between the respondent and the Union provided for seniority in rehir- ing after a lay-off. The record does not disclose what conversation Hetzel had with Leach on that occasion but he was never recalled for work. Hetzel's tools were returned to him by order of Superintend- LEACH COMPANY 1185 ent Lisek on February 1, the day the respondent's contract with the Union expired. Foust and William Pfeil were the only machinists who had greater seniority than Hetzel. Hetzel was recognized by the supervisory force as being one of the most capable and experienced machinists in the shop. One of his duties was to inspect all work which was performed under Government contract. He also instructed new men as to the use of the machines in the shop and assisted them in learning their jobs. There were never any complaints about his work and during the latter part of August, or the first part of September, he was offered the fore- itianship of the machine shop by Superintendent Lisek. The respondent contends that Hetzel was discharged, although at the time he was laid off he was told that he would be recalled, because he would not cooperate with his foremen and because he refused to obey an order given him by Leach. In support of the contention that Hetzel would not cooperate with his foremen, Everett Gibson, who was foreman of the machine shop from about August 28 until about Octo- ber 13, testified that on one occasion he told Hetzel that he wanted him to inspect the first, casting that came off each machine on each order and that Hetzel replied that he did not have to take his (Gib- son's) orders. Hetzel testified that when Gibson told him to inspect the first casting on each order, he asked if Gibson had received those instructions from Lisek, the superintendent, but denied saying that he would not take Gibson's orders. Later he asked Lisek if he should inspect each casting and Lisek replied, "Absolutely not; that is what we have a foreman -for." This conversation was not denied by Lisek. Robl, who became foreman on October 15, testified that on a few occasions when he asked Hetzel to do something, Hetzel replied that he did not have time. It was not shown that Hetzel did have time to do the jobs Robl asked him to do. Hetzel testified that he never refused to take any orders from any of his foremen, but that on occasions when he was busy inspecting Government work and was told to do some- thing by the foremen he would tell them that he did not have time to do what they requested. E. C. Leach testified that in November 1937 he was informed that certain bearings which had been ordered from the United States Motors, another machine shop in Oshkosh, had been inspected and re- jected by Hetzel; that he questioned Hetzel about the bearings and was informed that none of them were any good ; that he told Hetzel to return them immediately to the United States Motors, but discovered 3 or 4 days later that Hetzel had not returned them ; and that when he questioned Hetzel again the latter replied that he did not have to send them back as they could not be fixed. Leach further testified that following his second conversation with Hetzel, he told Superintendent 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lisek that anybody who would not take orders should be fired. Lisek told him that they were up against it and to wait until a large contract they were working on was filled before firing Hetzel. Hetzel testified that when Leach first asked him about the bearings, he told him he had not finished inspecting them, but that most of the bearings he had looked at were defective; whereupon Leach told him to send them back. He further testified that later that day Lisek told him to be sure and inspect each bearing before it was returned. The following day, according to Hetzel, Leach demanded to know why he had not returned the bearings, and he told Leach that he had not com- pleted his inspection and that it would be useless to return the bear- ings as they could not be repaired . A few seconds after this conversation Lisek told him he would get the necessary order which would have to accompany the bearings when they were returned. Lisek did not get this order for about a week following this conversation. Louis J. Grammell , foreman of the United States Motors, who was present during the first conversation between Leach and Hetzel concerning the bearings, testified that he heard Hetzel state that ,all of the bearings were defective. He did not hear what Leach said at the time. We are convinced that Hetzel's action did not amount to insubordi- nation and at most only resulted from a misunderstanding as to his instructions. It later developed that the bearings could not be repaired, as originally contended by Hetzel, and much time would have been saved if new bearings had been ordered rather than an attempt made to repair them. In any event this incident was not the reason for Hetzel's discharge since he continued to work regu- larly until he was laid off on December 24, 1937. We are convinced that Hetzel was discharged because of his union activity. The respondent's defense of insubordination is clearly an afterthought , as demonstrated by the fact that Hetzel worked for at least a month after the occurrence concerning the bearings from the United States Motors, that at the time he was laid off he was told that he would be recalled, and that he had no knowledge that he was discharged until his tools were returned. We find that Hetzel's discharge was in furtherance of the respondent 's plan to rid its plant of all active union leaders and so destroy the Union before it could negotiate a new contract . As with the discharges of Foust and Curd, we find that the respondent did not notify Hetzel that ho was being discharged in December, but merely told him he was being laid off, in order to prevent him from submitting his discharge as a complaint to be handled under the provisions of the contract as set out above. We find that the respondent discharged Eugene Hetzel on Decem- ber 24, 1937, and has since refused to reinstate him, because of his LEACH COMPANY 1187 union membership and activities, thereby discouraging membership in the Union, and by such acts has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Hetzel has had some W. P. A. work since his discharge. He desires reinstatement. Leo C. Miller. Miller was employed as a machinist in November 1934. He was laid off about December 24, 1937, but was recalled a day or two later by Foreman Robl to assist in laying some flooring in another part of the plant. He was told at this time that he would be transferred to the machine shop as soon as work was avail- able and was so transferred in January 1938. Miller was again laid off by Robl on February 23, 1938. Miller joined the Union on May 6, 1937, and was active during the strike. Miller testified that on occasions he rode home with Foreman Robl. During the latter part of January or the first of February 1938 Rob] asked him if he still belonged to the Union, and when Miller replied that he did, Robl stated that he had belonged to a union once but received no benefit from it, and added, "You will find that out too, if you are in it long enough." He also asked Miller if he was still attending union meetings and after Miller replied that he was, Robl asked him what took place at such meetings. Miller answered that it was his own affair. Robl then made the statement, "1 will tell you for your own good that. you had better drop the Union and not go to any more union meetings." About a weer prior to February 23 Robl stated, "Leo, I will tell you, you had better drop the Union. You know Mr. Leach is opposed to union men." On February 7, 1938, Miller was elected news reporter by the Union. A few days later Rohl stated to Miller that he had heard he held an office in the Union. Robl denied telling Miller that he should get out of the Union. He also stated that he did not remember that Miller had been elected news reporter. He admitted that he told Miller his experiences with unions and that he told him, "I never got any benefits from it." He explained that these statements were made to Miller as fatherly advice. The Trial Examiner did not credit Robl's denials. He found that Robl made the statements attributed to him by Miller. We agree with the Trial Examiner and find that Robl made the statements to Miller recited above. Miller was one of the five employees who refused, during the latter part of January 1938, to sign the Frandsen petition, referred to above, which stated that the signers were not in favor of the hours of work established by the contract between the respondent and the Union. During the first week in February 1938 Lisek stated to Miller that the employees had agreed to work 50 hours a week rather 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than 45 hours as provided in the union contract which expired on February 1. Miller replied that he still preferred to work 45 hours, as provided by the contract . Lisek stated that there would not be any contract in the future and that if the men worked 50 hours the respondent would not have to hire any additional men. Miller stated that he would prefer to work 45 hours and let the respondent re- instate some of the men who had been discharged . Lisek answered that those men would not be back again . Soon after this the re- spondent posted a notice that the plant would operate 50 hours a week. Miller was laid off on February 23, 1938, together with F. Kircher, Robl telling him that work was slack, but that he would be recalled as soon as work was available . At the time Miller was laid off five other maebinists were retained who had less seniority . Follow- ing his lay-off Miller learned that Kircher, who was junior in service to him, had been recalled on February 24. On February 28 Miller returned to the plant and asked why Kircher had been recalled in preference to him and when he would be reinstated.' Robl replied that since his lay-off it had been discovered that he had spoiled five bucket arms and that Leach had stated that he could not be rein- stated. No reference had been made to the faulty work on the bucket arms at the time Miller was laid off, although the work had been performed a week prior to February 23. The respondent does not contend that Miller's faulty work was discovered after his lay-off and prior to the time Kircher was recalled. The bucket arms were salvaged, the labor cost being $8.33. About December 1, 1937, Miller bored a valve too large. The valve could not be salvaged . Miller was not disciplined for this action. The respondent also introduced certain of its records to show that Miller spoiled some brackets , which required a direct labor cost of $8.33 to salvage. It is not clear when Miller did the faulty work, but the error was discovered while Miller was still working. It does not appear that it was called to Miller's attention or that he was disciplined for it. Miller was a competent machinist . He had had 7 years' experi- ence before he was hired by the respondent. During the period of 3 years that he worked for the respondent the only complaint he received concerned his improper work on a valve , as mentioned above. Frederick O. Kile, the respondent 's superintendent for 7 years prior to the strike, testified that when he was superintendent he did not hear of any complaints concerning Miller. Superintendent Lisek told Miller, on the day he was laid off, that if he wanted a recommenda- tion he would give him the best one he could , "the best that he would ever give any man." Robl, when asked, "Did you have any diffi- LEACH COMPANY 1189 culty with Mr. Miller at all?" answered, "No, nothing that I can specify, not any more than the rest of them." Everett Gibson, ex- foreman of the machine shop, testified that Miller was not hard to get along with, that he liked to talk "a little bit more than was really necessary," but that he did his work "pretty well." On the basis of the entire record we find that the respondent dis- charged Leo C. Miller on February 27, 1938, and thereafter refused to reinstate him, because of his union membership and activity, thereby discouraging membership in the Union. We further find that by such acts, and by Robl's statements to him, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Miller has not secured any other regular employment. He desires reinstatement. William Beson. Beson was employed by the respondent as a welder in about June 1935. Prior to securing his employment he completed a course of instruction in welding given by the respondent's foremen. Beson worked as a welder until he was laid off on December 24, 1937. He was often complimented on his work by his foremen and received no complaints concerning it. Beson joined the Union in May of 1937 and was elected a member of the bargaining committee. He served in that capacity until after the strike was settled. When Beson was laid off he was told that he would be recalled as soon as his services were needed. He was never recalled although work was available. Superintendent Lisek testified that when welders were needed in about January 1938 he discussed the matter with Foreman Earl Chase and Chase stated that he would like to recall Beson in preference to any of the other welders who had been laid off. According to Lisek, after some discussion it developed that Otto Risto, a member of the Union with seniority equal to Beson, who had also been laid off on December 17, was a faster welder than Beson, and they decided to recall Risto rather than Beson. Thereafter, on July 22, 1938, a new welder, Bahr, was employed. Another employee, Zernzack, who had less seniority than Beson, was returned to the welding department during the summer of 1938. A welder by the name of Rainey, who had quit following a lay-off in 1936, was reemployed on August 4, 1938. The respondent contends that Beson was not recalled because his work was unsatisfactory. Beson and Otto Risto had done all the welding on refuse-getter bodies during the year of 1937. Approxi- mately 50 per cent of these bodies leaked when filled with water and had to be spot-welded to stop the leaks. In 1938 the welding process was changed and, although Foreman Chase claimed that under 283033-41-vol 22-76 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the new process it was more difficult to prevent the bodies from leaking, the number of leaking bodies decreased from approximately 50 per cent to approximately 3 or 4 per cent. Risto did all the welding on the refuse-getter bodies in 1938 and it is admitted that this is the most difficult welding which is done by the respondent. Superintendent Lisek concluded that Beson was responsible for the defective work in 1937. About November or December 1938 Beson saw Fred Frandsen, fore- man of the shipping department, who had prepared and circulated the petition in opposition to the Union, referred to above. Beson testified that Frandsen asked why he was "sore" and that he replied, "... if you hadn't run to Mr. Leach with a bunch of lies our fellows wouldn't be out of work, that we would all have jobs." According to Beson, Frandsen denied having done anything like that, but stated, "If you want your job back all you have to do is go back to Mr. Leach and he'll give you back your job if you will forget that union business." Beson testified that when he asked Frandsen what he knew about the matter and who gave him authority to make an offer of a job, Frand- sen replied, "I know what I'm talking about." Frandsen testified that he did not tell Beson he could have his job back if he would forget his union ideas. The Trial Examiner found that the conversation occurred as related by Beson. We affirm his finding. Although we find that Risto was a faster and better welder than Beson, and therefore better qualified to do the welding on the gar- bage-getter bodies, we think that the respondent's refusal to recall Beson when the ordinary type of welding was available and when other welders were hired in the summer of 1938 was part of its plan to eliminate the active members of the Union from among its em- ployees. We find no merit in the respondent's contention that Beson's work was unsatisfactory. We think that the satisfactory, nature of Beson's work, and the respondent's appraisal of it, is clearly demon- strated by Foreman Chase's request that Beson be the first man rehired. We find that the respondent refused to reinstate William Beson on July 22, 1938, because of his union membership and activities, thereby discouraging membership in the Union. We also find that by such conduct the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- 7 of the Act. Beson has not secured any regular employment. He desires reinstatement. Frank Klosterman, Jr. Klosterman was employed by the respond- ent as a welder on January 18, 1937, and continued to work in that capacity until he was laid off on December 24, 1937. He joined the Union in May 1937 and served on the By-Laws Committee. Follow- LEACH COMPANY 1191 ing his lay-off in December, he was elected to the bargaining committee. When Lisek laid off Klosterman he told him that the welders would, be recalled in a short time. Klosterman was never recalled. Foreman Chase testified that when the question of recalling the weld- ers came up he told Lisek he did not want Klosterman back. He testified that when Klosterman was employed he stated that he had had 3 years' experience as a welder. This was not denied by Kloster- man although he testified that at the time he was employed he had had no actual experience, as a welder but had completed a welding course. Chase testified that Klosterman was constantly bragging and telling everyone else in the shop how to perform their duties. He further testified that all the other foremen of the company were con- stantly kidding him about Klosterman and stating that "if he was working for them they wouldn't keep him for fifteen minutes." Although we find that Klosterman's work as a welder was satis- factory, we do not think that the refusal to recall him was caused by his union activities. Chase, who was a member of the Union until February 1938, was not attempting to discriminate against the union welders, as demonstrated by his request to recall Beson. We find that Klosterman was laid off and refused reinstatement for reasons other than his union activities. We shall dismiss the complaint as to him. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. THE REMEDY Since we have found that the respondent has engaged in certain un- fair labor practices, we shall order that it cease and desist therefrom. In order to effectuate the policies of the Act, and as a means of re- moving and avoiding the consequences of the respondent's unfair -labor practices, it is essential that in aid of our cease and desist order -the respondent be directed to take certain affirmative action, more particularly described below. We have found that the respondent discriminated against William Foust, Frank Curd, Henry Millard, Robert Millard, Eugene Hetzel, -Leo C. Miller, and William Beson, in regard to their hire and tenure -of employment. We shall order the respondent to offer to the above- 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD named individuals immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their sen- iority 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 normally would have earned as wages from the date of the respondent's discrimination against him to the date of the offer of reinstatement, less his net earnings 3 during said period. We have also found that the respondent has not discriminated against Clarence Frihart, Carl F. Dreyer, Earl E. Luker, and Frank C. Klosterman, Jr. We shall order that the 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 said individuals. 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. United Automobile Workers of America, Local No. 291, is a labor organization, within the meaning of Section 2 (5) of the Act_ 2. By discriminating in regard to the hire and tenure of employ- ment of William Foust, Frank Curd, Henry Millard, Robert Millard, Eugene Hetzel, Leo C. Miller, and William Beson, thereby discourag- ing membership in United Automobile Workers of America, Local No. 291, 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. 3 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 he deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State , county, municipal , or other government or governments which supplied the funds for said work -relief projects matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N L. R B . 219, enf'd, as modified as to other issues , Republic Steel Corporation v. N (C C A 3), ceit. denied 309 U. S 684 L R. B, 107 F. ( 2d) 472 LEACH COMPANY 1193 5. The respondent has not discriminated in regard to the hire and tenure of employment of Clarence Frihart, Carl F. Dreyer, Earl E. Luker, and Frank C. Klosterman, Jr., and has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, with regard to them. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the :respondent, Leach Company, Oshkosh, Wisconsin, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Automobile Workers of America, Local No. 291, or in any other labor organization of its -employees, by discharging, laying off, or refusing to reinstate any ,of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of -their employment; (b) In any other manner interfering with, restraining, or coercing -its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectiN ely through representatives of their own choosing, or to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to William Foust, Frank Curd, Henry Millard, Robert Millard, Eugene Hetzel, Leo C. Miller, and William Beson, and to -each of them, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority -and other rights and privileges; and make them whole for any loss of pay they may have suffered by reason of the respondent's discrimi- nation against them by payment to each of them of a sum of money equal to that which he would normally have earned as wages from the date of the respondent's discrimination against him to the date ,of the respondent's offer of reinstatement, less his net earnings 4 dur- ing said period; deducting, however, from the amount otherwise due him, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief proj- ects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government See footnote 3, supra 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or governments which supplied the funds for said work-relief projects; (b) Post immediately in conspicuous places at its plant, and main- tain for a period of at least sixty (60) consecutive days from the- date of posting, notices to its employees stating : (1) that the re- spondent will not engage in the conduct from which it is ordered to^ cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in para- graph 2 (a) of this Order; (3) that the respondent's employees are- free to become or remain members of United Automobile Workers of America, Local No. 291, and that the respondent will not dis- criminate against any employees because of membership or activity in that organization; (c) Notify the Regional Director for the Twelfth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges, with regard to Clarence Frihart, Carl F. Dreyer, Earl E. Luker, and Frank C. Klosterman, Jr., that. the respondent has engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act.