Auburn Foundry, Inc.

In the Matter of AUBURN FOUNDRY, INC., and LODGE 1998 OF AMAL- GAMATED ASSOCIATION OF IRON, STEEL, AND TIN WORKERS OF NORTH AMERICA, THROUGH THE STEEL WORKERS ORGANIZING COMMITTEE AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION Cases Nos. C-925 and R-810 ORDER VACATING AND SETTING ASIDE DECISION, ORDER AND DIRECTION OF ELECTION, SUPPLE- MENTAL DECISION AND AMENDED DIRECTION OF ELECTION, SECOND AMENDED DIRECTION OF ELEC- TION, AND THIRD AMENDED DIRECTION OF ELECTION August 20, 1940 The Board, on August 31, 1939, having issued a Decision, Order and Direction of Election; and on October 20, 1939, having issued a Supplemental Decision and Amended Direction of Election; and on November 16, 1939, having issued a Second Amended Direction of Election; and on December 15, 1939, having issued a Third Amended Direction of Election, and the Board having given due notice that on August 16, 1940, or as soon thereafter as might be convenient, unless sufficient cause to the contrary should then have appeared, it would vacate and set aside its Decision, Order and Direction of Election, issued August 31, 1939, Supplemental Decision and Amended Direction of Election, issued October 20, 1939, Second Amended Direction of Election, issued November 16, 1939, and Third Amend- ed Direction of Election, issued December 15, 1939, and no objections -having been filed with the Board, and the Board desiring to take further proceedings in this matter, IT IS HEREBY ORDERED that the said Decision, Order and Direction of Election, issued August 31, 1939, the said Supplemental Decision and Amended Direction of Election, issued October 20, 1939, Second Amended Direction of Election, issued November 16, 1939, and Third Amended Direction of Election, issued December 15, 1939, be, and they hereby are, vacated and set aside. 26 N. L. R. B., No. 93. 878 AUBURN FOUNDRY, INC. [SAME TITLE 879 Decided August 24, 1940 Jurisdiction : foundry industry. Unfair Labor Practices Interference, Restraint, and Coercion: espionage and surveillance; anti-union statements; distorted explanation of rights under the Act; threats of discharge; threats to cease operations. Company-Dominated Union : employer's participation in formation of suggesting formation of; solicitation of members-contribution of support to: furnish- ing meeting places and- bulletin boards-permitting employees to solicit members and circulate petitions in behalf of, on company time-indicia of domination: consummation of agreement after cursory negotiations. Discrimination: discharge and lay-off of employees because of union activities: charges as to discrimination against one employee, dismissed. Remedial Orders : reinstatement and back pay awarded; company-dominated union disestablished; contract abrogated. Practice and Procedure : petition for investigation and certification of repre- sentatives dismissed without prejudice because of lapse of time since date of filing. Mr. Herbert H. Shenkin, for the Board. Mr. Dan M. Link, of Auburn, Ind., for the respondent. Mr. W. W. Ketchum and Mr. W. D. Stump, of Auburn, Ind., for the Association. Mr. William Strong, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Lodge 1998 of Amalgamated Association of Iron, Steel and Tin Workers of North America, herein called the Amalgamated, the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated March 28, 1938, against Auburn Foundry, Inc., herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint alleged in substance that the respondent (1) dis- couraged membership in the Amalgamated by discharging Robert Livergood, and laying off Arthur Miller, employees of the respondent, for the reason that they joined and assisted the Amalgamated and engaged in concerted activities with other employees of the respond- 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent for purposes of collective bargaining and other mutual aid and protection; 1 (2) instigated the formation of the DeKalb Iron Workers Association, Inc., a labor organization, herein called the Association, fostered, promoted, and encouraged its growth, and dominated, sup- ported, and interfered with its administration; (3) refused to recog- nize and refused to bargain with the Amalgamated as the exclusive representative of the employees of the respondent within an appro- priate unit, although the majority of such employees had designated the Amalgamated as their bargaining agent; and, (4) by the foregoing acts and refusals and by other enumerated acts interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and upon the Amalgamated. The respond- ent filed an answer, admitting the allegations in the complaint as to the interstate aspects of its business, and denying all the allegations of unfair labor practices. Pursuant to notice, a hearing was held on April 7, 8, 11, 12, 13, 14, and 15, 1938, at Auburn, Indiana, before Martin Raphael, the Trial Examiner duly designated by the Board. At the beginning of the hearing, the Association moved to intervene. The motion was granted by the Trial Examiner. The Board, the Association, and"the respond- ent were represented by counsel and participated in the hearing. During the hearing all parties stipulated that the allegation in the complaint of refusal to bargain collectively should be dismissed with- out prejudice, and that, instead, the Amalgamated would file a peti- tion for investigation and certification of representatives. Accordingly, on April 8, 1938, the Amalgamated filed with the Regional Director a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of the, respondent, and re- questing,an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On April 16, 1938, the Board, acting pur- suant to Section 9 (c) of the Act and Article III, Sections 3 and 10 (c) (2) and Article II, Section 37 (b), of National Labor Relations Board rules and Regulations-Series 1, as amended, ordered an investigation and consolidation of the two cases' for purposes of hearing.' At the hearing, full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues, was afforded all parties. During the course of the hearing, the Trial Examiner, made a number of rulings on motions and objections to the I At the hearing, the complaint was amended ,to. include allegations pertaining to the respondent's refusal to reemploy Wayne Nichols, in violation of the provisions of the Act. 3 On May 2, 1938, a second order of consolidation and direction of investigation and hearing was issued by the Board , ordering that the consolidation be made nunc pro tune as of April 11, 1938, and that one record of the hearing be made. The parties stipulated that this order , together with the stipulation, be admitted as part of the record herein. AUBURN FOUNDRY INC. 881 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 21, 1938, the Trial Examiner issued his Intermediate Report, wherein he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section'2 (6) and (7) of the Act. He recommended that the respondent cease and desist from its unfair labor practices; disestablish and withdraw recognition from the Association; cease giving effect to its contract with the Association; and offer reinstatement with back pay to Robert Livergood and Arthur Miller. He found further that the respondent, had not engaged in unfair labor practices by refusing to reemploy Wayne Nichols, and recommended the' dismissal of-the complaint in that regard. On October 15, 1938, the respondent and the Association•filed exceptions to the Intermediate Report, together with briefs in support of their exceptions, and requested oral argument before the Board. Pursuant to notice duly served upon the parties, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on March 28, 1939. The respondent and the Association were represented by counsel and participated in the argument. On August 31, 1939, the Board issued its Decision, Order and Direction of Election 3 in this proceeding. On October 20, 1939, the Board issued a Supplemental Decision and Amended Direction of Election,' on November 16, 1939, a Second Amended Direction of Election,' and on December 15, 1939, a Third Amended Direction of Election.' On August 20,,1940, pursuant to notice, the Board issued an Order Vacating and Setting Aside Decision, Order and Direction of Election, Supplemental Decision and Amended Direction of Elec- tion, Second Amended Direction of Election, and Third Amended Direction of Election. The Board has considered the respondent's and, the Association's exceptions to the Intermediate Report and the arguments in support thereof, and, in so far as the exceptions are inconsistent with the findings, conclusions, and order below' set forth, finds them to be without merit. Upon the entire record in the case, the Board makes the following:' FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Auburn Foundry, Inc., is an, Indiana corporation engaged at its principal office and plant at Auburn, Indiana, in the general foundry '14 N. L. R. B. 1219. 16 N. L. R B. 205 17 N. L. R. B. 756 • '18N.L. R.B.323. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business and in the manufacture, sale, and distribution of coal stokers and gray iron castings. During the summer of 1937, it operated an additional plant at Columbia City, Indiana. In 1937 the respondent secured raw material of the value of $309,000, constituting about 67 per cent of all the raw material used by it, from points outside Indiana. During the same year, the respondent sold and distributed to points outside Indiana about $548,000 worth of finished products, constitut- ing more than 51 per cent of its total production. II. THE ORGANIZATIONS INVOLVED Lodge 1998 of Amalgamated Association of Iron, Steel, and Tin Workers of North America, is a labor organization, affiliated through the Steel Workers Organizing Committee, herein called S. W. O. C., a labor organization, with the Committee for Industrial Organization,' herein called the C. I. O. It admits to membership production and maintenance employees of the respondent, excluding clerical and supervisory employees, timekeepers, draftsmen, truck drivers, and watchmen. . DeKalb Iron Workers Association, Inc., is an unaffiliated labor organization, incorporated under the laws of Indiana, admitting to membership all employees of the respondent, except clerical and supervisory employees. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint and coercion In June 1937 the Amalgamated began organizing at the plant of the respondent. At the outset, the Amalgamated had difficulty 'in securing premises in Auburn, Indiana, in which to hold its meetings, its members being informed by persons from whom they desired to rent space that they would not rent to the C. I. O. Meetings of, the Amalgamated were therefore held, until August 26, 1937, in the nearby town of Garrett,* Indiana, at which time the Amalgamated finally succeeded in securing quarters at Auburn. The fact that these meet- ings were being held, as well as the fact that the meetings were being attended by "some of our boys," 8 was known to the respondent in July 1937. The respondent, through its officers and other supervisory officials, engaged in anti-union activity which impeded the efforts of the Amal- gamated to increase its membership. In June 1937 members of the Amalgamated distributed copies of the '"Steel Worker," a newspaper published by the S. W. O. C., among the respondent's employees. Arthur E. Miller, an employee, 7 Now called the Congress of Industrial Organizations. 8 Foreman Roy Hampshire was in Garrett several times and saw the respondentt's employees going to these meetings. AUBURN FOUNDRY, INC. 883 , testified that at about this time, Burr Oswald Fink, president of the respondent, held a meeting of a group of employees in his office, at which meeting Fink stated that he did not like the distribution of the "Steel Worker" and that he would ""board up his doors" if he had to deal with the C. I. O. Fink, testifying, did not recall this meeting and denied having made the statement that he would close the plant. During the summer of 1937 some of the respondent's employees filed with the Indiana State Division of Labor, charges of anti-union threats made by the respondent's officials. Herman A. Brunka, an investigator of the Indiana State Division of Labor, assigned to invest tigate these charges, visited the respondent's plant in September 1937 and held conferences with various officials. Brunka made notes at these conferences, from which he thereafter prepared typewritten official reports. At the hearing herein Brunka used these reports to refresh his recollection as to what occurred at the conferences. Brunka testified thatlon September 14, 1937, Fink stated that the respondent would not operate its plant "under the C. I. O." Fink testified that he was "sure" he did not say that he "would not," and testified that he' did not think he said "could not," and then testified that he did not remember. In connection with other similar testimony as to other such statements by Fink, Fink subsequently testified that he never made "a blunt statement" that he would close his plant, but that he did make statements to the effect that he would rather not deal with the C. I. 0., and testified also that he always felt it would be better to close the plant rather than deal with "outsiders." We find, as did the Trial Examiner, that Fink made the statements attributed to him substantially as set forth above. Fink admitted at the hearing that he had obtained a bulletin prepared by the National Association of Manufacturers, entitled "A Message to Employees . . . Facts About the Wagner Act," and that he caused it to be copied and distributed the copies to the respondent's employees, possibly in their pay envelopes. This was the only written information about the Act disseminated by Fink. The emphasis of this bulletin upon what the provisions of the Act do not purport to do rather than upon the positive principles and the rights which the Act establishes, serves to distort its true significance and to mislead readers of the bulletin with respect to employees' rights under the Act. We have already said that the 'distribution of such literature constitutes a violation of Section 8 (1) of the Act.' We so find in this instance, also. 'Other of the respondent's officers and foremen also indicated to the employees the respondent's hostility toward the • Amalgamated . According to Robert Livergood, W. C. Rowan, superintendent of the Auburn plant until his death in January 1938, stated to him in 9 See Matter of Mansfield Mills, Inc. and Textile Workers Organizing Committee, 3 N. L. R. B. 801. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 1937 that the C. I. O. was "a bunch of Communists" and would take money from the employees and do nothing for them. The hearing herein was held after Rowan's death. We credit Livergood's testimony. Emery McDaniel, an employee, testified that in the latter part of 1936 Rowan and Foreman Hampshire had both stated that they would not desire to remain in the plant if a union were successful in establishing itself there. Livergood testified that in July 1937 Hampshire stated to him and to other employees, all of whom were talking among themselves, in a group, that the C. I. O. "was a bunch of Communists and thugs; just, racketeers in general ...," and also testified that Hampshire made similar statements. on other occasions. Benjamin Jones, an employee, testified that during the summer of 1937 Hampshire, during a conversation between them, had stated that the C. I. O. was "a bunch of reds," and that any employee joining it would lose his job with the respondent. Arthur Miller, an employee,, testi- fied that in August 1937 Hampshire told him that all the members of the C. I. O. at, the plant soon would be "looking for a new job." Wayne Nichols, a former employee, testified that in August 1937, while he was still in the employ of the-respondent, Hampshire stated to him that anyone favoring any union would not hold his job for 15 minutes. Hampshire. admitted saying that labor organizations cause more trouble than they do good, and admitted making other remarks derogatory to the C. I. O., but denied ever having said that he would not want to continue to work for the respondent if a union were successful in establishing, itself at the plant. He also testified that it is his opinion that "the C. I. O. are a bunch of radicals and reds and that they are not a good labor organization," but that the only time he,voiced his opinion regarding unions at the plant was when he spoke to Jones. Hampshire denied making the threats of discharge of those joining the C. I. O. Upon the entire record we find that Hampshire made the statements attributed to him by Livergood, McDaniel, Jones, Miller, and Nichols. , According to Brunka, at a meeting held in September 1937 attended by him and representatives of the respondent, Don Bushong, a foreman, was charged with having discriminated against some em- ployees in the distribution of work and by, reduction of their rates of pay,10 after having threatened to discharge them if they joined the C. I. O. Brunka testified that Bushong stated that he had reduced the pay rates of the, persons in question because they had been "too active in the C. I. O. movement." Albert White, one of the employees involved, testified that in about August 1937, Bushong had stated to him that he would lose his job if he "joined the C. I. 0." Lloyd White, Albert's brother, testified that in August 1937 Bushong had told him why he "should not join the C.I. 0., and what the C. I. O. was doing 10 The White brothers had been removed from a job at which they were paid on a piece-work basis and placed upon a lower paying job. AUBURN FOUNDRY, INC. 885 in Michigan"; that Bushong was thereby ". . . trying to keep me from signing for the C. I. 0."; and that Bushong had told him that he, Bushong, had authority to discharge anyone joining the C. I. 0., and had said that if White did so he would be out "weeding onions" at one dollar a day. Otho Greenfield, an employee, testified that in August or September 1937, Bushong stated to him that he had authority to discharge "anyone belonging to the C. I. 0." . At that time Greenfield was wearing a "C. I. 0. badge." Bushong testified at the hearing that the Whites were removed from their piece-work jobs because the work was only temporary and had come to an end, denied the various statements and threats attributed to him by the Whites and by Brunka, and testified that he was not given an opportunity at the conference related to deny the accusations made against him. Bushong testified that Greenfield spent too much time in talking to other employees and that he, Bushong, had cautioned him regarding this, but had not said anything about unions or the. C. I. 0. button. On the entire record we concur with the Trial Exam- iner in finding that Bushong made the statements attributed to him by the Whites, Greenfield, and Brunka. Sheldon Platter, an employee, testified without contradiction, and we find, that Foremen Hampshire and Harry Hansel watched him constantly after he joined the Amalgamated. Platter testified further that George Siegel, another foreman, warned him that "they" were watching his activities and work, and that he should "lay low." Siegel admitted that on two occasions he had told Platter that he was being watched, and further testified that this had been done because Platter talked to other employees during working hours. At this time Platter was engaged in various union activities for the Amalgamated, generally during his lunch hour, and, while he also -spoke to some employees during working hours, he did so without discontinuing the performance of his duties. At about this time Hinsey, Rank, Cruse, and other employees, were similarly engaged during working hours, in talking and soliciting members on behalf of the Association, without interference, surveillance, or objection by the respondent.10a We find that the respondent's surveillance of Platter's activities was due to the fact that they were on behalf of the Amalgamated and not due to the fact that they occurred during working hours. Nichols testified that in 1937 Foreman Siegel said that, upon instruction of Hampshire, he could not talk to Nichols because the latter was a member of "the C. I. 0." Siegel testified that he might have said "I darsn't talk to you. You are a C. I. 0.," but claims that it was said only as a joke. By his failure to deny and his evasive replies, however, Siegel in effect admitted that Nichols did not appear 10- Siegal noticed Hinsey's activities, but said nothing to him. 323429--42-vol. 26-57 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to consider this remark as a joke, and that the conversation was not accompanied by any smiles or laughter. While Siegel denied that he had informed Nichols that Hampshire had instructed him not to speak to Nichols, he admitted having discussed unions with Hamp- shire, and testified that he had been told "to keep out of" the union activities at the plant, and that he did so, "only just maybe kidding once in awhile, that's all." We credit Nichols' version of the incident. We find that by the foregoing acts and statements of its super- visory personnel the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The organization of the Association The Association had its inception on or about August 10, 1937, when, as James Kester, Elza Shull, and Arvin Snyder testified, they decided, after working hours, to organize an independent union. Sometime that day, the sequence of events not being clear, these employees approached Mefford, the foundry manager, because, in the words of Snyder, "We wanted to know if he knew about the for- mation of the independent union." Mefford replied that he had nothing to do with it, and that he "didn't dare" say anything. On August 10 Clifford Hart, then assistant superintendent of the plant, asked Ray Antrup, an employee of the respondent for almost 10 years, what he thought of the C. I. O. and what he thought of the advisability of forming an unaffiliated union. Antrup replied that he would be "in favor of just a shop committee to go before the foreman" with complaints, to' which Hart suggested, "how about noising that around over the shop?" At the hearing, Hart could not recall the exact date of this conversation, and denied that he had attempted to influence Antrup thereby." We believe and find that Hart in- tended to and attempted to influence Antrup to advocate an inside union. On the following morning, August 11, Employees Mavis, Zook, and Hinsey, circulated a petition bearing the heading "We, the undersigned, are in favor of a shop union," among the employees at the plant." Mavis does not recall the exact date when the petition, prepared by his wife at his request, had been prepared. The petition, in evidence, bears the date "8/10-37." 13 On August 11, also, Asso- 11 Fink also denied that he had suggested to any of the employees that they form an "inside union, although he "would not say" that he did not have the idea of forming one and he "would not say" that he never mentioned such an idea to any of the foremen ii Dammann testified that Hinsey circulated this petition Hinsey denied circulating it. 13 While other witnesses testified, as we have shown, that they decided to form an independent union in the afternoon of August 10, after working hours, Mavis testified that these employees later asked him how he "would feel about an independent order " and that he asked his wife to prepare the petition in evidence one morning some time thereafter at about 6 30 a m. The petition bears the date August 10, 1937, and, it was testified, was circulated at the plant on August 11. Mavis says the petition was circulated on August 10. AUBURN FOUNDRY, INC. 887 ciation membership application cards, prepared at the direction and expense of Shull, were distributed at the plant. All this activity was conducted openly during working hours, with knowledge of the foreman that it was taking place. The respondent did not object to the circulation of the petition or the distribution of the Association's membership cards. According to Livergood, on August 11, 1937, Rowan stated to him that he felt that Livergood was on the "wrong side of the fence" and that the "A. F. of L. was just as bad as the C. I. O. . . ." and informed him that a "shop union" was being organized at the plant. We credit Livergood's testimony in this respect. In the evening of August 11 the Association held a meeting of the respondent's employees at the Owl's Club in Auburn. Notice of this meeting was passed by word of mouth. Shull also had a "faint recollection" that a written notice of the meeting was posted in the plant.14 A vote taken at this meeting among the employees present revealed that 57 favored the Association and 25 did not. A very active organizational campaign was conducted by the Association among the respondent's employees from August 11 until September 1, 1937. Discussion and solicitation of members was carried on during working hours by Hinsey, Mavis, Rank, Cruse, Haynes, and other employees, without interference by the respond- ent's officials or foreman, and without deduction by the respondent of pay for the time so spent. Those engaged in these activities on behalf of the Association were afforded the greatest latitude by the respondent. Hinsey repairs and experiments on stokers, and is stationed in the stoker division. Although Hinsey had few duties in the foundry, he was there almost constantly during the organiza- tional campaign of the Association, soliciting memberships for it. In contrast to the freedom which the respondent accorded employees active on behalf of the Association, the respondent was hostile toward the Amalgamated. Thus, as we have shown, Fink threatened to close the plant rather than deal with the C. I. 0., and other of the respond- ent's supervisory officials made various remarks derogatory to the Amalgamated, threatened its members with discharge and other forms of discrimination for their activities on behalf of the Amalga- mated, and, in some instances, actually carried out the threatened actions.11 The respondent also in other ways indicated its hostility toward the Amalgamated and its preference for the Association. During this period, Albert White testified, Bushong said to him, "I gave you a job and I think you ought to sign with the shop union," and stated to him that "the people that joined the C. I. O. would lose their jobs." 14 Dammann saw three notices of Association meetings posted in the respondent 's plant during August, 1937. 15 As is shown later, these included the discharge of two employees. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lloyd White testified that Bushong said to him that those who joined the Association would receive a 5-cent raise.1° Bushong denied making these statements, but admitted that "we might have possibly talked about" unionism. Brunka testified that at the meeting in Fink's office, previously mentioned, he had confronted Bushong with the accusation that Bushong had been "soliciting or helping" the Association, and that Bushong had said "that there had been a certain amount of that being done and of course, he didn't know the law." According to Brunka, Bushong admitted that he was present during solicitation by others on behalf of the Association. Bushong testified that he had not been afforded an opportunity at this con- ference to deny the accusations. Marion Warner, an employee, called as a witness by the Association, testified on cross-examination by the Board's counsel that Bushong had spoken against the C. I. O. and in favor of the Association on several occasions. Bushong denied this at the hearing. On the entire record we find that Bushong made the statements attributed to him by the- White brothers, Brunka, and Warner, and that he knowingly permitted Association activity during working hours, and actively assisted it. According to Clarence Sherwood, in August 1937 Clarence Meyers, foreman of the 4:30 p. m. to 1:30 a. m. shift in the foundry, asked John Sherwood, an employee, to induce other employees to join the Associa- tion, which he called the "shop union," and told Clarence Sherwood; who overheard the conversation, not to mention it to anyone. Meyers denied the conversation. We credit Sherwood. , Charles Haifley, a witness called by the respondent, testified on direct examination that Association membership cards were dis- tributed in the plant during working hours, in the presence of Foreman Hansel. Sheldon Platter and Clyde Eston Rohm, employees, testified that Hansel solicited on behalf of the Association in August 1937, while Brunka testified that employees present at one of the conferences we have related, had stated that Hansel had requested them to join the Association." Hansel denied all this. We credit Haifley, Platter, Rohm, and Brunka. At the Columbia City plant Carl Corello, the foreman in charge, facil- itated Hinsey's activities on behalf of the Association by extending to him the use of Corello's office for the purpose of holding a meeting of employees and by permitting the distribution of Association member- ship cards at the plant. The respondent does not usually permit its employees to use its office. Corello "had an idea" that Hinsey's meeting was in the interests of the Association. Corello attempted to justify Hinsey's 11 All the employees received a raise subsequent to this alleged statement. I' Fink testified that shortly prior to the hearing herein the Association complained to him that Hansel was "being partial to C. I. 0. employees." Hinsey, one of the complainants, testified that one of the griev- ances concerning the partiality of Hansel was with respect to Hansel's refusal to lay off C. I. 0. members before he laid off Association members. AUBURN FOUNDRY, INC. 889 use of it by stating that a few days prior to Hinsey's meeting, Liver- good had spoken to some of the employees about the C. I. 0., "and I was giving them both an even shake." 18 Corello had read the Act and knew that it was necessary for him "to stay neutral." On September 1 or 2, 1937,19 a committee of the Amalgamated came to Fink's office, and asked Mrs. Rhoedefer, the stenographer who met them for an interview with Fink, stating, according to Nichols, that it was to be for purpose of collective bargaining. Mrs. Rhoedefer denied at the hearing that the committee informed her of the purpose of its visit. We find that she was so informed. Mrs. Rhoedefer stated to Nichols that Fink was out of town-"he went to Fort Wayne." She testified that "a day or so later" she informed Fink of the committee's visit. Fink testified that he did not receive this information for several days and that he was then informed merely that Nichols wanted to see him, without being told Nichols' purpose. Fink, as we will show later, was in town on September 1 and 2, 1937. Shortly prior to September 1, 1937, Hinsey and a committee of the Association had prepared a contract between the respondent and the Association. On the morning of September 1, Hinsey left this pro- posed contract in Fink's office. A few hours later Fink called Hinsey into his office, asked a few questions, and received membership cards in proof of the Association's claim that it represented a majority of the respondent's employees. Fink claims that he then checked the cards against the respondent's pay roll, and found that the majority of the respondent's employees had designated the Association as their collective bargaining agent. A number of the cards were signed on the back instead of the face of the card. Some of the employees testified that upon refusing to sign Association membership cards they were told to sign the back of the card to indicate that they had been requested to join. Fink credited to the Association all the cards shown him. That evening Fink and a committee of the Association met at Hinsey's home. The terms of the contract were agreed upon at this meeting, and the contract was typed and executed on the following day.20 This contract, among other things, recognizes the Association as the sole collective bargaining agent of the respondent's employees. The respondent thereafter posted notices at its plants announcing the consummation of this contract. After the contract had been executed, Association representatives ie Corrello relates that one of the employees had informed him that Livergood "was around here trying to scare us into believing that we had to join the union in order to work here." Corrello informed the employee that this was not true. lY The record does not clearly indicate the date, but Nichols described it as "the day before they signed the company union contract." m Fink had read agreements which other employees had with labor organizations . This occurred during August 1937 "when I was making it my business to find out." 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continued to solicit members, collect dues, and engage in other union activities at the plant during working hours. Bertram McNamara, field representative of the S. W. 0. C., met with Fink on about September 17, 1937. Present also were Frank Griber, field representative of the S. W. 0. C., and another representa- tive of the respondent. McNamara informed Fink that the Amalgam- ated represented a majority of the respondent's production and main- tenance employees and desired to bargain collectively with the respondent. McNamara suggested that a consent election be held at the plant to prove the Amalgamated's claims as to representation. McNamara testified that Fink informed him, in effect, that "he didn't know whether he would deal with us," that he would not agree to a consent election, and that "the Board could not force him to deal with us"; questioned the ability of the Amalgamated and of its bargaining committee adequately to represent the respondent's employees; stated that he, Fink, "would go out of business before he would deal with us-over his dead body was the way he expressed it"; and said that he did not like "our organization,"-the Amalgamated. At the hearing Fink could not recall having made the statements related by McNamara. In regard to a statement which he was said to have made to the effect that he would rather not deal with the C. I. 0., Fink testified that he had "made statements, of course, that I would rather not deal with anybody on the outside of our organization or any- thing, and have held pretty much to that. I feel that we are sufficient within ourselves to run our business. Yes, I probably have made statements of that kind." We credit McNamara's testimony and find that Fink made the statements attributed to him. At the hearing several witnesses testified, in substance, that they joined the Association because they had been coerced and intimidated into so doing." We find that the respondent dominated and interfered with the formation and administration of the DeKalb Iron Workers Association and contributed financial and other support to it, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. We find further that the Associa- tion is incapable of serving the respondent's employees as their genuine representative for the purposes of collective bargaining. C. The discriminatory discharges 1. Robert Livergood The complaint alleges that the respondent discriminatorily dis- charged Robert Livergood on August 4, 1937, because of his activities on behalf of the Amalgamated in the respondent's plant. The n Two of these witnesses had been called to testify by the Association in its effort to show the voluntary action of its members in joining it. AUBURN FOUNDRY, INC. 891 respondent, in its answer, denies that Livergood was discharged, and claims that he voluntarily left its employ. During the hearing the correct date of the termination of Livergood's employment was shown to be August 21, 1937. Livergood was employed by the respondent as a molder's helper in May 1936 at an hourly wage of 35 cents.22 He continued as a molder's helper for about 4 weeks, and was then placed to work at a "squeezer" machine, with compensation at the rate of 55 cents an hour. Shortly thereafter Livergood left the respondent's employ, but soon returned and was reassigned to the "squeezer." Six or eight weeks after Livergood's return, Rowan assigned him to work as a member of a group of four. Livergood's earnings increased still further at this job, and by June 1937 they averaged about $31, and sometimes reached $40 a week. During the summer of 1937 the respondent found it necessary to lease an additional plant at Columbia City, Indiana. Rowan selected 18 or 20 employees for transfer to Columbia City, primarily to ac- quaint the newer employees with the methods of work. Livergood was among those requested to go to Columbia City. The transfer was temporary, and Livergood and the others were informed that they were to return to Auburn as soon as their tasks at Columbia City had ended. In July 1937 Livergood joined the Amalgamated and was very active on its behalf. This fact, according to Livergood, was known throughout the plant. Carl Corrello, foreman at Columbia City, and Rowan both knew that activities on behalf of the Amalgamated were being carried on both at Auburn and at Columbia City, and knew that the Association was being organized . Corrello testified that "everything was more or less in a labor upheaval at that particular time." In reply to the question whether he knew that Livergood was one of the active "talkers about the union," Corrello replied, "I knew Mr. Livergood talked too much at the shop. What he was talking about I did not know." 23 Corrello noticed this activity on the part of Livergood on six or eight occasions during the 2 weeks preceding Livergood's discharge. As we have related,24 on August 11, 1937, Livergood was called into Rowan's office. Rowan then stated to Livergood his displeasure at Livergood's union activity, told Livergood he was "on the wrong side of the fence," urged upon him the advisability of joining "the shop union," stated that he, Rowan, knew that Livergood was a member of the C. I. 0., and stated, in the words of Livergood, that if he, Livergood, would "string v Approximately $20 a week. 33 Corrello also testified that shortly after his arrival at the Columbia City plant he decided that Liver. good was not a "machine man ." Corrello based his conclusion in part upon Livergood' s "talking.,' 24 See Section III A, supra. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD along with them" he would "be sure of his job." Livergood promised to think the matter over. Thereafter Livergood continued to be as active on behalf of the Amalgamated as he had been theretofore. We find that Rowan and Corrello knew that Livergood was an active member of the Amalgamated. At Columbia City Livergood worked as a member of a group of four persons engaged in the production of Tokheim bases. This was the work which Livergood had performed at Auburn. During the week of August 9 the group in which Livergood worked was reduced to three men, Livergood, Smurr, and Bazzinet. Corrello testified that on about August 21 Smurr complained to him regarding Livergood's work. Corrello then approached Livergood. According to Corrello he asked Livergood whether he would like to take another job in the plant and Livergood refused, using profane language. Corrello claims that the job he offered to Livergood was that of "second to the operator" on the Wayne base, and that by working diligently, Livergood could have earned more money on this job than on the Tokheim base job. Livergood's pay was to be 1 cent less for each unit produced than that of the other employees on the Wayne base job, all of whom were new men. Livergood testified that Corrello asked him whether he would like to "go bucking," 28 a posi- tion inferior to the one then held by Livergood. We find that this job offered to Livergood constituted a demotion. Corrello testified also that he told Livergood either to accept the new job or go "out the front gate," and that Livergood replied that he would return to Auburn. Livergood testified that he replied in the negative to Corrello's suggestion, but did not actually refuse the job offered him, and did not understand that he was being instructed to take it. According to Livergood, Corrello then said that "maybe it would be best if you went back to Auburn," and did not say any- thing to him about the quality of his work. By this date a number of the employees who had been transferred from Auburn to Columbia City had returned to Auburn. Livergood testified that he was anxious to return to Auburn because of his family,26 and that he understood Corrello's statement to him to mean that it was now his, Livergood's, turn to return to Auburn. The Auburn plant was closed on the following day, a Saturday. On Monday, August 23, Livergood returned to Auburn, but was informed that there was no opening there for him. On August 24 he was again advised by Hampshire that there was no opening. Hampshire also stated, according to Livergood, that Corrello had no authority to order Livergood's return to the Auburn plant. Upon Hampshire's to A buck is a helper. This was the work which Livergood had performed when he was first employed by the respondent. Other witnesses testified that bucking constituted a demotion from the work Liver- good had been doing, carrying a lower rate of pay. sa Livergood resided near Auburn, which is about 40 miles from Columbia City. AUBURN FOUNDRY, INC. 893 suggestion, Livergood waited for Rowan , but the latter did not appear at the plant that day . On August 25 Livergood again returned to the Auburn plant, but "there wasn't nothing." He then complained to McNamara, who on that day or shortly thereafter discussed the situation with Fink , but without avail. The respondent contends that Livergood was an unsatisfactory employee, that his coworker, Smurr, was dissatisfied with Livergood's work and had complained about it, and that Livergood was offered another better job at Columbia City but refused to accept and left the respondent's employ. Livergood's group at Columbia City originally had been required to produce 130 molds each day , for which it received compensation at the piece-work rate of $19 .18 a hundred molds. The pay of each em- ployee in the group depended upon the total number of molds which he helped produce. The entire Tokheim base operation required the use of two machines. Originally Livergood and Smurr operated one machine, and the other two employees in the group operated the other. During the week of August 9, after the group had been reduced to three men comprising Livergood, Smurr, and Bazzinet, their re- quired production was reduced to 80 molds a day. Bazzinet was a new employee, and therefore he and Smurr operated the "cope" machine, while Livergood alone operated the "drag" machine. Nor- mally two men are required to operate the drag machine. On some days the three men changed their positions , and Smurr operated the "drag" machine , while Livergood and Bazzinet operated the "cope" machine. Smurr was absent from work on August 12. Livergood and Bazzi- net, assisted by two other employees, who did not share in the pay, produced 65 molds. Livergood and Bazzinet shared equal credit and pay. On the following day Livergood was absent from work, and Smurr, Bazzinet , and a third employee, Cramer, produced 80 molds, for which the three shared in pay. Thus Livergood was to be paid for about five molds more than Smurr. Subsequently, on about August 20 or 21, when the pay for this period was distributed, Smurr became dissatisfied with the fact that his earnings for that week were lower than those of Livergood and Bazzinet. Smurr did not know exactly how many molds were credited to each person for that week, testifying, "it was just told around the plant there in conversation" that on the day he, Smurr, worked, more molds were produced than on the day Livergood worked. Smurr was also dissatisfied with the fact that the group was limited to 80 molds a day. Smurr discussed the matter with Rowan and requested retransfer to Auburn. He told Rowan that his group "has some difficulty" in producing 80 molds daily, and that "we didn't make a satisfactory 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount of money." 27 When asked at the hearing, "Did you tell him what you thought the cause of it was, who was responsible?" Smurr replied, "Not that I remember of at the time." He stated that he did not complain to Rowan about Livergood's work. Smurr testified as follows respecting his conversation with Rowan: He [Rowan] wanted to know what the trouble was and I told him that we couldn't get the drags fast enough, and he wanted to know about Bob, about his work, and I told him the same as I told [testified] a little while ago that I didn't know whether Bob couldn't do it or didn't want to do it. Smurr asked Rowan whether it would be possible to have two men instead of three on the Tokheim base job. Rowan asked Smurr which of the other two employees he desired to have work with him. Smurr did not make a selection, but said that he would "try it with either one of them." Rowan told Smurr that he would discuss the matter with Corrello. Smurr then returned to the plant and suggested to Livergood that they work together, each operating one of the Wo macbines.'8 Corrello testified that shortly after the conversation between Rowan and Smurr, Rowan stated to him that "the boys are not exactly satisfied," and that Livergood "hadn't been holding up his end of it very well since he went to Columbia City," and had told him to "go ahead and take care of it any way you see fit." Corrello also testified that he suggested to Rowan that Livergood be placed at a "squeezer," and that Rowan had replied that Livergood was "no good as a squeezer molder." Corrello, claims that he then stated to Rowan that "personally, he [Livergood] is not satisfactory where he is at as a machine operator," 29 to which, Rowan in turn replied that he, Rowan, had not been able "to find a place yet" in which Livergood "was satisfactory." Hart also testified regarding Livergood's work at Auburn. He knew about it only by way of hearsay. Regarding Livergood Hart testified that "as to being an efficient man on the squeezer, I would say no." No one had complained to Hart about Livergood's work. Hart's conclusion that Livergood was inefficient was based upon Hart's knowledge of the number of molds produced by Livergood on the squeezer machine as reflected by Livergood's pay. Hart saw a pay roll "not so very long ago," and noticed that Livergood's pay was only $2.44 for a day and one-half work on the "squeezer." Hart ad- mitted that at that particular machine it was difficult to produce good 27 On August 11 the group produced 80 molds. On August 12 (when Smurr was out) 65 molds, on August 13, 80 molds , on August 16, 90 molds , on August 17, 80 molds ; on August 18, 80 molds , on August 19, 75 molds; on August 20, 80 molds. 28 Smurr and Livergood had worked together as members of a group at Auburn. 29 Corrello once offered Livergood a job at a "squeezer" machine at which Livergood would have worked alone. AUBURN FOUNDRY, INC. 895 castings and that as a result not only Livergood but also older em- ployees were "liable not to make too much money out of it." When confronted at the hearing with the fact that Livergood's earnings were between $25 and $35 a week, and sometimes were as high as $40 a week, and asked whether this was the average or better than the average earning at the plant, Hart's retort was, "He makes that much?" Hart later in effect admitted that the average earnings at the plant were not as high as Livergood's. We are not convinced that Rowan had been dissatisfied with Liver- good's work. Aside from the statements which Corrello claims were made by Rowan, all the evidence as to Livergood's work at Auburn as well as at Columbia City indicates that he was a satisfactory worker, and was so regarded by the respondent. His rapid rise in earnings and his selection by Rowan for the Columbia City tasks are in direct contradiction to Corrello's assertions. We do not believe Corrello's testimony as to the statements made to him by Rowan. Shortly after the conversation between Corrello and Rowan Corrello approached Smurr and, according to Corrello, the following occurred: I went out to Mr. Smurr and I asked him what the trouble was. I couldn't get any satisfaction out of him. He wouldn't tell me. I said, "your dissatisfaction, I know where it is, I think." I said, "your dissatisfaction is with the production or the work that Livergood is putting out." "Yes," he said "that was it" so I asked him what change would be most satisfactory to the floor for the best benefit of the floor, and he declined to answer that . . . Smurr testified that he did not complain to Corrello regarding Livergood. Here again, as in Smurr's conversation with Rowan, Livergood's name was brought into the conversation by the respond- ent's official, not by Smurr. Thereafter Corrello approached Livergood and, as we have related, suggested that he work on another job. At the hearing the respondent elicited further testimony from Smurr, intended to prove that he had been dissatisfied with Livergood. Smurr's feelings and reactions have relevancy in this proceeding only in so far as they may tend to support the respondent's contention that Livergood was an unsatisfactory worker, that Smurr actually complained regarding Livergood's work, and that the respondent's officials acted as they did toward Livergood either because of Smurr's complaints or because of Livergood's unsatisfactory work, or both. The record establishes to our satisfaction that Smurr was not in fact dissatisfied with Livergood's work and had not complained about Livergood. Thus, the record reveals that Smurr had worked with Livergood in a team in Auburn, and described Livergood as being "as good a fellow to work as I worked with on that job," and that 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "he was just as good a fellow as I ever had work with me." When questioned whether the quality of "Livergood's work was different than it had been for the period of time you were working with him in the Auburn plant . . . or was it the same . . . ?" Smurr replied, "Well, I don't know." Although Smurr testified that Livergood was a good "helper," and that Livergood was a better worker when work- ing in a team than alone, there is nothing in the record to indicate that Livergood's function as a member of the group with Smurr and others was that of a helper. Smurr testified that when Livergood operated the drag machine, he and Bazzinet "had to wait on the drags," and that after the men changed machines, with Livergood and Bazzinet operating the cope machine, "they couldn't get the copes fast enough." When asked on cross-examination whether this was Livergood's fault, Smurr replied, "Well, I don't know." At another point Smurr testified that he was not delayed by Livergood and Bazzinet, and replied in the affirmative to the inquiry whether "it was merely that you could run the drag machine better than Livergood. That is what it came down to, is that it?" Smurr stated at the hearing that if the group produced 80 molds a day, he could not blame Livergood for anything. The group's production fell below 80 molds only on the day Smurr was out, and did not affect his pay. Smurr had difficulty in reconciling the fact that, although on the day he was out the group produced fewer molds than on the day Livergood was out, Smurr's pay was lower than that of the other two. In an effort to increase his earn- ings, Smurr, as we have shown, suggested to Livergood that they work together, but on separate machines. Corrello, when asked on cross-examination why he did not transfer Bazzinet, who was a much newer employee than Livergood, replied, "because Livergood was not a machine operator." Corrello testified that on the basis of his past experience it did not take him very long to find out that Livergood was not an operator. Livergood's "talk- ing" constituted one of the considerations upon which Corrello based this conclusion. He reached the conclusion before he had received any of the alleged complaints, having decided "from the start" that Livergood was not a satisfactory employee. Nevertheless, Corrello had never cautioned or spoken to Livergood about his work prior to August 21. Rowan did not inform Corrello that he had ever cau- tioned oe spoken to Livergood about his work. Despite his alleged dissatisfaction with Livergood, Corrello claims that he intended to place Livergood at a more remunerative task. Livergood's alleged discharge constituted a major subject of the conferences, previously mentioned, between Brunka and the respond- ent's officials. According to Brunka, on about September 14, 1937, he and Fink conferred with Corrello at Columbia City and Corrello AUBURN FOUNDRY, INC. 897 said that he had discharged Livergood for inefficiency. At a later date, according to Brunka, Fink told to him that Corrello was justified in discharging Livergood, that he would "under no consideration" reinstate him, and that, in any event, he, Fink, could not reinstate Livergood "for different reasons," namely, because Livergood "was not producing, inefficiency, and that he was sort of a trouble maker." Fink denied having made these statements. We credit, as did the Trial Examiner, Brunka's testimony. Thus, while Corrello testified that Livergood quit, he and Fink had asserted to Brunka that Livergood had been discharged. About a week after Livergood's employ with the respondent had terminated, he asked Henry Siegel, an independent contractor em- ployed by the respondent, for a job. Siegel told him to appear for work the next morning at 7 a. m. Livergood testified that he arrived before 7 a. m. but was told by Siegel that he would not be employed. Siegel testified that he did not employ Livergood that morning solely because he arrived after 7 a. m. In March 1938 Livergood met Siegel and asked him why he had not been put to work in the preceding August. According to Liver- good, Siegal replied that after he had hired Livergood he had thought the matter over and, knowing that the respondent had dismissed Livergood, had consulted Hampshire as to whether he should hire Livergood; that Hampshire had advised him not to hire Livergood as he, Hampshire, did not want to have Livergood coming into the plant to talk to "the boys." Bowerman, an employee, who was present at this conversation, corroborated Livergood's testimony. At the hearing Siegel could not recall what was said during the con- versation. Siegel became confused when asked to state in his own words why he consulted Hampshire, finally saying that he spoke to Hampshire after he had dismissed Livergood "to see if he cared whether I used Livergood or not." Siegel knew that Livergood was no longer employed by the respondent. He also admitted that this was the first time he had thus consulted any of the respondent's officials. He denied, however, that Hampshire told him not to hire Livergood. According to Bowerman, a few days prior to the hearing Siegal stated to Bowerman that he, Siegel, could "get out" of the situation created by his statements "by saying that I was tight" during this conversation. Siegel did not recall this fact. We credit Bowerman. Hampshire, called as respondent's witness, did not testify concerning this conversation with Siegel, but stated that the respondent had nothing to do with the employment of men in Siegel's group. The Trial Examiner found that Siegel is not a credible witness. We credit Livergood and Bowerman and find that Siegel made the statements attributed to him and had consulted with Hampshire regarding Liver- 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good as he, Siegel, had related to Livergood and Bowerman. We further find that Hampshire, who failed specifically to deny having advised Siegel against hiring Livergood, actually did so advise Siegel. We find that Smurr did not complain to either Rowan or Corrello regarding Livergood, and that Smurr was not dissatisfied with Liver- good's work, nor unwilling to continued working with Livergood. We find, also, that Smurr's complaints were based solely on dissatis- faction with his earnings and that they were without effect upon the respondent's action toward Livergood, but that the respondent seized upon them to lend some semblance of legality to its actions, which are proscribed by the Act. We find, further, that Livergood did not quit, but that the respondent discharged him on August 21, 1937, and has since refused to reinstate him because of his membership in and activi- ties on behalf of the Amalgamated, and that the respondent thereby discriminated in regard to Livergood's hire and tenure of employment, discouraged membership in the Amalgamated, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The parties stipulated on the record as to Livergood's earnings for 10 weeks preceding August 21, 1937. We find that the average was about $28.90 a week.30 Since August 21, 1937, until the hearing, Livergood has been employed for short periods of time earning a total of about $76. He desires reinstatement to his job with the respondent. (2) Arthur Miller The complaint alleges that Arthur Miller was discriminatorily laid off on November 12, 1937,11 at which time other persons with less seniority than he, doing the same kind of work, were being retained by the respondent. Miller had been employed by the respondent intermittently since 1918. His last period of employment began on December 10, 1934. In February 1936 he was laid off by the respondent, and secured a position at a Kendallville, Indiana, foundry. He lived at Auburn, about 16 miles from Kendallville. Miller testified that on numerous occasions between February and June 1936 he telephoned to and saw Superintendent Rowan regarding reemployment at the Auburn Foundry; that Rowan constantly promised Miller that he would be reemployed as soon as a vacancy occurred; and that upon being in- formed by Rowan in June 1936 that there was a vacancy, he immediate- ly returned to work for the respondent. Miller denied that the re- spondent requested him to return at any time during the period tO The parties agreed at the hearing that an average weekly wage may be taken for the 10 weeks' earnings shown in the record as the average weekly wage of Livergood. It The parties stipulated at the hearing that Miller returned and worked for the respondent for I day on November 15, 1937. AUBURN FOUNDRY, INC. 899 between February and June 1936. He worked for the respondent until November 12, 1937, when he was again laid off. A month previous to this last lay-off Miller was elected vice president of the Amalgamated. His activity and membership in the Amalga- mated were well known to the respondent. In June 1937, after he had been reemployed, Miller and other employees were called into Fink's office, where a discussion with reference to sit-down strikes in other cities occurred. Fink informed those present that he did not want any such trouble at his plant, indicated his displeasure at the distribution of the "Steel Worker," and stated that there were some rumors that a strike might be started at the plant. Miller testified that he disavowed any such intention. As we have related, in August 1937 Hampshire stated to Miller that all those who joined the C. I. O. would soon be looking for new jobs. The respondent contends that Miller was laid off in strict conformity with his seniority, for lack of work. Superintendent Hart testified that between February and June 1936 Rowan had requested Miller to return to work at the Auburn plant but Miller had refused. Hart relates the incident in the following manner: "It has been customary for the last few years whenever men needed jobs that I was supposed to give them jobs, and when jobs ran out I was supposed to let the men know so that they could lay them off or put them on, whichever it might be. Of course, this particular instance, I imagine I notified Mr. Rowan and he did the telling him to come to work, and of course the next morning I had a job for him and he wasn't there to take it. That would be as near as I could say, the only way I could recall." Hart recalls that such an incident occurred in March or April 1936, and recalls that Rowan had informed him that he had spoken to Miller, and that Miller had refused to return. Subsequently, Hart testified that this occurred in the early part of April, "I would imagine, in there about that time because our heat at that time went up and of course when the heat went up then was when we would need men." Thus, says Hart, Miller's seniority was broken by his failure to report for work pursuant to call in March or April 1936. Rowan had not notified the respondent's office of Miller's alleged refusal to return to work and the office records thereafter continued to carry Miller's seniority as dating from December 1934. Hart did not rehire Miller in June 1936, and knows nothing of the circumstances of his reemployment at that time. Hart directed Miller's lay-off. Testifying concerning Miller's seniority, Hart read from a list, originally prepared from the records of the respondent, showing the seniority standing of 231 employees as of September 11, 1937. On this list the date "12/10/34" appears against Miller's name. Hart had crossed out this date in pencil and above it had written "6/12/36," the date upon which Miller had last resumed 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment with the respondent. Hart testified that he made the correction as to Miller's employment date after he received this list. The list had several other such changes, in pencil. Hart had made the change as to Miller, but not the other. Prior to changing this date Hart did not consult Miller and does not remember whether he con- sulted Rowan. Fink testified that he was "not too familiar" with the details of the make-up of the respondent's seniority list, saying, "I leave that to our superintendent and foreman and the committee from the DeKalb Iron Workers Association to handle." In an attempt to contradict Miller's story that he made repeated telephone calls to and saw Rowan between February and June 1936, the respondent called Rowan's daughter, Ruth Fisher, to the witness stand. She testified that during that entire period her father had been ailing, and that she constantly ministered to his needs, and was near him at all times, and that on occasions, when her father was visited by persons and received them on the porch of their home, she took the liberty to see "who was there." At such times, she testified, either the door was open, so as to enable her to see, or, if she was unable to see, her father thereafter related with whom he had spoken and what had been said. Fisher testified that her father never men- tioned Miller to her and that "so far as I know," Miller did not tele- phone or see him. She testified, also, that Rowan had requested Miller to return to work in 1936 but that Miller had not done so. Later in her testimony she was less certain of her uninterrupted presence at her father's side, and admitted that on occasion she left him to go to a movie or elsewhere. We believe Miller's testimony regarding the telephone calls and visits. We are not convinced by Hart's testimony. In view of the re- spondent's anti-union attitude and activity, Fink's anti-C. I. 0. statements in particular, the respondent's desire to rid itself of the C. I. 0., and the fact that Miller was vice president of the Amalgam- ated, we believe and find that Hart made the correction to give color to the respondent's alleged reasons for the lay-off of Miller. We find that Arthur Miller was laid off on November 12, 1937, be- cause of his union activities and not because his seniority standing required it. By laying off Miller the respondent discriminated in regard to his hire and tenure of employment, discouraged membership in the Amalgamated, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Miller's average earnings while working for the respondent were between $30 and $32 a week. Miller has not worked since he was laid off. He desires reinstatement to his job with the respondent. AUBURN FOUNDRY, INC. 901 (3) Wayne Nichols Nichols, chairman of the bargaining committee of the Amalgam- ated, was first employed by the respondent' in 1923 and, except for several periods, worked as a molder until March 1936. In March 1936 Nichols was laid off, and, subsequently, upon being reemployed, became ill. On November 23, 1937, after recovering from his illness, Nichols reported back to work, and was told that his seniority rating did not as yet permit his reemployment. Nichols indicated to the respondent his willingness to do any type of work that other molders were willing to do. Nichols claims that at this time two men, with less seniority than he, had been reemployed by the respondent. The testimony of Nichols and other witnesses indicates that these two men were doing work other than that formerly performed by Nichols. The evidence is not sufficient to sustain the allegations in the com- plaint that the refusal to reemploy Nichols on November 23, 1937, was discriminatory. There is no proof that individuals with less seniority than Nichols has were doing work for the respondent of the kind Nichols had been doing. We find that by refusing to reemploy Nichols the respondent did not discriminate in regard to his hire or tenure of employment. The complaint as to Nichols will, accordingly, be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities set forth in Section III, above, occurring in connection with the operations of respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE, REMEDY We have found that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We shall order the respondent to cease and desist from engaging in such unfair labor practices and to take certain affirmative action which we deem to be remedial of their effect. We have found that the respondent has dominated and interfered with the formation and administration of the Association and has contributed financial and other support to it, and is now dominating and interfering with it, and contributing financial and other support to it, and that the Association cannot serve the employees as their genuine representative for the purposes of collective bargaining. In 323429-42-vol. 26-58 - 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order to insure to the respondent's' employees the rights guaranteed them in Section 7 of the Act, we-shall order the respondent to with- draw recognition from and disestablish the Association as such repre- sentative. We shall also order the respondent to cease giving effect to the contract between it and the Association or to' any modification, extension, or renewal thereof, or to any successor contract with the Association. We have found that the respondent discriminatorily discharged Robert Livergood and discriminatorily laid off Arthur Miller. We shall order the respondent to offer Livergood and Miller immediate and full reinstatement to the positions which they formerly held with the respondent, the former, on and before August 21, 1937, and the latter, on and before November 22, 1937. In addition, we shall order the respondent to make Livergood and Miller whole for any loss of pay they may have suffered by reason of the respondent's dis- criminatory conduct by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of the discharge, or lay-off, to the dite of the offer of reinstate- ment, less his net earnings 32 during said period. VT. THE PETITION In view of the time which has elapsed since the filing of the petition, we will dismiss the petition without prejudice Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Lodge 1998 of Amalgamated Association of Iron, Steel and Tin Workers of North America, and DeKalb Iron Workers Association, Inc., are labor organizations, within the meaning of Section 2 (5) of the Act. 2. The respondent, by dominating and interfering with the forma- tion and administration of the DeKalb Iron Workers Association, Inc , and by contributing support to said organization, has engaged in' and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. The respondent, by discriminating in regard to the hire and tenure of employment of Robert, Livergood and Arthur Miller, and 32 By not earnings" is meant earnmgs less expenses , such as for transportation , room , and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers, Local No 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. AUBURN - FOUNDRY, INC. 903 thereby discouraging membership in Lodge 1998 of Amalgamated Association of Iron, Steel and Tin Workers of North America, has engaged in and is engaging in unfair labor practices, within the mean- ing of Section 8 (3) of the Act. , 4. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent, by refusing to reemploy Wayne Nichols on November 22, 1937, did not discriminate against him in regard to hire and tenure of employment, within the meaning of Section 8 (3) of the Act. 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, Auburn Foundry, Inc., and its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Dominating or interfering with the, administration of DeKalb Iron Workers Association, Inc., or the formation or administration of any other labor organization of its'employees, or contributing support to DeKalb Iron Workers Association, Inc., or any other labor 'or- ganization of its employees; (b) Giving effect to its contract dated September 2, 1937, 'with DeKalb Iron Workers Association, Inc., or to any modification, extension, or renewal thereof, or. to any successor contract with said Association; ' (c) In any manner 'discouraging membership in Lodge 1998 of Amalgamated Association of Iron, Steel and Tin Workers of North America, or any other labor organization of its employees, by dis- charging, laying off, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to hire or tenure of employment or any other term or condition of employment; (d) 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 collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or mutual aid and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Withdraw all recognition from DeKalb Iron Workers Associ- ation, Inc., as representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish DeKalb Iron Workers Association, Inc., as such representative; (b) Offer Robert Livergood and Arthur Miller immediate and full reinstatement to the positions which they formerly occupied at the respondent's plants on and before August 21, 1937, and on and before November 22, 1937, respectively, or to substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (c) Make whole Robert Livergood and Arthur Miller for any loss of pay they have suffered by reason of the respondent's discrimination in regard to their hire or tenure of employment, by payment to each of them of a sum of money equal to that which each normally would have earned as wages from the date of the respondent's discrimination against him, to the date of the respondent's offer of reinstatment, less his net earnings during such period; deducting, however, from the amount otherwise due to each of the said employees, monies received by each of said employees during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amounts so deducted to the appropriate fiscal agency of the government financing such work-relief projects; (d) Post immediately in conspicuous places throughout its plant at Auburn, Indiana, and its plant at Columbia City, Indiana, if the respondent is still operating said Columbia City plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d), of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; (3) that the respondent's employees are free to become or remain members of Lodge 1998 of Amalgamated Association of Iron, Steel and Tin Workers of North America, through the Steel Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, and the respondent will not discriminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director for the Thirteenth Region, in writing, within ten (10) days from, the date of this Order what steps the respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent (1) has discriminated in regard to hire and tenure of employment of Wayne Nichols, and (2) refused to bargain AUBURN FOUNDRY, INC. 905 with Lodge 1998 of Amalgamated Association of Iron, Steel and Tin Workers of North America, be, and it hereby is, dismissed. AND IT IS FURTHER ORDERED that the petition for investigation and certification of representatives be, and it hereby is, dismissed without prejudice. MR.' WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order. 26 N.L.R. B. No. 93a.