Republic Steel Corp.

In the Matter of REPUBLIC STEEL CORPORATION' &ND SUSQUEHANNA ORE COMPANY, A CORPORATION and NORTON BROWNLEE 1 Case No. C-372. --Decided August 24:; 1940... Jurisdiction : mining industry. Unfair Labor Practices Company-Dominated Union: employee representation. plans-employer's revision after validation of Act of organization admittedly dominated: initiation of revision, calling and attending meetings to effectuate revision, recommending amendments to "Plan," suggesting new name and membership cards, urging representatives to organize employees into "Revised Plan"; support to' furnish- ing meeting place, bermitting activities on Company time, assuming expenses- elimination of some flagrant evidences of employer's control ineffective to rid organization of employer. domination in view of remaining evidence of domi- nation . Discrimination: discharge of employee because of his potential leadership of employees in self-organization. Remedial Orders: reinstatement and back pay awarded; disestablishment of company-dominated labor organization. Definitions Both parent corporation and its subsidiary are employers of employees at a mine leased by the subsidiary and managed, pursuant to contract between the parent and the subsidiary, by the parent which is also a purchaser of a share of the total production of the mine approximately proportionate to its 50 per cent stockholding interest in the subsidiary. Mr. Thurlow Smoot, for the Board. Mr. Thomas F. Patton, of Cleveland., Ohio; Day, Young cf Veach, by Mr. Thomas F. Veach, of Cleveland, Ohio; and Gillette, Nye, harries d Montague, by Mr. W. K. Montague, and Mr. Donald D. Harries of Duluth, Minn., for Republic. Mr. Thomas F. Patton and Jones, Day, Cockley & Reavis, of Cleve- land, Ohio, and Gillette, Nye, Harries ct Montague of Duluth, Minn., for Susquehanna. Mr. Morris H. Greenberg, of Eveleth, Minn., for Norton Brownlee, the S. W. O. C. and the C. I. O. Miss Margaret B. Bennett, of counsel to the Board. I Prior to the issuance of the amended complaint, dated January 13, 1939, this proceeding was entitled In the Matter of Republic Steel Corporation and Subsidiaries (Hibbing Division) and Norton Brownlee and John Evancevich. 26 N. L. R. B., No. 114. 1244 REPUBLIC STEEL CORPORATION DECISION AND ORDER STATEMENT OF THE CASE 1245 . Upon amended charges duly filed by Norton Brownlee,2 the Na- tional Labor Relations Board, herein called the Board, by the Acting Regional Director for the Eighteenth, Region (Minneapolis, Minne- sota), issued its complaint dated October 8, 1937, against Republic Steel Corporation, Duluth, Minnesota, herein called Republic, alleg- ing that Republic 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 National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing thereon to be held on November 1, 1937, were duly served upon Republic. With regard to the unfair labor practices the complaint, as amended at the hearing, alleged in substance that, in the course of managing and operating Susquehanna Mine, near Hibbing, Minnesota, under a leasehold (1) Republic discouraged membership in Amalgamated Association of Iron, Steel, and Tin Workers, Lodge 1663, herein called the Amalgamated, and in- Steel Workers Organizing Committee, herein called the S. W. O. C., labor organizations affiliated with the Committee for Industrial Organization, now known as the Congress of Industrial Organizations, and herein called the C. I. 0.., by dis- charging and refusing to reinstate Norton Brownlee because he had joined and assisted labor organizations and had engaged in concerted activities with other employees at said mine for the purpose of.col- lective bargaining and other mutual aid and protection; (2). Republic dominated and interfered with the formation and administration of Plan of Employee Representation, herein called the Plan, and its successor, Employees Association Susquehanna Mine, herein called the Revised Plan, two labor organizations of employees at said mine, and contributed financial and other support thereto; and that (3) by the foregoing acts, Republic interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On October 20, 1937, Republic filed an answer to the complaint. In its answer Republic admitted that it managed and operated Sus- quehanna Mine under a leasehold, and that a substantial portion of the ore so mined was transported to, into, and through States other 2 The original charges herein were filed by Norton Brownlee and John Evancevich on August 4, 1937• On October 1, 1937, amended charges were filed by Norton Brownlee. 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than the State of Minnesota. It denied that it had engaged in any of the unfair labor practices averred in the complaint, and denied the jurisdiction of the Board. As affirmative defenses, it alleged that it had discharged Brownlee for cause; that the Act was unconstitutional, as applied to it and otherwise; that the joinder of allegations of unfair labor practices within the meaning of Section 8 (2) of the Act with allegations of unfair labor practices within the meaning of Section 8 (3) was improper; and that the complaint with respect to. Section.8 (2) had been improperly instituted. It moved that the complaint be dismissed. On October 29, 1937, the Acting Regional Director. granted a . motion by Republic for an adjournment of the hearing until Novem- ber' 8, 1937. On November 8, 9, 10, and 12, 1937, a hearing was held at Hibbing, Minnesota,, before Waldo C. Holden, the Trial Examiner duly desig- nated by the Board. The Board, Republic, the S. W. O. C., the C. I. 0., and Brownlee were represented by counsel and participated in the hearing. 'Full opportunity to be heard, to examine and cross- examine witnesses and to introduce evidence bearing upon the issues was afforded all. the parties. At the beginning of the hearing Republic renewed orally its motion to dismiss on the grounds stated in its answer and on the further ground that the complaint was indefinite and inconsistent., The Trial Examiner reserved his ruling on this motion until the issuance of his Intermediate Report, in which the motion was denied. • This ruling is hereby affirmed. In' the course of the hearing, Republic. offered to call as witnesses. all of the non-supervisory and non-clerical employees at Susquehanna Mine, each of whom, it stated, would testify that he had joined the Revised Plan and remained a member of it without coercion or inter- ference by Republic, and that he wished to be represented by the Revised Plan for the purposes of collective bargaining. The, Trial Examiner excluded this testimony. In our opinion the evidence offered was immaterial. The Trial Examiner's rulings are accordingly affirmed.' During the course of the hearing, the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Exam- iner and finds that no prejudicial errors were commited. The rulings are hereby affirmed. ' ' ''Newport News Shipbuilding & Dry Dock Co. et at. v. N. L. R. B., 308 U. S. 241, reversing modification of Board's order, 101 F.. (2d) 841 (C. C. A..4) enforcing as modified 8 N. L. R. B. 866; N. L. R. B. v. Brown Paper Mill Co., 108 F. (2d) 867 (C. C. A. 5), enforcing 12 N. L. R. B. 60, 310 U. S. 651, cert. denied; see also Matter of Donnelly Garment and International Ladies' Garment Workers' Union and Donnelly Workers Union, Party to the Contract , 21 N. L. R. B. 164 (Donnelly Garment Company v. N. L. R. B., 7 L. R. R. 364), and cases there cited. REPUBLIC STEEL CORPORATION 1247 On January 17, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served on all the parties. In his Intermediate Report, the Trial Examiner found that Republic had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1), (2), and (3) and of Section 2 (6) and (7) of the Act. He recommended that Republic cease and desist from its unfair labor practices; that it withdraw allrecognition from and disestablish the Revised Plan as the bargaining representa- tive of any of the employees at Susquehanna Mine; that it offer Brownlee reinstatement to his former or an equivalent position with back pay; and that it take certain other affirmative action to effectuate the policies of the Act. Exceptions to the Intermediate Report were thereafter filed by Republic, Brownlee, the S. W. 0. C., and the C. I. 0. On March 1, 1938, pursuant to notice to all parties, oral argument was had before the Board at Washington, D. C. Republic, Brownlee, the S. W. 0. C., and the C. I. 0. appeared by counsel and were heard. Republic filed a brief. In its exceptions to the Intermediate Report Republic urged, among other things, that the Revised Plan and its members were necessary parties to the proceeding whom the Board had failed to join. This contention is without merit.4 Although in its answer it had admitted the allegation of the com- plaint that it "managed and operated" Susquehanna Mine under a leasehold, Republic excepted, also, to the Trial Examiner's finding to that effect, contending that the evidence establishes that Republic was "merely managing agent for the Susquehanna Ore Company, which latter corporation operated the Susquehanna Mine." It argued that Susquehanna Ore Company, herein called Susquehanna, whose managing agent it claimed to be, was also a necessary party to the proceeding whom the Board had failed to join. On January 13, 1939, upon further amended charges duly filed by Brownlee and the Amalgamated through their attorney, and pursuant to authorization granted by the Board, the Regional Director issued an amended complaint against Republic and Susquehanna, with notice of hearing thereon to be held on March 2, 1939, at Minneapolis, Minnesota. The amended complaint alleged in substance that Re- public or Susquehanna or both of them managed and operated Susque- hanna Mine and, in connection therewith, had engaged and were engaging in the unfair labor practices with which Republic alone had been charged in the original complaint. Thereafter Susquehanna filed its answer to the amended complaint. In its answer Susquehanna 4 N. L. R. B. v. Pennsylvania Greyhound Lines, Inc., et al. 303 U. S. 261 reversing 91 F. (2d) 178 (C. C. A. 3), which reversed 1 1\T. L. It. B. 1. 1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted that it leased Susquehanna Mine and operated it through contract with Republic, that a substantial portion of ore mined at Susquehanna Mine was transported to, into, and through States other than the State of Minnesota, and that it had discharged and had since refused to reinstate Brownlee. It denied that it had engaged in the unfair labor practices averred in the complaint and alleged that Brownlee had been discharged for cause. It asserted that the Board had no jurisdiction; that the Act as applied to it and otherwise was unconstitutional; that the allegations of unfair labor pratices had been improperly joined, and that the complaint, in so far as it alleged domi- nation of a labor organization, had been improperly instituted. In lieu of the hearing set for March 2, 1939, a stipulation was entered into between Republic, Susquehanna, Brownlee, the Amal- gamated, and a representative of the Board, which stipulation was approved by .order of the Board and made part of the record herein on April 5, 1939. In substance it was stipulated (1) that an amended charge had been filed by Brownlee and the Amalgamated alleging that Susquehanna as well as Republic had and was engaging in the unfair labor practices with which Republic alone had originally been charged; (2) that an amended complaint incorporating these charges had been issued by the Regional Director and served upon all the parties; (3) that Susquehanna had duly filed its answer to the amended complaint; (4) that Republic's answer to the original complaint should stand and be considered as its answer to the amended com- plaint; (5) that all parties to the stipulation waived hearing on the amended complaint and answers thereto, and the right to offer any further evidence than that offered and received at the hearing held in November 1937 on the original complaint and the' answer thereto; (6) that the case should be rested by all parties to the stipulation upon the pleadings filed and the proceedings had prior to the stipu- lation, including the Intermediate Report and the exceptions thereto, and upon the stipulation and the documents appended thereto, and that the testimony offered and received and the exhibits received into evidence at the November hearing and contained in the record made thereof should. be deemed to be all of the evidence offered by each and all of the parties to the stipulation on the issues raised by the amended complaint and the answers thereto; (7) that the Inter- mediate Report should be deemed to be based upon the issues raised by the amended complaint and the answers thereto, and to be directed to Susquehanna as well as to Republic, and that it should have the same force and effect as if it had been issued subsequent to a hearing on the amended complaint and the answers thereto; (8) that the documents and papers filed subsequent to the Intermediate Report, including'the exceptions thereto and Republic's brief, should have REPUBLIC STEEL CORPORATION 1249 the same force and effect as if the Intermediate Report had been issued, as by stipulation it was deemed to have been, subsequent to a hearing upon the amended complaint and the answers thereto and as if said documents and papers had been filed, as by stipulation they were deemed to have been, subsequent to such issuance of the Intermediate Report; (9) that Republic's exceptions and brief should be deemed to be the exceptions, and brief of Susquehanna also; (10) that all objections, reservations, exceptions and motions made or taken on behalf of Republic at any time during the course of these proceedings should be deemed to have been joined in and made or taken on behalf of Susquehanna; and (11) that the Board's order should be based on the record as stipulated. The Board has considered the exceptions filed by the'parties and the brief filed by Republic. In accordance with the terms of the fore- going stipulation the Board has considered the exceptions and the brief filed by Republic as though they had been filed by and on behalf of Susquehanna as well. We find the exceptions to be without :merit in so far as they are inconsistent with the findings, conclusions, and order set forth below. ' • Upon the entire record in the case, the Board makes the following: FINDINGS OF, FACT 1. THE RESPONDENTS AND THEIR BUSINESS Republic Steel Corporation, a New Jersey corporation having its principal office at Cleveland, Ohio, is-engaged in the manufacture and sale of a diversified line of iron and-steel products, and ranks as the third largest steel company in the United States, having an annual ingot capacity of approximately 6,053,000 tons. It has plants, which it operates either directly or through subsidiaries, in Youngstown, Campbell, Warren, Cleveland, Canton, Massillon, Elyria, and Niles, Ohio; Buffalo and New York, New York; Chicago and Moline, Illinois; Birmingham, Alabama; Pittsburgh, Pennsylvania; Monroe' and Fern- dale, Michigan; Muncie and Gary, Indiana; Unionville.and Hartford, Connecticut; Minneapolis, Minnesota; Cumberland, Maryland; and Hamilton, Ontario, Canada. It also owns or has . an interest in extensive iron ore properties in Michigan, Minnesota,! and Alabama and coal properties in Alabama, Pennsylvania, -Kentucky, and West Virginia. Republic itself employs approximately 40,000 to 50,000 persons, and through its subsidiaries approximately an additional 10,000. Susquehanna Ore Company is one of the iron-ore companies in which Republic has an interest. Republic owns 50% of Susquehanna's stock; and Inland Steel Corporation and the M. A. Hanna Company, 1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein called Hanna, each own 25%. Susquehanna, in turn, has a leasehold interest in Susquehanna Mine, near Hibbing, Minnesota, its sole property . This proceeding is concerned only with employees at Susquehanna Mine. Susquehanna Mine is an open-pit mine operating only during seasons of mild weather . The pay roll at Susquehanna Mine for the year ending October 31 , 1937 , amounted to $94,241.68 and for the month of October 1937 to $9,697 .98. Its annual output is approxi- mately 500 ,000 tons,' valued at about $1 ,200,000 . In 1937, up until November 1, all of Susquehanna 's ore was purchased by its stock- holders, and in 1936 they took all but about 2,000 tons. Approxi- mately half of Susquehanna 's total tonnage in 1936 and 1937 was bought by Republic. About 40% of the ore mined at Susquehanna Mine is loaded directly into railroad cars in the bottom of the pit and transported by locomotive to the surface . The rest is loaded into mine cars, hoisted to the surface, and there dumped into railroad cars. From the mine the ore is transported by the Great Northern Railway to Superior, .Wisconsin, where it is dumped with ore from other mines into pockets on the docks, according to grade. At Superior it is loaded into boats not owned by Republic or Susquehanna and shipped to various ports on Lake Michigan and Lake Erie . That portion of the ore from Susquehanna Mine which is purchased by Republic is sent to Republic's steel plants at Youngstown , Ohio. As we have indicated above, Republic and Susquehanna admit in their answers that a substantial portion of the ore mined at Susquehanna Mine is transported to, into, and through States of the United States other than the State of Minnesota. Since 1933 Republic has managed the operation of Susquehanna Mine pursuant to contract between it and Susquehanna.' The con- tract in effect during 1937 ,7 and renewals thereof, provide that Repub- lic will " undertake to supervise the management of the operation" of Susquehanna Mine on a certain " basis," which includes among other, things, the following: (1) Operations are to be conducted in the name of Susquehanna and for its account by Republic as its agent. (2) "Operations" are to be deemed to be the doing of everything which may be reasonably necessary in the judgment of Republic for the economical and advantageous operation , maintenance, and further development of the property. b In 1936 the tonnage was 506,810 tons and in 1937 , up to November 1, was 473, 435 tons. e For several years prior to 1933 Susquehanna Mine was managed by another of Susquehanna 's stock holders, Hanna. 7 The preceding contracts are not in evidence . Susquehanna asserts in its answer that Susquehanna Mine has been idle since December 31, 1937, but in effect admits that the contract which expired on that date was thereafter renewed and was in effect when the answer was filed. REPUBLIC STEEL CORPORATION ' ; 1251 . (3) "Without defining conclusively the foregoing" Republic is to supervise certain enumerated matters including, among other things, the payment of taxes; the provision of insurance; compliance with the Workmen's Compensation Law of Minnesota, the statutes of Minne- sota, and regulations of the Department of Labor and Industry of Minnesota concerning the employment and safety of employees, and all other laws and. regulations "of proper authority"; and compliance with the policies laid down by or specific instructions of Susquehanna, acting through its.officers and directors. Susquehanna agrees to appoint as General Manager of operations such person or persons as may from time to time be designated by Republic, with full authority, subject to the approval of Republic, to hire and discharge all employees; representatives, and agents of Susquehanna, except only its corporate officers, and "to direct and control the entire conduct of operations." Materials, equipment, and supplies are to be purchased for the account of Susquehanna and at its expense as directed by the General Manager, by or through Republic or its purchasing department; and Republic is expressly authorized to bind Susquehanna in this respect.' Republic may either require Susquehanna to pay immediately for such purchases or may pay for them itself and subsequently be reimbursed by Susquehanna. For the services of Republic itself and of its executive officers, and for expenses for handling sales and the transportation of the ore from the mine to destination Republic is to receive 3 cents a ton. For the services of all employees of Republic including and inferior to the Manager of the Ore Mining Department who are engaged partly in connection with the management and operation of Susquehanna Mine and partly in connection with the operation of other properties man- aged by Republic, Republic is to receive, in addition, a fair pro rata share of their salaries and expenses. All other employees are to be employed by Susquehanna directly and their services paid for entirely by it. Susquehanna is to pay all costs of operation or promptly to reimburse Republic for such costs paid by Republic or to maintain a 'Sufficient credit balance in Republic's hands to pay currently "all obligations incurred in the course of operations and transportation." Tonnages of ore to be produced are to be determined annually' by Susquehanna's board of directors. Republic is to consult with officers of Susquehanna from. time to time concerning purchasing, operating, selling, and development policies.. Specific instructions issued by the board of directors of Susquehanna are to be conclusive upon Republic; but in the absence of such instructions Republic is to use its best judgment "on all matters 8 Republic may not make capital expenditures in excess of $10,000 for Susquehanna's account without authorization from Susquehanna. '1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arising for determination." Republic is not to be liable or under any obligation to indemnify Susquehanna for. any error of judgment but only for gross negligence or bad faith. In so far as possible the entire product of Susquehanna Mine is to be. sold by Susquehanna to associated interests, or to persons pur- chasing through them, at such price as may be fixed by Susquehanna's board of directors. Republic as "sales or handling agent" is expressly given the right to pay for the account, of Susquehanna and charge to it any outstanding expenses required in the settlement of ore-sales contracts or in the making of collections and such expenses as may be properly chargeable in sampling, analyzing, and sorting of ores or in making good failures on analysis guarantees to customers, and does not guarantee the collection of accounts. Republic may apply the proceeds of collections to repayment of monies paid by it for the account of Susquehanna, the balance to be credited and payable on demand to Susquehanna. In determining, as between Republic and. Susquehanna, ,which cor- poration is the employer of the employees of Susquehanna Mine, and as such, is responsible for .the alleged unfair labor practices, we note their close inter-corporate relationship. Republic, as we have shown, owns 50 per cent of, the stock in Susquehanna; purchases from Sus- quehanna approximately the same proportion of the product of the mine, Susquehanna's sole property; and, according to the terms of an agreement,- manages the operation of the mine as the agent of Sus- quehanna, its own subsidiary. In so far as it relates. to the actual conduct of labor relations at Susquehanna Mine the evidence is clear that!from 1933, when Republic assumed the management of the mine's' operation, that corporation exercised the employer function in relation to the mine employees and proceeded to; institute 'its own personnel policies, including, as we shall show,' the establishment of.the Plan. Both Republic and Susquehanna, however; resist the imputation to Republic of the employer status, contending that Republic was merely the "managing agent," 'while Susquehanna "operated" the mine, and thus, presumably, is. the employer. The agreement, between the two corporations contains a provision that: '[Susquehanna] will appoint as General Manager of operations such. person or persons as may "from time to time be designated by Republic,' with full authority, subject to the approval of Republic to hire and 'discharge all employees . . . of [Sus- quehanna]' 0 See Section III, infra. REPUBLIC STEEL CORPORATION 1253 The intent of the parties thus appears to have been that Republic should be vested with broad powers to deal with the mine employees, but that such employees should, at the same time, retain their. desig- nation as employees of Susquehanna. The Board, having fully considered the relationship existing between Republic and Susquehanna, the history of labor relations at the mine itself, the contentions of the respondents, and,the language of the agreement between them, if of the opinion that although Republic, in the course of its management.of the operation of the mine on behalf of Susquehanna, acted, in the interest of Susquehanna and of itself, as an employer in relation to the mine employees, 'it cannot be said that Susquehanna so divorced itself from the operation of the mine and from the attendant obligation to refrain from' engaging in unfair labor practices against the employees working there, as to become absolved of responsibility for unfair labor practices engaged in by its managing agent, Republic. We accordingly find that ' at'all times herein material Republic and Susquehanna, and each ofthem, was the employer of the employees at Susquehanna Mine. II. THE ORGANIZATIONS INVOLVED Amalgamated Association of Iron, Steel, and Tin Workers, Lodge 1663, is a labor organization affiliated, through Steel Workers Organ- izing Committee, with the Congress of Industrial Organizations. It admits employees at Susquehanna Mine to membership. Steel Workers Organizing Committee is a labor organization affiliated with the Congress of Industrial Organizations. Plan of Employee Representation was from ;1933until April 22, 1937, an unaffiliated labor organization admitting to membership em- ployees at Susquehanna Mine and other nearby mines owned or operated by Republic. Employees Association Susquehanna Mine is an unaffiliated labor organization, admitting to membership employees at Susquehanna Mine.. It is the successor to the Plan. III. THE UNFAIR LABOR PRACTICES A. Domination of the Plan and the Revised Plan In the summer of 1933, at a meeting called by the management during working hours, Mine Superintendent Cash presented the Plan to the employees of Susquehanna Mine and made a speech concerning it, the tenor of which does not appear in the record. Thereupon printed pamphlets embodying the provisions of the Plan were dis- tributed to the employees and the Plan went into effect, without discussion or vote by the employees. 323429-42-80 1254 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD -The opening passage .of the pamphlet setting forth the Plan recites: The Republic Steel Corporation' (hereinafter called the Company) inaugurates this Plan of Employees ' Representation for the Northern Ore Mines , in order to provide effective means of con- tact between the Management and the Employees, and an orderly and expeditious procedure for the prevention and adjust- ment of any future' differences , to insure justice, maintain, tran- quility and promote the common welfare. Applicability of the Plan to employees at the mine was automatic; there was no provision for voluntary membership or for the expression of the wishes of those upon whom it was imposed. The Plan, according to the pamphlet , was to function through a Joint Committee composed of elected representatives of the employees and representatives of the management not to exceed in number the employee representatives , and. through conferences between, the employee representatives and a person entitled Management's Representative, appointed by the management. Provision was made for the election of representatives from among the employees , excluding those with " purely supervisory duties, and officials," according to election districts coinciding with operating divisions in the mine ,. upon the basis of one representative for each 100 employees , or major fraction thereof, but with a minimum of . 3 such representatives . Of such employees only those who were Ameri- can citizens'21 years of age or over, and who had been employed by Republic for at least a 'year immediately preceding , were eligible for nomination . Eligibility to vote was limited to employees 1.8 years or over who 'had been employed by Republic for at least 60 days immediately preceding .nominations. Pursuant to ' these provisions , three employee representatives were annually elected at Susquehanna Mine, one from the surface .and two from the pit. Employee representatives , could. be recalled only iipo .n approval by the Joint Committee of a petition signed by' two-thirds of those eligible to vote for representative in the voting district involved. Inasmuch as Republic was entitled to as much as 50 per cent of the total representation upon the Joint Committee it was thus in the position to veto. any move to recall an employee representative. Although the Joint Committee met regularly at Susquehanna Mine, after about June 1935 10 the employee representatives refused to trans- act business through it because, in the words of their - chairman Brownlee, "we figured there . was men on . the Joint Committee that would not be giving . us , a fair deal because these men on the.Joint Committee included foremen and stuff, like that." 10 The (late Brownlee was elected representative. REPUBLIC STEEL CORPORATION 1255 Contact with the other mines included in the Plan was maintained by an annual joint conference of the employee and management repre- sentatives from all the mines. All expenses of the Plan, including compensation to employee repre- sentatives for time spent in connection with their duties thereunder and their transportation to the annual joint conferences, were defrayed by Republic." No dues were provided for or paid by the employees. The Plan set up a procedure for the settlement of matters requiring adjustment. Any employee who was unable to obtain a satisfactory adjustment with his foreman might refer the matter personally or in writing through his representative to the department head, then to the Management's Representative, and thence to the management. If no satisfactory adjustment was reached in this manner, the matter might be referred to the Joint Committee. If the Joint Committee failed to effect a settlement, the president of Republic was to be notified. Finally, if he and a majority of the employee representa- tives so agreed, the matter might be submitted to arbitration. Brownlee and Gunnar Franson, two of the three employee repre- sentatives who held office from June 1935 until April 1937, refused to follow the foregoing procedure because it involved disclosure of the identity of the employee pressing the complaint. Their practice was to discuss the matter themselves with the Management's Repre- sentative, without, if possible, identifying the employee involved. Except for the election of representatives and the submission of grievances to them, the employees themselves had no participation in the operation of the Plan. No provision was made for meetings of the employees, the only meetings contemplated by the Plan being those of the Joint Committee and those of the employee representatives among themselves; and none were held. . Thus no opportunity was provided whereby the employees might formulate demands or instruct their representatives; and the representatives looked to Republic rather than to the employees. for remuneration.12 Amendment of the Plan could be effected only upon a two-thirds vote of the entire membership of the Joint Committee at a meeting at which representatives of Republic should have the same number of votes as . the employees' representatives. Thus any amendment required the consent of representatives of Republic. While Republic's actions in sponsoring and dominating the Plan prior to the effective date of the Act afford no basis for a finding of 11 Conferences between the employee representatives and the management were customarily held after working hours at Susquehanna Mine. Nevertheless, the employee representatives received 3 hours' pay, regardless of the time consumed. lY How remote from genuine collective bargaining the functions of the employee representatives were is illustrated by the fact that they were not even notified by Republic of changes to be made in rates of pay, but received their first knowledge about then from the newspapers. 1256 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices, it is evident from the foregoing that the Plan, in its origin, design, and operation was subject to the domination and control of Republic, and that it was not and could not be a genuine collective bargaining agency of the mine employees. The enactment of the National Labor Relations Act on July 5, 1935, brought about no modification in Republic's relationship to the Plan in spite of the fact that the Plan, on its face, was illegal under the Act. On the contrary, the Plan continued without change in either its formal structure or actual operation and without cessation of Republic's, and through Republic, Susquehanna's support. Not until April 1937, when the constitutionality of the Act was upheld by the Supreme Court of the United States 13 did Republic or Susque- hanna make any gesture toward compliance with its terms. .We find that from July 5, 1935, to April 1937 Republic and Susque- hanna continued to dominate and interfere with the administration of the Plan and to contribute financial and other support to it, and that they thereby interfered with, restrained, and coerced their employees in.the exercise of the rights guaranteed in Section 7 of the Act.14 Shortly after the Supreme.Court of the United States upheld the constitutionality of the Act, however, Republic took steps purporting to withdraw its support and domination of the Plan. Without noti- fying them of its purpose, Republic summoned the employee repre- sentatives from all the mines included in the Plan to a meeting held at the Androy Hotel in Hibbing, Minnesota, during the working day of April 22, 1937, for the purpose of revising the Plan. The employee representatives received their regular wages on that day; and Republic paid for..their dinner, which was the only expense of the meeting. Butcher, Republic's, chief engineer and industrial relations repre- sentative in the area which included Susquehanna Mine, opened the meeting and announced that because of the Act it would be necessary to change the Plan, and that Republic could no longer legally con- tribute financial support to it. Thereupon, after Brownlee had been elected. chairman of the meeting by the, employee representatives, Butcher displayed a copy of the Plan, over certain provisions of which had been :inserted typed slips of paper indicating revisions recom- mended by counsel for Republic. Butcher and the other officials withdrew from the conference room to, the lobby, -leaving the suggested revisions with the employee representatives.l5 13N. L. R. B. v. Jones & Laughlin Steel Corp. , 301 U. S. 1, reversing 83 F. (2d) 998 (C. C. A. 5), setting aside 1 N. L . R. B. 503, and companion cases. 14 N. L. R. B. v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261, reversing 91 F. (2d) 178 (C. C. A. 3), which reversed'l'N. L. R. B. 1. 15 Butcher at first stated that he could not leave the suggested changes with the representatives, but when one of them suggested that he leave the Plan as revised and himself withdraw , he did so. REPUBLIC STEEL CORPORATION 1257 The principal changes recommended by Butcher were (1) a revision of the statement of the purposes of the Plan so as to emphasize col- lective bargaining; (2) the substitution of the general body of employee representatives, or a committee thereof, for the Joint Committee; (3) the withdrawal of financial support by Republic; (4) the insertion of a mandatory and definite arbitration proceeding, by which in final instance a dispute would be referred to a board of three arbitrators, one of whom was to be selected by Republic, one by the employee representatives, and the third by the other two; 16 and (5) the extension of eligibility to vote for employee representatives so as to include all but officials and employees with the power to hire and discharge, or having regular and purely supervisory positions, regardless of age or length of service. Otherwise, the Plan remained substantially the same; no provision was made for voluntary membership or the pay- ment of dues; employee representatives were still to be elected from the old voting divisions and were still required to be American citizens, 21 years of age or over, who had at least 1 year of immediately pre- ceding service to qualify for office. The employee representatives copied and discussed the proposed changes, referring on occasion to Butcher for explanation of them. On their own initiative, the employee representatives added a pro- vision that any supervisor who discriminated continuously against an employee representative should be relieved of his supervisory- duties." Butcher, however, objected to this language, and it was changed to provide that such discrimination was to be disciplined in a manner to be agreed upon by the employee representatives and the Manage- ment's Representative. About a week after the Androy Hotel conference, the Plan, as re- vised, was submitted to the employees at Susquehanna Mine for adoption. By agreement between Brownlee, the chairman of the employee representatives, and Hocking, the pit foreman, a "safety meeting" held during working hours was turned over to the employee representatives for this purpose about 15 minutes before-closing time. After the supervisors had withdrawn," Brownlee described what had occurred at the Androy Hotel meeting, and the proposed changes in the Plan were discussed.19 The "ayes" and "nays" were taken and the amendments were adopted unanimously, many employees; however, 16 It is not clear whether charges of discrimination for activities under the Plan were to be settled by arbitration . Originally, appeal on these matters was to be had to the Minnesota Department of Labor or the Secretary of Labor of the United States, whose decision was final and binding. The proposed revi- sions substituted a provision that an aggrieved representative should have "the right" to take the question to the president of Republic, without making reference to the arbitration clause appearing in another article. 17 One other change was made by the representatives , the nature of which does not appear , except that it was characterized by Brownlee as minor. 18 One of whom was requested to leave by Brownlee. 19 The respondents contend in their brief that Brownlee advocated the adoption of the Plan as revised. The record does not support this contention. 1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD abstaining from voting. Following the acceptance of the Revised Plan an amendment from the floor, requiring that seniority rights should be respected, was adopted. It was decided that membership cards should be printed, with dues at 15 cents a month, that the representatives should investigate the cost of having such cards and bylaws printed, and that an assessment or charge should be made to defray such. cost. No change in the name of the Plan was suggested. On June 3, 1937, Brownlee and Franson conferred with Butcher and with Joseph M. Riddell, the assistant manager of Republic's northern ore mines, concerning whether a strike which was in progress at certain steel plants operated by Republic would affect production at Susque- hanna Mine, which supplied the plants with ore. In the course of the conversation, either Butcher or Riddell asked Brownlee and Franson whether they had succeeded in putting the Revised Plan into effect at the mine, and what the men thought of it. They replied that they had not gotten very far because they did not know what name to give it or what kind of cards to have printed, and because they had no money to finance it. Thereupon Butcher showed them cards which had been issued at other mines of Republic and which purported to .be membership blanks of an employees' "association," and Brownlee and Franson decided to name the Revised Plan as applied to Susque- hanna Mine, "Employees Association, Susquehanna Mine." The name having been decided upon, Butcher and. Riddell urged Brownlee and Franson to have cards and bylaws printed as quickly as possible, saying that they "would like to have the men there strong" in the Revised Plan. Pursuant to this suggestion, Brownlee and Franson had membership cards printed bearing the name of "Employees Association, Susquehanna Mine," Franson advancing the money. Franson made out a card for each employee eligible to vote under the Plan as it had been revised, but some employees refused .to accept cards or to pay dues. Nevertheless, when an election was subse- quently held for representatives, probably in July 1937, no effort was made to exclude employees who had not paid clues from voting; and one employee who had refused to pay dues was elected a represent- ative. Until that time the representatives under the old Plan had continued to function. By its acts at and after the Androy Hotel meeting, Republic and, through Republic, Susquehanna, not only failed to remedy the unfair labor practices in which they had previously engaged but in effect actively perpetuated them. Instead of withdrawing completely from participation in and interference with the Plan, Republic initiated revision thereof; called meetings to effectuate such revision; paid the employees for time lost; recommended the amendments to be made; suggested a new name and the form of a membership card; and urged the representatives to organize the employees into the Revised Plan. REPUBLIC STEEL CORPORATION 1259 Under these circumstances the elimination of the Joint Committee and other more flagrant evidences of Republic's control was ineffective to rid the Revised Plan of Republic's and, through Republic, Susque- hanna's. domination of the Plan.20 We find that the Revised Plan is a successor to the Plan, that' Republic and, through Republic, Susquehanna dominated and inltor fered with the formation and administration of the' Revised Plant, andcontl•ibuted.support to it and that they thereby interfered with, restrained, and coerced their employees in the exercise of the rights. guaranteed in Section 7 of the Act. . B. The discharge of Norton Brownlee Brownlee started to work at Susquehanna Mine in 1926 when 'it was.still under the management of Hanna. On June 27, 1937, he was discharged by Republic. During the shipping season, from April to. November, Brownlee worked as a locomotive engineer; in the winter months he did repair work. We have indicated, and the respondents admit, that Brownlee was a leader among the mine employees. He was elected an employee representative under the Plan in 1935 and served in that capacity continuously until his discharge. He became chairman of the repre- sentatives at. the Susquehanna Mine and acted as chairman of the Androy Hotel meeting and of the "safety" meeting at which revision of the Plan was discussed. In addition, Brownlee was a consistant and conspicuous critic of the operation of the Plan and of Republic's conduct in relation to it. At the first meeting of the employee representatives with the manage- ment after his election in 1935, Brownlee threatened to resign as rep- resentative because the pit foreman, Hocking, was unwilling to discuss it matter pressed by the representatives, saying something to. the effect that lie wanted them to know that the management was "still runmng^ the mine." Brownlee reported Hocking's remark to Superintendent; Cash and stated that he wanted to resign immediately."if it was going to be that way." When Cash assured him to the contrary, how- ever, he remained in office. As we said above, Brownlee, ' together with Franson, refused to deal through the Joint Committee, because supervisors were members of it, and refused to disclose the identity of employees who had. referred matters to them for adjustment ' as required by the Plan. Brownlee's opposition to Republic's practices was not confined to Susquehanna Mine. He also charged Republic with unfair conduct before the representatives from all the ore mines managed by Republic, who were assembled at the annual Plan conference at Duluth in 1936. z0 Newport News Shipbuilding & Dry Dock Co. et al. v. N. L. R. B., 308 U. S. 211, reversing modifleation of Board's order in 101 B (2d) 841 (C. C. A, 4), enforcing as modified 8 N. L. It. B. 866. 1260 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD At,this conference the employee representatives from the various mines were called upon to describe conditions in their respective jurisdic- tions, following speeches by some of the high officials of Republic, among whom were present C. M. White, a vice president, J. E. Nelson, the manager of Republic's northern ore mines, Butcher, the chief en- gineer and industrial representative, and J. A. Voss, the manager of industrial relations. Although all the men who spoke praised the working conditions then existing and Republic's cooperation with the employees ;through the Plan, Brownlee said conditions were "very poor" at Susquehanna Mine and that the management was not living up to the provisions of the Plan. He said that the men were dissatis- fied and afraid "to voice their opinions" or to put their names on a complaint for fear of discrimination; that he himself had been abused because of his activities. as representative and had been told he had better keep his mouth shut; and that at a meeting with the employee representatives a foreman had said, "Since when is the god damend committee [the employee representatives] doing the hiring and firing of the mine." Brownlee concluded with the statement that he knew that he was "going to get a rap" for what he had said, but if by his getting a rap the conditions of the men could be improved he was "willing to.take it." After this speech Brownlee was assured by White and Nelson that he would not be penalized for having made it, White adding that Brownlee should write to him if in the future he felt he was "getting a rap." Brownlee's popularity among the employees at Susquehanna Mine after this speech was so great that in the immediately ensuing election for employee representatives he was returned to office with a vote of 60 to 11 or 12. In May and June 1937 the C. 1. 0. was active at the plants of Repub- lic-and other eastern steel manufacturers, and was also carrying on an organizing campaign among the ore miners in the vicinity of Susque- hanna Mine. From about May 27 until about June 25, 1937, many of the -eastern steel plants, including Republic's, were idle because of strikes. .From June 1 to June 28 all the mines operated by Republic which. supplied these plants with ore were likewise inactive, except Susquehanna Mine, which did not completely cease operations until June 6, although production had previously been curtailed for some days. On, the morning of June 2, 1937, Brownlee, Amic, his fireman, and Jerulle, his brakeman, comprising the rest of the crew of his loco- motive; a crane operator, Trembath; and the master mechanic, Muck, were gathered at the locomotive and were talking before work. Dur- ing the conversation Jerulle, referring to the C. I. O. strike at the east- ern steel plants said, "I see by the paper that they are raising cain out REPUBLIC STEEL. CORPORATION 1261 at the plants, blasting some of the plants," or words to that effect. According to Jerulle, Trembath, Amic, and Muck, who testified on behalf of the Republic, Brownlee thereupon remarked in substance, "They should blow up the plants and the officials in them." 21 Brown- lee denied this and testified that he, said, "Well, I give them all credit, that there was real he-men in the East, that they were standing up in their rights for holding out for better conditions. The Trial Examiner found that Brownlee said in substance, "They should blow up the plants and the officials in them." We accept the Trial Examiner's finding.2II , , . The respondents allege that Brownlee was discharged because he made this remark. It is not contended that it was feared that Brown- lee himself or those who actually heard him would engage in violence, but that ,the remark indicated, especially since it was made in the presence of a supervisor, that Brownlee was reckless and might in the future make inflammatory remarks in th presence of less responsible persons. Particularly in view of the strike situation, it is contended, the respondents did not wish to take this risk. In spite of the seriousness which-was allegedly attributed to this remark, Muck, who had the power to discharge, said nothing to Brownlee. Nor did the pit foreman, Hocking, to whom Muck imme- diately reported, mention it to Brownlee. Hocking in turn 23 reported it to Superintendent Cash; and Cash on the same day reported it to Riddell, the assistant manager of all the northern ore properties operated by Republic, in Duluth. The next day, June 3, 1937, Riddell and Butcher, Republic's supervisor of industrial relations for the area, came from Duluth to Susquehanna Mine and interviewed Muck and Trembath. Later in the day after the meeting between Riddell and Butcher and the employee representatives concerning the effect of .the strikes in the East on Susquehanna Mine and concern- ing the completion of the organization of the Revised Plan, which we have described above, they interviewed Brownlee. 21 Trembath and Amic testified that Brownlee earlier in the conversation inquired of Muck how long the slack work would continue and said "They should tie this,dam thing up (referring to the crane) and pull the pumps and flood the pits." Muck, on the other hand, testified that the first thing he heard Brownlee say was, "Shut her down and everything I mean drown her." Brownlee testified that he said "They might as well tie up this dam wrecker (referring to the crane), too, for all the work we are getting out of it" and that the management could find work to give the men if it wished. The Trial Examiner made no finding as to what Brownlee actually did say; but according to any version what he said was inconsequential. As Muck testified, Brownlee's remarks might reasonably be interpreted as expresssing in mine jargon the idea that the mine might as well close down. When a mine is closed down the pumps are stopped and the pit is accord- ingly flooded. If Brownlee made these remarks they were clearly casual references to what the manage- ment. as distinguished from the employees, ought, in Brownlee's opinion, to do. 22 Although we find that, contrary to his testimony, Brownlee made the remark attributed to him by wit- nesses'for Republic, we do not, on that account; reject as unworthy ofcredence the balance of his testimony, much of which is uncontradicted or is corroborated by the testimony of other witnesses. 27 Hocking testified that he would have discharged Brownlee instantly had he heard the remark himself, but that since he learned about it second hand from Muck, he reported it to his superior without investiga. tion. Nevertheless, he testified that he never,doubted the accuracy of Muck's account, and he admitted that he did not think Brownlee or anyone else would blow up the mine. 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At this meeting, as we have indicated above, Butcher and Riddell urged Brownlee and Franson to hasten the completion of the organi- zation of the Revised Plan at Susquehanna Mine. After the discus- sion with the representatives concerning the Revised Plan was completed, Riddell asked Brownlee to stay a moment and discussed with him the incident of the preceding day and Brownlee's remark. The evidence is not clear concerning whether Riddell charged Brownlee with having said, "They should blow up the plants with the officials in them," or merely referred generally to derogatory remarks on Brownlee's part; and whether Brownlee denied having made such remarks or whether he merely said that if he had said anything wrong he was sorry. In any case there is no evidence that Riddell or any- one else then indicated that Brownlee might be discharged. At this conference Brownlee claimed that he had been discriminated against on various enumerated occasions because of his activities as a repre- sentative and said, in substance, "Let me tell you one thing, that if .the C. I. O. comes in on this job there will not be some of the bosses then present that are now present." He added that he was not then a member of the C. I. 0. but that if at any time in the future he saw fit to join he would not be ashamed to appear on the job wearing a button. On June 15, 1937, Brownlee joined the Amalgamated. There is no evidence, however, that respondents had knowledge of his membership. On June 6, 1937, the mine discontinued operations, which were not resumed until -June 28, 1937. During that period Brownlee worked 4 days, June 23 through 26, as a watchman in the pit, after having complained to Hocking and Cash. that he was not receiving his share of the work. On June 27, 1937, Brownlee was informed by Muck that he was discharged and need not report for work the next day. The decision to discharge Brownlee had been reached at Republic's offices in Duluth on about June 24 or 25 by Nelson, the manager of the northern ore properties operated by Republic, after conferences with Riddell, Butcher and Cash. At the same time Brownlee's charges that he had been discriminated against were disposed of by the acceptance of a report submitted by Cash denying the charges. Brownlee appealed Nelson's decision to White, the vice president of Republic who at the 1936 annual conference of the Plan representa- tives had promised to protect him against discrimination, and to Voss, Republic's director of personnel relations, and demanded a trial. The decision was not reversed, however; and Brownlee has not since been offered reinstatement. From the foregoing we conclude that Republic did not discharge Brownlee because of the remark made by him on June 2, 1937, but REPUBLIC STEEL CORPORATION 1263 that it discharged him because, in his capacity as representative under the Plan, lie was openly critical of Republic in its labor relations and because Republic feared that he would carry out the intention at which he hinted at the conference on June 3, of abandoning the Revised Plan and joining the C. I. O. We do not condone irrespon- sible statements of the character of that which, we find, Brownlee made. On the other hand we do not believe that Republic or its officials regarded it as more than a loose remark, or that they thought that it was intended to be regarded seriously or had been taken seriously by those who heard it. Nor do we believe that, even in the presence of intense organizational activity among employees of the eastern steel plants, they considered the remark as a potential threat to the security of the mine property or regarded it as evidence on Brownlee's part of a temperament incompatible with the main- tenance of employee discipline. Brownlee received no intimation that he was to be discharged until after the June 3 conference at which he protested Republic's conduct toward him as an employee representative under the Plan, asserted that certain bosses would "go" if the C. I. O. became established at the mine, and expressed his own sympathetic interest in the C. I. O. Officials of Republic were aware at the time that the C. I. O. was attempting to organize the mines in the vicinity of Hibbing. We think it more than a coincidence that Riddell questioned Brownlee concerning the remark he had made immediately after Riddell and Butcher had urged him to hasten the organization of the Revised Plan. At the time of the meeting with the representatives Riddell was satisfied that Brownlee had, in fact, made the remark in question, yet solicited Brownlee's further services on behalf of the Revised Plan. We believe that had Brownlee cooperated in promoting the Revised Plan, instead of criticising Republic's actions with respect to it and tentatively threatening to join the C. I. 0., he would not have been discharged. His choice of the latter course and his long and consistent practice of criticising Republic in its labor relations gave ample cause for belief on the part of Republic's officials that. Brownlee might actually abandon the Revised Plan and join the C. I. O. Implicit in such a step, too, in view of Brownlee's demonstrated popularity among the men, was the likelihood that he would take a large following with him. We think that Republic availed itself of Brownlee's loose remark as a pretext for ridding itself of a potential leader of its employees in a form of self-organization less subject to its control than were the Plan and its successor. We find that Republic and, through Republic, Susquehanna dis- charged Brownlee on June 27, 1937, and have thereafter refused to reinstate him because he engaged in concerted activities with other 1264 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD employees of the respondents for the purpose of collective bargaining and other mutual aid and protection and because they wished to discourage membership of their employees in labor organizations affiliated ' with the C. I. 0., and that the respondents thereby dis- criminated with regard. to his hire and tenure of employment, dis- couraged membership in labor organizations, and interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. Between June 27 and August 15, 1937; Brownlee had no employ- ment. From August 15,'1937, until the time of the hearing he was employed by the Township of Stuntz, St. Louis County, Minnesota, at $150.00 a month, which employment he-bad been informed was to terminate about November 15,,1937. While working for the respond- ents as an engineer, between the months of April and November, he normally worked 8 hours a day, five or six days a week at $7.92 a day. Occasionally he worked more than 40 hours a week and was paid at the rate of time and a half for over time. During the period November to April' lie did repairing for which he received $4.60 a day, and worked approximately five days a week. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON, COMMERCE We find that the activities of Republic and Susquehanna set forth in Section. III above, occurring in connection with the operations of Republic and Susquehanna, 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 It is essential in order to effectuate the purposes and policies of the. Act that the respondents be' ordered to cease and desist from the unfair labor practices in which we. have found them to have engaged, and in aid of such order and as a means of removing and avoiding the consequences of such practices, that the respondents be directed to take certain affirmative action. We have found that the respondents, after the passage of the Act on July 5, 1935, dominated and interfered with the administration of the Plan and contributed financial and. other support to it and that they have dominated and interfered with the formation and adminis- tration of the Revised Plan and contributed support to it. Moreover, the effects and consequences of the respondents' domination, inter- ference with, and support of the Revised Plan as well as continued' recognition by the respondents of the Revised Plan as the bargaining representative of their employees, constitute a continuing obstacle to REPUBLIC STEEL CORPORATION 1265 the free exercise by their employees of their right to self-organization and to bargain collectively through representatives of their own choos- ing. The Plan and its successor, the Revised Plan, have been used by the respondents as an instrumentality to defeat the rights of its employees under the Act. Because of the respondents' illegal conduct with relation to them, they are incapable of serving the respondents' employees as their genuine collective bargaining agency. We shall order the respondents to disestablish and withdraw all recognition from the Revised Plan as the representative of any of their employees for the purposes of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other condi- tions of employment. We have also found that although Norton Brownlee made the remarks attributed to him by the respondents, his discharge and the subsequent refusal to reinstate him were discriminatory. The respondents contend, however, that if the Board finds incredible Brownlee's testimony denying that he made the remarks, it should not order his reinstatement. This contention is without merit. The fact that the Board disbelieved his testimony in this respect does not, in our opinion, indicate that Brownlee's return to work under normal conditions, free from the respondents' unfair labor practices would not effectuate the policies of the Act. Moreover, Riddell testified that at the June 3 conference Brownlee denied the remark which allegedly caused his discharge and that at that time Riddell was satisfied that he had made it. In spite of Brownlee's alleged denials Riddell allowed to stand his. and Butcher's recommendation that Brownlee hasten the organization of the Revised Plan. Thus Riddell cannot have believed that fitness to work at the mine depended .upon truthfulness. Accordingly, we shall order the respondents to offer to Brownlee immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of pay he has suffered by reason of his discharge, by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of such discharge to the date of offer of rein- statement less his net earnings during said period .14, 24 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 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 Union , Local 2690, 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. 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Amalgamated Association of Iron, Steel , and Tin Workers, Lodge 1663, Steel Workers Organizing Committee , Plan of Employee Representation, and Employees Association Susquehanna Mine, are labor organizations within the meaning of Section 2 (5) of the Act. 2. The respondents , by dominating and interfering with the ad- ministration of Plan of Employee Representation , and the formation and administration of Employees Association Susquehanna Mine, and contributing support to them, have engaged in and are engaging in unfair labor practices within. the meaning of Section 8 (2) of the Act. 3. The respondents by discriminating in regard to the hire and tenure of employment of Norton Brownlee , and thereby discouraging membership in labor organizations , have engaged in and . are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. The respondents, by interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed by Section 7 of the Act, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) 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, 49 Stat. 449, the National Labor Relations Board hereby orders that the respondents, Republic Steel Corporation and Susquehanna Ore Company, and their officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) In any manner dominating or interfering with the administra- tion of Plan of Employee Representation or Employees Association Susquehanna Mine, or the formation or administration of any other labor organization of its employees, and from contributing financial or other support to Plan of Employee Representation or Employees Association Susquehanna Mine, or to any other labor organization of its employees; (b) Discouraging membership in any labor organization of its em- ployees, by discharging or refusing to reinstate employees or in any other manner discriminating in regard to their hire and tenure of employment, or terms or conditions of employment; (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to REPUBLIC STEEL CORPORATION 1267 form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. , To take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from Employees Association Susque- hanna Mine, as the representative of any of their employees for the purpose of dealing with them concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of em- ployment, and completely disestablish Employees Association Susque- hanna Mine as such representative; (b) Offer to Norton Brownlee immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges; (c) Make whole Norton Brownlee for any loss of pay he may have suffered by reason of his discharge by the respondents, by payment to him of a sum of money equal to that which he would normally have earned as wages from June 27, 1937, to the date of the respond-, ents' offer of reinstatement pursuant to the terms of this Order, less his net earnings during said period; deducting, however, from the amount otherwise due him, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the ap- propriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supply the funds for said work-relief projects; (d) Post immediately in conspicuous places at Susquehanna Mine, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to the employees at Susquehanna Mine stating: (1) that the respondents will not. engage in the conduct from which they are ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondents will take the affirmative action set forth in paragraphs 2 (a), (b), and- (c) of this Order; (3) that the employees at Susquehanna Mine are free to become or re- main members of the Amalgamated Association of Iron, Steel and Tin Workers, Lodge 1663, affiliated through Steel Workers Organizing Committee with the Congress of Industrial Organizations, and the respondents will not discriminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director for the Eighteenth Region in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply therewith. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.