McKaig-Hatch, Inc.

In the Matter Of.MCKAIG-HATCH, INC. and AMALGAMATED ASSOCI- ATION OF IRON, STEEL, AND TIN WORKERS OF NORTH AMERICA, LOCAL No. 1139 In the Matter of MCKAIG-HATCH, INC. and AMALGAMATED ASSOCI- ATION OF IRON, STEEL, AND TIN WORKERS OF NORTH AMERICA, LOCAL No. 1139 Cases Nos. C-350 and R-651.-Decided August 26,1940 Evidence Allegation of respondent, supported by verification of vice president, contained in application for reopening of the record, that decrease in em- ployment removed opportunity to reemploy certain strikers, treated as true with regard to work, if any, certain strikers might have been found entitled to receive restitution, in the light of failure to introduce evidence concerning such work, if any. Practice and Procedure Record reopened to take evidence concerning determination of particular individuals to be reinstated or placed on preferential list and determination of persons to receive compensation and the amount of money to be paid them under earlier Board order, despite the fact that such determinations are usually made by the Regional Director in connection with obtaining compliance with the Board's order, since, the allegation contained in the respondent's application to reopen, relate to or involve substantive issues and not mLrely compliance procedures. Remedial Orders Named unfair labor practice strikers, found to be best qualified among the strikers for work performed by certain other persons hired during the strike, and independently thereof found to be qualified to perform the work of such other persons, held entitled to restitution for such work, pursuant to earlier more general back pay order. Unfair labor practice strikers not entitled to restitution for work performed by other persons'hired during the strike when such other persons were doing work for which none of said strikers was qualified or for which qualified strikers were not available at the time the work was begun. Payment to individual employees found to have been discriminatorily refused reinstatement is measured by the earnings of the particular persons hired during the strike, respectively, at the work which the employees, re- spectively, were qualified to perform. Net earnings of employees receiving restitution during the period when other persons were performing the work to which they should have been re- instated, deducted from the amounts earned by such other persons, in de- termining the amount allowable as restitution to said employees. Unfair Labor Practices . By refusing certain striking employees reinstatement to work performed by persons actually at work or on temporary leave at the time of the strike, re- spondent committed no unfair labor practice. 26 N. L. R. B., No. 133. 1459 1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Edward D. Flaherty and Mr. Peter J. Crotty, for the Board. Mr. William J. Evans, of Buffalo, N. Y., for the respondent. Mr. Joseph P. Molony, of Buffalo, N. Y., for the S. W. O. C.1 Mr. A. G. Koplow, of counsel to the Board. SUPPLEMENT TO DECISION AND ORDER AMENDING ORDER' On December 2, 1938, the National Labor Relations Board, herein called the Board, issued a Decision and Order 2 in the above-titled consolidated cases. In the Decision the Board found,3 among other things, that McKaig-Hatch, Inc., a corporation, Buffalo, New York, herein called the respondent, had engaged in unfair labor practices, within the meaning of the National Labor Relations Act, herein called the Act, by failing on and after October 18, 1937, to displace, to the extent necessary, 23 named persons then in its employ and hired after September 2, 1937, with and from among certain named em- ployees, 31 in number, qualified to hold such positions, who had gone on strike on September 2, 1937, as a result of unfair labor practices committed by the respondent and who had never thereafter been reinstated by it.' In the Order, in paragraph 2 (c) thereof, the Board directed the respondent to offer the 31 employees immediate and full reinstatement to their former or substantially equivalent positions at the respondent's plant or to positions for which they were qualified, or placement on a list for preferential hiring, in accordance with the terms and in the manner therein set forth; and, in paragraph 2 (d) thereof, directed the respondent to make whole said 31 employees for any loss of pay they, or any of them, suffered by reason of the respond- ent's above-mentioned failure on and after October 18, 1937, to dis- place the 23 named persons with certain of.the 31 employees and its further failure, if any, thereafter to offer the remaining of the 31 employees positions which became available at the plant for which they were qualified, in accordance with. the terms and in the manner set forth in said Order. 1 Steel Workers Organizing Committee , herein referred to as the S . W. O. C., is a labor organization appearing on behalf of its affiliated organization , the Amalgamated , the charging union herein. 2 10 N. L. R. B. 33. 3 10 N. L. R. B. 33, 50. 4 The names of the 23 persons and of the 31 employees were set forth in Appendices "D" and "B," respec- tively, of the Decision and Order , and are hereinafter set forth in the Appendices attached hereto, similarly designated for purposes of convenience. McKAIG-HATCH, INC. 1461 On January 18, 1937, the respondent made application to the Board for a reopening of the record in order to admit to the record further evidence with respect to the portions of the Decision and Order relating to the 23 named persons andbthe 31 named employees, and any other further or different evidence that the Board might require. On January 18, 1939, the Board issued the following order granting said application to the extent in said order provided: AND IT IS HEREBY FURTHER ORDERED, that the record be, and it hereby is, reopened for the purpose of taking and receiving further evidence before a Trial Examiner of the Board, and for futher proceedings consistent therewith, with respect solely to the following matters: (1) Whether the thirty-one (31) employees named in Appendix B 5 of said Decision and Order, [of December 2, 1938, above- mentioned] or any of them, could on October 18, 1937, and/or thereafter have performed the work which said persons named in Appendix D 6 of said Decision and Order, or which any other person not on the respondent's pay roll but hired since September 2, 1937, were or was employed by the respondent to perform; that is, whether the positions in which said persons named in Appendix D and such other persons were employed, by the respondent were the same as or substantially equivalent to the positions in which such thirty-one (31) employees were employed by the respondent on September 2, 1937, or were positions for which said thirty-one (31) persons or any of them were qualified. (2) Which, if any, of the thirty-one (31) persons named in said Appendix B is required by the provision of Paragraph 2 (c) of the Order of said Decision and Order to be offered immediate and full reinstatement by the respondent and which, if any, is required thereby to be placed on a preferential list of employment. (3) Which, if , any, of the thirty-one (31) persons named in said Appendix B is required by the provision of Paragraph 2 (d) of the Order of said Decision and Order to be made whole by the respondent, on account of loss of pay, and, if so, for what amount, in so far as an amount will have accrued thereunder at the date of the hearing herein ordered . . . The order also provided: Nothing in this Order shall be taken as in any way staying or postponing the enforcement of the Order of said Decision and Order [above-mentioned, issued December 2, 1938], or otherwise affecting said Order, or as excusing the respondent from comply- ing therewith. 5 See footnote 4, supra. 6 See footnote 4, supra. 323429-42-93 1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Generally, where the Board issues an order containing provisions such as those set forth in paragraphs 2 (c) and 2 (d) of the Order of December.2, 1938, the determination of the particular individuals who are to be reinstated.or placed on a preferential list under such order, as well as the determination of the persons to receive compensa- tion and the amount of money to be paid them, is made by the Regional Director as agent of the Board in connection with obtaining compli- ance with the order. In the instant case, however, the Board de- parted from its usual administrative practice and reopened the record for the purpose of taking evidence in respect to such matters since they involved, not merely compliance procedures, but involved or were related to a substantive issue. If, as contended in the respondent's application to reopen, none of the 31 employees named in Appendix B' was qualified for any of the work done on and after October 18,1937,. by the 23 persons named in Appendix D, 8 then the finding in the De- cision of December 2, 1938, that the respondent committed an unfair labor practice by its failure to make the displacement above-mentioned is not supported by the facts and the Decision should be modified accordingly. On February 15, 1939, the Regional Director issued a notice of a further hearing, copies of which were duly served upon the respondent, upon the S. W. O. C. acting on behalf of the Amalgamated, and upon the Association. Pursuant to notice a further hearing was held in Buffalo, New York, on March 6, 7, 8, 9, 10, 13, 14, and 15, 1939, before C. W. Whittemore, the Trial Examiner duly designated by the Board. The Board, the respondent, and the S. W. O. C. acting for the Amalgamated appeared at the hearing by their counsel or representa- tives. At the beginning of the hearing the respondent, without speci- fying, any particular provision of the Board's order of January 18, 1939, took exception to "those provisions of the order . . . that are outside and beyond the application . . . to reopen this proceeding" and to "the provisions of this order insofar as it purports to reopen this hearing for any other purpose than as provided in the application of McKaig-Hatch to reopen." Thereafter, during the hearing the re- spondent objected to the introduction of any evidence bearing on the earnings of the 31 employees named in Appendix B of the Board's Decision and Order. The Trial Examiner overruled the objection and noted an exception. The Trial Examiner made various other rulings on motions and on objections to the admission of evidence. The Board has reviewed the foregoing rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings 7 See footnote 4, supra. 8 See footnote 4, supra. MoKAIG-HATCH, INC. 1463 are hereby affirmed. At the close of the hearing the Trial Examiner informed the parties that he would prepare no Intermediate Report on the record of the further hearing and that they had the right to request the Board for leave to present oral argument and submit briefs to the Board. No request for oral argument has been made in pursuance thereof ; however, the respondent submitted a brief. On June 14, 1940, the Board issued an order directing that a Proposed Supplement to Decision and Proposed Order Amending Order be issued in the further hearing, including therein proposed findings of fact and proposed conclusions of law, and that leave be granted to each of the parties to file exceptions to the Proposed Supplement to Decision and Proposed Order Amending Order and to the record in the further hearing, to request permission to argue orally before the Board, and to submit a brief. Also on June 14 the Board issued its, Proposed Supplement to Decision and Proposed Order Amending Order, to which exceptions were filed on July 5, 1940, by.. the respondent. On July 23, 1940, the respondent submitted a brief in support of its exceptions. No request for oral argument before the Board was made by the parties. The Board has considered the exceptions filed by the respondent and, in so far as they are inconsist- ent with the findings, conclusions, and order below, finds them without merit. Upon the evidence introduced at the further hearing and upon the entire record in the cases, the Board makes the following: SUPPLEMENTAL FINDINGS OF FACT 1. POSITIONS OCCUPIED OR WORK PERFORMED BY. PERSONS LISTED IN APPENDIX D WHICH COULD HAVE BEEN FILLED OR PERFORMED ON OR ABOUT OCTOBER 18, 1937, BY EM- PLOYEES NAMED IN APPENDIX B, AND BACK PAY ALLOW- ABLE TO SUCH EMPLOYEES UNDER PARAGRAPH 2 (D) OF THE ORDER OF DECEMBER 2, 1938. (a) The issues at the additional hearing Paragraph 2 (d) of the Order of December 2, 1938, directed the respondent to take certain action, as follows: Make whole the employees named in Appendix B ordered to be offered reinstatement for any loss of pay they, or any of them, may have suffered by reason of the respondent's refusal on Octo- her 18, 1937, and thereafter, to reinstate them, by payment to them in the manner set forth in the section entitled "Remedy" above. 1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The payment referred to is described in the section entitled "Remedy" as follows: . . . the respondent shall make payment to each of the 31 employees of an amount equal to that which he would have earned as wages as follows: from October 18, 1937, to the date of the offer of reinstatement or placement upon a preferential list, less netearn ings during the period, had the respondent (1)on October 18,1937, discharged so many as might have been necessary of the persons hired after the commenceinent of the strike on September 2, and not on its pay roll of that date, and thereafter refrained from employing so many as might have been necessary of the persons thereafter employed and not on said pay roll, who were or are employed in the same or substantially equivalent positions as those formerly held by the 31 above employees or in posi- tions for which all or any of them may be qualified, and (2) had it filled the, positions occupied by such persons with those of the 31 employees who could fill such positions, in accordance with, and following such system of seniority or procedure as had theretofore been applied in the conduct of the respondent's business. As already stated, paragraph 2 (d) of the Order of December 2, 1938, rested, in part,' upon the finding and conclusion of the Board that the respondent engaged in an unfair labor practice by failing or refusing on or about October 18, 1937, to dismiss persons in its employ and listed in Appendix D, to the extent necessary to make work available for employees named in Appendix B qualified to perform such work. The respondent in its application to reopen, challenged the finding that the 31 employees, or some of them, were qualified to perform the work of the 23 persons, or any of them, and contended that paragraph 2 (ci) was, accordingly, without factual basis. In connection with the foregoing, the order of January 18, 1939, directed the taking of evidence as to (1) Whether the thirty-one (31) employees named in Appendix B of said Decision and Order, or any of them, could on October 18, 1937, and/or thereafter have performed the work which said persons named in Appendix D of said Decision and Order, or which any other person not on the respondent's pay roll but hired since September 2, 1937, were or was employed by the respondent. to perform; that is, whether the positions in which said persons named in Appendix D and such other persons were employed, by the respondent were the same as or substantially equivalent to the positions in which such thirty-one (31) em- ployees-were employed by the respondent on September 2, 1937, This paragraph of the Order also was based on the authority of the Board to provide a remedy for the situation brought about by the unfair labor practices which led to the strike . Matter of McKaig-Hatch; Inc. and Amalgamated Association of Iron, Steel, and Tin Workers of North America; . Local No. 1139, 10 N. L. R. B. 33, 50 , 52, 53. McKAIG-HATCH, INC. 1465 or were positions for which said thirty-one (31) persons or any of them were qualified. (3) Which, if any, of the thirty-one (31) persons named in said Appendix B is required by the provision of Paragraph 2 (d) of the Order of said Decision and Order to be made whole by the respondent, on account of loss of pay and, if so, for what amount in so far as an amount will have accrued thereunder at the date of the hearing herein ordered. The evidence taken at the further hearing on this branch of the case concerned itself primarily with the following questions: (1) Were the 31 employees named in Appendix B, or any'of them, qualified 19 to perform the work which the 23 persons named in Appen- dix D were employed by the respondent to perform on or about October 18, 1937? (2) If employees'` among' the 31 were qualified to perform such work, who were they, and what work would they have received had the respondent not retained in its employpon or about October 18, 1937, to the extent necessary, the 23 persons, or any of them, and employed in their stead those of the 31 qualified to do the work, assigning such work to them in accordance with such system of seniority or other procedure as theretofore had been applied by the respondent in the conduct of its business? (3) By way of compliance, if the respondent, on or about October 18, 1937, in accordance with such system of seniority or other procedure, had assigned the work of the 23 persons to those of the 31 qualified to perform it, and continued to make such work available to them, how much would have been earned by each of the respective employees to whom such work would have been assigned and made available? No evidence was taken at the further hearing with respect to whether there were any persons, other than as concerned those listed in Appendix D, hired by the respondent since September 2, 1937, whose work on and after October 18, 1937, had it been made available to the 31. named employees, would have enabled them, or some of them, to obtain wages which they otherwise did not earn. There is no explanation in the record other than certain representations in the respondent's application for a reopening as to why such evidence was not adduced. The respondent's application, supported by the veri- fication of its vice president, alleged that the respondent's plant here involved had not been operating with over 30 per cent of its usual em- ployment and that "consequently there has been no opportunity up 10 By "qualified" is meant, among other things, whether the positions occupied by the 23 persons on and after October 18, 1937, were the same as or substantially equivalent to positions in which the 31 employees were employed on September 2, 1937. Any finding herein that employees named in Appendix B are or are not qualified to perform certain work is made solely for the purposes of these proceedings. 1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the present time to reemploy any of the 31 individuals mentioned in Appendix B." From what is set forth below, it is plain that the al- leged diminution in plant employment does not explain the failure of the respondent to make available to some of the 31 employees work performed on and after October 18, 1937, by some of the 23 men- tioned persons. However, since as above stated, no evidence was introduced concerning the work, if any, on and after October 18, 1937, of persons other than the 23, hired after September 2, 1937, and not on the pay roll of that date, we shall treat as true the above- mentioned allegations, of the application in so far as they relate to the hiring since October 18, 1937, of persons other than the 23. Accordingly, we find that on and after October 18, 1937, and until the time of the further hearing," no work was available at the respondent's plant to any of the 31 employees, save as hereinafter determined with respect to work performed by the 23 mentioned persons. As stated above, the work of all 23, with one immaterial exception, terminated by way of lay-off prior to the further hearing. (b) Procedure followed by the respondent in employing persons and laying off employees in the conduct of its business As found in the Decision of December 2, 1938, the respondent's manufacturing is almost entirely on a special-order basis. In conse- quence, the number and nature of the jobs performed in its plant varies as the manufacture of different items upon special order is undertaken and completed. Continuity of employment depends largely on the skill or skills of the particular employee and the re- spondent's need therefor in producing the particular items then being manufactured. In the course of a year an employee may and usually does perform, often concurrently, several different types of work, frequently in more than one department in the plant. When the need for his skill ceases to exist he is laid off until an item is put into production requiring such skill. Hence, at any one time a sub- stantial number of the respondent's employees are laid-off workers awaiting a recall to work in the plant. During periods of lay-off such workers may be employed elsewhere. However, they constitute a "pool" of laid-off employees possessing various skills to which the respondent may turn from time to time as the need arises. For this purpose the respondent maintains employment records reflecting the periods of employment and nature of work not only of the em- ployees who at any particular time are engaged in work in the plant, but also of the laid-off individuals in the pool. The respondent follows a procedure of neither recalling laid-off 11 March 10, 1939, the last pay-roll date as to which evidence was introduced at the further hearing, is the date referred to herein by the expression "the time of the further hearing." - McKAIG-HATCH, INC. 1467 employees from the pool nor hiring new employees for work on items put into production, if such work can be performed by employees at work in the plant. In other words, a qualified employee at work has a prior right to an available job as against persons in the pool or new applicants for hire, even though these may be more competent than, he is.12 If work on a particular item has terminated, and work on a new product will shortly begin requiring skills such as those possessed by the employees who completed the finished item, the respondent will furnish these employees so-called "shop expense" work -consisting usually of various maintenance or unskilled work, until work on the new product is begun, and then assign these employees to work at the new product. However, when work becomes unavailable for employees in the plant and there is no work to which they shortly might be assigned, the respondent lays off the number of employees necessary, first those least competent to perform the work on hand and, where competency is equal, those with least seniority. When the necessity arises for recalling or employing persons to perform work which employees in the plant cannot perform or for which additional workers are needed, the respondent first exhausts the possibilities of the pool before hiring persons who never worked in its plant. In thus selecting laid-off employees for recall it chooses those most competent to perform the required work and, where competency is equal, those of greater seniority. Once recalled, a laid-off employee enjoys the same right of priority to work at hand as others in the plant. (c) Work performed on and after October 18, 1937, by certain of the 23 persons occupying on September 2, 1937, an employee status the same as or equivalent to that of the 31 employees Under the Order of December 2, 1938, the 31 employees named in Appendix B are to be made whole, in accordance with the terms thereof, because of their inability on and after October 18, 1937, to obtain work at the plant which they were qualified to perform but 12 The respondent in its brief of July 23, 1940, agrees to the correctness of the findings herein set forth in Section 1 (b), save in one instance . The exception involves that portion of the findings expressed in the above words, "even though these may be more competent than he is." The respondent contends that under its procedure an employee in the pool who is "better" qualified for a job than one in the plant will be recalled for that job and the one in the plant laid off. This contention, it would seem, is concerned more with a question of language than any dispute over the fact . Competence at performing a given operation in the respondent's plant, or aptitude to perform such operation , may vary widely with different employees. The mateiial question is whether sufficient competence and aptitude exist in a particular case to constitute qualification for the job. So long as an employee in the plant is qualified and available for the job, he has a prior right to it against one who has been laid off some time previous and is not at work in the plant, although the outsider not only is qualified, like the employee in the plant , but may have greater competence and aptitude . Manager Kempf testified that if some of the 31 employees listed on Appendix B had done work similar to that performed after October 18, 1937, by persons on Appendix D, and had not been reinstated in pursuance of their application following the strike, he believed the reason to be that " their work must have been so poor as to cause the respective foremen to reject them , as far as possible employees on this new work is concerned." As found below, the record shows that certain of the employees named on Appendix B were qualified for the respective work performed by persons on Appendix D and here involved , and that they were as well qualified for such work as such persons on Appendix D. 1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which was then being performed by persons named in Appendix D. The evidence taken at the further hearing shows that 20 of the 23 persons listed in Appendix D were in the "pool" at the time of the strike on September 2, 1937, and were recalled to work by the respond- ent after that date. While it is true that these 20 individuals were laid-off and not new employees when respectively recalled, the distinction is immaterial, for they could gain no right of priority to work against the 31 employees who on September 2, 1937, already were in the plant but were then caused by the respondent's unfair labor practices to go on strike. However, a different situation ob- tains as regards the remaining three persons listed in Appendix D, namely, Leo Hoch, Anthony Grezegorczyk, 13 and Edwin Spencer. Hoch in fact was at work in the plant at the time of the strike; the other. two were on temporary leave for the purpose, respectively, of becoming married and obtaining health treatment. As against them, the 31 employees listed in Appendix B enjoyed no greater right to work available on and after October 18, 1937. The status of the three as employees was the same as or equivalent to that of the 31 employees when the strike began. The respondent committed no un- fair labor practice in failing on and after October 18, 1937, to. replace these three with qualified employees among the 31, and accordingly, no restitution under paragraph 2 (d) of the order of December 2, 1938, is allowable by virtue of work performed by these persons. (d) Work performed by certain of the 23 persons which could not have been performed on or about October 18, 1937, in whole or in part by any of the 31 employees One person listed in Appendix D, Walter Kaiser, was recalled from the pool on September 20, 1937, and on or about October 18 was assigned to work as a hammer man in the forge shop, at which work he continued, with an intervening lay-off period, until December 23, 1938. None of the 31 employees named in Appendix B was qualified to do this work. Accordingly, no restitution is allowable under the Order by virtue of work performed by Kaiser as a hammer man on and after October 18, 1937. Another person listed in Appendix D, Louis Stahl, was recalled from the pool on September 20, 1937, and from on or about October 18 until December 4, 1937, performed certain time-study work and also other work. None of the 31 employees was qualified to do time- study work, so far as the record shows, and we so find. While some of the 31 could perform the work other than time-study work assigned to Stahl, nevertheless we are of the opinion that the respondent was not compelled during the above-mentioned period to limit Stahl's work '3 Designated A. Grzegorezyk in Appendix D. McKAIG-HATCH, INC. 1469 to a part-time basis and assign him only time-study work in .order to make work available for the 31 employees. Stahl's position during this period was that of an employee entitled to retain his position against the 31. After December 4, 1937, and continuing until his lay-off on February 9, 1938, Stahl performed various types of work all of which certain of the 31 employees may have been qualified to perform. However, we do not resolve this question, for the status, which he held on October 18, 1937, one not subordinate to that of any of the 31, was, as regards the right to available work thereafter, analogous to that of an employee in the plant on September 2, 1937, who did not go on strike. Restitution in connection with work performed by Stahl is therefore not allowable. Four persons in Appendix D, Morley Miller, William Kaiser, Victor Berra, and Carl Johns, were engaged at milling cable-ball seats on or about October 18, 1937. They also then devoted part of their time to other work. All four continued working concurrently at milling cable-ball seats and at other work until the time of their re- spective lay-offs. None of the 31 employees, save possibly George Maedl and Edward Yokes, was qualified to perform the milling opera- tion of the four mentioned men, although several of the 31 could perform the work other than milling in which the four men were engaged. As to the right of the 31 employees, except Maedl and Yokes, to perform the work of these four men other than milling cable- ball seats, the applicable principles are those set forth above in con- nection with Stahl. In regard to Maedl and Yokes, these men, as stated below, were entitled and should have been assigned on and after October 18, 1937, to the work of two other persons listed in Appendix D. We are satisfied that Maedl and Yokes were clearly and better qualified for this other work than they were for milling cable-ball seats and that the respondent, had it been willing to make work available to them at that time, would have assigned them such other work rather than this milling operation. For this reason, and in this sense, we find that none of the 31 employees was qualified to perform the work which Miller, Kaiser, Berra, and Johns performed after October 18, 1937. No restitution is allowable under the Order on account of work performed by Miller, Kaiser, Berra, and Johns. From _ October 18, 1937, until his lay-off on February 9, 1938, Wallace Nowak," another of the persons listed in Appendix D, occupied the same position in respect to right to work as that of the four persons first above-mentioned. However, he was recalled to the plant on successive occasions subsequent to February 9, 1938, to perform work which the 31 employees may have been able to perform. We do not think that restitution is allowable on account of work per- '4 Designated Wallace Nowack in Appendix D. 1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formed by him either before or after February 9, 1938. As to work before that date, the principles stated to govern the situation of the four above-mentioned persons, apply. As to work after that date, having once acquired a status analogous to that of an employee at work in the plant on September 2, 1937, Nowak, following the prin- ciple mentioned in Stahl's case, above, did not lose that status simply because of subsequent intervening periods of lay-off. No restitution is allowable under the Order on account of work performed by Nowak. A. Jobson, listed in Appendix D, was recalled to the plant on October 26, 1937, • and assigned to work concurrently at heating and other operations until February 16, 1938. One of the 31 employees, Maedl, was qualified to do heating, and others may have been qual- ified to do the other operations. However, as stated below, Maedl, previous to October 26, 1937, should have been assigned other work which would have continued beyond that date, and the failure of the respondent to make such assignment is compensable under the Order. Maedl could be entitled to only one work assignment at one time, and hence could have no claim to the heating work of Jobson on October 26. Subsequent to February 16, 1938, Jobson worked as a hammer man, subject to intervening periods of lay-off, but none of the 31, as stated above, was qualified to do this work. It follows, upon prin- ciples already stated, that no restitution is allowable on account of work performed by Jobson after October 18, 1937. Budzeszewski, listed in Appendix D, was recalled on October 20, 1937, and assigned work as a heater, at which work he continued, with intervening lay-offs, until December 23, 1938. As already stated, none of the 31 employees except Maedl was qualified to do heating, and Maedl would have been unavailable to perform this work from October 20; 1937, until February 17, .1938, had he been reinstated to the position for which compensation is hereinafter allowed him under the Order. While Maedl would have been available to perform Budzeszewski's work after February 17, 1938, still at that time Maedl's right to the work would be no greater than Budzeszewski's right, under the rule applied above in connection with Stahl. Upon principles already stated, no restitution is allowable under the Order on account of work done by Budzeszewski from and after October 20, 1937. (e) Work assigned to certain of the 28 persons. listed in Appendix D which certain of the 31 employees were qualified to'perform entirely and which should have been assigned to them. Under paragraph 2 (d) of the Order. of December 2, 1938,15 the respondent is required to make restitution for failing or refusing on 11 See Section 1 (a), supra. McKAIG-HATCH, INC. 1471 and after October 18, 1937, to make available to employees listed in Appendix B work for which they were qualified 16 and which was then being performed by persons named in Appendix D. The evidence establishes that George Maedl, listed in Appendix B, was qualified to execute the heating operation being performed from on or about October 18, 1937, until February 16, 1938, by Eugene Kaiser, the only person named in Appendix D doing heating on October 18, 1937.17 While it was shown that three employees in Appendix D other than Maedl, namely, Vincent Hinca, Swiniarski, and Lochocki, had had some experience at heating, we find that they were not qualified to perform this operation and that Maedl alone was competent to do it. Maedl on that date not only could have performed heating satisfactorily but may have been qualified to mill cable-ball seats and do other work then performed by persons in Appendix D. However, we are satisfied, and find, that Maedl was better qualified for heating than for any other work performed by the 23 on and after October 18. Since Maedl alone of the 31 was qualified to do heating on October 18, and was better qualified to do that than any other workers, and since Kaiser's was the .only heating work then available, we are convinced that the respondent would have assigned Kaiser's work to Maedl had it on or about October 18 dismissed Kaiser. Accordingly, we find that Maedl is entitled under paragraph 2 (d) of the Order of December 2, 1938, to be made whole for the loss of wages he sustained from October 18, 1937, to February 16, 1938, because of the respondent's failure or refusal during this period to assign to him Eugene Kaiser's work at heating, by payment to him of An amount equal to that earned by Kaiser for performing such work less Maedl's net earnings 18 during said period. From October 18, 16 See footnote 10, supra. 17 The respondent contends that Maedl was not so qualified, among other reasons, because "it takes on an average of two years to make a fairly good heater." Maedl worked 3 years in the plant and had had about 5 months' experience at heating in the header department. Irrespectiyeofwhether 2 years' work at heating is required of an employee before he becomes "a fairly good" heater, it is plain that no such period conditioned the successful accomplishment of the heating operation' Which Kaiser performed in the forge department from on or about October 18, 1937, until February 16, 1938. Kaiser, himself, when recalled in October for this operation had had but 2 months' experience at heating, and, indeed, this 2 months' experience con- stituted the only plant work Kaiser had ever performed in any plant, whether the respondent's or anyone else's. Another employee, Budzeszewski, upon his employment by the respondent, was assigned directly to heating in the forge department, although he previously had been a truck driver. The respondent also states that the beating operation in the forge department where Kaiser worked "is different" from the heating operation in the header department where Maedl acquired his experience at heating, and infers therefrom that Maedl's experience did not qualify him for the heating operation in the forge department. This statement and inference are not supported by the record. The two operations are similar. One witness employed in the header department testified that heating in the forge department was "practically the same thing" as heating in his own department. Production Superintendent Friedl testified that the furnace used in connection with beating operations in the header department was "similar to the forging furnace." Is As stated in'footnote'16 of'th'e-Dccision and Order of December 2, 1938, 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 apd United Brotherhood of Carpenters and Joiners of America, Lumber 1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1937, to February 16, 1938, Kaiser earned $540.18. The loss of wages which Maedl suffered by virtue of his not being assigned this work of Kaiser is measured by the earnings received by Kaiser for performing the work. Maedl's net earnings during this period were $300.19 We find, therefore, that Maedl is entitled under the Order to be paid by the respondent the sum of $240.18. Paul Mueller, listed in Appendix D, was employed from on or about October 18, until November 13, 1937, at countersinking, burring and inspecting throttle levers. Six of the 31 employees named on Appendix B, namely, Maedl, Wright, Kaplewicz, Krusyzaniak, Thaddeus Bork,Z° and Novier, were qualified to perform all this work. Of these six, Wright was as qualified as and had more seniority than the other five. Accordingly, we find that had Mueller's work been made available on or about October 18 such work would have been assigned to Wright." Although it is shown by the evidence that Wright by virtue of his competence and seniority also would have been entitled, as against any other employee listed on Appendix B, to the work performed on October 18, 1937, by another person on Appendix D, namely, O'Neill, we are of the opinion, as, above found, that the respondent nevertheless would have made the work of Mueller available to Wright. We so conclude for the reason as reflected in a comparison of the earnings on October 18 and thereafter of Mueller and O'Neill, that Mueller's work was the more desirable and, other things being equal, would have Footnota 18-Continued. and Sawmill Workers, Local No. 2590, 8 N. L. It . B. 440 . By "unlawful discharge " was meant the discrimi- natory termination of employment of employees listed in Appendix B, attendant the refusal or failure to reinstate them. There is no evidence in the record concerning expenses incurred by Maedl and certain other employees named in Appendix B whom we find should have been assigned to work performed by the 23 persons named in Appendix D, in connection with obtaining work and working elsewhere than for the respondent, which expenses would not have been incurred but for their unlawful discharge and the consequent necessity of their seeking employment elsewhere . We presume and accordingly find, that there were no such expenses. The evidence also shows that during the various periods involved Maedl and certain other employees named in Appendix B whom we find herein should have been assigned to work performed by the 23 persons named in Appendix )E) received certain sums of money by way of unemployment insurance . Such payments are not to be considered as earnings and hence are not deductible from the amount of compensation otherwise due said employees. Matter of Walter Stover, doing business under the trade name and style of Storer Bedding Company and Upholsterers Allied Crafts Local Union No. 501, 15N.-L. R. B . 635, 651 , footnote 28. Cf. Matter of Oil Well Manufacturing Corporation, and Employees Mutual Benefit Association., 14 N. L . It. B. 1114, 1129, footnote 9. iv From October 18 to December 1, 1937 , Maedl had no employment . From the latter date until April 1, 1938, he worked as engineer in a school , earning $480. Prorating this $480 over the period in which it was earned , $300 is allocable to the period from December 1, 1937, to February 16, 1938. 2s Designated Teddy Bork in Appendix B. 21 The respondent contends that Wright was not qualified to do countersinking of throttle levers in the carburetor lever department where Mueller worked . Wright was first employed by the respondent in 1927. and had continuous employment at the plant from September 1935 until the strike in September 1937. The evidence shows that in so-called "rush periods" Wright was assigned to work in the carburetor lever depart- ment to perform various tasks including countersinking of throttle levers. We do not think it material to the issue here presented that Wright performed this work only occasionally . In so far as Mueller is con. cerned , prior to his recall to work during the strike, Mueller had been employed by the respondent a total of only 2 months, and had not had more than 7 weeks ' experience at countersinking . We are satisfied, and Ppd. that Wright w M it 1@^st as well qualified as Mueller to eouptersildk throttle levers. . McRAIG-14ATCIT, MC. 1473 gone to the available employee 12 on Appendix B with greatest sen- iority, Wright. On the other hand, O'Neill's work would have been assigned to another employee on Appendix B qualified for that work but with less seniority. We find that Wright is entitled under para- graph 2 (d) of the Order of December 2, 1938, to be made whole for the loss of wages which he sustained from October 18 to November 13, 1937, because of the respondent's failure or refusal during this period to assign to him Mueller's work, by payment to him of an amount equal to that earned by Mueller for performing such work, less Wright's net earnings 23 during said period. From October 18 to November 13, 1937, Mueller earned $103.49. Wright had no net earnings during this period. We find that Wright is entitled under the Order to be paid by the respondent the sum of $103.49. Percy Chambers and J. Jantze, listed in Appendix D, were employed from October 18 and 19, 1937, respectively, until January 17 and January 6, 1938, respectively, at operating degreasing machines on the new style adjusting wedges. The record shows that three of the 31 employees named on Appendix B, namely Grabowski, Krusyzaniak, and Chester Herko,24 were qualified to perform this work.?5 There being no signal difference in the qualifications of these three employees for this operation, we find that had the respondent made available the work of Chambers and Jantze to employees listed on Appendix B, it would have assigned such work among the three qualified employees upon the basis of seniority, in accordance with its usual practice in such cases. Grabowski had the most seniority, and Krusyzaniak the next most seniority. Accordingly, had the respondent made Cham- bers' and Jantze's work available, Grabowski would have been assigned to Chambers' work, which was the first to become available; and Krusyzaniak would have received Jantze's work. We find that Grabowski is entitled under paragraph 2 (d) of the Order of December 2, 1938, to be made whole for the loss of wages which he sustained from October 18, 1937, to January 17, 1938, because of the respondent's failure or refusal during this period to assign to him Chambers' work of operating the degreasing machine, by payment to him of an amount equal to that earned by Chambers for performing such work, less 21 By "available" employees is meant those of the 31 who would not have been employed on the date in question at some other work which was then being performed by persons on Appendix D. 23 See footnote 18, supra. 1 24 Krusyzaniak and Chester Herko were designated Kryzaniak and Chester Harko in Appendix B. 25 The respondent states that Grabowski never operated the degreasing machine and did not "claim [at the hearing] that he was competent " to do so, and hence contends that Grabowski was not qualified for that work. In response to interrogation at the hearing concerning the kind of work he performed for the respondent Grabowski expressly included work on the degreasing machines . This operation is a simple one. Chambers , the employee recalled to do this work, testified that "anybody with ordinary intelligence can do it," and Jantze was assigned to this work on October 19 without ever having had any experience at it. With respect to Krusyzaniak , the respondent contends that he was not qualified because he had not operated a degreasing machine. However , as above stated , this was also true of Jantze. The work Krusyzaniak pre- viously performed at the plant shows that he was qualified to operate the degreasing machine. We find that Grabowski and Krusyzaniak were as competent to operate the degreasing machines as Chambers and Jantze. 1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grabowski's net earnings during said period. We further find that Krusyzaniak is entitled under paragraph 2 (d) of said Order to be made whole for the loss of wages which he sustained from October 19, 1937, to January 6, 1938, because of the respondent's failure or refusal during this period to assign to him Jantze's work, by payment to him of an amount equal to that earned by Jantze for performing such work, less Krusyzaniak's net earnings during said period. Chambers earned from October 18, 1937, to January 17, 1938, the sum of $227.88; Jantze earned from October 19, 1937, to January 6, 1938, the sum of $227.14. Grabowski had net earnings of $4 and Krusyzaniak of $15. We find, therefore, that under the Order Grabowski is entitled to be paid by the respondent the sum of $223.88, and Krusyzaniak the sum of $212.14. (f) Work performed respectively by certain persons named in Appendix D which on or about October 18, 1937, could have been performed entirely, but thereafter could not have been performed entirely or sub- stantially, by an individual employee named in Appendix B, and which should have been assigned to such employee. E. Lichtenberger, one of the employees named in Appendix D, was engaged concurrently on or about October 18, 1937, at broaching new truck adjusting wedges and at assembling pliers. Three em- ployees named in Appendix B, Anthony Bork,2fi Falkowski; and Yokes, were qualified on that date to replace Lichtenberger. While other employees on Appendix. B were qualified for one or the other of the two operations which Lichtenberger then performed; we pre- sume, and we find, that had. the respondent on or about October 18, 1937, made Lichtenberger's work available it would have chosen, in the first instance, for such work an employee qualified to perform both operations. As set forth below, Yokes was entitled to be given and should have been given on October 18 the work of another person on Appendix D, Ostolski, and hence would not have been available for assignment to Lichtenberger's work on that date. As between Bork and Falkowski, both were equally qualified for broaching, but Bork was better qualified for assembling pliers. Under these circumstances we find that the respondent on or about October 1.8 would have assigned Lichtenberger's work to Bork had the respondent then made such work available. Lichtenberger enjoyed continuous employment at the plant from October 18, 1937, until January 17, 1938. In this period he performed concurrently not only the two types of work above mentioned but other types of work as well. The types of work which he performed changed several times during the course of ' The respondent in the brief which it submitted to the Board on July 23, 1940, apparently confuses Thaddeus Bork (Teddy Bork) with this employee. It presents no argument to the effect that Anthony Bork was not qualified to perform Lichtenberger 's work, as herein found. McKAIG-HATCH, INC. 1475 this period. Bork was qualified to do the following operations which Lichtenberger performed throughout the period: broaching new-style truck adjusting wrenches, assembling pliers, burring cranks, and burring and broaching new-style truck operating levers. He was not qualified for the following of Lichtenberger's assignments: working on struts, operating the hardening furnace and reaming new-style truck operating levers. As shown by a comparison of the amount of compensation paid Lichtenberger for the various types of work done by him from October 18, 1937, until the beginning of the week ending December 25, 1937, only a small percentage of such work could not have been performed by Bork. During the remainder of the period until January 17, 1938, while the amount of Lichtenberger's work which Bork could not perform relatively increased, at no time, as shown by the compensation paid to Lichtenberger, was the amount of such work the greater portion of all work concurrently performed by Lichtenberger. We find that Anthony Bork is entitled under paragraph 2 (d) of the Order of December 2, 1938, to be made whole by the respondent for the loss of wages he sustained from October 18, 1937, to January 17, 1938, because of the respondent's failure or refusal during this period to assign to him the various types of work at which Lichtenberger was employed and which Bork was qualified to perform, by payment to him of an amount equal to that earned by Lichtenberger for performing such work less Bork's net earnings during the period. We do not consider as material to the question whether Bork is entitled to restitution, the fact that certain types of work done by Lichtenberger from time to time could not have been performed by Bork, for the substantial amount of all work concur- rently being performed by Lichtenberger could have been regularly performed by Bork, and there is no showing that the respondent could not have so arranged its assignments of work at the plant, in accordance with its usual procedure, to the end that the work which could not have been performed by Bork. would have been performed by others, and we find that it could have done so. While other principles might apply if an employee in a position such as Bork's could perform only a small amount of the work which should have been made available, we hold that under the circumstances presented, compensation is proportionately allowable where it is shown that the employee could perform a substantial amount of such work. Lichtenberger earned $186.28 at the various types of work which Bork was qualified to perform during the period involved. Bork had no net earnings during this period. We find that Bork is entitled under the Order to be paid $186.28 by the respondent. We note that Lichtenberger received certain compensation on account of "shop expense." We are of the opinion that no amount is allowable under the Order on' account of such an item, for it does not represent 1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a regular work: assignment but, as heretofore mentioned, an adjust- ment to equalize work at the plant. Ludwig Gerich, named in Appendix D, was engaged on October 18 in burring new truck adjusting wedges. Twenty-one of the employees listed in Appendix B were qualified to perform this work, and among the five best qualified to do it 27 Anthony Hinca had the greatest seniority. We find that had the respondent made Gerich's work available on October 18 Anthony Hinca would have been assigned to perform it. In the week succeeding October 23 Gerich not only continued at the work above mentioned but also inspected carburetor levers and broached new-style truck adjusting wedges. Until the week ending December 11, 1937, Gerich also performed the following types of work: burring new-style truck operating levers, straightening and inspecting such levers, and reaming them. The record shows that .Anthony Hinca was qualified to perform all the above-mentioned operations except broaching new-style truck adjusting wedges and reaming new-style truck operating levers. However, at all. times from October 18 to December 11, 1937, the work which Hinca was qualified to perform constituted a substantial amount of the work being done by Gerich. In the week beginning on or about December 13, 1937, Gerich was assigned to work exclusively at milling cable-ball seats and devoted the substantial portion of the succeeding 2 weeks to the same work. Anthony Hinca was not qualified to mill cable-ball seats and we presume, and find, that had he been reinstated on October 18 he would have been laid off or assigned to other work on December 11. We are of the opinion and find, in accordance with principles stated above in connection with the reinstatement of Anthony Bork, that Anthony Hirlca is entitled under paragraph 2 (d) of the Order of December 2, 1938, to be made whole by the respondent for the loss of wages he sustained from October 18 until December 11, 1937, because of the respondent's failure or refusal during this period to assign to Lini the various types of work at which Gerich was employed and which Hinca was qualified to perform, by payment to him of an amount equal to that earned by Gerich for performing such work less Hinca's net earnings during said period. From on or about October 18 to December 11, 1937, Gerich earned in performing the operations which Hinca was qualified to perform, excluding straightening and inspecting new-style truck operating levers, the sum of $1.09.78. What Gerich earned at, straightening and inspecting new-style truck operating levers is not definitely shown.2S Hinca has had no net earnings. We find that Hinca is entitled under the Order to be paid by the respondent the sum of $109.78 plus an amount equal to that paid to Gerich for 27 These were Anthony Hinca , Swiniarski , Rederowicz , Aloysius Herko, and Novier. 25 Gerich earned $33.10 at straightening and inspecting new-style truck operating levers in a 2-week period, I week of which took place after December 11, 1937 . The evidence does not show how much of these earnings is allocable to the week prior to December 11. McKAIG-HATCH, INC. 1477 straightening and inspecting new-style truck operating levers from October 18 to December 11, 1.937. Francis O'Neill, listed in Appendix D, was employed in the plant . on or about October 18, 1937, to countersink throttle levers and inspect carburetor levers, at which work lie continued the following week. Seven employees 21 named in Appendix B were qualified to do both these types of work.30 The two persons with greatest seniority among those best qualified were Wright and Kaplewicz.31 As between these two Wright had the greater seniority. However, Wright would not have been available for reinstatement to O'Neill's work on or about October 18 for the reason that, as found above, he was entitled to the better position held by Mueller on that date, and should have been reinstated to that position. We find, therefore, that had the respondent on or about October 18, 1937, made O'Neill's work avail- able, the respondent would have assigned it to Kaplewicz. In the succeeding week ending October 30 O'Neill was assigned part time to milling screw-driver pliers, a type of work Kaplewicz was not quali- fied to perform, and, as reflected by compensation received, during the 3 weeks thereafter worked either all or substantially all of his time at this operation. It is apparent, therefore, under the principles stated above in connection with Anthony Hinca's case, that Kaplewicz would have been laid off or assigned other work on October 30, 1937. We find in accordance with the principles already stated, that Kaple- wicz is entitled under paragraph 2 (d) of the Order of December 2, 1938, to be made whole by the respondent for the loss of wages he sustained from October 18 to 30, 1937, because of the respondent's failure or refusal during this period to assign to him the various types of work at which O'Neill was employed; except milling screw-driver pliers, by payment to him of an amount equal to that earned by O'Neill for performing such work, less Kaplewicz's net earnings during the period. O'Neill earned in performing the operations which Kaplewicz was qualified to perform, excluding inspecting carburetor levers, the 29 These seven were : Wright, Liska , Maedl, Kaplewicz, Krusyzaniak , Thaddeus Bork , and Novier. 30 While there were more than these seven on Appendix B who could perform either type of work, only these seven were qualified to do both types . The presumption as to work assignment in such situation has been set forth above in connection with Lichtenberger's case. 31 The respondent states that it is "inclined to agree" that Kaplewicz was qualified for this work, but con- tends that it properly retained O'Neill on and after October 1S despite the right which Kaplewicz otherwise had as a striking employee to be reinstated, because O'Neill was doing this work as part of a course of training to prepare him for machine setting . In connection with such training it is the respondent 's practice to assign the employee to work at a number of the machines in the plant . The respondent also states that Kaplewicz was not qualified" for machine setting. We are satisfied that Kaplewicz was at least as well fitted as, if not better fitted than , O'Neill to be trained for such work . Kaplewicz had much more experience in the plant and at machine work. In any event the respondent cannot here justify its denial of Kaplewicz 's application for reinstatement to work he was qualified to perform merely because it had undertaken , pursuant to an arrangement with a person recalled during the strike, to train such person for machine setting. The re- spondent would have to show, which it did not, that in training machine setters , generally , it customarily lays off regular employees in order to make available their machines for training purposes ; that the training of O'Neill for machine setting was essential at the time he was recalled , and his assignment to the particular machines here involved rather than to other machines was then necessary to his training ; and that Kaplewicz either was unfit for such training or if fit had been offered such training by the respondent and had refused it. 323429-42-94 1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sum of $27.74. The record does not disclose with particularity the amount earned by O'Neill during the period involved at inspecting carburetor levers.32 Kaplewicz had no net earnings during the period. We find that Kaplewicz is entitled under the Order to be paid by the respondent the sum of $27.74 plus an amount equal to that paid to O'Neill for inspecting carburetor levers from October 18 to 30, 1937. Franklin Fairington, listed in Appendix D, worked on October 18, 1937, at broaching new truck adjusting wedges and burring new-style truck operating levers. Four employees on Appendix B of equal competence, Anthony Borl., Yokes, Kaminski, 33 and Falkowski, were qualified to perform both these operations.34 One of the four, Bork, we have considered above and have allowed him compensation on account of the respondent's failure to make available to him work then being performed by Lichtenberger. We found that Bork was the best qualified of all employees in Appendix B, including Falkow- ski, to do that work. We also haveabove'considered Yokes and allowed him restitution. Hence, on October 18 the only qualified employees of those named in Appendix B who would have been. available for Fair- ington's work were Kaminski and Falkowski, and as between them the greater seniority lay with Kaminski. We find that had the respondent on or about October 18 made Fairington's work available, the respondent would have assigned it to Kaminski. ' Fairington worked at broaching and burring until the beginning of the week ending November 13, 1937. That week and thereafter he devoted the substantial amount of his time, as shown by his earnings, to finish milling ball seats on the new-style truck operating lever, a type of work which Kaminski was not qualified to perform. Therefore, had Kaminski replaced Fairington on or about October 18, 1937, he, Kaminski, would have been either laid off or assigned other work on 32 O'Neill earned $9.24 at inspecting carburetor levers from on or about October. 18 to November 6, 1937. The evidence does not show how much of these earnings is allocable to the period preceding October 30. 33 The respondent states that "Nowhere in Kaminski's testimony does he claim that he ever had any experience in broaching new style truck adjusting wedges." The record shows that this operation was first begun in the plant during or after the strike, and, hence, neither Kaminski, Fairington, nor any other employee had had previous experience at it. However, Kaminski worked 3 years in the plant at various operations, including broaching old style truck adjusting wedges, and was well qualified, we feel at least as well qualified as Fairington, to broach the new-style truck adjusting wedges. The respondent also states that the foreman of the adjusting wedge department "asked for Fairington's recall to work" during the strike "because he was a smart boy and best qualified to do the work." We do not think that such opinion of the foreman is controlling upon the question whether the respondent, upon application, should have reinstated the striking employee to work for which he was qualified. If Kaminski was qualified to perform the work which the respondent recalled Fairington to perform during the strike, the respondent was under duty to replace Fairington with Kaminski when the application for reinstatement was made. We are satisfied, and find, that had there been no strike and had Kaminski been at work in the plant when this operation on the new-style truck adjusting wedges began, the respondent would have assigned Kaminski to such operation, if he was not otherwise occupied, and would not have recalled Fairington for such work. That Fairington began work during the strike, resulted in his acquiring no indefeasible right to the work as against Kaminski. 34 While there were more than these four in Appendix B who could perform either type of work, only these four were qualified to do both types. See footnote 30, supra. McKAIG-HATCH, INC. 1479 November 8, 1937, and we so find. Accordingly we find, in accord- ance with principles already stated, that Kaminski is entitled under paragraph 2 (d) of the Order of December 2, 1938, to be made whole by the respondent for the loss of wages he sustained from October 18 to November 6, 1937, because of the respondent's failure or re- fusal during this period to assign to him the work at which Fairington was employed, by payment to him of an amount equal to that earned by Fairington for performing such work, less Kaminski's net earnings during the period. Fairington earned at this work, excluding burring new-style truck operating levers, the sum of $33.71. The record does not show specifically the amount earned by Fairington during the period involved at burring new-style truck operating levers.35 Ka- minski has had no net earnings during the period. We find that Kaminski is ,entitled under the Order to be paid by the respondent the sum of $33.71 plus an amount equal to that paid to Fairington for burring new-style truck operating levers from October 18 to November 6, 1937. Benjamin Ostolski, listed in Appendix D, concurrently turned diameters on the new-style truck adjusting wedges and burred new truck operating levers on or about October 18, 1937. He devoted the substantial amount of his time to this work until on or about Novem- ber 27, 1937, when he engaged solely in hollow milling struts. Only one employee in Appendix B, Yokes, was qualified to perform both operations.36 We find that had the respondent on that date made Ostolski's work available, such work would have been assigned to Yokes. However, Yokes was not qualified to perform hollow milling of struts. Hence, had lie replaced Ostolski on October 18, Yokes would have been laid off or assigned other work on or after Novem- ber 27, 1937. We find in accordance with the principles stated above, that Yokes is entitled under paragraph 2 (d) of the Order of Decem- ber 2, 1938, to be made whole by the respondent for the loss of wages he sustained from October 18 to November 27, 1937, because of the respondent's failure or refusal during this period to assign to him the types of work at which Ostolski was employed and which Yokes was qualified to perform, by payment to him of an amount equal to that earned by Ostolski for performing. such work, less Yokes' net earnings during said period. Ostolski earned from October 18 until Novem- ber 27, 1937, at the operations which Yokes was qualified to perform, 36 Fairington earned $25 .52 at burring new-style truck operating levers from on or about October 18, 1937, through January 1, 1938. The evidence does not show how much of these earnings is allocable to the period prior to November 6, 1937. 36 The respondent states that Yokes "does not claim that he had had any experience turning diameters on the new-style truck adjusting wedges." This operation was first begun during or after the strike, and no employee, including Ostolski, had theretofore done it. Prior to the strike Yokes worked about a year at turning diameters on the old-style truck adjusting wedges. We are satisfied, and find , that Yokes was at least as well qualified as Ostolski to work on the new-style truck adjusting wedges. Had there been no strike the respondent would not have recalled Ostolski for such work if Yokes, who was in the plant, was available to perform it . See, in this connection , the views we have expressed in footnote 33, supra. 1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the sum of $126.63. Yokes had no net earnings during this period. We find that Yokes is entitled under the Order to be paid $126.63 by the respondent. Charles Carson, named in Appendix D, was employed from October 18 to 23, 1.937, at straightening levers and trimming. Four employees listed in Appendix B, Anthony Hinca, Wright, Sroke, and Opacki were qualified to do the two operations, and of these four Sroka and Opacki were better qualified to straighten levers, the operation which constituted the substantial part of the work performed by Carson.37 Sroka and Opacki were equally competent, but Sroka had the greater seniority. Thus, had the respondent on October 18, 1937, made Carson's work available, such work would have been assigned to Sroka. In the week following October 23, 1937, Carson was assigned to heating, an operation which only one employee in Appendix B, Maedl, was qualified to perform. As indicated above, on October 18 Maedl was entitled to and should have been assigned to Eugene Kaiser's work at heating, and had he been so assigned he would have been unavailable to perform Carson's work at heating. Sroka could not perform this operation and consequently, on October 23, 1937, would have been laid off or assigned other work. Under these circum- stances, Sroka alone is entitled to receive compensation in connection with the failure to make Carson's work available. We find that Sroka is entitled under paragraph 2 (d) of the Order of December 2, 1938, to be made whole by the respondent for the loss of wages lie sustained from October 18 to 23, 1937, because of the respondent's failure or refusal during this period to assign to him Carson's work, by payment to him of an amount equal to that earned by Carson for performing such work, less Sroka's net earnings during the period. Carson earned at such work the sum of $28.75, and Sroka had no earnings during the period. We accordingly find that Sroka is en- titled under the Order to be paid by the respondent the sum of $28.75. Carl Wilmoth, named in Appendix D, was employed from October 18 to 23, 1937, at inspecting carburetor levers. Many of those listed in Appendix B were competent to perform this work, but Vincent Hinca was best qualified and had the most seniority.38 Had the 37 The respondent agrees that Sroka was qualified for this work , but contends that "this work was given to Carson only to retain his services as a heater " "while waiting for dies and hammer repairs." Although Sroka was not qualified to perform heating, the record does not show that Carson , following a 5 months' lay-off, was recalled to the plant in September for the purpose contended by the respondent . During the month after his recall Carson did no heating. 33 The respondent states that "there is probably no doubt that Vincent Hinca could have performed the work of inspecting carburetor levers," but contends that "Wilmoth was being kept in the plant because he was a heater," that because of illness Wilmoth was placed "temporarily on some other work only to keep his services as a heater." We are not convinced that Wilmoth was retained at inspecting carburetor levers on and after October 18 in order to have him available for heating. He was recalled on September 23, 1937, during the strike, and for 2 months performed no heating . When asked at the hearing as to the reason for assigning Wilmoth work other than heating, Wilmoth's foreman merely stated that he "felt sorry for the lad" and "did not want to fire him" because he was sick . The respondent has not justified its refusal to reinstate Hinca to work he was qualified to perform. - McKAIG-HATCH, INC. 1481 respondent on October 18 made Wilmoth's work available, Vincent Hinca would have been assigned to it. Following a leave of absence beginning on or about October 23, 1937, Wilmoth returned to work on November 16, 1937, to perform several operations, including heat- ing. However, as set forth above, only one employee in Appendix B, Maedl, was qualified to perform heating and on November 16, 1937, he would not have been available to do the work. Heating constituted a substantial part of the work performed by Wilmoth on November 16 and during the succeeding 3 weeks. Upon principles heretofore stated, no compensation is allowable under the Order of December 2, 1938, for work perlormed by Wilmoth on and after November 16, 1937. However, Hinca is entitled to restitution by virtue of the respondent's not making available to him the work performed by Wilmoth in the week of October 18, 1937. We there- fore find that Vincent Hinca is entitled under paragraph 2 (d) of the Order of December 2, 1938, to be made whole by the respondent.for the loss of wages he sustained from October 18 to 23, 1937, because of the respondent's failure or refusal during this period to assign to him Wilmoth's work, by payment to Hinca of an amount equal to that earned by Wilmoth for performing such work, less Hinca's net earnings during the period. Wilmoth earned $14.63 and Hinca had no net earnings during this period. We accordingly find that Vincent Hinca is entitled under the Order to be paid the sum of $14.63 by the respondent. We have found above that on or about October 18, 1937, the fol- lowing 11 employees among the 31 named in Appendix B, Maedl, Wright, Anthony Bork, Grabowski, Kaplewicz, Anthony Hinca, Kaminski, Yokes, Krusyzaniak, Sroka, and Vincent Hinca, were qualified to perform work then being done respectively by the follow- ing 11 persons among the 23 listed in Appendix D, Eugene Kaiser, Mueller, Lichtenberger, Chambers, O'Neill, Gerich, Fairington, Ostolski, Jantze, Carson, and Wilmoth. In the Decision of December 2, 1938, the Board found and held: Moreover, we are satisfied from the above-quoted testimony of Kempf and the record that 23, or if not as many as that number nevertheless a substantial part, of the 31 striking employees would have been reinstated at the time application for reinstatement was. made, by them and within a short period thereafter, had the respondent after application was made dismissed so many of the 23 persons hired since, and not in -its employment at, the, com- mencement of the strike, as it then had in its employment, and refrained from hiring persons not in its employment at the commencement of the strike, to the extent necessary to make positions available to the 31 applicants. The failure of the 1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent to make any such displacement at the time of applica- tion and to refrain from so hiring thereafter, for no reason other than its unwillingness to do so, in effect and in result discriminated, and constituted a discrimination, concerning hire and tenure of employment against the employees who went on strike against the respondent's anti-union conduct, and in favor of employees whose position was one of sufferance, without greater right to their positions than their employer's defeasible right to employ them could afford. A preference of this character discourages union membership.39 The foregoing findings are affirmed by the supplemental findings of fact herein made. The respondent in its application for a reopening of the record stated "that if permitted it can produce competent and satisfactory evidence that these said 23 men [listed in Appendix D] were not doing the work of the 31 . . . [employees named in Appendix B] who were not reemployed. . . ." We find that the evidence adduced by the respondent at the hearing fails to support the prof- fered showing and that the entire record, as already stated, establishes the contrary. We also have found that had the respondent on or about October 1.8, 1937, discharged the 11 above-named persons listed in Appendix D and filled their positions with those of the 31 employees in Appendix B, in accordance with and following such system of seniority or pro- cedure as was theretofore applied in the conduct of the respondent's business, the 11 above-named employees named in Appendix B would have filled such positions, respectively, in manner already stated, and would have earned wages therefor, as already set forth. We shall amend paragraph 2 (d) of the Order of December 2, 1938, to state with particularity the employees entitled to be made whole and the amount of compensation to be paid them under paragraph 2 (d). 2. REINSTATEMENT UNDER PARAGRAPH 2 (C) OF THE ORDER OF DECEMBER 2, 1938. Paragraph 2 (c) of the Order of December 2, 1938, directed the respondent to Offer to the employees named in Appendix J3_ immediate and full reinstatement, without prejudice to their seniority and other 39 Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel and Tin Workers of North America , Local No. 1149, 10 N. L . R. B. 33, 50. See also , Matter of The M. H. Ritzwoller Company and Coopers ' International Union of North America, Local No . QS, enforced in The M. IT Ritzwoller Company, a corporation, v. National Labor Relations Board, 114 F. (2d) 432 (C. C. A. 7); cf. National Labor Relations Board v. American Manufacturing Company Nu-Art Employees, Inc., 106 F. (2d) 61 (C. C. A. 2), aff'd. as mod. 309 U. S. 629, enf'g Matter of American Manufacturing Company; Company Union of the American Manufac- turing Company; the Collective Bargaining Committee of the Brooklyn Plant of the American Manufacturing Company and Textile Workers' Organizing Committee , C. I. 0., 5 N. L. R. B. 443. McKAIG-HATCH, INC. 1483 rights and privileges, in the manner set forth in the section entitled "Remedy'.' above, placing those employees for whom employment is not immediately available and those who although reinstated are reinstated not to their former or substantially equivalent positions but to positions for which they are qualified upon a preferential list in the manner set forth in said section. In the section of the Decision entitled "Remedy" referred to in paragraph 2 (c) of the Order, provision respecting reinstatement and placement on a preferential list is made. We have found above 40 that on or about October 18, 1937, and thereafter until the time of the additional hearing, no work was avail- able at the respondent's plant to any of the 31 employees named in Appendix B save as performed by the 23 persons named in Appendix D, and as to these 23 their work, with three immaterial exceptions 41 terminated by way of lay-off prior to the issuance of the Order of December 2, 1938. It follows that as of the time of the issuance of the Order and as of the time of the additional hearing the employees listed in Appendix B were entitled under the above-mentioned para- graph of the Order to be placed on the preferential hiring list therein described. The re^pondent asserts that these employees are on a preferential list. However, it is not clear that the list to which the respondent adverts conforms with the requirements of the Order. Under paragraph 2 (c) of the Order these employees were and are entitled to reinstatement and work in available positions for which they were and are qualified before the hiring of other persons for such positions and work. Whether the respondent, in placing these em- ployees on its preferential list, has thereby accorded such employees this prior right to positions and work, is not disclosed by the record and, in any event, whether these employees since the time of the addi- tional hearing have been reinstated to available positions cannot be determined from the record. For these reasons we refer to the Re- gional Director for purposes of further investigation and compliance with the Order the matter of the placing of the employees listed in Appendix B on the preferential list and their reinstatement. Nothing herein contained shall be interpreted as affecting the continuing force of paragraph 2 (c) of the Order, and the Regional Director shall pro- ceed thereunder in conformity therewith and in conformity with the determinations we have made herein. 40 Section 1 (a), supra. 41 The three instances of work performed after December 2, 1938, by persons listed in Appendix D, referred to above , are (1) operation of the hammer in the force shop, an operation then performed by Walter Kaiser, (2) the heating operation then performed by Budzeszewski . and (3) various operations by Spencer. None of the 31 employees was qualified to do hammering . While one of the 31 employees, Maedl, could perform heating, this was not the same as or substantially equivalent to his previous position . The work of Spencer was not available to the 31 employees , for reasons above appearing . See Sections 1 (c) and (d), supra. 1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER AMENDING ORDER On the basis of the above supplemental findings of fact and conclu- sions of law, and pursuant to Section 10 (c) and (d) of the National Labor Relations Act, the National Labor Relations Board hereby modifies its Order of December 2, 1938, herein, by striking therefrom paragraph 2 (d) thereof and substituting therefor the following: (d) Make whole the following named employees for the loss of wages they sustained by reason of the respondent's discriminatory failure or refusal on or about October 18, 1937, to reinstate and make work available to-them, by payment to them of a sum of money equal to the amount set forth or indicated opposite their names, respectively, viz: George Maedl-$240.18; Henry Wright-- $103.49; Stanley Grabowski-$223.88; Frank Krusyzaniak- $212.14; Anthony Bork-$186.28; Edward Yokes-$126.63; Arthur Sroka-$28.75; Vincent Hiiica-$14.63; Anthony Hinca- $109.78 plus the amount earned by Gerich at straightening and inspecting new-style truck operating levers from October 18 to December 11, 1937; Joseph Kaplewicz--$27.74 plus the amount earned by O'Neill at inspecting carburetor levers from October 18 to 30, 1937; Walter Kaminski-$33.71 plus the amount earned by Fairington at burring new-style truck operating levers from October 18 to November 6, 1937. APPENDICES 42 "B" Henry Waligura (Henry Waligora) Arthur Sroka Joseph Ciesielski Joseph Hinca Walter Kaminski Joseph A. Lochocki Roger Novier Anthony Hinca Frank Red erowicz Anthony Bork Aloysius Herko Stanley Grabowski Frank Kryzaniak (Frank Krusyzaniak) Frank Skolyan Andrew Krempa John Gorski Frank Swiniarski John Boldt Joseph Liska Stephen Gajdowski George Maedl Edward Yokes Kleber Pecquer Joseph Opacki Teddy Bork (Thaddeus Bork) Chester Harko (Chester Herko) Joseph Kaplewicz Charles Muehlbauer Vincent Hinca Henry Wright Walter Falkowski 42 The names are spelled as they were in the Decision and Order of December 2, 1938. In parentheses following certain of the names are stated the correct spelling of these names. McXAIG-HATCH, INC. «D>> Eugene Kaiser Walter Kaiser William Kaiser Charles Carson E. Lichtenberger A. Grzegorczyk (Anthony Grezegorczyk) Wallace Nowack (Wallace Nowak) Franklin Fairington Percy Chambers Paul Mueller Edwin Spencer Victor Berra Louis Stahl Leo Hoch Carl Wilmoth Francis O'Neill Morley Miller Carl Johns Ludwig Gerich Benjamin Ostolski A. Jobson J. Jantze H. Budzeszewski 1485 MR. WILLIAM M. LEISERSON took no part in the consideration of the above Supplement to Decision and Order Amending Order.