Triplet Electrical Instrument Co.

In the Matter of THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY, THE DILLER MANUFACTURING COMPANY, DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF - READRITE METER WORKS and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL No. 714 Case No., C-1689.-Decided December 13, 19.40 Jurisdiction : electrical instrument manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion Eviction of union organizer from respondent's public reception office, wit- nessed by employees and accompanied by advice to "get out of town," violative of Section 8 (1). Discrimination: discharge for union activities Remedial Orders : reinstatement and back pay. 'Mr. Max W. Johnstone, for the Board. Wheeler, Bentley cf' Cory, by Mr. H. 0. Bentley, Mr. C. H. Neville, and Mr. C. H. Cory, of Lima, Ohio, for the respondents. Mr. Edwin Beal, of Mansfield, Ohio, for the Union. Mr. Milton E. Harris, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon, charges duly filed by United Electrical, Radio & Machine Workers of America, Local No. 714, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint,, dated May 25, 1940, against The Triplett Electrical Instrument Company, herein called the Triplett Company, and The Diller Manufacturing Company, doing business under the firm name and style of Readrite Meter Works, herein called the Diller Company, alleging that the Triplett Company and the Diller Company, herein collectively called the respondents. at their plants in Bluffton, Ohio, 'At the opening of the hearing, the name of the Union was amended without objection to read as above set forth. In the complaint as issued , the Union was identified as United Electrical and Radio Workers of America, Local No. 714. 28 N. L. R. B., No. 85. 572 THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY 573 had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint, accompanied by a notice of hearing thereon, was duly served on the Triplett Company, on the Diller Company, and on the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondents at their Bluffton plants (1) during the'moiiths of November and December 1939, and thereafter, inter- fered with, restrained, and coerced their employees by various acts, including specifically a forcible ejection of Edwin Beal, a representa- tive of the Union, from the respondents' public reception office on or about November 27, 1939, accompanied by threats that he had better get out of town; and (2) discharged Harley Kohler on or about December 26, 1939, and at all times thereafter refused to reinstate him, to discourage membership in and activity on behalf of the Union. On May 28, 1940, the respondents duly filed their answer, in effect admitting the Board's jurisdiction but specifically denying the al- leged unfair labor practices.2 Pursuant to notice ,3 a hearing was held in Lima, Ohio, on June 17 and 18, 1940, before Earl S. Bellman, the Trial Examiner duly designated by the Board. The Board and the respondents were rep-' resented by counsel and the Union by a representative. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the close of the Board's case, a motion by counsel for the Board to amend the pleadings to conform to the proof was granted without objection.' The respondents moved to dismiss the complaint for failure of proof at the close of the Board's case, again at the close of the respondents' case, and again at the close of the hearing. Ruling was reserved on these motions. During the course of the hearing, the Trial Examiner made various rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On September 30, 1940, the Trial Examiner filed his Intermediate Report, copies of which were duly served on the Triplett Company, on the Diller Company, and on the Union. In the Intermediate 8 The Trial Examiner stated at the hearing that, inasmuch as none of the parties objected, a letter received by the Regional Director from the Triplett Company on May 28, 1940, denying the allegations of unfair labor practices in the complaint , would be considered as an answer to the complaint: 8The Triplett Company having requested a postponement , of the hearing, the Regional Director issued and served on the parties an order postponing the hearing until June'17, 1940. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Report he (1) denied the respondents' motions to dismiss the com- plaint, (2) found that the, respondents had engaged in the unfair labor practices alleged, and (3) recommended that they cease and desist therefrom and take certain affirmative action. Thereafter, the Triplett Company duly filed its exceptions to the Intermediate Report.' The Board has considered the exceptions and, in so far as they are inconsistent with the findings, conclusions, and order hereinafter set forth, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS The Triplett Electrical Instrument Company was incorporated under the laws of the State of Ohio in 1932. The Diller Manufac- turing Company, doing business under the firm name and style of Readrite Meter Works, was incorporated under the laws of the State of -Ohio in 1909.5 The respondents operate and control under joint management two plants in Bluffton, Ohio, known as the Triplett plant and the Readrite plant. R. L. Triplett serves as president of the respondents and as general manager of both plants.6 The respondents have their principal offices at Bluffton, and together em- ploy about 250 persons.- The respondents are engaged jointly in the production, manu- facture, sale, and distribution of electrical measuring instruments. The raw materials used in the manufacture of finished products con- sist, for the most part, of pressed steel and bakelite, approximately 50 per cent of such raw materials being received from outside the State of Ohio. The annual value of the respondents' manufactured products is in excess of $300,000, approximately 75 per cent of such finished products being sold and shipped outside the State of Ohio. It was stipulated by the respondents that they are engaged' in interstate commerce within the meaning of the Act.7 'The Board received a letter from the Triplett Company on October 24 , 1940, in which it excepted to the Trial Examiner's findings of unfair labor practices The Board there- after advised the Triplett Company to serve a copy of its letter on the Union and to submit four additional copies thereof to the Board if it desired to have the letter consid- ered as its Exceptions to the Intermediate Report . The Triplett Company thereafter submitted four additional copies of its letter to the Board and stated that copies thereof had also been mailed to the Union. In the letter of the Triplett Company received by the Board on October 24, 1940, as hereinbefore set forth, it was stated that "The Diller Mfg. Company . . . dissolved and went out of business in June, 1940 " Triplett testified that the respondents were "his companies." ' The record discloses that the respondents are operated as a joint enterprise , and not as competitors. Moreover, the respondents are represented in this proceeding by the same attorneys, and entered into a stipulation concerning the amount of their combined raw materials and finished products which were transported in interstate -commerce THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY 575 II. THE ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers of America, Local No. 714, is a labor organization, admitting to membership employees of the respondents employed, at the Bluffton plants. It is affiliated with the Congress of Industrial Organizations. III. THE UNFAIR LABOR PRACTICES A. Background On March 7, 1938, after a hearing on a complaint theretofore issued by the Board alleging that the respondents, at their Bluffton plants, had engaged in and were engaging in certain unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act, the Board duly issued a Decision and Order 8 finding that the respondents had engaged in the alleged unfair labor practices,9 and ordering the respondents (1) to cease and desist from engaging in such practices; (2) to disestablish the Committee of 17 and The Bluffton Electrical Association, Inc. as collective bargaining representatives; (3) to re- instate four named employees with back pay; (4) to offer back pay to all employees who had been locked out and subsequently reinstated 10 and to an employee who had been suspended for several weeks; (5) to bargain collectively with the Union ".upon request; and (6) to post notices stating that the respondents would cease and desist as afore- said and would disestablish the Committee and the Association. Thereafter, in November and December 1938, the respondents, the Union, and an attorney- for the Board entered into a stipulation providing for a consent decree modifying and enforcing the Board's order of March 7, 1938,12 in settlement of the aforesaid case, and agreeing to reinstate 14 named employees with back pay, in settle- ment of another case-designated in the Board's files as Case No. C-855, involving the same parties and plants.13 Pursuant to the stipulation and proposed consent decree, the respondents in January 1939 posted notices in their plants stating s 5 N L R B. 835. The Board dismissed the allegations of the complaint with respect to the respondents' domination of the T R Club, upon a finding that it was not a labor organization, and with respect to their discrimination against certain employees iO The respondents employed approximately 300 persons at the time of the lock-out. ^' The Union's name at that time was United Electrical and Radio Workers of America, Local No. 714. - iS The consent decree, which omitted certain parts of the Board's order, was subse- quently entered by the Circuit Court of Appeals for the Sixth Circuit on February 16, 1939 I- In Case No. C-855, a hearing had been held and an Intermediate Report had baaM filed and served, but the Boaid had not issued a Decision and Order. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they would- cease and desist from in any manner discouraging membership in the Union; from in any manner encouraging member- ship in, or dominating or interfering with the administration of, or contributing support to, the Committee of 17, or The Bluffton Elec- trical Association, Inc., or any other labor organization; and from in any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. The notices further stated that the respondents would withdraw recog- nition from and completely disestablish the Committee of 17 and The Bluffton Electrical Association, Inc. as collective bargaining representatives of any of the employees. On or about January 12, 1939,,when nine of the employees were reinstated, pursuant' to the stipulation and proposed consent decree, each was interviewed individually by Arden, R. Baker, the respond- ents' personnel manager. Baker informed them that their return to work would cause a lot of friction in the plant,14 and stated that he hoped they would do everything possible to quiet things down. The employees gave assurances that they would do their part toward restoring harmony, and requested that they be met halfway in at- tempting to avoid friction. Baker also told the employees that business was going to get worse and that they must expect the plant to operate on short time. Thereafter, the Union addressed a letter to President Triplett, dated ' January 12, 1939, setting forth the sub- stance of the discussions had with Baker, calling attention to Baker's discouraging remarks, and offering full cooperation and friendliness 15 So far as the record discloses, the respondents did not reply to this letter. On April 6, 1939, Harley G. Kohler, one of the nine reinstated employees, went to George H. Klay, machine superintendent of the Triplett plant, and asked to be transferred to some other kind of work where he might get more time than the 4 days a week he had been receiving. Kohler testified that Klay replied that he would have to stay on the job where he was or quit, and that Klay added, "If you people had not lied the way you did in the other hearing, why, things 14 These nine employees were all members of the Union. 11 This letter stated, among other things : We were somewhat disappointed at the consistently discouiaging tone taken by Mr. Baker when he spoke to us. We were sure he 'did not intend the atmosphere which surrounds us at work in the factory and which is to prevade the factory is to become discouraging and oppressive because of the reinstatement of union mem- bers we would urge that you watch this element in the situation, since so far as we can see, it is the only thing that might influence employees who ai e at present not union members to cause the friction on the plant, which Mr. Baker said he feared. In conclusion may we assure you as officially representing the Triplett organiza- tions, that it is the earnest desire of the members of our union that the most friendly relationship be established and maintained between the union members and your companies we will exert every effort possible to work in harmony , with a spirit of cooperation and friendliness, between employer and employee, . . . ,THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY, 577 would be different." 16 Immediately after this conversation, Kohler wrote down upon a slip of paper the substance" of Klay's statement. Kohler's memorandum is dated April 6, and reads as follows : George said this God damn Tieing has got to be stopped, and he was going to see that it was. He also said he was going to make a check on everything I did from now on. When Superintendent Klay was called to the stand by the respond- ents, he did not testify concerning the foregoing incident. Hence, Kohler's testimony is uncontradicted. While Kohler's memorandum of April 6 does not indicate what "lieing" Klay was referring to, it is clear from, Kohler's uncontradicted testimony at the hearing that Klay, as the Trial Examiner found, was referring to the testi- mony of union witnesses at former Board hearings involving the respondents. The above conversation of Superintendent Klay with Kohler clearly shows the hostility of the respondents toward the Union. In view of the history of the respondents' labor relations, as' above set forth, it is evident that the attitude of the respondents toward the Union was hostile. The specific unfair labor practices alleged in the complaint and discussed hereinbelow, namely, the ejection of Beal on November 27, 1939, and the discharge of Kohler on December 26, 1939, must be evaluated in the light of the attitude of the respond- ents and the background above set forth. B. The ejection of Beal on November ^07, 1939 During approximately a year preceding November 27, 1939, the Union made no attempt to organize the respondents' employees. On the morning of November 27k, 1939, however, the Union's inactivity terminated. On that morning organizational efforts were initiated by the distribution of a letter-size mimeographed handbill addressed to "Triplett-Readrite Workers." The leaflet emphasized the impor- tance of raises in pay to workers, the success of the Union in getting such raises at another plant, and the necessity for joining the Union in order to get such raises to meet mounting living costs. The leaf- lets were passed out to employees of the Triplett and Readrite plants as they were going into work on the morning of November 27, by Edwin Beal, an international representative of the Union, assisted by three members of another local of the Union from Lima, Ohio. Shortly before 8 o'clock, after most of the leaflets had been passed out, Beal entered the respondents' public lobby at the Triplett plant 16 Klay referred to the hearing on which the Board's Decision and Order of March 7, 1938, was based. Kohler was one of the employees «bo had testified at this hearing. 578 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD with some of the leaflets in his hand. -Beal testified , in part, that he went into the public lobby to give the three remaining copies of the leaflet to the respondents for their information and their files, as he had done in "every other plant"; that he found no girl at the infor- mation booth and no one in the lobby; that he looked around and was about to go when Superintendent May rushed out of an adjoining private office, and began pushing him out of the front door, saying, "You get out of here." Beal further testified that he did not remem- ber the exact language May used, but that it was very brusque; that he offered no resistance ; that he was pushed, through the doorway while he was trying to explain that he wanted to leave the leaflets with the management for its, files, but that he was drowned out with the shout, "Get out of here." He also testified that, as a last word to him, after he was outside on the sidewalk and Klay was standing in the office door, May said, "You had better get out of town.", Upon cross-examination, Beal denied that he had made any attempt to go into the inner office where the clerical employees work, or that May had told him that he could not go in there., Beal did not claim that he suffered any physical injury during the ejection. Two of the three men who 'helped Beal distribute leaflets were called by the Board to testify. One testified that, after, Beal was evicted, he saw Beal in the middle of the sidewalk with May in the door "waving his arms and gesticulating "; that it appeared Klay was saying something, but that he (the witness) was too far away to hear. The other testified that just before they were ready to return to Lima, Beal said he wanted to take a -couple of leaflets into the management; that Beal started in with a couple of the leaflets, but was pushed out by May as soon as he got inside ; and that after the eviction he (the witness) heard Klay and Beal carrying on a conver- sation but was "too far away to get any of the conversation." May testified that he first learned of the distribution of the hand- bills when some of the employees came in with them , and he "sur- mised that probably the Union was outside passing them out"; that he then walked into the general office, adjoining the public lobby, and stood there and watched out of a window for awhile; that he noticed Beal outside coming toward the door of the lobby, and watched him until he heard the door open; and that he then walked from the window in the general office to the door between the lobby and the general office. According to May, Beal glanced at the infor- mation window, did not stop there, but walked by it and approached May, holding out some leaflets . May testified that he did not "re- member what I said to him first, but after he said he wanted to pass the papers . . . I told him to get out ." May testified further that Beal made no attempt to go, so he took him by the arm and led him THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY 579 toward the door, telling Beal that he could distribute, the leaflets on the street but not in the building. During his testimony Klay in- sisted that he understood from Beal's statement that Beal wanted to pass out the leaflets to employees in the general office. Klay denied that any conversation took place at the door after he had taken Beal out, or that he made any statement to Beal to the effect that Beal had better get out of town. Josephine Klay, a daughter of Superintendent, Klay and an em- ployee in the respondents' general office, testified, among other things, when called by the respondents, that members of the general public who called at the respondents' office are ordinarily not treated as Beal was treated on November 27. After Miss Klay had become confused during cross-examination, the Trial Examiner asked her to state in sequence all the conversation which, she had heard between her father and Beal. Thereupon Miss Klay testified that the first thing she had heard was her father's statement, "Out, brother"; that Beal then said, "I would like to hand out these pamphlets"; and that the foregoing was all she heard either Beal or her father say. A second general office employee called by'the respondents testified in part that Klay walked out into the public lobby and there said to Beal, "Out, brother" ; and that the two men were in the middle of the public lobby with relation to the outside door and the general office door when Klay said, "Out, brother," to Beal. The Trial Examiner found that Beal was a highly credible witness and that his explanation of the reason for entering the respondents' lobby was a reasonable one. The testimony as to what took place thereafter must be considered in the light of the respondents' suspicion and hostility toward the Union, and the fact that the handbills passed out that morning constituted the Union's first attempt in approxi- mately a year to organize the respondents' employees. Moreover, Beal's testimony that Klay was in the public lobby when he firstcon- versed with Beal was corroborated by one of the respondents' own witnesses. Klay admitted that he opened the conversation, but claimed that he could not recall what he said first. Beal's testimony that Klay's-statement was, "You get out of here," was substantially corroborated by Josephine Klay and another general office employee called by the respondent. We credit the testimony of Beal. It is possible that Beal's attempted explanation during the commotion which followed was misunderstood as a request to pass out leaflets to the employees. From the testimony of all three witnesses called by the Board, it is evident that Klay did make some parting remark to Beal after evicting him. The statement attributed to Klay by Beal after the eviction, that he had better get out of town, ,is in keeping with Klay's hostility toward the Union, as he had previously expressed 413i97-42-vol 25--35 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it to Kohler when he said, "If you people had not lied the way you did in the other hearing, why, things would be different." When Beal's credible testimony concerning the circumstances sur- rounding his eviction from the respondents' public lobby is, analyzed in the light of the testimony of the other five witnesses and in relation to the physical surroundings in which the incident occurred, it is clear that Beal's account on all material points is believable. The Trial Examiner gave it full credence. Accordingly, we find that on Novem- ber 27, 1939, when Edwin Beal was engaged in lawful and peaceful activity, the respondents' superintendent, George Klay, within the view of several of the respondents' employees, forcibly ejected Beal from the respondents' public reception office and informed Beal that he had better get out of town. We find further that such action was not in accordance with the treatment ordinarily accorded to persons entering the respondents' public lobby, and that it was motivated by the respondents' hostility to the Union. We find that, by the eviction of Edwin Beal on November 27, 1939, as above set forth, the respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act.17 C. The discharge of Kohler on December 06, 1,939 'Harley, G. Kohler was one of the members of the Union who was reinstated in January 1939, pursuant to the aforesaid stipulation. Kohler also figured in-the incident of April 6, recounted above, -in which Superintendent Klay referred to 'union members as having lied at a former Board hearing, and stated that things would have been different if they had not done so. Shortly after the ejection of Beal by Superintendent Klay on No- vember 27, the Union decided to secure a list of the respondents' employees to facilitate its organizational campaign. Kohler was asked by his sister, the recording secretary of the Union, to assist in ' com- 17 Cf. Matter of West Kentucky Coal Company and United Mine Workers of America, District No 23, 10 N. L R. B. 88, where the Board specifically found that the company's superintendent , by following, interfering with, and threatening union organizers , engaged in interference, restraint, and coercion ; and ordered the company in part to cease and desist from "following or trailing any person, or in ,any other manner intimidating or interfer- ing with the right of any person , in . consulting , conferring or advising with talking to, meeting , or assisting" the company 's employees in regard- to their exercise of the rights guaranteed in Section 7 of the Act . Cf., also, Matter of Mexia Teatile Mills and Textile Workers Organizing Committee, 11 N L. R B 1167 , enf'd , Mexia Textile Mills v. National Labor Relations Board, 110 F. (2d) 565 (C. C A 5), where the Board specifically found that the company 's superintendent, in follouing a union organizes to his hotel for the purpose of intimidating him, engaged in interference ,, restraint, and coercion ; and Matter of The Van Ideistine Company and District #50 of the United Mine Workers of America, 17 N. L . R B 771,' where the Board specifically found that an instruction of the company 's superintendent to an ordinary employee to kick the union organizer "in the pants" constituted interference, restraint , and coercion. THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY 581 pleting the list.18 During the noon hour on December 6, 1939, Kohler went into the respondents', main plant and copied the names of the employees from the time cards in the rack. He was observed by Gideon Luginbuhl, the respondents' watchman, who continued to watch him for about a half hour until Kohler finished copying the names. At the time there was no rule prohibiting the copying of the names, and Luginbuhl at no time told Kohler that it was improper for him to do so. However, Luginbuhl asked Kohler why he was copy- ing the names, and Kohler replied, "I am taking their names to send them Christmas greetings." Luginbuhl then observed, "I know what you are doing it for; that is to send out, your C. I. O. literature." Kohler did not attempt to deny this observation. Luginbuhl immediately reported the incident to Klay, who in turn reported it to Triplett, the respondents' president, upon Triplett's return from a business trip shortly thereafter. None of Kohler's superiors ever questioned him concerning the incident, nor did they reprimand or discipline him in any way. According to Triplett, on December 26, 1939, he received a report from the chief engineer concerning some missing plans. He there- upon recalled the incident in which Kohler had copied names from the time cards 3 weeks earlier, and determined to have Kohler called in for questioning. Triplett questioned Kohler in the presence of Klay, and inquired whether Kohler knew anything concerning the missing plans. Kohler denied any knowledge of the plans. Triplett then asked him whether he had ever taken any information from the respondents' records. Kohler first replied in the negative, but, upon being reminded that he had been seen copying names from the time cards, admitted that he had done so. Triplett asked the reason for his having done so' and what he intended to do with the informa- tion. Kohler replied that he "didn't think that was any of his [Triplett's] business." Triplett testified that he thereupon became incensed, and told Kohler that he was discharged,' saying, according to Kohler, "Mr. Beal told you to do this, didn't he?" 19 Kohler then admitted copying the names from the time cards at Beal's request, whereupon Triplett repeated his statement that Kohler was "fired," and told him to go to the office and get his check. Kohler was not thereafter reinstated by the respondents. On December 27,, 1940, the day following Kohler's discharge, Per- sonnel Manager Baker signed a report for the Ohio Unemployment IS The meeting, of the Union at which it was definitely decided to get a mailing list took place on the first Tuesday in December, which was December 5. 18 Both Triplett and Klay testified that, after Kohler had peen told that he was dis- charged because of his reply, it was Kohler who first mentioned the name of Beal, stating that he had copied the names at Beal's request . The Trial Examiner did not credit this testimony, nor do we '582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Compensation Commission certifying that Kohler was, discharged "for taking Company records from the premises." At the hearing, however, Triplett testified that he was not accusing Kohler of taking any company records, but that he had discharged Kohler solely be- cause of'Kohler's response when he attempted to "secure information" as to Kohler's purpose in copying the names. The respondents did not call Personnel Manager Baker to testify, nor did the respondents offer any explanation for the contradictory reasons for Kohler's dis- charge given by Baker on the report and by Triplett at the hearing. It is clear that Kohler's remark, which the respondents assert was the only reason for his discharge, was provoked-by Triplett's rhetori- cal question designed.to make Kohler confess his union activity, and was not, as the respondents argue, an insolent response to a perfectly proper and/bona Fade request for information. As has been found above, the respondents were hostile toward the Union. Shortly be- fore Kohler's discharge, the Union had renewed its organizational campaign among the respondents' employees, and, in connection therewith, Beal had been evicted by Klay. While Kohler had been seen copying names from the respondents' time cards almost 3 weeks prior to his discharge, the respondents did not speak to him or dis- cipline him for his action. Although Kohler's reply to Triplett, to the effect that it was none of Triplett's business why Kohler had copied the names, was im- proper, we are satisfied that it was not the true cause of the dis- charge. Manifestly, the respondents' deep-seated hostility toward the Union was basically responsible, for- it caused Triplett to determine to call Kohler in for questioning on December 26 and to ask a ques- tion which, since he already knew the answer, can only be viewed as another attempt to inquire into and discourage\union activity. In our view, Kohler's improper remark merely caused the respondents' smoldering anti-union hostility to flare up, and, except for this pent- up hostility, would not have brought about his discharge. The fore- going conclusion is confirmed by the fact that Triplett consummated the discharge even after Kohler, by giving Triplett the information requested, had in effect rescinded the "uncooperative" statement which Triplett testified caused the discharge. Moreover, the reason assigned by Baker the following day for Kohler's discharge was at variance with the reason assigned by Triplett at the hearing, and clearly in- dicates that Triplett's testimony attempted to justify the discharge rather than to explain its cause. . Under all the circumstances prevailing in this case, we find that the respondents discharged Harley G. Kohler on December 26,,1939, and have since refused to reinstate him, becaused of his membership in and his activity on behalf of the Union, and that the respondents, by so doing, discriminated in regard to the hire and- tenure, of em- THE .TRIPLETT ELECTRICAL INSTRUMENT COMPANY 583 ployment of Harley G. Kohler to discourage membership in the Union ; and that the respondents thereby interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in -Section 7 of the Act.2° IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III above, occurring in connection with the operations of the respondents de- scribed 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 connnerce and the free flow of commerce. THE REMEDY Having found that the respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action hereinbelow described, which we find necessary to effectuate the policies of the Act. Having found that the respondents, by discharging Kohler and thereafter refusing to reemploy him, discriminated in regard to his hire and tenure of employment, we shall order them to offer Kohler 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 Kohler whole for any loss of pay he suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from December 26, 1939, to the date of the offer of reinstatement,' less his net earnings,21 if any, during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : 20 At no time did the respondents make an issue of 'whether Kohler was employed by the Triplett Company or the Diller Company just prior to his discharge On the contrary, Kohler testified that he was then employed by the Triplett Company, and the report signed by Baker on the day after Kohler's discharge stated that the employei 's name was the Triplett Company. 21 By "net earnings " is meant earnings less expenses, such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondents , 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 Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N L R . B 440. Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. National Labor Rela- tions Board, decided by United States Supreme Court, November 12, 1940. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. United Electrical, Radio & Machine Workers of America, Local No. 714, affiliated with the Congress of Industrial Organizations, is a labor organization, within the meaning-of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Harley G. Kohler, thereby discouraging membership in United Electrical, Radio & Machine Workers of America, Local No. 714, the respondents have engaged in and are engaging in unfair labor prac- tices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the respond- €nts have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondents, The Triplett Electrical Instrument Company, and The Diller Manufacturing Company, doing business under the firm name and style of Readrite Meter Works, Bluffton, Ohio, and their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Electrical, Radio & Ma- chine Workers of America, Local No. 714, affiliated with the Congress of Industrial Organizations, or any other labor organization of their employees, by discharging or refusing to reinstate any of their employ- ees or in any other manner discriminating in regard to the hire or tenure of their employment or any term or condition of their employ- ment ; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Harley G. Kohler immediate and full reinstatement to his former or a substantially equivalent position,.without prejudice to his seniority and other rights and privileges; THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY 585 (b) Make whole Harley G. Kohler for any loss of pay he suffered, by reason of the respondents' discrimination in regard to his hire and tenure of employment by payment to him of a sum of money equal to that which he would normally have earned as wages from December 26, 1939, the date of the discrimination against him, to the date of the offer of reinstatement, less his net earnings,22 if any, during said period ; (c) Post immediately in conspicuous places in each department of the respondents' plants, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees stating (1) that the respondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondents will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondents' employees are free to become or remain members of United Electrical, Radio & Machine Workers of America, Local No. 714, and i hat the respondents will not discriminate against any employee because of membership or activity in that organization ; (d) Notify the Regional Director for the Eighth Region in writing within ten (10) days from the date of this Order, what steps the respondents have taken to comply herewith. CHAIRMAN HARRY A. MILLIs took no part in the consideration of the above Decision and Order. 22 See footnote 21, supra.