New Idea, Inc.

In the Matter of NEW IDEA, INC. and FEDERAL LABOR UNION NO. 21218, AFFILIATED WITH THE A . F. OF L. Case No. C-16-55.-Decided April 22, 1941 Jurisdiction : agricultural implement manufacturing industry. Unfair Labor Practices Company-Dominated Union Held: persons identified with predecessor who formed and developed the successor in so doing have acted in behalf of and represented the em- ployer ; and that the employer through these persons, its domination of the predecessor, and its failure to disestablish the predecessor prior to organization of the successor unlawfully caused the initiation and establish ment of the successor. Discrimination: refusal to consider an employee for reinstatement because of his union membership and activity-two employees discharged because of their union membership and activity ; alleged neglect of duties as reason for, held not bona fide-alleged, discriminatory discharge of two employees, dismissed. Remedial Orders : disestablishment of dominated organization, abrogation of contract; reinstatement and back pay to employees discriminatorily discharged; preferential list ordered as to employee whom employer discriminatorily re- fused to consider for reinstatement. Mr. Max W. Johnstone, for the Board. Hedges, Hoover ct Tingley by Mr. Herman R. Tingley and Mr. George R. Hedges, Jr., of Columbus, Ohio, for the respondent. Mr. Alfred T. Murphy, of Lima, Ohio, for the Union. Mr. Henry J. Knapke, of Celina, Ohio, for the Associates. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Federal Labor Union No. 21218, herein called the Union, the National Labor Rela- tions Board, herein called the Board, by the, Regional, Director *for the Eighth Region (Cleveland, Ohio), issued its complaint, dated April 10, 1940, against New Idea, Inc., Coldwater, Ohio, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the 31 N. L R. B, No. 34. . 196 ' NEW IDEA, INC. 197 meaning of Section 8 (1), (2), and (3) ' and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act., Copies of the complaint, accompanied by notice of hearing, were duly served upon the parties. On April 17, 1940, New Idea Shop Associates, Inc., herein called the Associates, filed a motion to inter- vene. On April 20, 1940, the Regional Director granted this motion. The complaint alleged, in substance, that the respondent, (1) in violation of Section 8 (2) of the Act, interfered with, supported, and dominated the formation and administration of the Associates as successor of The New Idea Employees Association, Inc., herein called the Association, a labor organization heretofore found to be company- dominated and ordered disestablished by the Board;" (2) in violation of Section 8 (3) of the Act, discharged the hereinafter named em- ployees on or about the dates indicated and thereafter refused to employ or reinstate them because they engaged in union activities: I. J. Steinke, on or about September 27, 1937; Robert J. Puthoff, on or about July 18, 1938; Ernest A. Langenhorst, on or about Sep- tember 7, 1938; George H. Luedke, on or about September 7, 1938; and August Lochtefeld, on or about July 10, 1939; and (3) in vio- lation of Section 8 (1) of the Act, engaged in interference with, and restraint and coercion of, its employees at its Coldwater, Ohio, plant in the exercise of the rights guaranteed in Section 7 of the Act, by the above -acts, by threatening certain employees who applied for reinstatement with discharge if they continued to engage in union' activities; by interfering with an election held by the Board on March 4, 1938, and by various other acts. The respondent filed its answer April 19, 1940, admitting- its corporate existence and the interstate character of its business, but denying all allegations of unfair labor practices. Pursuant to notice, a hearing was held at Coldwater, Ohio, on April 25, 26, 27, and 30 and May 1, 1940, before James C. Batten, the Trial Examiner duly designated by the Board. The Board, the respondent and the Associates were represented by counsel and the Union by a union representative; all participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. Upon motion of the respondent at the close of the Board's case, the Trial Examiner dismissed paragraph 8, subsec- tions (e), (h), and (i) and paragraph 9, subsections (a) and (d) of the complaint, which alleged that the respondent had violated the Act by interfering with the Board's election of March 4, 1938, and "by various other acts." The Trial Examiner denied in all other respects the respondent's motion to dismiss the complaint. The As- IMatter of New Idea, Inc , and The A F. of L., Matter of New Idea, Incorporated, and American Federation of Labor, 5 N. L R B. 381 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sociates moved to dismiss the allegations of the complaint pertaining to' it.' The Trial Examiner denied this motion. At the close of the hearing the respondent renewed its motion to dismiss the com- plaint. The Trial Examiner denied this motion. At the close of the hearing counsel for the Board moved to amend the complaint to conform with the proof. The Trial Examiner granted this 'mo- tion. During the course of the hearing the Trial Examiner made rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Exam- iner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the Trial Examiner's request the respondent filed after the hearing a Viemorandum on the, question of successor labor organizations. On August 3, 1940, the Trial Examiner filed his Intermediate Report, copies of which were duly served on all parties, in which he, found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act but that it had not engaged in'unfair labor practices in discharging August Lochtefeld. The Trial Examiner recommended that the respondent cease and desist from its unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. Exceptions to the Intermediate Report were subsequently filed by the respondent,-the Union; and the Associates. On September 12, 1940, .the respondent filed a brief in support of its exceptions and requested oral argument. On September 25, 1940, the Union filed a reply brief. Pursuant to notice duly served on all parties, a hear- ing was held before the Board in Washington, D. C., on October 10, 1940, for the purposes of oral argument. The respondent and the Union were represented and participated in the argument. On November 1, 1940, the Board issued an order to reopen the record, referring the proceeding to the Regional Director and author- izing him to issue notice of further hearing? On November 15, 1940, the Regional Director issued a notice of further hearing, copies of which were served upon all parties. Pursuant to the notice, further hearing was held on' November 28, 1940, at Coldwater, Ohio, before Samuel H. Jaffee, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Associates were represented by counsel and participated in the hearing. The Union did not appear. 2 The Board directed that at the further hearing the Tiial Examiner should admit into evidence the record in Matter of New Idea, Inc and 'A. F of L, C-334, R-485, cited in footnote 1 above, and any further relevant evidence material to the issue of the domination and support of or interference with the Association by the respondent At the further hearing the ,record in the pievious case was admitted into evidence -No other evidence bearing on the alleged unfair labor practices was received NEW IDEA, INC. 199 Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issue was afforded all parties. During the course of the hearing, the Trial Examiner made rulings on motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the exceptions, memorandum, and briefs and, except in so far as the exceptions are consistent with the find- ings, conclusions, and order set forth below,, finds no merit in them. Upon the entire record in the case the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT New Idea, Inc., an Ohio corporation, is engaged in the-production of agricultural, implements at Coldwater, Ohio, and Sandwich, Illi- nois. The respondent maintains warehouses in Harrisburg, Penn- sylvania, Syracuse, New York, Minneapolis, Minnesota, and Omaha, Nebraska, and transfer warehouses throughout the agricultural sec- tion. Raw materials to the value of $1,697,823 were purchased by the respondent in the year 1939, a considerable percentage of which came from other States to its Ohio plant. During the same period the net sales of products manufactured by the respondent at Cold- water amounted in value to $4,006,934, of which approximately 85 to 90 per cent were shipped outside Ohio. II. THE ORGANIZATIONS INVOLVED Federal Labor Union No. 21218 is a labor organization chartered by the, American Federation of Labor. It admits to membership employees of the respondent. + New Idea Shop Associates, Inc., is an unaffiliated labor organiza- tion. It admits to membership employees of the respondent. The New Idea Employees Association, Inc., was an unaffiliated labor organization, admitting to membership employees of the respondent. ^ III. TIIE UNFAIR LABOR PRACTICES -A. Interference with, support, and domination of the Associates 1. Sequence of events On February 18, 1938, the Board issued its Decision, Order, and Direction of Election,3 in which, inter alia, it found that the respond- • See note 1 , above ; cf. Matter of New Idea, Inc and International Association of Machinists, affiliated with the American Federation of Labor, and International Brotherhood 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent had dominated, supported, and interfered with the formation and administration of the Association, ordered the respondent to disestablish the Association; and directed an election to determine whether or not the respondent's employees in an appropriate unit desired to be represented by the Union. The Regional Director scheduled the election for March 4, 1938. On March 3, 1938, Ed Hamberg,4 C. J. Wolf,5 and A. J. Schwig- man,6 employees, met at the home of Henry F. Duwelling, another employee, and determined to form another inside union if the Union lost the election. The Union lost the election held on March 4. That day Duwelling telephoned Harry R. Meredith, the attorney for the Association, and arranged for I a meeting, the same evening at Mere- dith's office. This meeting was attended by Duwelling, Hamberg, Schwigman, Wolf, and employee Ray Coate. All these employees were then officers and trustees of the Association. Duwelling in- formed Meredith that they wanted to form a new union and that they wanted him to be their attorney. Meredith suggested that they be- come the incorporators of the new organization. They immediately signed a petition for incorporation of the new organization, herein referred to as the Associates. Duwelling and Hamberg were chosen, respectively, its temporary president and secretary. On March 5, 1938, the Associates received its charter, held its first meeting, and began an organization drive. On March 8, 1938, several employees, among whom were Duwelling, Schwigman, Coate, and Wolf, on behalf of the Associates, informed the respondent's board of directors that the Associates had been formed and that it wanted recognition and bargaining rights, and presented to the directors some 180 to 186 applications for membership cards, which were examined by the directors and returned. The directors took no affirmative action at this time. On March 15 the Associates had approximately 190 members. On March 16 a Code of Regulations was adopted and the following per- manent officers and trustees were elected : Duwelling, president; Leo Loesche, vice president; W. J. Reichert,7 secretary; Clarence Snider, treasurer; Hamberg, Coate, and Wolf, trustees for 2 years; Schwig- man, John Bruns, Leo Kohnen, and Roy Tangelan, trustees for 1 year. Of these 11 permanent officers of the Associates, at least the following seven were officers or trustees of the Association at the of Blacksmiths, Drop Forgers and Helpers, affiliated with the Amei scan Federation of Laboa, and Independent Employees Association, Inc., also known as Independent Employees Asso- ciation, party to the contract 21 N L R B 222, enf'd N L I B. v New Idea, Inc 117 F. (2d) 517, decided February 6, 1941 (C. C A 7). 4 Ed Ramberg is known also in the record as Edward J Hamberg C J Wolf is also known in the record as Clarence Wolf and C. D. Wolf A. J. Schwigman is also known in the record as Tony Schwigman and Anthony Schweg- man. 7 W J Reichert is also known in the record as William J. Reichert and Bill Reichert. NEW IDEA, INC. - 201 time when the Associates was being organized and at the time when they were elected officers of the Associates : Duwelling, Hamberg, Reichert, Snider, Schwigman, Wolf, and Coate. On March 22, 1938, Duwelling and Reichert , and perhaps others, met with the respondent and presented a letter, signed by the -Asso- ciates and themselves as agents therefor, claiming a majority and asking recognition of the Associates as bargaining agent for the re- spondent's employees . They also submitted cards of application for membership in the Associates to the respondent . The respondent agreed to check the cards with signatures of employees on the current pay roll. The respondent appointed the personnel director, the time- keeper, and an office employee to make such check. The Associates surrendered custody of its cards for the purpose of this check. On March 24 the checking committee reported to the respondent that it had checked 196 application cards of the Associates and that they bore genuine signatures of employees on the current pay roll. This report stated that three cards were dated March 4; one each March 10, 11, and 12; and four March 16 ; all others were dated March 5. The application cards are not in evidence. The record does not indi- cate that the committee submitted a similar report to the Associates, but on or before April 5 Duwelling and the trustees of the Associates were advised of its content. In and after March 1938 the respondent's executive committee conferred with representatives of the Board's Regional Office in re- spect to the form of notice to be posted by the respondent to comply with the Board's Order of February 18. On May 17, 1938, the respondent's board of directors resolved, inter alia, to recognize the Associates as exclusive bargaining agent of its employees and to post the notice set forth below, and resolved further not to file with the Circuit Court of Appeals a petition to review and set aside the Board 's Order of.February 18. On May 18, 1938, -the Associates received formal notice by letter that the respondent had recognized it as exclusive representative. On May 19, 1938, the respondent posted copies of the following notice, previously prepared in collaboration with the Regional Di- rector, on plant bulletin boards : To ALL EMPLOYEES : Under date of February 18, 1938, the National Labor Rela- tions Board, as a result of a hearing conducted November 15 to 18th, 1937 , issued an order as follows : Withdraw all recognition from The New Idea Employees Association , Inc., as a representative of its employees for the purpose of dealing with the respondent concerning grievances, 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor disputes, wages, rate of pay, hours of employment, or conditions of work ; and ' completely disestablish said associa- tion as such representative. Such employees who are members or officers of the aforemen- tioned association, and all other employees are notified accord- ingly. Furthermore, it must be distinctly understood by all employees that it is the definite policy of the company that its officers, supervisors, foremen, and sub-foremen are absolutely prohibited from interfering, restraining, or coercing employees in the exer- cise of their rights to\ organize, form, join, or assist labor or- ganizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or pro- tection, as guaranteed by Section 7 of the National Labor Rela- tions Act. Any violation of the above policy by supervisors, foremen or sub-foremen should be reported immediately. NEW IDEA, INC. By HENRY SYNCK, President Although Duwelling testified that the officers of the Association no longer considered themselves bound to the Association after it was "throwed out by the Labor Board," it is clear that the Association did not apply for a certificate of dissolution until May 26, 1938, and that the Association was not formally dissolved until June 3, 1938. Following the formal recognition of the Associates as sole bargain- ing agent for the respondent's employees, negotiations for a contract between the respondent and the Associates progressed through a series of conferences. Meredith drew up a proposed contract for the Asso- ciates and submitted it to the respondent about June 20, 1938. On July 6 Meredith submitted to the membership of the Associates a draft suggested by the respondent. Changes were made in the re- spondent's draft and'a revised draft submitted to the respondent. A committee of the Associates and Meredith conferred with the respond- ent's attorney and officers several times during July respecting the provisions of the contract. On August 1, 1938, the contract in its final form was approved by the respondent and the bargaining com mittee.8 On August 3 it was submitted article by article to the mem- bership of the Associates and approved. The following employees signed the contract on behalf of the Associates : John Bruns, Ham- berg, Schwigman, Wolf, Coate, Leo Kohnen, Frank Knapke, Duwell- s The respondent ' s president and secretary signed the contract on August 1. , NEW IDEA, INC. 203, ing, and Reichert. Meredith thereafter severed his connection with the Associates. Amendments to the contract were signed on November 28, 1939. The Code of Regulations, adopted by the Associates, provides for the election of a grievance committee of at least three members to investigate complaints of employees and take up with the manage- ment such complaints as the committee considers well founded. The contract of August 3; 1938, provided for an adjusting committee com- posed of three members of the Associates and three representatives of the respondent to which disputes arising between employees and their supervisors could be appealed. The term "grievance commit- tee" is-used in the record to designate the adjusting committee and also the three representatives of the Associates upon the adjusting committee. It does not appear that the grievance committee provided for by the Code of Regulations operated independently of the adjust- ing committee for which the contract provided. Duwelling, Ramberg, and Schwigman were the three employee representatives. From its inception to the time of the hearing the adjusting committee met at least twice to review discharges of employees. In each instance it confirmed the discharges. The Associates submitted in evidence a record of the first meeting of the adjusting committee, which con- cerned two discharges set forth below. This was the only meeting of the adjusting committee of which the Associates kept any record. Minutes of this meeting were admittedly incomplete and were com- piled by the secretary of the Associates, not himself present, from accounts allegedly given to him by the several committee members, of the Associates at some later time At this meeting the adjusting committee inspected evidence submitted to them by the respondent in .the absence of the discharged employees and affirmed the discharges. After April 1939 Ben, Unrast, a subforeman, represented the Asso- ciates on the adjusting committee.9 2. Concluding findings The respondent, as we have found, dominated, supported, and inter- fered with the formation and administration of the Association. Before the respondent disestablished or in any way severed its con- nection with the Association, officers therein, as well as Meredith, the attorney for the Association, formed and promoted the Associates. Both organizations were incorporated and had similar names. The record discloses that Meredith and the employees did not clearly O The respondent contends that Unrast did not occupy a supervisory position. The respondent listed Unrast on its pay roll as a subforeman. He assigned work in the machine room in the absence of the foreman . The respondent gave consideration to the recom- mendation of subforemen in respect to hiring and discharging employees. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distinguish between them. They had in common the essential charac- teristic of being limited to employees of the respondent, as distin- guished from the nationally affiliated Union against whom the respondent had shown its hostility. Under the circumstances dis- closed by this record, we find that the Associates is the successor to the Association; that the persons identified with the Association, who formed and developed the Associates, in so doing, acted in behalf of and represented the respondent ; and that the respondent-through these persons, its domination of the Association, and its failure to disestablish the Association prior to the organization 'of the Asso- ciates-unlawfully caused the initiation and establishment of the Associates io In view of the tainted origin of the Associates, the'respondent's . recognition of and contract with it constituted further unlawful support.'1 The notice of May 19 cannot exculpate the respondent with respect to the Associates because it was posted after the intrenchment of that organization. Although the then Regional Director appears to have accepted the, notice as being in compliance with the Board's Order of February 18, as far as the record discloses, at the time of the post- ing of such notice there was no issue before either the Board or the Regional Director with respect to the ' Associates. Further, it does not appear that the Regional Director was 'aware of the exist- ence or character of the Associates at this time or,, if he was, that 'ON L. R B. v. Link-Belt Co , 311 U S 584 , rev'g mod of Board 's order in 110 F (2d) 506 (C. C. A. 7), and enf'g Matter of Ltink-Belt Company and Lodge 160) of Amalgamated Association of Iron Steel and Tin Workers of North America , through the Steel Workers Organizing Committee affiliated with the Committee for Industrial Oiganitiation, 12 N L R. B 854;' Internatsonal Association of Maehiinists v N L R B , 311 U S 72, aff'g 110 F. ( 2d) 29 (App. D . C ), enf'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America , Local No 459, 8 N L R B 621 ; Westing- house Electric and Manufacturing Company v . N. L R B, 312 U S 660, decided March 10, 1941, aff'g ( per curiam) 112 F ( 2d) 657 (C C A 2), enf'g as mod. Matter of Westinghouse Electric & Manufacturing Company and United Electrical Radio if Machine Workers of America, Local # 410, 18 N. L R B. 300; Kansas City Power -& Light Co v N L R. B, 111 F. ( 2d) 340 (C C. A 8), enf'g as mod Matter of Kansas City Power if Light Company and International Brotherhood of Electrical Workers, Local Union B-412, 12 N L It B 1414; Magnolia Petroleum Co. v. N. L. R . B., 115 F . ( 2d) 1007 ( C. C A 10), enf'g Matter of Magnolia Petroleum Company and Oil Workers International Union, Locals Nos 280 and 378, 19 N. L . R B, No . 24 ; Cf Consumers Power Co v N L R B , 113 F ( 2d) 38 (C C A. 6), enf'g Matter of Consumers' Power Company, a corporation and Local No 740, United Electrical, Radio if Machine Workers of America, 9 N., L. R . B. 701 ; New Idea, Inc Y N L R B , 117 F ( 2d) 517 , decided Febitiary 6, 1941 (C C A 7), enf'g Matter of New Idea, Inc and International Association of Machinists, affiliated with the American Federation of Labor, and International Brotherhood of Blacksmiths, Drop Forgers and Helpers, affiliated with the American Federation of Labor, and Independent Employees Association of New Idea, Inc., also known as Independent Employees Association, party to the contract, 21 N L. R B 223 n Pennsylvania Greyhound Lines, Inc, et al . v N L. R. B , 303 U S 261, iev 'g mod of Board's order in 91 F. (2d) 178 (C C. A 3), and enf'g Matter of Pennsylvania Gieyhound Lines, Inc., Greyhound Management Company, Corporations and Local Division No. 1063 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 1 N. -L. R B. 1. NEW IDEA, INC. 205 he believed or induced the respondent reasonably to believe that because of the posted notice, the Board would not in the future proceed against the respondent for having unlawfully sponsored the Associates. Moreover, we find below that the respondent engaged in further unfair labor practices after May 19. Upon the entire record, we are of the opinion'that in order to effectuate the policies of the Act we must make the ultimate findings of fact required by the' evidence,and enter the orders appropriate thereto 12 We find that the respondent dominated and interfered with the formation and administration of the Associates and contributed sup- port thereto and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Discharges for alleged cause In its Decision and Order of February 18, 1938, the Board dismissed the complaint in so far as it alleged that the respondent had laid off and discriminated against certain employees in October 1937 be- cause of their union activities. The Union, in December 1937 and thereafter, filed charges alleging other- discrimination against its members for union activity. On April 27, 1938, representatives of the respondent and the Union met in conference with the Regional Director. At this conference the respondent and Morris C. Taylor, representative of the American Federation of Labor, with the ap- proval of the Regional Director, entered into an agreement in settle- ment of the charges alleging other discrimination. By this agreement the respondent promised to reinstate 13 named employees within 2 weeks and to reinstate 30 named employees alternately with 30 nonunion men from time to time as the respondent needed addi- tional help. This settlement was thereafter repudiated by the Union. The names of five employees, herein called the charging employees, whose cases are severally discussed below, were among the 30 union employees on the preferential list for reinstatement. These charging employees had been laid off in'Octbber 1937 and had not to the day of the conference, April 27, 1938, been offered reemployment. They had all become members of the Union at its organization meeting on 12 See Section 10 (a) which reads as follows • "The Board is empowered , as hereinafter provided, to prevent any person from engaging in any unfair labor practice ( listed in section 8 ) affecting commerce . This power shall he exclusive , and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise ." Cf N. L. R. B v. Horace C. Prettyman and Arthur J. Wiltse, copartners, doing business as The Ann Arbor Press , 117 F (2d) 786 , decided February 13, 1941 ( C. C. A. 6 ) ; Magnolia Petroleum Co. v. N. L. R. B. 115 F. (2d) 1007 (C C A. 10), enf'g Matter of Magnolia Petroleum Company and Oil Workers International Union, .Locals Nos. 280 and 378, 19 N. L R B 184; Matter of Duffy Silk Company and Silk Throw8ters Union, Local 81, Textile Workers Union of America, 19 N L R. B 37 - 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 18, 1937. They had become known to the respondent as enthusiastic members of the Union and opponents of the Association in the fall of 1937. Pursuant to the agreement noted above, each of the charging employees was subsequently offered reemployment and all but Isadore Steinke received reinstatement. Preparatory to such reinstatement, each employee was'required to file a new applica- tion for employment and pass a physical examination. The charging employees who were reinstated and alleged conformity to the agree- ment were not returned to, the positions formerly held by them, or to the same department, or to the same foreman.13 Subsequent to their reinstatement these charging employees were discharged. The Union contends that such discharges and the respondent's treatment of Steinke were discriminatory. The respondent contends that the discharges were due to various causes as alleged below and that it did not discriminate against Steinke. Robert J. Put7to ff was reinstated, pursuant to thcr agreement, on July 13, 1938. About a week or two before his reinstatement, lie filed an application for reemployment and passed a physical' examina- tion. He was discharged on July 18, 1938, for the-alleged reason that he failed to report an injury received shortly before his reemployment. The Trial Examiner found that the discharge was discriminatory. The respondent takes exception. On July 13, 1938, prior to his reinstatement by the respondent, but subsequent to his application and physical examination therefor, Puthoff was working for a construction company. Early in the morn- ing a scaffolding fell and struck him on the leg. Following the in- structions of his foreman, Puthoff went to 'see the doctor but was unable to find him in town. He returned to the construction company and told his foreman that he would see the doctor later in the day if . he returned. Puthoff resumed his work. About 11 a. m. he received a notice from Moore to report to'work at the respondent's plant at 1 p. m. the same day. Puthoff's leg had not bothered him' during the morning. 11 Eight reinstated employees, among whom were three of the charging employees, testified that at the time of rehiring Oscar Moore, personnel director of the respondent warned them, in substantially the same words, that the respondent "didn't want any trouble there like last fall." Of these, Langenhorst and Henry Hart testified that they believed Moore was referring to the union organizing in the fall of 1937. Sylvester H. Voskuhl testified that he did not know to what trouble Moore referred. The other five witnesses were not asked their understanding of Moore's meaning. Moore denied that he had said anything to them about joining or refraining from joining the American Federation of Labor union or any other labor Union. Moore testified that he told the employees that upon reinstatement they "would have to do their work right in the shop and behave themselves" and that he gave these admonitions pursuant to an instruction by the Regional Director at the settle- ment conference. The union representative at that conference, in.presenting the terms of the settlement at a union meeting, warned the members that each man reinstated would be expected to "shoot straight and do his work." Under these circumstances, we find that the respondent by Moore's remarks to the reinstated men did not violate Section 8 (1) of the Act. NEW IDEA, INC. 207, At I p. m. he presented himself for work at the respondent's plant. He made no report to the respondent of the injury which he had received shortly before reportin to it for work. During the after- noon he lifted heavy parts in the assembly room of the plant and pushed trucks weighing 100 to 1,000 pounds. He experienced no apparent inconvenience from his injury of the early morning. During the evening of July 13, 1938, Puthoff's leg began to stiffen. He went immediately to the doctor who strapped his leg and told him to rest it for a few days. In the doctor's office Puthoff filled out an applica- tion for workmen's compensation, naming the construction company as his employer at the time when the injury was received. Early in the morning of July 14, Puthoff sent notice to the respondent of his injury, his claim filed against the construction company, and the doctor's order to rest his leg. His claim against the construction company for.medical expenses was allowed. Puthoff was on crutches until July 17. On July 18, which was the following Monday morning, Puthoff reported for work and was called into Moore's office. According to Puthoff, Moore told him that he was discharged for "trying to pull something on the company," and he denied that he had any intention of doing so. Moore testified that he asked Puthoff why he had not reported his injury as soon as he arrived at the respond- ent's plant and that Puthoff answered that he had not reported the injury because he did not think it made any difference.- It does not appear that Puthoff acted in bad faith in failing to report the injury when he returned to work. for the respondent. Moore further testified that he explained to Puthoff that his working with his fellow employees in, an injured condition had subjected them to possible injury. We find that Moore explained the alleged cause of his dis- charge to Puthoff at this interview.15 The respondent contends that by working after his accident Put- hoff exposed the respondent to financial liability inasmuch as he might have incurred additional injury to himself in such work at its plant or might have been the cause of an accident and injury to another employee. The fact that Puthoff was engaged in hard physical work on the afternoon of July 13 lends some color to this 14 Although Putbofl' testified that his Injuries at the construction company were not specifically mentioned at this conference , lie did not claim any misunderstanding of Moore's meaning when , as he said , he denied that he had any intention of "pulling something on the company." 11 Puthoff testified that Moore promised to refer his discharge to' the "grievance com- mittee" and that later in the day Moore told him that the grievance committee had upheld his discharge Although Moore was not questioned on this matter , we cannot credit Puthofls testimony because it does not appear that either committee referred to as a "grievance committee" was in existence at the time of Puthoff 's discharge , and it affirma- tively appears that lthe committee which was composed of employee and employer repre- sentatives was not provided for until after his discharge. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contention. The respondent later discharged another employee 16 under similar circumstances and contends, therefore, that its treat- ment of Puthoff was not discriminatory. While we entertain some doubts, we are not convinced that the- respondent advances its defense in respect to Puthoff in bad faith or that the respondent discharged him because of union membership or activity. We find that the respondent, by discharging Puthoff; did not unlawfully discriminate against him. Isadore J. Steinke was first hired by the respondent in December 1935 and was a molder on the day shift on a piece-work basis at the time he was laid off in September 1937. The respondent set up a required minimum output for molders. Steinke had always made the required rating. He was never criticized for his work. On August 16, 1937, the night when the Union held its first organi- zation meeting, Steinke went to the plant and invited the employees, on the night shift to attend the union meeting.17 Steinke talked to Fred Moreman,-a foreman in the foundry, and to Joe Werrmert, night foreman in the forge room. Neither Moreman nor Wermert then criticized Steinke for' coming into the plant. Moreman said it was "up to the men" if they wanted to go to the meeting. It was not unusual for employees to come through the shop visiting. Molders on the day shift, including Steinke, often came to the plant at night to haul sand on their own time-iii preparation for -the following day's work. After the organization meeting, Steinke remained very active on behalf of the Union and against the formation of the Association. He attended the first meeting of the Association on August 18, 1937, which was attended by a number of foremen. Steinke talked to sev- eral foremen, including George Froninb and Johnny Rindler, telling them that "the home union was only to knock out the A. F. of L. organization." The foremen made no reply. On September 16, 1937, Steinke became a charter member of the Union and later served 18 months as president. Steinke continued his work at the plant until September 27 when he was laid off. At the time of his lay-off, nothing was said about his actions on the night of August 16, nor was he told that he was dis- charged at that time. It was customary for the respondent to pay a bonus to employees around Christmas time and in December, 1937 Steinke received his bonus. Later in December, when Steinke applied for work again, ,Moore, the personnel manager, mentioned to him for i "David Ashman The record does not disclose any union affiliation of this employee. 11 This vas 'Steinke's only visit to the plant at night for this purpose. NEW IDEA, INC. 209 the first time the incident of August 16. The following conversation in substance took place: (Moore) : Well, Isadore, you are done here. You might as well look for work some place else. (Steinke) : What is against me? My work? (Moore) : No, we haven't anything against your work, never did have. Your work has always been all right. But you had no business coming in here at night, and calling out the men. On February, 2, 1938, before the date of the settlement recited above, Steinke had received a serious injury and was unable to work. In August 1938 Steinke secured a certificate from the doctor to the effect that we able to do light York. Steinke applied to Moore for employment at the respondent's plant, but was told that nothing was available for him at that time. On October 10, 1938, Steinke started to work for the W. P. A. About the middle of January 1939, pursuant to the settlement, Steinke received a letter from Moore directing him to report at the office. After reporting at the office twice, Steinke was able to see Moore and fill out an application for employment. At the time Steinke left blank a space on the application for an answer to the question, "Will you work at night?" While Steinke was writing the application, Moore arranged an appointment for a physical ex- amination for him. While he was in the doctor's office 2 days later, the doctor told liim to'report back to Moore. Steinke did so. Moore pointed out his failure to answer the question on the application relating to night work. Steinke replied thtit Moore was pressing him hard on'that question, that he would not be able to work at night and would have to answer the question, therefore, in the negative; that his wife was expecting a baby; and that as they lived in the country without a telephone, he could not leave her alone at night without help. Moore told Steinke that the respondent required night work of all its employees as its needs might require.- On February 27, 1939, the Regional Director called a conference at Lima, Ohio, to determine the respondent's performance of the agreement of April 27, 1938. Representatives of the respondent and the Union were present. Steinke's case was discussed., The respond- ent contends that the Regional Director stated that the respondent, in January 1939, had fulfilled its obligation under the agreement of April 27, 1938, so far as Steinke was concerned. The Union contends that the Regional Director made no such statement. ' We find it unnecessary to resolve this conflict. 1e According to the respondent the fact that Steinke formerly worked on day shift did not' entitle him to day work There was no night molding at this time. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - In March 1939 Steinke's wife gave birth to a child. About April 4, 1939, Steinke returned to Moore's office and asked him to change his application for work to indicate that he was then available and willing to work at any time that the respondent might require his services. Moore refused to change his application or to permit, Steinke to file a new application. Steinke's testimony on Moore's refusal to make the desired change, which was not denied by the respondent and which we credit, is as follows : He (Moore) said "no, it wouldn't be no use." I said : "How about having it changed, then? If you, go through your files, you may have a job for me later. If it is marked `no' you wouldn't hire me, and if it is marked `yes', there might be a chance of getting on later." He said it would be no use. He said-he had the application. I said : "How about making out a new applica- tion?" He said, "no, it wouldn't be any use." Moore did not give Steinke any further explanation of his refusal to make the desired change, nor did the respondent at the hearing give a credible explanation of this"refusal. On January 25, 1938, Moore wrote Ernest Monroe, an employee listed for reinstatement under the subsequent settlement of April 27, 1938, directing Monroe to report to Moore. On April 25, 1938, Moore again wrote Monroe, advising him that the respondent required avail- ability for night work, pointing out that Monroe's refusal to do night work, which appeared on his application, might result in his not being employed in the respondent's plant, and asking him to advise Moore if he wanted to change his application for work in this respect. On April 26, 1938, Monroe wrote Moore, advising him that Monroe was willing to do night work and requesting that he change the application accordingly. In view of Steinke's prominent identification with the Union and- opposition to the Association, his efficiency and length of service with the respondent, and Moore's conduct when he applied for reinstate- ment in December 1937, we are of the opinion that the respondent refused Steinke's application at this time because of his union member- ship and activity. Steinke, however, was included in the settlement agreement of April 1938, approved by the Regional Director, and while we entertain doubts, we are not convinced that the respondent violated this agreement by its conduct with respect to Steinke in January 1939. We refrain therefore from finding that the respondent unlawfully discriminated against Steinke prior to-his further ap- plication on or about April 4, 1939. We are of the opinion that on or about and after that date the re- spondent refused to consider Steinke for reinstatement because of his NEW IDEA, INC. 211 union membership and activity. Steinke wanted to change his filed application or to submit another so that the respondent would be aware of his willingness thenceforth to work at night. Moore denied these requests. His only explanation to Steinke for this strange re- fusal was that "it would be no use." Moore advanced no other ex- planation at the hearing. Under these circumstances and in view of the respondent's previous treatment of Steinke, we find that on about and after April 4, 1939, the respondent discriminated in regard to Steinke's hire, tenure, and conditions of employment, ' thereby dis- couraging membership in the Union and interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act19. Two weeks previous to the hearing Steinke secured employment as a molder at V'an Wert, a town north of Coldwater, driving back and forth each day to his home 5 miles southwest of Coldwater. Ernest A. Langenhorst and George H. Luedkse were reinstated, pur- suant to the agreement of April 27, on July 10, 1938, and August 1, 1938, respectively. Langenhorst, first employed by the respondent in 1935, worked in the assembly room and in the wood room previous to his lay-off in October 1937, Luedke had been in the respondent's employ about 13 years before his lay-off in October 1937. He had been employed in the various departments of the plant on piece work and exceeded the production rate which the respondent established for such work.20 Luedke had been active in opposing the Union's approval of the agreement of April 27. There had been no complaints about their work previous to their reinstatement under the settlement agreement. , Subsequent to their reinstatement both men were put to work at less desirable short jobs. These jobs included painting, washing windows, unloading scrap iron and pig iron, and similar work, which Luedke without contradiction testified was the "dirty" work about the shop. On September 6, 1938, Langenhorst and Luedke were assigned to unload steel from a gondola car along a track in the respondent's steel and lumber storage division. Two other employees, Herbert Hardings and Ermal Smith, were assigned to a second car adjoining their car on the north..- Each car had two chutes hung over its side, 30 N L R B v. The Dow Chemical Co , 117 F. (2d) 455 , decided February 6, 1941 (C. C. A 6), cnf'g as mod Matter of The Dow Chemical Company and United Mine Workers of America, District No . 50, 13 N. L R. B 993; cf. N. L. R B v. Waumbee Mills, Inc, 114 F. ( 2d) 226 (C. C. A. 1), enf'g as mod . Matter of Waumbec Mills, Inc. and United Textile lVoi leis of America, 15 N L R B 37 20 Some jobs in the respondent 's plant are paid on an hourly basis ; others are piece-work or "rated" jobs. For hourly paid jobs the respondent sets no standard of quantity produc- tion. For "rated" and piece-work jobs the respondent sets a minimum production stand- ard Employees are paid a premium for work done in excess of such minimum standards. 441843-42-vol. 31-15 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD down which the unloaded iron and steel slid to the,ground level. Two other employees were assigned to handle the material as it came down the chutes from each car. Walter Steinbrunner and Vernon Boise were on the ground handling the material unloaded from' the Langenhorst-Luedke car. Andrew Black and Mike Johnson handled the steel unloaded from the Hardings-Smith car.21 The- unloading was done under the general direction of George Froning and Harry Moorman, his assistant. On September 7, 1938, before work had begun for the day, Moore, personnel manager, called Langenhorst and Luedke into his office and discharged them allegedly upon the representation of Froning that in 31/2 hours on the afternoon of September 6 Langenhorst and Luedke had unloaded approximately 20,460 pounds of steel less than Hardings and, Smith. Moore showed the men some figures on '"a little slip of yellow paper," which Moore said represented the unloading figures during 31/2 hours of the day before. The men immediately protested that the cars, contained different material. Moore said that he would have to let them go. Immediately upon their discharge on September 7 Luedke asked Moore for a hearing before the adjusting committee established by the contract of August 3. Moore 'told Luedke that he would see Duwelling about a hearing, but on Luedke's inquiry an hour later Moore reported to him that Duwelling had said that "he didn't think there was anything he could do about it."- After persistent efforts and individual interviews with members of the committee, a hearing was accorded both men on September 13 and 14. On Sep- tember 13 the adjusting committee met and heard the testimony of Froning and Black., On the following. day, at the insistence of Luedke, the committee met again and heard the testimony of Boise and Steinbrunner. The minutes of the meeting record that the ad- justing committee was not satisfied by the testimony thus adduced and adjourned for further investigation. Subsequent thereto, the three members of the Associates, accompanied by Moore, examined some records in Froning's office and viewed the materials alleged, by him to have been unloaded on September 6 from the respective cars. Neither of the discharged men was present during this inspection. Other witnesses were then heard by the committee. Allegations of Luedke made at the adjustment committee hearing were controverted before the adjustment committee by Frank Knapke, an employee, in r-- Luedke's absence. Moorman criticized the conduct of the men. 21 Black served as temporary foreman for 2 months during the summer of 1938. Langen- horst and Luedke worked under Black during that time. Boise and Black are members of the Associates. Hardings is a member of the Union. Steinbrunner, Johnson, and Smith were not called as witnesses . Their names appear on the list of employees to be reinstated under the agreement of April 27, 1938. NEW IDEA, INC. 213 NeitherLuedke nor Langenhorst was present at this time.- The adjusting committee affirmed the discharges. • 1 - The respondent contends that it discharged Langenhorst and Luedke on September 7 because in a 31/,? hour period in the afternoon of September 6, 1938, they unloaded less steel by weight than Hard- ings and Smith. The Trial Examiner found that the respondent discharged Langenhorst and Luedke for discriminatory reasons and we concur in this finding. Although the respondent's defense is predicated on an alleged comparison between the amount of steel unloaded by Langenhorst and Luedke on the one hand and Hardings and Smith on the other, the record discloses that some types of steel are more easily unloaded than other types, and while the respondent has supplied us with a description of the complete contents of the Hardings-Smith car, it has only offered a partial description of the contents of the Langen- horst-Luedke car. The "little slip of yellow paper" containing" the figures upon which the respondent allegedly based its discharge of the men on September 7 was not introduced in evidence. The re- spondent has thus failed to reveal adequately the basis on which its alleged comparison to the disadvantage of Langenhorst and Luedko was made. Moreover. the record shows affirmatively that the steel contained iii the Langenhorst-Luedke car was more difficult to handle than that in the Hardings-Smith car. Thus, Froning testified that the former car contained loose strip steel as compared with loose bar steel in the latter car. Froning conceded, and the record shows, that strip steel is more difficult to handle than bar steel. The Hardings-Smith car also contained so-called angle iron as well as loose steel and so-called bundle steel. The Langenhorst-Luedke car, while containing loose and bundle steel, does not appear, so far as the record discloses, to have contained any angle iron. Angle iron is easier to handle than either bundle or loose steel. Furthermore, Langenhorst and Luedke interrupted their unloading work on September 6 to assist in the trucking of the steel from their car and, in at least one case, in the, trucking .of steel from the Hard- ings-Smith car.22 One truck loaded from the Langenhorst-Luedke car ran partly off the' concrete runway on to the dirt, 3 to 6 inches below. This truck had to be pried up to the runway level by block- ing and leverage. Langenhorst and Luedke assisted a number of employees in lifting the truck to the runway.23 Neither Hardings nor 21 Langenhorst and Luedke testified, and Moorman denied, that Langenhorst and 7 uedke helped push a truck lohded with material from the Hardings -Smith car, but upon the entire record we credit the testimony of Langenhorst and Luedke and concur with the find- ings of the Trial Examiner in this respect. 23 The testimony is in conflict as to the amount of time spent on this task . Froning testified that it took 5 to 7 minutes . Boise and Black testified that it took about 10 min- I 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith left his car on September 6 to assist in the trucking opera- tions.24 We find that the discharged men were subject to appre- ciable interruption in their unloading work and that Hardings and Smith were not. That the respondent in good faith compared the work of the two teams on September 6 and acted thereon in discharging Langenhorst and Luedke is also rendered dubious by the vagueness of, and contra- diction in, its testimony with respect to the period during which the comparison was allegedly made. Thus, the respondent did not ex- plain between what specific hours of the day it placed the 31/2 hour test period. Although Froning testified at first that the Hardings- Smith car was not completely 'unloaded on September 6 and ex- plained that the operation was not completed because Hardings and Smith began unloading later than Langenhorst and Luedke,25 Fron- ing later contradicted his testimony and asserted that the Hardings- Smith car was completely unloaded on September 6. The respondent relies also on testimony of Boise, Moorman,, and Froning in respect to the conduct of the discharged men during the unloading on September 6. Boise notified Moorman that Langen- horst and Luedke were slow in sending material down the chute, but as Luedke explained in this connection, the men in the car had the harder job. Boise further testified that he saw Langenhorst and Luedke lean against the car and fan themselves, but this would not indicate that they were neglecting their duties because it was a hot day and they were engaged in heavy manual labor. Froning testified that he saw Langenhorst and Luedke working slowly and talking while Hardings and Smith worked steadily. Moorman testified that the discharged men worked slowly on September 6 and that he told them to quit talking and put in more work. Langenhorst and Luedke both deny that they loafed during the unloading. It does not appear that Froning was in the vicinity of the cars throughout the unloading period. Moorman was occupied with other duties and was not near the car throughout this period. The respondent had no general rule against talking. Moorman also reprimanded Hardings for talking during the unloading on September 6. Under these circumstances and upon the entire record, we credit the testimony of Langenhorst and Luedke and find that they were not loafing during the unloading of material on September 6. utes. Langenhorst' and Luedi:e testified that it took about 30 minutes we need not determine the precise time consumed in lifting the truck. u The respondent does not contend that Smith assisted in pushing the trucks. While Moorman testified that Hardings did engage in such work , Hardings denied that he did. Upon the entire record we credit the testimony of Hardings and concur with the findings of the Trial Examinee in this respect. ' m It may be noted in this connection that Hardings testified that the two crews were taken off a painting job and set at unloading their respective cars at the same time. NEW IDEA, INC. ' 215 The respondent also attempted to prove that Langenhorst and Luedke had neglected their work prior to September 6. Thus, Fron- ing testified that the discharged men were engaged in unloading pig -iron on August 23, that on this occasion he observed them talking and resting in the shade for 25 minutes before the lunch hour,-and that he spoke to them about this. The record discloses, however, that un- loading pig iron is a rated job and the respondent does not allege that the men did, not earn the standard rate.26 Froning testified further that on August 14 he observed Luedke stop shovelling three times to watch the unloading of a punch press nearby and-that on August 27 Luedke interrupted an unloading job three times to chat with a fellow employee 3 or 4 minutes at a time. Froning, however, did not find it necessary to caution Luedke in respect to his conduct on either August 14 or 27. Although he reported these matters to Moore, Moore did not find it necessary to reprimand Luedke. Langenhorst and Luedke deny that they neglected their work. In this connection it may be noted that the respondent does not claim that either Langenhorst or Luedke was criticized for neglect of work prior to their lay-off in October 1937. Under these circumstances and upon the entire record, we find without merit the respondent's contention that Langenhorst and Luedke were delinquent in their duties. In ,sum, Langenhorst and Luedke, not alleged to be inefficient or neglectful during their previous employment with the -respondent, were, upon their reinstatement, given the undesirable jobs about the plant and discharged only 2 months after their reinstatement, allegedly upon the basis of a comparison between their work and that of two other employees, the bona fides of which comparison is discredited by the record. The respondent's good faith is further impugned by the inadequacy of the hearing afforded Langenhorst and Luedke upon their discharge. Froning, who playedla, prominent part in the dis- charge of Langenhorst and Luedke, was one of the foremen instru- mental in starting the Association. Langenhorst and Luedke were identified with the Union in opposition to which the company-domi- nated Association had been formed. Under these circumstances, the findings of the Trial Examiner, and upon the entire record, we find that the respondent did not in good faith discharge Langenhorst and Luedke because of any supposed neglect of duty and that the respond- ent discharged them because of union membership and activity. We find that the respondent discriminatorily discharged Ernest A. Langenhorst and George H. Luedke on September 6, 1938, and there- after refused to reinstate them, thereby discouraging membership in 20 Froning assigned Langenhorst and Luedke to unload two cars of pig Iron on August 23. At the adjustment committee hearing, Schwigman remarked that it was improper for Froning to assign men to unloading two cars of pig iron on a hot day. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a labor organization and interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. August Lochite f eld was rehired, pursuant to the, agreement, about_ September 6, 1938. At the time of his reemployment Lochtefeld was specifically reminded that he had previously been criticized for loafing and warned that his continued employment was dependent upon sat- isfactory work. Such specific warning was not given to other charg- ing employees. Lochtefeld worked until October 3 when he was laid off. He was rehired February 1, 1939, and laid off on March 13. He was rehired April 26 and laid >off in early June. He was rehired about June 21.27 On July 10, 1939, the respondent discharged him, alleging loafing as the cause of his discharge. The Trial Examiner found that his discharge was not discriminatory.- The Union takes exception. In May,1939 Froning reported to Moore that Lochtefeld, instead of working, was standing around and talking. At Moore's direction Froning warned Lochtefeld. From about June 26 to July 7 Lochtefeld worked in the factory when it rained. When it was not raining, he was assigned with other men to work outdoors under Sylvester Schroer, a local carpenter hired by the respondent to do some construction work at the plant. Schroer did not select the men who worked under him. Schroer found that there was too much talking going on among the men. The conversa- tions overheard by Schroer were about "labor" and a certain contrac- tor in St. Mary's for whom Lochtefeld had previously worked. He watched the men and concluded that Lochtefeld was the leader in. the talking and • that • with Lochtefeld removed he could keep "better peace." 28 Lochtefeld, although denying that he stood around talk- ing, admitted that he had done considerable talking during working hours: He did not disclose, and he was not specifically asked, the subject matter of his conversations with other employees during work- ing hours. It does not appear that such conversations related to or constituted concerted activity within the scope of Section 7. Moore, passing from his office to the shop, saw the construction work in process. He testified that on two or three occasions he saw Lochte- field standing around and talking. He could not hear the conversation. On July 6 Schroer sent word'to Theodore Oppenheim, secretary of the respondent, who was his "boss," that he wanted to see him. Moore notified Schroer that Oppenheim was out of town and asked what "These lay-offs were due to lack of work . Other employees were laid off at the same times. zx According to Schroer, Lochtefeld obeyed orders and "when he worked , worked like the rest." Two fellow workers on the construction job testified that Lochtefeld worked as well as the rest. _ NEW IDEA, INC. 217 he wanted. Schroer told Moore that he thought it would be ' better for him and, for the rest of the boys working on the construction job if Moore would retransfer Lochtefeld to the factory: Schroer did not complain to Moore of the quality of Lochtefeld's work. The rec- ord does not disclose what, if anything, Moore said to Schroer on this occasion. - On the morning of July 7 Schroer notified Lochtefeld that he was do report to, the factory for work. Lochtefeld did not work thereafter for Schroer and Schroer testified that he had no "difficulty" with his .crew after Lochtefeld left it. Lochtefeld reported to Moore and asked where he was to work. Moore apparently told Lochtefeld of Schroer's complaint and con- cluded, "We have been after you and after you for loafing. We have got -to do something else." While Moore was "bawling him out," Froning happened to be passing. Moore asked Froning if he had work for. Lochtefeld. Froning replied, "Well, if he is a trouble maker, I don't even want him." Moore instructed. Froning to put Lochtefeld to work, saying, "We don't know what we will do- with him, yet." Froning set Lochtefeld to work under Jake Schoen. Lochtefeld told the men with whom he was assigned to work that he "had been called down for loafing again and would have to snap into it." He worked one half day under Schoen.29 There were no complaints about him during this short period. On July 10, 1939, before work had begun for the day, Froning told Lochtefeld to report to Moore's office. According to Lochtefeld's account, he -"looked at Moore a little bit" and Moore said to him, Well, Gus, we have warned you time and time again for loaf- ing and it's no use. We might as well leave you go because you are no good. [Lochtefeld replied] : Well, I never had a job that was decent, the last couple of weeks, where a person could really produce, I done the work as fair as I could. The respondent discharged Lochtefeld before 10 o'clock on the morn- ing of July 10, 1939. About 10 o'clock that morning, Lochtefeld returned to Moore's office. He had been drinking.. According to Moore, he swore loudly, made threatening and abusive remarks, and told Moore that the men had it in for him [Moore] and were going to get him. He demanded that Moore change the notation "dismissal for cause" on his slip or he would see, a lawyer. Although Lochtefeld denied that he was "9 Schoen and Lochtefeld were on -good terms Schoen had supervised his work for 2 months in 1937 . In 1938 Schoen signed an affidavit to the effect that he was satisfied with Lochtefeld's work except that he had to caution him to be more attentive to it. Testifying as to 2-4 weeks'-work which Lochtefeld performed under his supervision in February 1939, Schoen said it was "okay." 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "unruly," he admitted that he had been drinking, and did not spe- cifically deny that he made the statements which Moore attributed to him. About noon on the same' day, also under the influence of liquor, he went to Schroer's home. Lochtefeld blamed Schroer for his dis- charge. Schroer testified that Lochtefeld cursed and threatened to get even with him. Lochtefeld admitted that he went to Schroer's home. He was not asked if he acted as Schroer testified. Later, ac- cording to Schroer, Lochtefeld again accosted Schroer at work and threatened him. Schroer reported the case to the marshal, who talked with Lochtefeld.30 Lochtefeld was not questioned concerning this matter. Lochtefeld made an appointment with Duwelling_to meet him at the plant concerning' an investigation of his discharge. Lochtefeld did not keep the appointment because he decided that it would do him no good. He made no later attempt to secure a hearing. We are not convinced that the respondent acted in bad faith in discharging Lochtefeld or that the respondent discharged him for his union membership or activity. We find that the respondent, by discharging Lochtefeld, did not unlawfully discriminate against him. IV. 'THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring , in connection with the operations of the respondent 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in interference with, restraint, and coercion of its employees in the exercise of the rights guaranteed in Section 7 of the Act, we shall order the re- spondent to cease and desist therefrom and to take certain affirmative action which will restore the status quo and otherwise effectuate the policies of the Act., We have found that the respondent has dominated and interfered with and contributed support to the formation and administration of the Associates. In order to effectuate the policies of the Act and free the employees of the respondent from such interference and domination and the effects thereof, which constitute a continuing obstacle to the exercise by its employees of rights guaranteed them in 30 Schroer subsequently asked Hardings if Lochtefeld was an A. F. of L. man . Schroer told Hardings that he had been accused of being responsible for Locbtefeld's discharge but that he had had "nothing to do with it," NEW IDEA, INC. 219 the Act, we shall order the respondent to withdraw all recognition from and completely disestablish the Associates as representative of the respondent's employees for the purpose of dealing with the re- spondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Since ,the contract of August 3, 1938, between the respondent and ,the Associates, with the amendments thereto, embodies recognition of this organization as such representative and represents the fruit of the respondent's un- fair labor practices and a device by which to perpetuate their effects, we will order the respondent to cease and desist from giving effect to this or any other agreement with this organization in respect to rates of pay, wages, hours of employment, or other conditions of work. Nothing in the Order, however, shall be taken to require the respondent to vary those wage, hour, and other substantive features of its rela- tions with the' employees themselves, which the respondent may have established in performance of this' contract as extended, renewed, modified, supplemented, or superseded. We have found that the respondent unlawfully discriminated in regard to Steinke's'hire, tenure, terms, and conditions of employment on about and after April 4, 1939. In'order'to effectuate the policies of the Act, we shall order the respondent to place Steinke upon a preferential 'list and to reinstate him to his former or, to a substan- tially equivalent position when such employment becomes available and before any other person is hired for such work, and to give him back pay as set forth in the Order.31 In order to effectuate the policies of the Act, we shall order the respondent to offer Ernest A. tangenhorst and George H. Luedke immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. We shall further order the respondent to make them whole for any loss of pay each may have suffered, by reason of the respondent's discrimination in regard to his hire and tenure of employment, by payment of a sum of money equal to the amount which each of them normally would have earned as wages from the data of such discrimination to the date of the offer of reinstatement, less net earnings during said period .32 81 Cf. Matter of The Dow Chemical Company and United Mine Workers of America, Dis- trict No 50, 13 N. L R B 993, enf'd N L R B v The Dow Chemical Company, 117 F. (2d) 455, decided February 6, 1941 (C C A., 6). 32 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for 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. N. L. R. B., 311,1J. S 7. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Federal Labor Union No. 21218 is a labor organization within the meaning of Section 2 (5) of the Act. 2. New Idea Shop Associates, Inc., is an unaffiliated labor organiza- tion within the meaning of Section 2 (5) of the Act. 3. The New Idea Employees Association, Inc., was an unaffiliated labor organization within the meaning of Section 2 (5) of the Act. 4. By dominating and interfering with the formation and admin- istration.of New Idea Shop Associates, Inc., and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment of Ernest A. Langenhorst, George H. Luedke, and Isadore J. Steinke, thereby discouraging membership in the Union, the re- spondent has engaged in and is engaging in unfair labor practices within the-meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged'in and is engaging in unfair labor prat, tices within the meaning of Section .8 (1) of the Act. 7: The aforesaid unfair, labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent, by discharging and failing to reemploy Robert J. Puthoff and August Lochtefeld, has not engaged in unfair labor practices within the meaning of Section 8 (3) and 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 respondent, New Idea, Inc., its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of New Idea Shop Associates, Inc., or with the formation and administra- tion of any other labor organization of its employees and from con- tributing support to said New Idea Shop Associates , Inc., or to any other organization ; NEW IDEA, INC. 221 (b) -Giving effect to or performing any and all contracts and arrangements with New Idea Shop Associates, Inc., relating to rates of pay, wages, hours of employment, or other conditions of employ-' ment, or any modification or extension thereof ; (c) Discouraging membership in Federal Labor Union No. 21218 or discouraging or encouraging membership in any other labor or- ganization of its employees by discriminating against its employees in regard to,hire and tenure of employment or any term or condition of employment; and . (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to•form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in -concerted activities for the purpose of collective bargaining or other mutual aid' or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from New Idea Shop Associates, Inc., as representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of -employment, and completely disestablish New Idea Shop Associates, Inc., as such representative; (b) Place Isadore J. Steinke upon a preferential list and reinstate him to his former or substantially equivalent position when such employment becomes available and before any other person is hired for such work, without prejudice to his seniority or other rights and privileges; (c) Make, whole Isadore J. Steinke for any loss, of pay he -may suffer by reason of the respondent's failure to place him on a prefer- ential list,and reinstate him as provided in paragraph 2 (b) of this Order,, less his net earnings ; (d) Offer to Ernest A. Langenhorst and George H. Luedke,,imme- diate and full reinstatement to their former or substantially equiva- lent positions without prejudice to their seniority or other right's and privileges ; (e) Make whole the said Ernest A. Langenhorst and George H. Luedke for any loss of pay they mave have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment by payment of a sum of money equal to that which each of them would normally have earned as wages from the date of such discrimination to the date of the offer of reinstatement, less net earnings during said period; 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Post immediately in conspicuous places at its plant, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the re- spondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs. 1 1(a), (b), (c), and (d) of this Order; ' (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order; and (3) that the respondent's employees are free to become or remain members of Federal Labor Union No. 21218 and that the respondent will not discriminate against any employee because of membership' or activity in that organization; and (g) Notify the Regional Director for the Eighth Region in writing, witliin ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed in so far as it alleges that the respondent threatened certain of its employees who were called in for interview for reemployment with discharge if they continued to engage in union activities and that the respondent has discriminated against Robert J. Puthoff and August Lochtefeld.