Hazel-Atlas Glass Co.

In the Matter of HAZEL-ATLAS GLASS COMPANY and G. E. ROGERS, ON BEHALF OF HIMSELF AND OTHERS, AMERICAN FLINT GLASS WORKERS UNION OF NORTH AMERICA, AND LOCALS AND BRANCHES THEREOF, PARTY TO THE CONTRACT Case No. C-1735.-Decided August 18,1941 Jurisdiction : glass manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: threatening employees with loss of em- ployment if union activity continued ; threats to close plant if union organiza- tional drive successful ; surveillance of union meetings by Company officials. Discrimination: discharge of one employee for union activity ; asserted violation of employer rule requiring employee laid off to report for work found pretext to cloak discharge; even if true discriminatory refusal to rehire-refusal to reinstate certain employees to different available work for which employees qualified after non-discriminatory lay-off for production curtailment-certain employees discriminatorily laid off during general lay-off and discriminatorily denied reinstatement-foreman, ineligible to membership in union, who refused to replace striking operator, held discriminatorily denied reinstatement at expiration of strike-one employee whose testimony improbable found not discriminated against. Remedial Orders: reinstatement with back pay for employees discriminated against ; deductions from back pay from date of Intermediate Report to date of Board's Order for employees ordered reinstated by Board but found by Trial Examiner not to have been discriminated against; reinstatement order not affected by valid existing closed-shop contract where stipulation in partial settlement of case provides that employees ordered to be reinstated shall be given opportunity to become members of closed-shop union. Definitions : Foreman in his relation to his employer is an employee within the meaning of Section 2 (3) of the Act. Evidence : events leading up to illegal closed-shop contract made with an assisted labor organization which were settled in stipulation of partial settlement considered as back-ground material to ascertain the nature of employer's labor policy and to determine credibility of witnesses in order to resolve unsettled portions of complaint. Mr. Robert H. Kleeb, Mr. W. G. Stuart Sherman, and Mr. Harry Brownstein, for the Board. ' Steptoe & Johnson, by Mr. James M. Guiher. and Mr. Oscar L. Andre, of Clarksburg, W. Va., for the respondent. . Holmes cf Lewis, by Mr. W. T. Lewis, of Columbus, Ohio, for the Flats. 34 N. L. R. B , No. 60. 346 HAZEL-ATLAS GLASS COMPANY 347 Mulholland, Robie c6 McEwen, by Mr. Willard H. McEwen, of To- ledo, Ohio, for the Flints. Mr. Lewis R. Linet, Mr. James Maloney, and Mr. William Campbell, of Philadelphia, Pa., for the G. B. B. A. Mr. Malcolm A. Hoffmann, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed 1 by G. E. Rogers, the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania), issued its complaint and notice of hearing, dated February 17, 1940,2 against the Hazel -Atlas Glass Company, Clarksburg , West Virginia, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and accompanying notice of hearing were duly served upon the respondent, G. E. Rogers, the American Flint Glass Workers Union of North America , and Branches 565, 566, 567, 568, 569, 570, and 580 thereof, and Locals 5, 54, and 88 thereof, herein collectively called the Flints. The respondent filed its answer on March 7, 1940. During the hearing, an amendment to the charge was filed and an amendment to the complaint was likewise made. The respondent entered its answer thereto on the record at the hearing. - Regarding the unfair labor practices, the complaint , as amended, alleged in substance that : ( 1) from February 1 through April 26, 1937, the respondent engaged in a preconceived plan of interference with the self-organization of . its employees ; (2) during said time the respondent requested the Glass Bottle Blowers Association of the United States and Canada, herein called the G. B. B. A., and 'The charge was filed on April 26, 1938; an amended charge was filed on May 18, 1938, and a second amended charge on February 27, 1939. 2 After the charge and the amended charge were filed with the Board and brought to the attention of the respondent , the respondent and the American Flint Glass workers. Union requested the Board to refrain from proceeding in the matter until certain terminations involved therein could be considered as grievances and adjustment attempted , pursuant to an agreement between the respondent and said union . The Board did so refrain and the terminations were so considered by the parties both locally and at the October 15, 1938, Joint Conference of the National Association of Manufacturers of Pressed & Blown Glass- ware and said union . After this procedure failed to adjust the protests, the Board pro- ceeded on the charges previously filed. 348 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD the Flints' to organize its workers at Clarksburg, West Virginia, quickly in order to frustrate any organizing efforts of the Federation of Flat Glass Workers and Local No. 48 thereof, herein called the Flats,' and the respondent thereafter aided the G. B. B. A. and the Flints in said activity; (3) the respondent induced its employees to join the G. B. B. A. and the Flints and induced them 'to transfer their membership thereto from the Flats; (4) on April 26, 1937, the G. B. B. A. turned over jurisdiction in the Clarksburg plant to the Flints; (5) thereafter the respondent encouraged membership in the Flints and discouraged membership in the Flats; (6) on April 28, 1937, the respondent granted exclusive bargaining rights and a closed-shop and check-off agreement to the Flints; (7) the Flints were established and assisted by the respondent and were not the representatives of a majority of its employees; (8) the respondent discharged Atkinson and Allman because they refused to join the Flints; (9) the respondent terminated the employment of G. E. Rogers and Guy Radcliff because of their militant activities on behalf of the Flints; (10) the respondent terminated the employment of nine other employees because of their activities on behalf of the Flats; (11) the respondent terminated the employment of Carder because of his refusal to perform work done by employees then on strike. The respondent's answer, as amended, admitted certain allegations regarding the character of its organization and business but denied the commission of any unfair labor practices. The answer admitted that it granted to the Flints exclusive bargaining rights, a closed- shop and check-off agreement, and that it had discharged Atkinson and Allman pursuant thereto. It further alleged that employee Berry left the respondent without giving any reason therefor ; that Carder was given the option of doing certain work or leaving, and he thereupon left; that the other employees were laid off because of lack of work without any reference to their membership or activity in any labor organization. Pursuant to notice, a hearing was held in Clarksburg, West Vir- ginia, from April 15 through May 31, 1940, before Tilford E. Dudley, the Trial Examiner duly designated by the Chief Trial Examiner. At the commencement of the hearing, the Federation of Flat Glass Workers of America filed its motion for leave to intervene in the proceeding. This motion was granted. The Board, the respondent, and the intervenor were represented by counsel and participated in the entire hearing. The G. B. B. A. and the Flints were likewise represented by counsel and participated in the hearing through April 17 and 18, respectively. Full opportunity to be heard, to examine 3 Now known as Federation of Glass , Ceramic and Silica Sand Workers of America f1AZEfL-ATLAS GLASSS' COMPANY 349 and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. On April 17, 1940, all the parties to the proceeding entered into it stipulation thereafter approved by the Board settling some of the issues formed by the pleadings herein. By said stipulation, the re- spondent agreed to reinstate Atkinson and Allman with back pay totaling $2,250. The parties further agreed that the contract between the respondent and the Flints should be completely suspended; that the Board's Regional Director should conduct an election on June 11, 1940, to determine whether a majority of the respondent's employees at Clarksburg wanted the Flints, the Flats, or no union to represent them in collective bargaining; that the respondent would recognize the union, if any, so selected by a majority of its employees. It was further agreed "that this stipulation is a complete and final settlement of all charges of violation of the National Labor Relations Act alleged to have been committed by either the'Company or the Flints with respect to the contract between them, and also of any and all complaints and claims in this proceeding by and on behalf of said Evan L. Atkinson and William V. Allman." The stipulation also provides that it is not to be used "as a basis for any objection by any party to any proffered testimony otherwise competent and material to the issues remaining in the case" and that "neither the Labor Board nor the Company shall in any way be prejudiced by this settlement stipulation . . . in the hearing and determination of the remaining issues in the' case." During the course of the hearing the Trial Examiner made a number of rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Ex- aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the close of the hearing, the Trial Examiner gave the parties opportunity to present oral argument and to submit briefs. In support of its position the respondent sub- mitted a brief to the Trial Examiner which has been considered by the Board. Thereafter, the Trial Examiner filed his Intermediate Report, dated November 12, 1940, copies of which were duly served upon all the parties, finding that the respondent had engaged in and was en- gaging in unfair labor practices, within the meaning of Section S (1) and (3) of the Act, and recommending that the respondent cease and desist from its unfair labor practices, offer full reinstat- ment to eight named employees 4 and make them whole for loss of pay resulting from their discriminatory terminations of employment 4 These employees are Carl McClung, Lloyd Phares, Guy Radcliff, James Casto, G. E. Rogers, William Radcliff , Carl Reed, Jr, and Hairy Carder. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the respondent, and recommending that the complaint be dis- missed in so far as it alleged discrimination with respect to the ter- minations of employment of four other named employees.5 On December 23, 1940, the respondent moved the Board to make part of the record herein the results of a consent election conducted on June 11, 1940, pursuant to the stipulation above mentioned." The motion is hereby granted and the results of the election of June 11, 1940, as set forth 'in the margin 7 are, instanter, made part of the record herein. On December 23, 1940, the respondent, and on December 26, 1940, the Flats, filed exceptions to the Intermediate Report and to the record. On January 8, 1941, the respondent, and on January 11, 1941, the Flats, submitted briefs in support of their respective positions. On April 17, 1941, pursuant to notice, a hearing was held before the Board at Washington, D. C., for the purpose of oral argument. The respondent and the Flats appeared, presented oral arguments, and otherwise participated in the hearing. The Board has considered the exceptions of the respondent and the Flats to the Intermediate Report and to the record, the briefs and the arguments of the parties in support of their respective positions, and, except in so far as the exceptions are consistent with the findings, conclusions, and order set forth below, 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 RESPONDENT S The respondent is a West Virginia corporation, with authorized capital stock of $15,000,000. It owns, either directly or through subsidiary corporations, glass and mining properties at Mill-Creek, Oklahoma, and Pittsburgh, California, a metal plant at Wheeling, West Virginia, and glass manufacturing plants at Washingtol, Pennsylvania, Grafton and Clarksburg, West Virginia, Ada and Blackwell, Oklahoma, Lancaster, New York, Oakland, California, and 5 These employees are Thomas Berry, Howard Gaines, Flemie Whytsell , and Francis Flynn. s Pursuant also to a "Supplemental" and "Second Supplemental Agreement to Stipulation of Partial Settlement" amending said stipulation in certain ministerial respects. 4 The election results n ere as follonn s Total eligible-------------------------------------------------- 1,410 Total valid ballots cast----------------------------------------- 1, 352 Votes for the Flats-------------------------------------------- 480 Votes for the Flints ------------------------------------------- 830 Votes for neither---------------------------------------------- 42 s These findings are based upon a stipulation entered into by the attorneys for the re- spondent and the Board. HAZEL-ATLAS GLASS COMPANY 351 Zanesville, Ohio. Its entire sales organization is managed from its general offices in Wheeling, West Virginia. The respondent's plant at Clarksburg, West Virginia, is engaged in the manufacture and decoration of various types of glass con- tainers, such as glass jars, bottles, jugs, tumblers, tableware, colored and decorated glassware, food containers, and specialty items. The principal raw materials used at Clarksburg are sand, soda-ash, and limestone. The total amount of raw materials used by the respondent at Clarksburg in the year 1939 exceeded 61,000 tons in weight and $500,000 in cost. Approximately 95 per cent of these raw materials were procured from outside the State of West Virginia and were shipped from other States into the State of West Virginia. The total amount of finished products manufactured by the re- spondent at the Clarksburg plant in the year 1939 exceeded $5,000,000 in value. Over 95 per cent of these finished products were shipped from Clarksburg to points in States other than West Virginia; small amounts were shipped to foreign countries. H. THE LABOR ORGANIZATIONS INVOLVED The Federation of Flat Glass Workers 9 is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees of the respondent. The American Flint Glass Workers Union of North America is a labor organization affiliated with the American Federation of Labor. In April 1937 it obtained a substantial membership among the re- spondent's employees at Clarksburg. For the skilled workers it formed Locals 5, 54, and 88; for the unskilled or miscellaneous work- ers, it formed Branches 565, 566, 567, 568, 569, 570, and 580. The Glass Bottle Blowers Association of the United States and Canada is a labor organization affiliated with the American Federa- tion of Labor. For a brief period in March and April 1937, it had an extensive membership among the respondent's employees in Clarksburg, West Virginia. III. THE UNFAIR LABOR PRACTICES A. Background As stated above, the issues regarding the respondent's alleged assistance on behalf of the G. B. B. A. and the Flints were settled by a stipulation between the parties. Although no findings will be made that the respondent thereby violated the Act, a consideration of ° See footnote 3, supra. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these events is helpful in resolving the issues remaining in the case and findings as to the allegations of illegality of the contract be- tween the respondent and the Flints will be made in so far as such findings are material to the unsettled issues remaining in the case 10 1. Early activities of the G. B. B. A.: 1915-1936 The G. B. B. A.'s president and vice president testified that the G. B. B. A. had attempted to organize the respondent's employees since 1915. In addition to various visits to the respondent's plants (but apparently not to the Clarksburg plant) the G. B. B. A.'s president, Maloney, wrote the respondent's president in 1933 and several times in 1935 and 1936 in an effort to convince him that the respondent should withdraw its opposition to the organization of its employees. Maloney testified : "I never received any reply to any of my letters, yet I kept hammering away because I know that men change their minds." However, the G. B. B. A. at no time directly approached the respondent's employees in Clarksburg or solocited their membership. 2. Early activities of the Flints : 1925-1935 The Flints began to organize the respondent's mould makers at its Clarksburg plant in 1925. They met considerable opposition from the respondent and in 1927 called a strike. They spent about $100,- 000 for the strike, including strike relief and general expenses of the organizational campaign. During the strike, Elbert, a G. B. B. A. representative, approached Dawson, then superintendent of the respondent's Clarksburg plant, about a settlement. Dawson re- plied : "There will be no settlement in this plant . . . We have laid aside $168,000 with interest for a good many years for the purpose of stopping any labor organization that tries to enter our plant .. . We'll add more to it if necessary . . . We'll spend every cent of it before we'll let any organization enter this plant." 11 During a further attempt by the Flints in 1934 to organize the employees, the Flint's organizer, Harvey Harshman, asked Karl Weaver, the respondent's superintendent of the Clarksburg plant, if he objected to his employees belonging to the Flints. Weaver replied : "Mr. Harshman, the Hazel-Atlas Glass Company has a policy and that policy is that no labor organization will ever be 10 See Matter of Dain Manufacturing Company and Deere & Company and Farm Equip- ment Workers Organizing Committee, United Farm Equipment Workers of America, Local 117, C. I. 0, 25 N. L. R B. 821 ; Singer Manufacturing Company Y. National Labor Relations Board, 119 F. (2d) 131 (C. C. A 7), cert. den, 313 U. S 595, enf'g Matter of Sanger Mango- facturing Company and United Electmcat, Radio C Machine Workers of America, Local No 917, 24 N. L. R. B. 444. n This was not controverted, except by a showing that Dawson has since died. HAZEiL-A'T'LAS GLASS COMPANY 353 recognized." Harshman continued his ' organizing efforts; during the campaign two employees were discharged. The Flints took their cases before the National' Labor Relations Board, constituted under the National Industrial Recovery Act,- which ordered both of them reinstated. The respondent complied as to one. The other case was taken into the courts, but the National Industrial Recovery Act was later declared unconstitutional and the second employee was never reinstated. Harshman testified these events made his campaign very difficult, and that he obtained only 75 or 8:; members out of the 1800 or 2000 employees. 3. The Flats continence organizational activities : February 1937 In February 1937 Isaac Lewark was president of Flats Local 6 at the Rolland flat glass plant in Clarksburg. At that time he began talking to employees of the respondent about joining the Flats. Around the middle of February 1937, Lewark spoke to the Flats' national president about organizing the respondent's plant. The latter soon thereafter sent Lewark some membership application cards and he proceeded to get a few of them signed. Some of the respondent's employees took several cards and got other employees to sign. In March 1937 the Flats employed several -men in Clarksburg to assist in organizing the respondent's employees. Carl McWilliams began such work during the first week in Marchl' James Reed, Isaac Lewark, and William Ward were also paid for organizational work during this period of time. Ward commenced his work at Clarksburg on March 29, 1937. 4. The respondent invites the G. B. B. A. to organize: March-April 1931 Sometime in March 1937,14 Samuel B. Bowman, the respondent's general factories manager,15 telephoned James Maloney, president of the G. B. B. A., and suggested that Maloney come to Zanesville, Ohio, for an interview. Maloney readily agreed to do so. Bowman had the authority at, that time to determine the respondent's labor policy, due to the office which he then held. "Created under Public Resolution No. 44 ( 73rd Cong., 2nd Sess ) to administer the provisions of Section 7 (a) of the National Industrial Recovery Act, protecting the rights of self-organization and collective bargaining . See 48 Stat 1183 , 48 Stat. 195 is Although McWilliams did not testify , this date seems reliably determined by ward's testimony that he approved an expense voucher for McWilliams for this period. '* The direct testimony on this date is vague. It is, however , clarified by the well-estab- lished dates of subsequent events. 15 Bowman has since died and Carnahan has become general factories manager. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This meeting was held on about Friday, March 19, 1937, in Bow- man's office. Those present for the G. B. B. A. were Maloney and W. W. Campbell, vice president. Those present for the respondent were Bowman, John W. Carnahan, general production manager; Ralph Gorsuch, superintendent of the Zanesville plant No. 1; Karl Weaver, superintendent of the Clarksburg plant. The conference convened "around the middle of the morning and broke up in early afternoon." Bowman wanted to know about unions. He inquired as to "how they conducted their business and just how they felt about responsibilities." He also "asked a lot of questions regarding the G. B. B. A. organization, how they operated, whom they had contracts with, and the whole time was taken up with various ques- tions of that character, trying to find out all he could regarding the personnel of that organization and how it operated." 16 Within the following week a second conference was held in Bow- man's office. The same people were present, plus some superin- tendents of various eastern plants of the respondent. Bowman asked more questions regarding the G. B. B. A. and its jurisdiction. Camp- bell testified, "They wanted us to explain the procedure of the closed shop. We did. They wanted information regarding seniority rights. We explained them. They wanted information as to the check-off. We explained them." At this conference admittedly an understanding was reached be- tween- the respondent and the G. B. B. A. that the former would withdraw its opposition to union organization and that the G. B. B. A. would "go out and organize their people" as soon as it could. Bowman told Maloney that "the management of none of the plants would thwart the efforts of organization . . . [and] that he would so inform those plant managers who were not present at that conference." 17 Within the next few days, i. e. March 27 or 28, 1937, Campbell and several other executive officers and "lay workers" of the G. B. B. A. came to Clarksburg to organize the respondent's employees. Campbell called upon Weaver and "said he was here following out what he 16 Maloney testified he assumed Bowman "sort of looked Mr. Campbell and myself over " 17 Weaver's testimony suggests that the respondent called these meetings and reversed its labor policy because of the "particularly sore situation which was then flaming on the West Coast." He testified that the time of the March 19 meeting, "there were rumors at some of the plants that they had . . . national organizers in amongst the men" and at the Oak- land, California , plant, "they were threatening a picket line and shutting down the plant. if the employees there did not Join the G. B. B A." He said that at the time of the second meeting, "the West Coast representatives of the G. B B. A. were precipitating a situation there that was quite confusing to the plant there, by the insistence of this picket line." However, the G. B. B. A. had long been quiescent. Even in 1937 , its activities were con- fined to the Oakland, California, plant. It did not have a single member at Clarksburg and had never tried to organize that plant. We, therefore, do not believe it was fear of the G. B. B. A. that caused the respondent to capitulate. HAZEL-ATLAS GLASS COMPANY 355 heard Mr. Bowman say in Zanesville" and that the G. B. B. A. was starting its organization drive at that time. Campbell testified, "the employees knew that the company was opposed to organization ... and ... we realized we had to break that down; we realized, too, that if the company or the plant managers where we were organizing would make a statement to their employees . . . that it would be a great help to us and it would leave their employees more at ease." He, therefore, asked Weaver if he would help in this regard. Weaver replied, "Sure, and in any way that I can do it legitimately." Camp- bell also asked Weaver to address some organization meetings he was going to hold in a day or so for the employees. Weaver consented. Campbell also inquired as to whether the G. B. B. A. could rent a nearby hall, known as Fetty's Pool Room, which adjoined Fetty's Restaurant. This structure was about 100 feet from the entrance to the respondent's plant. , The respondent had leased it ever since early in 1936 and-had equipped and used it for employee meetings. The personnel department had displayed there for the employees a sound film on venereal diseases. Other employees had used it to rehearse some amateur theatricals which they later gave at employee parties. The key to the building was kept at the watchbox in front of the respondent's plant and arrangements for use of the hall were normally made through the respondent's personnel office. Weaver granted Campbell's request. Campbell paid either $5 or $10 as rental for about a week's time. On Monday, March 29, 1937, the respondent's general production manager, Carnahan, came to Clarksburg ; he remained for about 2 days. On March 29, Weaver prepared a notice to the employees in Clarksburg. He testified it was a result of the Zanesville arrangement between the respondent and the G. B. B. A. and issued for the purpose of conveying to the employees' "the gist of what had occurred at the two conferences." Weaver discussed the notice with Carnahan who said he "thought it was all right." The notice was issued by Weaver's office for posting throughout the plant in the same manner as other official notices. Brady Sims, who was in charge of the personnel department, received the notice in the course of his duties and began to post copies at about 12: 15 p. in. that day. He placed them on all of the respondent's 17 regular bulletin boards, located "in every department of the plant, usually in a conspicuous place." This notice read as follows: 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD HAZEL-ATLAS GLASS COMPANY GLAss WARE KARL WEAVER, Superintendent. CLARKSBURG, W. VA., March 29,'1937. TO OUR EMPLOYEES : Your Company has always endeavored to recommend to you the best course to pursue in the light of conditions that existed. Today we are again asking your 100% cooperation in a step which we now believe will afford the greatest protection to your job and to the Company as a whole. The management for several days has been arranging the necessary details with the officers and representatives of the Glass Bottle Blowers Association and the American Flint Glass Workers' Union. The representatives of the Glass Bottle Blowers Association are here and will sign you up for the American Flint Glass Workers' Union. These two unions and your Company are fully in accord in this arrangement. Both of these organizations are affiliated with the American Federation of Labor and for a number of years have had juris- diction in most of the glass plants making ware similar to our own. The American Flint Glass Workers Union will have jurisdic- tion in the Mould Shop, including mould cleaners; the Glass Bottle Blowers Association in all other departments of the Plant. We know from experience that you employees have had faith in the decisions of your Company and we are asking you now to continue that faith by promptly signing up in these organiza- tions today. Representatives are stationed in the old pool hall just beyond Fetty's Restaurant. Your foreman will arrange to send you over to sigii up. If there are any questions, see your department head or the writer of this notice. - This action by the Company is for your best interest in view of existing conditions. Please continue your fine cooperation by signing up on your present shift. Thank you ! KARL WEAVER, kw rem Plant Superintendent. Factories: Washington, Penn.; Wheeling, W. Va.; Clarksburg, W.Va.; Grafton, W. Va.; Zanesville, Ohio; Blackwell, Okla.; 'HAZEL-ATLAS GLASS COMPANY 357 Ada, Okla. ; Oakland, Calif. ; Lancaster, N. Y. General Offices, Wheeling, West Virginia. Weaver also informed V. L. Nelson and J. David Blackwell, man- agers of the production department of the plant,18 that the G. B. B. A. was going to organize the plant and that they should see that the men were afforded relief so they could go to Fetty's Pool Room to sign up. Pursuant to these instructions and to Weaver's posted notice, Nelson and Blackwell admittedly did so inform and instruct the various foremen under them. Extra personnel was accordingly retained at the plant to give relief (i. e. to act as substitutes) for the employees when they went outside to Fetty's Pool Room to join the G. B. B. A. The foremen, in turn, passed the information on to the employees, both directly and through the relief men. The testimony is in dispute as to what the various officials told the employees about the necessity of their joining the G. B. B. A. Nelson, Blackwell, and the various foremen all testified that the instructions they received and passed on to those under them were that the men were being relieved to sign up for the G. B. B. A., if they so desired. However, the employees' testimony indi- cates the instructions were not conditioned upon their desires. In some cases they were merely told they were being relieved to go to the poolroom to sign up for the union; in other cases they were told by foremen they were "supposed" to sign, or they "had better sign up," or "they want all you fellows . . . to sign up . . . That's orders." Most of the employees who testified on this point said they were told by foremen or other officials that they had to sign up; that it was compulsory if they wanted to continue working at the plant; that everyone would have to join. About 1800 employees d;d join in the next few days. It is unnecessary to determine what specific words were used in each of the conversations here involved; their import is clear from the record. The respondent's previous conference at Zanesville, its notice of March 29, 1937, and the evidence of subsequent events, hereinafter described, support the employees' testimony in general and indicate that the respondent told the employees it wanted and expected them to join the G. B. B. A.; if any of them questioned this, they were told they had to join. Whether the respondent would go so far. as to discharge a man who refused to join was never deter- mined, because of a subsequent change in labor organizations. "At that time Blackwell was in charge of the production from tanks Nos 1 and 2 ; Nel- son was in charge of tanks Nos 3 , 4, and 5 However, in July 1937, Nelson was placed in charge of all the tanks and all production ; he has held this position ever since. 451269-42-vol 34-24 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Within the next few days, around March 30, 31, or April 1, 1940, Weaver fulfilled his promise to Campbell to address some G. B. B. A. organizational meetings. He testified this "was again rather follow- ing up the statement that Mr. Bowman made in the second meeting at Zanesville." He appeared at two or three meetings, at different shift times, and spoke for a few minutes at each meeting. In his speeches he mentioned the Wagner Act and other Federal legislation which he said gave employees the right to join labor organizations; he said the respondent had been studying the different organizations and had come to the conclusion that the G. B. B. A. and the Flints were the suitable or logical organizations for the employees; that they had represented employees in the glass container industry for ap- proximately 50 years; that the respondent had always been interested in the welfare of the employees; that it believed joining these organi- zations was in their best interest and it hoped the employees would cooperate 100 per cent. Weaver then either introduced Campbell as an official of the G. B. B. A., or turned the meeting over to him and departed. 5. The respondent assists the Flints to organize : April 1937, et seq. At about the same time, i. e., on Monday, March 29, 1937, M. J. Gillooly and William G. Muhleman, president and national repre- sentative, respectively, of the Flints, conferred in Zanesville, Ohio, wih Bowman, Carnahan, Greer, and Shipman, who represented the respondent. Gillooly and Muhleman explained the operation of their union; they sought recognition for the Flints and establishment of rules and agreements for mould makers in the respondent's various shops. The respondent said, "Whenever you have a sufficient number of men organized, we will talk business." The Flints then claimed membership at Zanesville, Clarksburg, and Washington, Pennsylva- nia. Actually they had no more than a nominal number of members at Clarksburg, and perhaps none. On Thursday, April 1, 1937, Muhleman and Ross Leidy came to Clarksburg to organize the mould makers and machinists for the Flints. Muhleman arranged with the G. B. B. A. representatives for the use of Fetty's Pool Room on the next evening, April 2. He also asked Weaver to speak at this meeting and to "explain . . . the company's policy that they were not going to interfere with organiza- tion rights in harmony with the Wagner Law." Weaver consented. Muhleman also telephoned "some of our men here who we knew were favorable and told them to get the word around that we were going to set up a local union in Clarksburg" and have a meeting that Friday night. HAZEfL-ATLAS GLASS 'COMPANY 359 On April 2, 1937, Harry H. Cook, then the Flints' first vice presi- dent,19 also arrived in Clarksburg. The general organizational meet- ing of the mould makers and machinists was held that night. At the hearing Cook estimated that 80 or 90 workers were present that eve- ning. Here, as with the G. B. B. A., he told of the Federal legisla- tion and the employees' rights to join labor organizations; he related the respondent's interest and investigation and said that the respond- ent believed the G. B. B. A. and the Flints were the logical organiza- tions. He said that the Flints represented the mould makers at all of the plants and would have jurisdiction in Clarksburg over the mould shop, including mould cleaners. Weaver then turned the meeting over to Cook and departed. Cook delivered an organiza- tional address and the men were "given the obligation" that night.20 During this stop-over at Clarksburg, Cook learned that the plant's principal product was, glass tableware and not glass bottles. He thereupon formed the opinion that the G. B. B. A. had no jurisdiction at all in the plant and that the Flints were entitled to the entire plant, rather than to only the mould shop. He so informed Gillooly, the Fints' president.21 Gillooly then telephoned G. B. B. A. President Maloney and claimed jurisdiction of the entire plant. On April 5, Maloney wrote Gillooly; on April 15, Gillooly replied. On April 19, Gillooly wrote again, suggesting a joint meeting with the respondent on Saturday, April 24, 1937. This meeting was subse- quently held in the respondent's office at Zanesville. In the meantime the organizers for the Flats increased their solici- tations for members. They distributed application cards in front of the factory gates to employees leaving and entering at different shifts. They also sought applicants in the poolrooms, recreation halls, and other gathering places in Clarksburg. Some employees took cards into the plant and there sought to secure signed applications from their fellow workers. Berry testified he thus handed out appli- cations and the men signed them and returned the cards to him. He got several cards signed up even before the first meeting. The Flats arranged for a meeting to be held at the Masonic Temple in the evening of Wednesday, April 21, 1937. Around the middle of April, they commenced passing out handbills at the factory gate, announcing this meeting as a C. I. O. mass meeting, with the president of the Flats as the principal speaker. These flyers were distributed openly, while Weaver, Nelson, and other company officials passed in 1e Due to the death of former President Gillooly , Cook has been acting president of the Flints since April 2, 1940. 20 Muhleman testified he thought there were two meetings that day and, "I would say in the two meetings there must have been approximately 135'. . . pretty close to 95%" of all the mould makers and machinists there 21 There is some evidence that Gillooly had received similar information and opinion from Elbert, another organizer , on March 30, 1937. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and out of the plant. Employee William Radcliff took two or three of the leaflets inside the factory ; two of them he gave to other em- ployees; the third he carried back through the packing room and the mould shop, showing it to the other employees. "I just held it up in front of them and let them read it," he testified. Employee McClung joined the Flats about April 16, 1937, and then helped distribute notices of the Masonic Temple meeting. He gave one to Foreman Otto Wolfe, who said "that was a good way to lose your job because the news was going around that they were going to shut down the plant if they went C. I. 0.1122 Nevertheless, the meeting was held as scheduled. Lewark presided. Glenn McCabe, president of the Flats, was the principal speaker. He attacked the G. B. B. A. as a company-dominated union and argued that the Flats were more progressive and thus more desirable. When he finished, Arthur Elbert, a representative of the Flints, interrupted the meeting and asked to speak. After some dispute, permission was given him and he spoke in favor of the Flints, saying only that they had jurisdiction of the plant. Application cards for the Flats were circulated throughout the crowd and about 50 of the respondent's employees joined that night. Elbert estimated that about 900 people attended the meeting; an, official of the Masonic Temple estimated about 125 to 150; other estimates ranged between 150 and 500. The auditorium's seating capacity was about 450. Also present at the Masonic Temple meeting were several of the respondent's supervisory employees, namely : William T. Myers, who was then an assistant to Nelson and is now assistant production super- visor; Harry Tate, the foreman over the warehouse; James Anderson, a foreman over the bottle-making machines in the production depart- . ment; John Messenger, an assistant foreman in the warehouse depart- ment; and Clyde Reed, another assistant foreman. None of these officials took any part in the meeting, except to observe it. Myers testified curiosity was his only motive for attending the meeting.23 At about this time 24 Grover Earl Rogers, an employee who, as Weaver put it, "seemed to have this matter of organization very much on his mind," telephoned Weaver and obtained permission to confer with him at the latter's residence. The two men discussed labor unions in general and those organizing the steel and automobile indus- 22 Otto Wolfe denied making such a statement and denied any knowledge of McClung's distributing any C. I. O. notices or literature at the plant . However, we find, as did the Trial Examiner who observed the demeanor of the two witnesses , that McClung's testimony is true 23 Anderson , Messenger , and Reed did not testify Tate did testify but was not ques- tioned concerning his attendance at this meeting The presence of these five officials at the meeting was not controverted by the respondent. 24 Rogers testified it was on or near April 21, 1937, during the time the G. B. B. A. was at the plant and before the Flints took jurisdiction . Weaver was not certain of the date. There are some indications that this event took place later. . HAZEL-ATLAS GLASJ^3 COMPANY 361 tries in particular. They talked about the activities of the C. I. O. and the sit-down strikes that occurred in the automobile plants. Weaver expressed strong opposition to sit-down strikes and to "any group of workers who resorted to means of that character." He said the respondent did not want to contend with that in the Clarksburg plant, and, "We don't feel that we can work with the C. I. O. For that reason, we chose this organization to represent the workers of our plant." They discussed the possibility of the C. I. O. entering the Clarksburg plant. Weaver said the Company could not work with the C. I. 0.; that they always acted' first and talked afterwards; and that he hoped Rogers and the committees would be able to establish the G . B. B. A. and the Flints at the plant. A few days later'25 Rogers conferred with Weaver in his office. Weaver told him, in effect : "If you men will take the organization of our choice, We will go more than half way with you . In fact, you will be surprised at the things we will do for you. I don't hesitate to tell you, Rogers, that at this time we are putting $211,000 in #2 tank. If the C. I. O. gets a hold in this plant, work will stop immediately on that tank and the gates will close and they Will rust off of the hinges before they open. " Soon thereafter, Rogers and employees John Leonard and Cecil Johnson conferred with Weaver in his office. Weaver made approximately the same statement to them a] S0.26 On the following Saturday, April 24, 1937, the meeting at Zanes- ville as held between representatives of the respondent , the G . B. B. A., and the Flints to settle the jurisdictional dispute. Those present were Carnahan and Weaver for the respondent ;27 Maloney and Camp- bell for the G. B. B. A.; and Gillooly for the Flints . Maloney testi- fied, "I approached the matter as diplomatically as I possibly could to the representatives of the firm and informed them that the Ameri- can Flint Glass Workers Union , under the laws and regulations of the American Federation of Labor, . . . that it was up to them to organize the employees at Clarksburg." The respondent's officials accepted this announcement as final. As Campbell testified , "An un- derstanding was reached that the Clarksburg plant in all essentials was a Flint factory and everyone who worked here should belong to the Flint organization and that they had jurisdiction over it." Gillooly announced he would come promptly to Clarksburg with organizers for the Flints. ^ The same uncertainty as to time applies also to this incident "In his testimony about these (onveisations, Weaver denied saying that the respondent could not work with the C . I. O. and that if the C. I. 0 got a hold in the plant it would close the gates He admitted the rest of the con(ersations, however , and said he mentioned closing the gates only in connection with denionstiations by any union Weaver's testi- mony, consideied in the light of his notice to emploi ecs posted on March 29, 1937, convinces us, as it did the Trial Examiner , that he expressed preference foe the ( 7 B B A and Flints and opposition toward the Flats I "Bowman was then in the hospital and died shortly thereatter 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At, noon' that day, Weaver telephoned to Nelson in Clarksburg. They discussed some production matters and Weaver "told him then of what Mr. Gillooly had told Mr. Carnahan and myself that morn- ing." Thereupon Nelson went to Rogers in the factory and told him that on the following Monday Gillooly would be in Clarksburg to organize the employees of the plant; "that the boys didn't seem to like the G. B. B. A. any" and "it didn't sound so good to him ;" that he thought the Flints "would be more satisfactory." He said, "I want you to tell all the men that Mr. Gillooly will be here and will take over the plant, and that we will have a good union." 28 Rogers replied that he could not leave his work; Nelson said he would see about that. Later in the day Foreman William D. Blackwell instructed his relief boy, Alva Hamilton, to relive Rogers.29 As Hamilton walked toward Rogers, he was preceded by Nelson, who also went to Rogers, put 'his hand on the latter's shoulder, and said, "Earl, the C. I. 0. is about to come in here. You go around and talk American Flint to the boys and tell them if the C. I. 0. comes in here, we will shut her down ; and don't miss a man." 3° Rogers thereupon contacted every man working on that shift in the production department and delivered to them Nelson's message. He then reported to Nelson that he had carried out Nelson's instructions. Rogers was away from his work most of that shift but no deduction was made from his pay. In fact, no notation was ever made on his time card to show his absence from duty. ^ Nelson testified , "I made no such statement to Mr. Rogers . I did make this state- ment to him . . . shortly after I talked to Mr. Weaver on April 24th, and that was to the effect just what Mr. Weaver told me, that the G B. B. A. had ceded jurisdictional rights to the American Flint Glass Workers Union for the Clarksburg plant. I told Rogers to notify the committee to that effect . . . He was a member of the committe that had been formulated I do not know whether it was 566 at that time or not but I do know that he was a member of the committee of the boys and I 'told him to notify his committee ." Giving weight to the demeanor of the w itnesses , the Trial Examiner credited Rogers' version of the conversation , as do we. 29 Blackwell denied this . The Trial Examiner did not credit his denial "in view of all the circumstances" ; nor do we. 30 Nelson denied this, saying that after he told Rogers to notify the committee about the Flints, he left the plant for the afternoon . However, Rogers ' testimony was corroborated by Hamilton. The latter had since left the respondent's employ and moved to another town where he was working for an unrelated concern , and where he had lived for,about one and a half years before the hearing. Although he was named in the charge , he testified under subpena. At the time of this incident he belonged to no union . Later he joined both the Flints and the Flats but his testimony indicates he did not attend meetings of the Flats and never learned much about either of the labor organizations. He thus appears to be a disinterested witness, and the above finding, which accords with that of the Trial Examiner, is based primarily on his testimony Rogers testified to the same effect, that Nelson told him: "I want you to go out in this plant and tell every man that the American Flint Glass Workers Union is coining in here next week to take this plant over and we 'expect every man to join up with that organization , and if the C. I. O. gets in here, the gates of this plant will close and they will rust off the hinges before they will open " HAZEL-ATLAS GLASS COMPANY 363 The next day, Sunday, April 25, the Flats held a mass meeting for the respondent's employees in the Carmichael Auditorium. The meet- ing was advertised by radio announcements. However, it was a very rainy night and the attendance was small, consisting of only slightly over 100 people. McCabe, president of the Flats, gave the principal address, and about 50 employees signed up for membership in the Flats. Also in attendance at this meeting were Nelson, Brady Sims, who was in charge of the respondent's personnel department, and Gordon Brown, a watchman for the respondent.31 They had met each other under an awning on a street corner, half a block from the auditorium, and walked together to the hall. They stood at the entrance, which was at the back of the auditorium and from which they could observe the men in attendance. They testified there were about 15 people present when they were there. Soon after they arrived, employee Berry saw them and reported their presence to McWilliams, a Flats organizer, who requested them to leave. They did so. Brown testified he was on his way uptown that night and hap- pened to meet Nelson and Sims under the awning; that "there was a good many others passing by who had stopped there and were going around towards Carmichael and somebody had mentioned . . . that there was a meeting of the Hazel-Atlas employees"; that he men- tioned it to Nelson and Sims and so they walked down to see what it was. Sims' testified he was going to the drug store to get some medicine for his mother when he met Brown on the corner; Nelson then joined them; someone mentioned the meeting and so they went down the street to the hall. Nelson testified he was on the way to a movie when he met Brown and Sims; that someone then mentioned the meeting and suggested they attend; that he then went "out of curiosity more than anything else." However, these explanations do not seem plausible. That a manager of production, a director of personnel, and a company watchman -all merely chanced to meet on a rainy Sunday night at the same street corner and underneath the same awning seems unreasonable. Testimony that their attention was drawn by "a good many others passing by" to the Carmichael meet- ing seems inconsistent with their testimony that there were only about 15 people at the meeting. That they departed from their individual projects for the evening and followed these employees through the rain to the auditorium, merely because of their curiosity and because they too were Hazel-Atlas employees did not seem credible to the ' Employee Flynn testified that, in addition to Sims and Nelson, Foremen Harry Huff and Harry Melvin and watchman Van Scoy were present at the meeting. However, this was denied by Huff, Melvin, Van Scoy, Nelson , and Sims. From his observation of the witnesses and study of the testimony, the Trial Examiner accepted , as do we, the denials as being true. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner, nor does it to us. We I elieve and hereby find that Nelson, Sims, and Brown met by prearrangement for the purpose of attending the meeting of the Flats and observing those present and the activity there undertaken and that they followed this plant until asked to depart from the auditorium by the Flats organizer. On Monday, April 26, Rogers worked during the morning shift from 6: 00 a. in. until 12: 00 noon. During this shift, Nelson told him that Gillooly had arrived in Clarksburg and could be seen that afternoon at the Stonewall Jackson Hotel.32 Accordingly, Rogers conferred with Gillooly that afternoon. They arranged to have a mass meeting that night. Rogers thereupon rented Fraternal Hall and secured chairs for the occasion.13 Other workers notified the employees thereof. Fraternal Hall was packed that night with the respondent's em- ployees. On the platform were Campbell, Gillooly, Harvey Harsh- man, and perhaps employee Stark. Campbell spoke first, saying that the G. B. B. A. had organized all the respondent's plants but that they now realized the Flints properly had jurisdiction of the Clarks- burg plant and that the G. B. B. A. was therefore ceding jurisdiction to the Flints and hoped the employees would give Gillooly "the same, cooperation and same courteous treatment that you have given us." Campbell closed by saying : "Mr. Gillooly, I hereby hand you a big baby . . . You will have to nurse it." When he finished, employee Atkinson asked what right he had to take over these employees. Gillooly replied : "Because there is no protest being made." Atkinson then protested ; others noisily joined him. A preacher tried to restore order by praying. As he concluded, employee William Radcliff shouted out : "Give us our freedom. We want the C. I. 0." There was then more turmoil and the meeting finally dissolved. The Flats circulated membership cards among the crowd and got about 10 more signed applications that night. This brought the total of Flat mem- berships to approximately 110. - The Flints secured their first signed applications that day and reached a total of 10 memberships by the end of the day. After the meeting the leaders of the Flints retired to the Waldo Hotel in Clarksburg and discussed the progress of their organiza- tional campaign. They were discouraged. Gillooly said : "We might just as well go back to Toledo in the morning and let it go because "Nelson denied this conversation However, In view of the conversations the preceding Saturday afternoon , his attendance at the Flats meeting, and the subsequent events, herein. after set forth , the Trial Examiner did not credit his denial , nor do NNe 34 On cross-examination Rogers became confused as to the dates of this activity He also testified incorrectly as to the date of the Masonic Temple meeting and the date of his Saturday afternoon conferences with Nelson. Iiowwever, confusion as to dates does not in itself destroy the value of his testimony on other points HAZEL-ATLAS GLASS COMPANY 365 it's plain to be seen that the men want the CIO." 34 However, the group finally decided to post notices at the plant and try to hold another meeting of employees on the following night. Harshman and Rogers then went to Harshman's hotel room, Where Harshman typed "a lot of notices" for the meeting. These two men then went from Harshman's room to the respondent's plant. They arrived shortly before midnight. Howard W. Van Scoy was the, watchman on duty at the factory gate at that time. Rogers told Van Scoy he wanted to go inside the plant to post the notices of the Flint meeting. Van Scoy replied that it was "perfectly all right, go ahead; I have been instructed to let you into the plant during this organization campaign at any time." 3b Harshman and Rogers then went inside the plant and Rogers posted the notices on the various company bulletin boards. The next day, Tuesday,,April 27, Rogers and others spread among the employees the notice of the meeting for that night.36 During the day, Nelson came to Rogers and told him : "You don't have to worry about your meeting being broken up tonight. There will be some- body there to see that it isn't," "to prevent the C. I. O. from interfering." 3T Also during the day employee Wlckenhoffer told employee Kidd that Nelson had said he wanted Wickenhoffer and Kidd to come to the meeting that night. These two met early that evening in a pool- room, had some beer and then went to the Central Junior High School, where the Flint meeting was scheduled to be held 38 There they met 14 This finding is based on Rogeis' testimony , which was not denied , although Flint offi- cials present at the conference were mailable as witnesses at the bearing 35 Van Scoy denied making this statement. He said he did not remember whether or not Rogers went into the plant that night, because "the ordinary employees I could not remem- ber back that far " He also, testified that he did not remember Harshman coming to the plant, but that he believed he would have remembered him if he had come : "A stranger I usually would remember." Harshman himself testified he did go out to the plant that night and that he remembered going "into the plant" and waiting "on the inside of the fac- tory" for Rogers to return fiom posting the notices Harshman's testimony on this entire incident was given very reluctantly and was against his own interest ; Van Scoy's testimony was in accord with his interest. We therefore credit Harshman , as did the Trial Examiner. The finding that Van Scoy said he had been instructed to let Rogers into the plant is based on his own testimony that be would not have let Harshman go through the gates "without permission from someone 35 Rogers testified that on this day he and others circulated through the plant getting ap- plications for membership in the Flints and that they got about 700 applications However, the Flints' records show that only 42 applications were obtained that dav; that 780 appli- cations were obtained the following day It is therefore believed that Rogers got his dates wrong again and that he did not engage in soliciting applications on Tuesday, April 27. "Although Nelson denied this, his denial was not credited by the Trial Examiner because of the other events of that day and evening We do not credit it. 38 This finding rests upon testimony by Ernest F Kidd ; some of the subsequent findings will be based similarly upon his testimony , either in whole or in part His testimony was inaccurate in some respects , such as the contents and size of the Flints ' application blank. However, he was also a disinterested witness . He testified • "I didn't care anything about .. . the organization , the union , or anything else; all I was after was a good job and I got it, until after the organization got in there good." The Trial Examiner commented that Kidd' s manner on the stand was one of utter unconcern ; his testimony was given 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Production Managers Nelson and Dave Blackwell and company watch- men Brown and Virgie. These men, together with Personnel Director Sims and a few others, lingered outside the meeting hall. Only Virgie and Brown attended the meeting. The Central Junior High School auditorium was filled that night with employees of the respondent. Gillooly gave the principal ad- dress, but other Flint officials and employees Stark and Haddock also spoke. Application cards were circulated among the crowd and 42 men signed up. That brought the Flint applications up to a total of 52. There was no disorder in the meeting. In fact, Stark announced "that if anyone staged any demonstrations or said or done anything with -reference to any other organization, that they would go out and stay out; they would be throwed out." A group of employees, includ- ing watchman Virgie and production employee Guy Radcliff, was apparently kept in readiness for this purpose. Recognized C. I. O. men were at first kept out of the hall by the watchmen, but they appealed to the sheriff and were finally permitted to enter. Outside the building, however, men with C. I. O. cards in their hands were kept away. When a C. I. O. man would approach the doorway, company watchman Charles Windsor would say to Kidd, Wickenhoffer, et al : "We do not want no trouble in here, and don't let him fool around here ... He is a nuisance here." These employees would then ask the C. I. O. man to leave and he usually did so. Ike Lewark, however, "was in and out all evening." Finally Nelson said he would like to have Lewark "taken care of." Kidd and Wicken- hoffer thereupon put on a wrestling match. Kidd testified : "We were wrestling up and down, acting the fool, and trying to draw attention." Lewark was then slugged by an unidentified assailant. Nelson testified he went down to the Central Junior High School that night and talked to the sheriff for 20 or 25 minutes just as "another curiosity trip." Sims testified that he was not at the meeting but merely across the :,treet "talking to a gentleman from North View"; that he had been uptown and heard about the meeting; "that there was quite a number of folks going up Pike Street and I just fell in and went over." Brown testified, "Everybody else seemed to be going so I went too." David Blackwell testified his son had told him about the meeting; that he walked downtown and "stood there a little while and just decided to go up (to the meeting) through curiosity." 39 without any apparent regard for its effect upon himself or any of the parties He resigned from the respondent's employ on March 29, 1938, and at the time of the hearing was sell- ing automobiles in some distant city. His testimony will therefore be credited, insofar as it is consistent with the balance of the credible evidence The direct examination of Kidd contained numerous leading questions, which detract from its value Reliance is therefore placed primarily upon the testimony elicited by the respondent's cross-examination. 3P Kidd testified he saw weaver outside the High School that night. However, weaver denied it. No other witness saw weaver that night. His denial is credited in this instance. HAZEL-ATLAS GLASFa COMPANY 367 However, the explanations by these officials of their presence on this Tuesday night outside the Flints' meeting seem as implausible as the explanations they offered for attending the Flats' meeting the preceding Sunday night. We do not believe it was mere chance or mere curiosity that led these men to linger outside the High School building Tuesday night. Instead we find that they were there with the intention of "protecting" the Flints from the Flats and doing what they could to see that the Flints had a successful meeting. The next day, Wednesday, April 28, 1937, was the Flints' big organ- ization day. They -secured 780 applications for membership, raising their total from 52 to 832. This was accomplished through solicitation by foremen and by various employees who were free to circulate through the plant contacting the employees at will. The respondent's support of the Flints and its opposition to the C. 1. 0. was made clear to the employees, who thus signed up by the hundreds in that one day.40 Shortly before noon on that same day, Gillooly telephoned Weaver and asked if he and a committee could call on Weaver that afternoon. Weaver consented. At about 2: 00 p. in. Rogers drove Gillooly and Harshman to the plant. There they assembled about 25 employees who had been called "by telephone, by direct message, and by going out into the plant and getting them from the machines where they worked." These men "were the business officers of the various branches and locals" that had been set up in the plant by the G. B. B. A. and inherited by the Flints. Once assembled, they met with Weaver in his office. Weaver testified : "They told me that they had been working on this matter of signing the employees up for the American Flint Glass Workers Union, and that they had more than a majority of-the em- ployees. I think that probably Mr. Gillooly said something about 1,800 signed applications .. 41 Upon Mr. Gillooly's request that some sort of notice be posted so that the employees at large would know of this agreement, I ... dictated this letter or notice." The letter was then signed by Weaver, Gillooly, and the other men present .41 Typewritten copies of the letter were posted that afternoon on the company bulletin boards throughout the plant. 40 The respondent's supervisory officials generally testified in denial of this finding. The Trial Examiner did not credit such denials. The admitted fact that 780 applications were signed in that one day belies the denials. Furthermore, Foreman Carder testified he was instructed by, Nelson to circulate Flint applications and that he did so and procured signatures from all but two of his employees . His testimony later given regarding employee Berry indicates that Carder was testifying honestly even though his own discharge was within the scope of the hearing. The finding is further supported by the detailed testimony of Rogers, whose evidence has been generally found to be correct except for dates, and by the disinterested testimony of Kidd 41 Gillooly's statement was false . He had a total of only 52 signed applications the night before and obtained 780 more during that day. Even if all those were in ( which is doubt- ful), he could not have had more than 832, or less than a majority of the more than 1,800 employees. 42 Elbert signed later at his hotel. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The letter so prepared , signed, and posted, read as follows : HAZEL-ATLAS GLASS COMPANY GLAss WARE Clarksburg, W. Va. APRIL 28, 1937. KARL WEAVER, Superintendent. MR. M. J. GILLOOLY, President, American Flint Glass Workers Union, Clarksburg, West Virginia DEAR MR. GILLOOLY : Confirming conversation of today with you and elected 'employee representatives-the American Flint Glass Workers Union is recognized as the sole Bargaining Agency for all employees of the Clarksburg Plant of the Hazel-Atlas Glass Company. It is further understood that on May 10-the Company will enter into negotiations with you and the Committees of the various departments concerning agreements formulated for the various departments of this Plant. KARL WEAVER, kw rem Plant S&.cperintendent. Cook, the Flints' acting president, testified : "it is generally under- stood that when the American Flint Glass Workers Union is accepted as the bargaining representative for the workers, that it does carry with it the closed shop. We have no open shops." The Flint offi- cials considered the recognition of April 28, 1940, as including agree- ments for the closed shop and for a check-off of union dues. Although the closed-shop and check-off agreements were not put into effect immediately, their inevitability was used as a means of obtaining more members from among the employees. Thus, after employee Casto had refused to sign a Flint card for a fellow employee, he was told by his foreman, Joseph H. McIntyre, that he had to sign it if he wanted to work there. Casto then signed.`, Likewise employee Rogers told McClung, in front of Production Managers Nelson and Blackwell, that he had to sign a Flint card; that "it was orders from Mr. Weaver that we had to sign those cards." 43 McIntyre denied this but in view of the circumstances we do not accept, nor did the Trial Examiner, Mcintyre's denial. HAZEL-ATLAS GLASS COMPANY 369 The Flints' records show that they procured several hundred signed applications on each of the next 3 days, after which the results of the campaign began to decrease. For this entire period, the number of applications so obtained, on-each of the various days, is as follows : April 26------------------- 10 May 4--------------------- 10 April 27------------------- 42 May 5--------------------- 12 April 28------------------- 780 May 6--------------------- 5 April 29------------------- 260 1 7 Undated cards------------- 487 April 30------------------- 4 May 1--------------------- 116 Total number of cards May 2--------------------- 2 obtained--------- 1,887 May 3--------------------- 16 On May 20, 1937, representatives of the respondent and the Flints met in the Stonewall Jackson Hotel at Clarksburg for the purpose of making an agreement affecting the Clarksburg plant. Present for the respondent were Carnahan, Weaver, Nelson, and department heads and, supervisory officials of the various departments in the plant. Present for the Flints were Gillooly, Harshman, and approxi- mately 100 Flint, members from the different departments in the plant. Gillooly presided over the meeting. Gillooly announced that the respondent had already told him it would not grant any blanket increase in wages at that time and called upon Weaver to explain his position. Weaver mentioned the size, of the respondent's business and the large number of its em- ployees whose wages would be changed by any blanket raise. He said that on the preceding March 14, the respondent had put a 5- cent raise into effect; that its wages then exceeded those paid by plants of a similar kind ; that its competitors were using the Flints' miscellaneous national agreement as a basis of their operations and the respondent would do the same. Weaver, however, then offered to accept the rules for the miscellaneous workers previously agreed to between the Flints and The National Association of Manufac- turers of Pressed and Blown Glassware, as modified by a clarifying appendix and by an amendment adding provisions regarding over- time. These two supplements had been drafted by Weaver and copies thereof had been prepared in advance by his office for submission to the conference. There was considerable discussion of the rules, of the Star Island Agreement which is a part thereof, and of seniority which is dis- cussed hereinafter. Then the respondent's officials withdrew tem- porarily from the,meeting and the Flints discussed the proposal among themselves. All favored acceptance of Weaver's offer except one employee who finally admitted he favored a C. I. O. agreement instead of a Flint agreement. A motion to accept the offer was passed. - The respondent's officials were called back into the meeting and told that the Flints-had and did thereby accept Weaver's pro- 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posal for the adoption of the national rules plus the supplements thereto. At the beginning of the work-shifts for the following week, com- mencing on May 23, 1937, the respondent put into effect its agreement for the • check-off of dues to the Flints' organization. These dues were deducted from the pay rolls of June 5, 1937, and from the subsequent pay rolls. . In the meantime solicitation of applications for the Flints con- tinued on the basis of the approaching closed shop and with the assistance of the respondent's foremen. Thus, during the latter part of April and early part of May, in the shipping department, em- ployee Stark told employee Collins the Flints had a closed shop and "all that didn't sign up was going to be put out." The Flints' ap- plications were collected by Foreman Harry Tate, employee Stark, and others, and were kept in a table or desk used by the foremen in the office ; there the applications were checked over by the foremen and Flint officials 44 In the production department, Foreman Otto Wolfe told employee Reed that he "had better join the Flints" and also joined employees Rogers, Queen, and Cain in telling Reed that if his Flint application was not in by the following midnight, his card would be pulled.45 Reed thereupon signed up. On about May 29, employee Charles Lowther, Sr., asked employee Lloyd Phares to join the Flints, saying: "We have got a closed shop, Lloyd, and if you want to work here you better sign up." Phares argued with Lowther but finally signed up. Lowther advanced the same argument to employee Whytsell at about the same time and got the same result. Lowther and Van Scoy got an application from Gaines on the same basis, i. e., "It is either sign one or get out." Van Scoy and Leesburg were similarly successful in getting au- thority to turn in William Radcliff's application. 6. The respondent forecloses the Flats : June 1937 On June 14, 1937,46 William Ward telephoned Weaver at the plant and said that he was the international representative of the " Tate denied ever keeping any Flint cards or ever handling any Flint applications. However, his denial at the time did not appear genuine to the Trial Examiner . It is also inconsistent with the surrounding circumstances of Flint growth and company assistance, and we reject it. ,s Wolfe denied making such statements . Since the closed shop was in existence and since Wolfe's statement was accurate regarding its enforcement, although not the date thereof, we believe and find in accord with the Trial Examiner that he did speak to Reed substantially as reported. 46 Ward testified this conversation took place the latter part of April or the first of May. However, Weaver made some notations at the time of their talk which indicate the above date. Although there is a difference in the handwriting on the memoranda , nevertheless they and Weaver's testimony are believed to be more accurate in this respect than Ward's memory. HAZEL-ATLAS GLA'SIS COMPANY 371 Flats; that he had in his possession 928 Flats membership applica- tions signed by the respondent's employees; that he wanted a con- ference in which to discuss the Flats' claim that it represented a majority of the respondent's workers at 'Clarksburg. Weaver re- plied that the Flints "had flashed some 1,800 or 1,900 application cards on him"; that he had signed a closed-shop agreement with them; that he believed the Flints' president, Gillooly, was the proper person for Ward to interview, if he had any questions. After this conversation, the Flats did not present any claim of representation to the respondent until April 6, 1940. On the night of July 21, 1937, the operators' local of the Flints served notice on Nelson that the Flints operators would not work un- less the closed shop was enforced and all operators were compelled to join the Flints or leave their jobs. Nelson telephoned to Weaver, who was then in New York City. Weaver told Nelson to concede to the Flints and he did so. Because of this closed-shop agreement, the respondent discharged Evan L. Atkinson and Lanham Hickman on July 22 and William V. Allman on August 9, 1937. The closed- shop agreement and the check-off of the Flints' dues were thereafter enforced until suspended by the partial stipulation entered into at the hearing between the parties in this proceeding. We find that this agreement, made, as appears above, with the company-assisted Flints whose membership was to a substantial extent enlisted with the aid of the respondent,47 does not fall within the proviso to Section 8 (3) of the Act.48 It is apparent that acts performed by the authority of a contract executed under the circumstances disclosed cannot be as- serted to the prejudice of rights guaranteed under the Act. Thus we do not deem material to our consideration of the respondent's alleged acts of discrimination 49 the indecisive effort made by the respondent and the Flints to settle certain of the alleged discrimina- tory terminations at a conference held pursuant to the provisions of the contract." 7. Conclusions with respect to background From the incidents related above it seems clear that, because of the Flats' organizational drive in the glass industry, the respondent in- 47 Cf. Matter of National Electric Products Corporation and United Electrical and Radio Workers of America, Local No. 609, 3 N. L . R. B. 475; Matter of Cudahy Packing Company and Local Union No. 60, United Packinghouse Workers of America, Packinghouse Workers Organization Committee, affiliated with C. I. O. and Omaha Cudahy Plant Workers' Organ- izing Union, party to the contract, 29 N. L R. B 837 48 Nor in the proceedings had herein was the closed -shop contract asserted by the respond- ent in defense to the alleged discriminatory terminations of employment , and the Flints did not assert that membership in or activity on behalf of the Flats was inconsistent with membership in good standing in the Flints. 49 See Section III, C, infra. 50 See footnote 2, supra. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vited the G. B. B. A. into its plants and then enlisted its employees at Clarksburg in that organization in order to keep them out of the Flats,. without any regard whatever for the wishes the employees themselves may have had: When the G. B. B. A. transferred juris- diction over the Clarksburg plant to the Flints, the respondent like- wise transferred its assistance and saw to it that its employees transferred their affiliations accordingly. The respondent cemented the Flints' position in the plant by assisting in its meetings, by having its supervisors participate in and assist in the solicitation of Flints' memberships on company time, by granting exclusive recognition to the Flints when even company pressure had produced membership applications from less than a majority of its employees,51 by granting a check-off of Flints' dues, and by threatening and finally enforcing a closed-shop agreement, which was never formally made or reduced to writing. We believe that the respondent selected the long dormant G. B. B. A. on the theory that its presence would be a sufficient concession to pre- vent active unionization of its employees. It 'then accepted and assisted the Flints, believing even that organization would be pref- erable to the more militant Flats. Such action indicates that the respondent has not abandoned its anti-union policy, but has instead continued it in the altered form of encouraging such unions as it hopes to control or keep ineffective. Conversely, such action indicates the respondent's hostility not only to the Flats, and to those employees who became active on behalf of the Flats, but also to employees who promoted militant activity by the Flints. Such policy will be borne in mind in the subsequent consideration of the issues in this proceeding. The record regarding the chronicled events has another important bearing on the issues at hand, in that it reflects on the credibility of the witnesses. The respondent's officials and supervisors testified in general against the findings noted above.5' They denied giving any preference or assistance to the G. B. B. A. or the Flints (except such assistance as was given by the exclusive recognition of the Flints). They also denied, in general, any knowledge of the Flats" activity at the plant. Yet such assistance and knowledge are clearly established by overwhelming evidence-both oral and documentary. The record plainly reveals that the respondent engaged in ,the above-described anti-union campaign in 1937. It therefore appears that the testimony given by several of the witnesses for the respondent was false. We shall consider, as did the Trial Examiner, such deficiencies in, the evaluation of conflicting testimony bearing upon the issues hereinafter discussed. 51 See footnote 41, supra. 52 The more specific denials have been noted in the preceding footnotes. HAZEL-ATLAS GLASS COMPANY 373 B. Interference, restraint, and coercion It has been found above that at some, time just before April 21, 1937, Foreman Otto Wolfe told McClung that to distribute C. I. O. literature was a good way to lose his job "because the news was going around that they were going to shut down the plant if they went CIO." It has also been found that on April 21, Myers, Tate, Anderson, Messenger, and Reed-all supervisory officials-attended a Flats meet- ing in the Masonic Temple, without invitation. It has also been found that at about this time Weaver told Rogers that the respondent could not work with the C. I. 0.; that a few days later he told Rogers and a committee : "If the CIO gets a hold in this plant, work will stop imme- diately on that tank and the gates will close and they will rust off of the hinges before they open." It has been found that Nelson, on April 24, said to Rogers : "You go around and talk American Flint to the boys and tell them if the CIO comes in here, we will shut her down; and don't miss a man." It has also been found that on April 25, 1937, Nelson and Sims, both company officials, attended without invitation another meeting of the Flats, held in the Carmichael Auditorium. Also in April 1937, employees Collins and Posey were talking in the warehouse about the C. I. O. Foreman Harmer C. Day said to them : "You fellows better cut that stuff out . . . It only causes trouble." A few days later these same men were again talking about the C. I. O. in the warehouse when Foreman Day again approached them. This time he said: "If you fellows don't quit talking union, . . . I have orders to discharge you." 53 Russell Rymer joined the Flats when they first organized in the spring of 1937. He maintained his membership therein and resisted the pressure for joining the Flints until the respondent made the closed-shop agreement effective. He and Robert Means were the direct cause of the Flints' strike called on July 21 and were discharged at that time for their refusal to join the Flints. During the first part of that month, on about July 2 or 3, Guy Radcliff and Harshman were conferring with Nelson on behalf of the Flints when Nelson said to them : "You better tell Russell Rymer to cease his CIO activities, or, by God, I am going to fire him. I am not going to stand for it." 54 53 Day denied making these statements However, his denials are not credited because of two reasons: (1) his testimony lacked candor, as is shown by a comparison of his re- marks about the use of seniority with those of his superior, Huff; (2) his demeanor on the witness stand, particularly his uneasiness, caused the Trial Examiner to believe him an unreliable witness. 64 Nelson denied making this statement, and volunteered that he would not have made such a remark and then interceded for Rymer when the strike was called However, the record indicates Nelson's efforts were directed more to keeping the plant open than to keep- 451269-42-vol. 34-25 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In October or November 1937, Weaver met employee Collins near the canteen in the factory. Weaver called to Collins and began a con- versation about conditions in the plant. Toward the end of the dis- cussion Weaver told Collins that there seemed to be a minority at the plant who did not like either him (Weaver) or the respondent, and that he could not understand why Collins and this minority, (the Flats) who were so thoroughly disgusted with their employer over an extended period of time, did not seek another employer who would provide conditions more to their liking. On December 12, 1939, the Flints commenced a strike at the re- spondent's plant; it was settled the night of December 15. After the settlement, Collins drove to the picket line and there addressed the assembled workers, saying that they had been mistreated by the Flints and should join the Flats. Present in the crowd was I. H. Strider, a member of the respondent's engineering staff who per- formed special assignments under Weaver's direction. In about October 1937, Strider was one of two officials who represented the respondent in a conference with the Flints. He was clearly part of the respondent's managerial staff and we so find. When Collins fin- ished speaking, he circulated through the crowd. Some of the em- ployees asked him whether the plant would shut down if they con- tinued their strike. Collins replied : "No, they won't shut it down." Strider then spoke up and said that Weirton had shut down, referring to a Clarksburg plant of the Weirton Steel Company which had been closed and abandoned. Collins retorted that Weirton had not shut down because of union activities and that he thought Strider should clarify his statement. Strider, however, refused to do so, saying merely that the fact remained that the Weirton plant had shut down and still was shut down.55 By the above acts, the respondent, acting through its various supervisory officials, interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed by Section 7 of the Act. lug Rymer at work. Rymer testified he signed a card for the Flats and took the oath, "but that was all." This would seem to indicate little C. 1 0 activity by him. However, as late as December 1939, when Rymer was president of Flints Local 88, the Flints ' interna- tional president considered him a C. I. O. man and referred to the trouble the Flints had had with him in July 1937 From this it appears that Rymer openly and notoriously op- posed the Flints and favored the C. I. O. in July 1937 and was thus , as found by the Trial Examiner, the logical object of Nelson's remarks 66 Strider testified : "I told him my statement had nothing whatsoever to do with union activity, and that the fact remained that the plant had shut down and still was shut down." However, since there would be no point in making and reiterating the statement unless it had something to do with union activity, we, like the Trial Examiner, do not believe Strider denied that cpnnectipn, HAZEL-ATLAS GLASS COMPANY 375 C. Discrimination in regard to tenure of employment 1. The respondent's seniority policy Minutes of the meeting held on May 20, 1937, in the Stonewall Jackson Hotel were kept for the Flints by Harshman. These min- utes recite, inter alia : "He (Weaver) stated that he agreed to Senior- ity rules for all departments." Rogers also testified that Weaver stated he "accepted the seniority in all departments." Guy Radcliff testified that Weaver said, in response to questions from Gillooly : "I recognize seniority in the Hazel-Atlas plant, in all departments." However, Weaver denied he made that statement and was corrobo- rated in this respect by Carnahan, Nelson, and Sims. It further appeared that Gillooly had said he did not remember any agreement on seniority being made at this meeting.56 However, it is clear that seniority was discussed. All the wit- nesses admitted this. Gillooly and others asked Weaver his position on seniority. Weaver testified : "I told the people that I had not . . . been able to arrive at any definition of that term where I thought that it was applicable in a measure to be satisfactory to all concerned. I even read seniority clauses from other contracts, and I told them that as a matter of straight seniority I was unalterably opposed to it, and the basis on which this plant would operate would be length of service, plus the competency of the individuals concerned." We believe, as did the Trial Examiner, and find, that Weaver also said, in effect, he "recognized seniority in all departments." Em- ployee Leonard then asked how long one's seniority in a department would last if he were transferred from that department into another part of the plant. Weaver replied : "I think about 6 months would be a reasonable time." Thereupon employee Daisy Lunter said she had been out of work for some time because of illness and had been assigned to a different job on her return. She asked if she could not regain her former position. Weaver said he would look into the matter. Nevertheless, we also believe that Weaver and the Flints did not agree, and Weaver did not promise, to use seniority as the only basis for selecting employees for promotions, lay-offs, or other purposes. When Weaver said he "recognized" seniority, we find Weaver meant that he recognized it as an element to be considered along with other factors. The record indicates clearly and without contradiction that the respondent has so considered seniority in making its selections of 56 Gillooly died before the hearing . Cook, Muhleman , Harshman , Weaver, and Carnahan testified to hearing such statements from him. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. Weaver testified on direct examination that in connection with lay-offs, "the principle on which the foreman and the depart- ment head had been instructed to proceed, and which was plant policy, was that length of service, plus competency and a job record of the man's ability . . . (as) demonstrated over a period of time would be the decisive factors." Also Harry Huff, superintendent of the "cold- end," and responsible directly to Weaver, testified that "length of service and equal ability getting the work done" were recognized in his department; that seniority was used as the basis for allotting vacations; that it was the basis for selecting a man to be called in for extra work "providing he is qualified to do the work which is avail- able" and that length of service and ability constitute the basis for making promotions. "If we have a case which comes up with regard to length of service of a person and we have five or six people going to do something, the person with the longest amount of service, pro- viding they have the qualifications to do what is wanted to be done, will get the preference,' Huff testified. He said that applied to lay-offs. The greater part of this case is concerned with men laid off in January 1938, from work in the "hot-end" or production department. Concerning this lay-off, Nelson wrote in a memorandum to Weaver dated September 22, 1938: "The ones retained were those (who) through point of service and ability would prove most valuable to the company." b' Although Nelson's memorandum concerned a group of extra operators, it is clear that the same policy was sup- posed to apply to all employees. To facilitate the work of the fore- men selecting men for this lay-off, Nelson had the personnel office prepare lists of all the employees involved, with the employment or seniority dates and the marital status indicated for each man. 2. The lay-off, discharge of and the refusal to reinstate Thomas Berry Berry started working for the respondent in 1921. His last period of continuous service, and therefore his seniority, dates from 1926. Since that time Berry has worked as a boy '58 floor machinist, extra operator, and operator. During April of 1937 Berry worked under Foreman Harry C. Carder as a relief operator and as a boy. The record makes apparent and we find that Berry, during the last few days before his lay-off on April 12, 1937, was working as a boy. Berry joined the Flats on March 29, 1937-even before he signed up with the G. B. B. A. He became a very active member of the Flats, 57 Italics in the original. 53 The term "boy" does not refer to a juvenile but rather to an adult engaged in rather unskilled work in contrast to operators and machinists. Boys were usually engaged In removing and setting up partially finished glass. HAZEL-ATLAS GLASS COMPANY 377 distributing application cards and soliciting membership openly on the streets and in recreation rooms, around Fetty's poolroom near the plant, and inside the plant itself. Berry signed up "several" members even before the Flats held their first meeting on April 21, 1937. He circulated notices for this meeting and for the second Flats meeting. He passed out these notices to employees in front of the factory gates, where he had access to employees entering or leaving the plant. Berry made no secret of his activity but as ap- pears below openly brought his activity on behalf of the Flats to the attention of the respondent. He was widely known as a prime mover in the Flats. On about April 10, 1937, David Blackwell, manager of production, stopped Berry in the plant while Berry held a batch of Flats appli- cation cards in his hand. Blackwell warned : "Tom, you C. I. O. fellows are going to mess around and get this factory shut down." 59 At about the same time Foreman William Blackwell stopped Berry, who was again holding signed Flats application cards in his hand, and said : "I see you have got a lot of them, haven't you? How many have you got today Tom?" Berry replied that the Flats had over 51 per cent of the respondent's employees signed up. Blackwell and Berry then argued about unions and political matters.60 At about this time Berry found himself shadowed by one Virgie, a former watchman of the respondent.81 When Berry remonstrated with Virgie for following him around, Virgie said : "Tom, I don't do it because I want to, it is part of my job." On April 12, 1937, as found above, Berry was working as a floor boy and he had been working in this capacity for several days prior thereto. The machine however, on which Berry had been previously working as an operator, was shut down, and it appears that there was not at that time further operating work available for Berry. One Leonard, then chairman of the Boys Branch of the G. B. B. A., protested to Carder, Berry's foreman, against Berry (whose work appears to have been primarily that of an operator) working as a boy. Carder accordingly told Berry to go home, denying him fur- ther work as a boy and said in effect, "We will have to wait and see what turns up and I will see you up at the Elks Club." It was customary in the respondent's plant for an employee laid off because no work was available to report back on the following day, or the day thereafter, to see if any work had become available. w Blackwell denied making this statement . The Trial Examiner, who had the oppor- tunity to observe the demeanor of the witnesses , credited Berry's testimony and disbelieved Blackwell, as do we. 61 Blackwell denied that all or any of this conversation took place . Upon the entire record we discredit Blackwell and find that Blackwell made the foregoing remark substan- tially as attributed to him by Berry. 61 Now deceased. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD His card was normally kept in the clock rack. He was expected to punch the card in at the time clock and to report to his foreman to see if work was available; if there was none he would then punch out his card at the clock, leave the plant, and return again to make similar inquiry. If the employee were unheard from for a month, or two pay-roll periods, his card would be pulled from the rack, and the employment relationship terminated. Although Carder said he would see Berry at the Elks Club, Carder testified that his statement would not release Berry from the company rule requiring him so to report and Carder testified that he never saw Berry thereafter. It appears, however, that this rule was not inexorably followed and that on at least one occasion an employee had failed to report back without effect to his employment status. Berry, moreover, testified that he did report back on several occasions shortly after April 12. Upon the entire record we find that Berry, within the month following his lay-off, reported back to ascertain whether there was work available for him.62 Berry testified, and there is testimony from Rogers and Ward cor- roborative of his view, that his card was pulled on May 1, 1937. However, a notation by the respondent dates the time of the removal of his card from the time-clock racks as May 24, 1937, and we find, as did the Trial Examiner, that this was the date of this occurrence. It appears, nonetheless, that Berry complied with the company rule, and his discharge accomplished by the pulling of his time card was not, as urged by the respondent, occasioned by a failure to report to work. Subsequent declarations by the respondent's representatives show that an asserted violation of the respondent's rule was seized upon by the respondent as a welcome pretext to cloak its discharge of Berry because of his solicitation and militant activity on behalf of the Flats. After Berry's card was pulled, Berry spoke with watchman Jess Chilters and asked him why this had happened. Chilters said : "I understand you've got a job helping organize under the C. I. 0. and . . . I have orders to keep you out of here."63 Immediately thereafter Berry telephoned to Weaver and then to Nelson asking them why his card had been removed from the rack. He reported to Weaver that Chilters had said that his card was pulled because he had a job organizing for the C. I. 0. and Weaver replied: "That is what I hear, too, and that is the reason why your card was pulled .1164 e' We do not deem Berry 's testimony in conflict with Carder's since it is possible that Berry may have reported back to work and ascertained that there was no work available for him without having seen his foreman. 68 Although Chilters died before the hearing, these remarks were corroborated by G E. Rogers, who was present at the watch clock at the time Berry talked to Chilters and heard their conversation. 04 Berry had not served as a paid organizer for the C. I. O. HAZ1;L-ATLAS GLASS COMPANVT 379 Nelson spoke to Berry to the same effect. Weaver and Nelson by the foregoing remarks admitted to Berry in effect and we find that his card was pulled, and Berry discharged, because of his solicitation and activity on behalf of the Flats. Moreover at the time when the above conversations took place, Berry by his inquiry disabused the respond- ent of its asserted belief that he was working for the C. I. O. and in effect asked for reinstatement to the respondent's employ. There is no showing that at this time work was unavailable for Berry either as an operator or as a boy and we find that such work was available.65 At about this time one Flynn, an active Flats member, was cautioned by his foreman, "You see what happened to Tom Berry and it will happen to you; you can't afford that." Although Flynn was not a particularly credible witness, as we elsewhere find, we believe him in this instance since Flynn's testimony is corroborated by Carl C. Mc- Clung, a credible witness, who testified that his foreman, Otto Wolfe,66 threatened him with respect to his Flats activities, "You will keep on until you get the same thing that Tom Berry got for this stuff.67 That is what he got it for.768 Giving weight to the abundant evidence of the respondent's hostility to the Flats, we find that the respondent discharged and denied reinstatement to Berry, a prime mover in the Flats, as part of its campaign to foreclose the Flats and to insure acceptance of the Flints among its employees. We note that the re- spondent singled out Berry at a time when the organizational conflict between the Flints and Flats was at its height, and Berry was widely known as one of the leading protagonists of the Flats and had been the subject of threats and warnings. In reaching this conclusion we 'S It was not until the fall of 1937 that the respondent began curtailment of its force. es McClung's testimony under cross-examination indicates that Otto's brother, Creed Wolfe, another of the respondent's foremen , may have made the following remarks. We deem it more probable that the remarks were made by Otto Wolfe, and we so find, noting that had Creed Wolfe made the remarks, they would nontheless have been attributable to the respondent 87 Wolfe denied this and other remarks attributed to him by McClung , although admitting that he was "a good , personal friend" of McClung's . Wolfe's testimony with respect to McClung contains inconsistencies and impresses us as untrustworthy . Upon the entire record in the case we disbelieve Wolfe and find that he made the remark here attributed to him by McClung. es McClung also testified that watchman Chilters told him : "Carl , you want to watch yourself. You are doing the same thing that Tom got released here for." We find that Chilters' employment at the time racks supervising time records , and the admission and egress to and from the plant placed him in the position of a representative of management with respect to other employees. Chilter's authority is instanced by the fact that at a later date he denied Berry's entrance into the plant for the purpose of obtaining his tools We further find that employees of the respondent considered Chilters a representative of management . Inter- national Association of Machinists v. National Labor Relations Board, 311 U. S. 72, aff'g 110 F . ( 2d) 29 (App. D. C.), enf'g Matter of The Serrick Corporation and Interna- tional Union, United Automobile Workers of America, Local No. 459, 8 N. 'L. R. B. 621; rehearing denied 311 U. S. 729. Nevertheless , we give little probative weight to the remark attributed to Chilters in this note, and consider it only as it tends to show that remarks of similar character set forth above and made by the respondent 's supervisors. were declarative of the respondent 's policy toward Berry. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD give weight also to the respondent's own explanation of why Berry's employment relationship had been severed, that it "understood Berry had a job organizing for the C. I. 0.," as indicative of the respondent's discriminatory purpose. We give weight as well to the fact that the respondent's officials used what happened to Berry as a warning to other employees to cease activity on behalf of the Flats. Under all the circumstances we find that the respondent by discharg- ing Thomas Berry on May 24, 1937, and by refusing to reinstate Thomas Berry in June 1937 and thereafter, discriminated in regard to his hire 69 and tenure of employment, thereby discouraging member- ship in the Flats, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 3. The extra operators In 1934 or 1935 the respondent began the introduction of some new machines into its Clarksburg plant. It found, however, that the men experienced difficulty in adapting themselves to their new tasks. To meet this problem, Weaver and Nelson decided to assign helpers to the foremen "in order to give each individual foreman more time to devote to the actual operation of those machines." Nel- son testified : "My idea was that they were on there to assist this foreman ... in doing whatever he had to do." These helpers or assistants were selected from among the boys 70 "on the basis of being unusually good workers, who would report for work steadily, and showed an interest in their work [i. e. boys who] would not stand back when there was something to be done." Nelson told each foreman to "pick out a man that would give him the most help and assistance, and be a good workman." a man who was ener- getic and ambitious. Like foremen, these assistants were taken out of the "incentive bonus" system and given a flat wage; their base rate was raised from 60 cents to 85 cents per hour, so that they received approximately the same amount of money as boys in production. Nelson testified : "These boys more or less naturally became acquainted with the duties that the foremen were performing and did, in some measure, do quite "Even assuming, contrary to our finding, that Berry's card was pulled and Berry dis- charged because of violation of the respondent's rule requiring him to report back to work, we find, in view of the respondent's expressions of discriminatory purpose set forth above, that the respondent in June 1937 discriminatorily refused to rehire Berry within the meaning of Section 8 (3) of the Act. See Phelps Dodge Corporation v. National Labor Relations Board, 313 U. S. 177, decided April 28, 1941, mod and remand., 113 F. (2d) 202 (C. C. A. 2) which enf. as mod., Matter of Phelps Dodge Corporation, a corpora- tion and International Union of Mine, Mill and Smelter Workers, Local No. 80, 19 N. L. R. B. 547. 70 See footnote 58, supra. HAZEL-ATLAS GLASS COMPANY 381 a number of things that the foremen were supposed to have been doing theretofore." Since their job was to help the foremen and the men under the foremen as much as possible, these assistants be- came quite versatile, increasingly able, and more capable of assuming responsibility as they gained experience. The respondent did not give any title to these assistants, but they came to be known both by the management and the employees in general as "extra operators." This was undoubtedly because their duties were more with the foremen and operators than with the boys. As the respondent indicates in its brief, the nature of the work per- formed by them was different from that of the boys. Foreman Amos Trent described it thus: "An extra operator used to help make the job changes, help set the glaziers. In other words, he was more or less responsible for a glazier, if the foreman was busy on some other tank, that is, to check it, and in case it was not right to let the fore- man know. And he also had gauges or rings or cuppers or lippers, or whatever it might be, ready for the job going on." Foreman Riley testified similarly : "The extra operator was placed on there {'o help the tank foreman in his duties ... He was to help the tank men to set the fire ... and help out the operators in as much ways as he could." The installation of machines was completed in 1937. However, the respondent "enjoyed a pretty fair volume of business" in that year and so kept the extra operators on longer than originally in- tended. In the meantime the foremen had become accustomed to letting the extra operators perform part of their regular duties. The extra operators classified themselves as skilled workers. This classification was accepted by the Flints and they became members of Local 88, which was the local for operators and other skilled workers. However, during the latter part of 1937 and the early part of 1938 the respondent's production decreased substantially. In Jan- uary 1938, the respondent laid off approximately half of its em- ployees. Included in those laid off were 13 out of the 20 extra operators. In March 1938, the respondent discontinued the extra operators' classification completely. That part of their work which was done to assist the foreman was thereafter done by the foreman himself. The rest of it was absorbed by the operators and the boys. Some of the boys who took over substantial amounts of this work were known as ware boys or spare boys. They received 65 cents per hour and no bonus. It therefore appears that extra operators were employees who, by reason of their selection and consequent experience, had more skill and/or versatility and/or industry than the unskilled employees known 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as boys, and that they ranked just below the operators and skilled machinists in so for as value to the company was concerned. The complaint in this case alleges that three of the extra operators laid off on January 22, 1938, (McClung, Guy Radcliffe, and Phares) were so laid off because of their membership and activity in either the Flints or the Flats. However, all of the 13 men laid off, except John Barr, had substantially less seniority than the 7 retained. McClung, who outranked the dismissed men, except for Barr, in sen- iority, had nearly 3 years' less seniority than Kovelan, who had the least service of the group retained. It therefore appears that the selec- tion among the extra operators was made on the basis of seniority i ather than on union membership and activity. It further appears that the dismissed extra operators were not eligible at that time for employment as boys because they were members of Local 88 instead of Branch 566 and were barred from boys' work by the rules and understanding of the Flints.71 However, on March 14, 1938, the Flints changed their rules by transferring the extra operators to Branch 566 so as to make them eligible for work in the plant as boys. Consequently, on the next day, March 15, the respondent reinstated 8 of the 13 extra operators as boys. McClung, Guy Radcliff, and Phares were never reinstated. The question remaining is, therefore, whether the respondent failed to reinstate 42 McClung, Radcliff, and Phares as boys because of their union membership and activities. Carl C. McClung started work for the respondent in 1930. For about 6 years he worked as a boy, largely as a take-out boy. Then he was promoted to a position as extra operator and served in that capac- ity for the last 2 years preceding his lay-off. McClung joined the Flats about April 16, 1937. As found above, he distributed notices for the Flats' first meeting, held on April 21; he gave one notice to Foreman Otto Wolfe, who thereupon told him that was a good way to lose his job. McClung attended the Flats' meetings and solicited applications for membership in the Flats. At another time, Foreman Wolfe took some Flats applications out of McClung's shirt pocket, looked at them, and then said he had better slow down because "they had orders that they was going to get rid of us guys; that the Union that the company had there was plenty good enough and we would be discharged if we did not quit our activities in the CIO." 73 41 We do not deem the fact that the Flints was a company -assisted organization material to the issue here of the respondent 's motive in not reinstating the three extra operators 73 Employees reinstated by the respondent were called back to work by the respondent without regard to applications for reinstatement. Names of employees to be reinstated were sent to the respondent's employment office, which notified the employee concerned. 73 Although the above is denied by Wolfe , upon the entire record we believe McClung. See footnote 67, supra. HAZEL-ATLAS GLASS COMPANY 383 Also Foreman Creed Wolfe gave McClung similar warnings. He said that the respondent forbade the C. I. O. organization; that if the employees signed up for the C. I. 0., the company would shut the plant down; and that "they would discharge us if we were caught signing up for this organization." 74 McClung was a personal friend of McWilliams, the Flats' organizer, and one day was seen with him outside the factory. Both Creed and Otto Wolfe asked McClung with whom he was talking. On being informed it was McWilliams, they told McClung it was "bad business." We have already noted that Foreman Otto Wolfe warned McClung when he was organizing on behalf of the C. 1. 0., "you will keep on until you get the same thing that Toni Berry got for this stuff." In the autumn of 1937 McClung, Otto Wolfe, and their wives attended several football games together. After the games they some- times stopped at Wolfe's house to visit. On one such occasion Wolfe told McClung he ought to protect his job more than to fool with C. 1. 0. organization, because "they would put us out sometime or other, the way it was." 75 The respondent alleged at the hearing and in its briefs that McClung was not reinstated because he talked too much, "because he was all the time complaining about his work," because he was always dissatisfied, because he "visited around the plant a good bit when he was on relief," and talked to the girls unnecessarily. Some of the respondent's officials testified McClung was "a fair worker" and not as good as other workers who were retained. However, these allegations were in general denied by Foreman Carder, who had supervised McClung during a substantial part of McClung's work as an extra operator. Carder said it was common for the men to visit during their relief periods and that McClung did so, but that there were never any com- plaints about his not reporting for work when his time was up; that McClung did not visit more than the other workers. Carder said he did not have any trouble keeping McClung on his job; that if he had he would have spoken to McClung and then reported it to his superiors, and that this did not occur. Carder also said McClung was not lazy and did not complain about his work. In fact Carder's testimony indicates McClung to have been an unusually conscientious and well-qualified worker. He said that at times McClung "prac- tically ran" the machine in order to help his operator, an aged man who needed some assistance; that McClung would change the plungers at times, and start up the -machine, and in other ways do "a lot of 74 This testimony stands undenied . Creed Wolfe died prior to the hearing in these proceedings. 16 We accept McClung's testimony over Wolfe's denial. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good" to help his operator. Carder said McClung was a "good extra operator" and an excellent take-out boy.76 We believe that McClung did visit about the plant the same as other employees, and that the supervisors knew this. The record shows that in 1937 McClung's conversations were largely on behalf of the Flats, and that the supervisors knew this also. In fact, they warned him, not against his talking, but rather against his talking for the Flats. McClung did not violate any rules against visiting; he did, however, violate the respondent's policy against unions when he urged support for the Flats. We believe and find that this was what the foreman meant when they testified at the hearing about his talking and especially about his complaining. McClung's experience as an extra operator and Carder's testimony indicate that McClung was not only an unusually good extra oper- ator, but that he was outstanding as a boy.77 We find that the re- spondent laid him off as an extra operator because of its change in organization but would have rehired him as a boy on March 15, 1938, if it had not been for his support of the Flats. It is therefore found that the respondent failed to reinstate McClung on March 15, 1938, and at all times since, because of his membership and activity on behalf of the Flats and because of his failure to accept the respond- ent's warnings that he desist therefrom, and that by so failing to re- instate Carl McClung, the respondent discriminated in respect to his hire and tenure of employment, thereby discouraging membership in the Flats, and interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. Lloyd L. Phares first began to work for the respondent in 1918, but his last period of employment dated from May 1933. He worked as an extra boy, a stick-up boy, and a take-out boy. Then he was promoted to operating and operated a "T type" machine. After that he worked as a relief operator (relieving different operators on their days off work), as a floor machinist (doing skilled work in the repair and/or adjustment of machines), and probably as a boy. He thus 46 Carder 's position at the hearing was an anomalous one His long record of employ- ment with the respondent and his position in the plant as foreman for 17 years tend to indicate that his loyalty and interest lay with the respondent rather than with labor organizations. On the other hand, his cooperation with the Flint's strike (hereinafter described ), and his position in this proceeding as the subject of a Section 8 (3) allega- tion in the complaint, tend to indicate that his sympathy and interest lay with the employees rather than with the respondent Because of these conflicts in interest, it appears that Carder was actually a disinterested witness In addition , the Trial Ex- aminer noted the willingness and frankness with which Carder testified on the stand. The Trial Examiner believed , as do' we, Carder to be a highly credible witness and accepted his testimony as true as Carder's testimony is corroborated by the admission of Foreman Wolfe that he "never had anything against [McClung's] work, while he worked." HAZEL-ATLAS GLASS COMPANY 385 became versatile and was made an extra operator, in which capacity he continued until the January 1938 lay-off. Phares joined the Flats at the April 21 meeting in the Masonic Temple. After this meeting, he went with McCabe, president of the Flats, and a group of the most interested listeners to McCabe's room in the hotel for an additional conference. The next evening, in the Strand Poolroom, he accused one of the men who had participated in the conference of deserting the movement, saying : "John, you have turned yellow." This led to a fight which was broken up by a city policeman threatening to arrest Phares. Although he was not arrested, his union interest was thus made known to the 150 people present and to the public. Phares continued to be active in soliciting memberships for the Flats. He talked up the Flats and got signatures on application cards in the poolrooms, on the city streets, and in the plant. His duties occasionally took him into the packing-room department. He took advantage of this opportunity to solicit the girls in that depart- ment for membership in the Flats. Likewise he solicited around the company refreshment stand during his rest periods. He attended the Flats' meetings, helped circulate their notices of mass meetings and did everything he could to promote the Flats' cause. He testi- fied that he signed up "between 75 and 100" cards for the Flats. The respondent's supervisors testified that Phares was inclined to be lazy and that he showed no spirit of cooperation. The respond- ent also capitalized on Phares' own admissions that he talked to the girls in the packing room. However, these criticisms seem to be di- rected more to his solicitation for the Flats than to his work. There was also testimony, however, that Phares once was not on hand help- ing an operator when he should have been present; that once he failed to set a glazier; that he was slow on job changes; that a com- plaint had been made about a loss of ware during his work period; and that he was not as good an extra operator as some of the other men. The absences from his machine were caused by the nature of Phares job as an extra operator, which required going into other departments for moulds, tools and check-ups on the ware. The opin- ions as to Phares' ability in comparison with the other extra operators were expressed by formen in defense of their employer. Even if correct, they do not determine Phares' ability as a boy. However, the foremen were not unanimous in finding fault with Phares' work. Thus Carder testified Phares did not visit with the girls any more than the other workers; that he cooperated; that he was available for work; that his "job changes" were satisfactory, and that he was not lazy or slow. "I couldn't say that he ever let up any on his work, what time he worked for me," Carder said. Carder's 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD experience with Phares was apparently limited, but it does cast doubt on the testimony of other foremen. Furthermore, Carder's testimony was corroborated by Plummer Goff, who served as foreman at various times in 1937, and supervised Phares' work. According to Phares, Grover Junkins, Phares' foreman immediately prior to his lay-off, said after the lay-off, "Lloyd, your work has always been satisfactory and I do not know what is wrong, but I will see Nelson and see what is wrong." Junkins' denial of these words first took the form, "I just didn't tell him that way. I told him I might see Nelson later." We find that Junkins made in substance the remarks attributed to him. Moreover, Phares' assertion that in the absence of Foreman Riley, be performed Riley's work as foreman, was not conclusively denied by Riley. We find that Phares did so, and infer that his selection for this task resulted from meritorious ability. We believe and find that Phares' outstanding ability was established by his selection and experience as an extra operator. Not only extra operators but also boys with less seniority than Phares were reinstated by the respondent on March 15, 1938. Weighing all circumstances and Phares' seniority, ability, and prominent activity on behalf, of the Flats, we believe that the latter was the sole reason for the respond- ent's failure to reinstate him on March 15, 1938, and at all times thereafter. We further find that the respondent by failure to reinstate Lloyd Phares on March 15, 1938, and thereafter, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Flats and interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. Guy J. Radcliff originally started work with the respondent in 1915; his last period of continuous employment dates from May 1933. During this latter period he worked as a boy until about 1935; then he became an extra operator and continued as such until the January 1938 lay-off. As extra operator he assisted the foremen in different jobs, even to the extent of being in charge of production during their occasional temporary absences from the plant. Radcliff was not one of the group active in promoting the Flats; instead, he became active in the Flints. On April 28, 1937, he joined Local 88, which consisted of the skilled workers. On May 7, he was elected a committeeman in Local 88; soon thereafter he was appointed to give special representation to the extra and spare opera- tors. In this capacity he was present and participated in the May 20 meeting at the Stonewall Jackson Hotel, where he argued in favor of local working agreements instead of the Flints' proposed plant-wide agreement. In this he was overruled. A short time after that meet- HAZEL-ATLAS GLASS COMPANY 0 387 ing, he was the leader of a group of extra operators who conferred with Weaver, Nelson, and Dave Blackwell about a local agreement for their group. They had submitted a copy of 10 to 13 propositions to the company in advance. These formed the agenda for the meeting. During this meeting, Radcliff looked over Blackwell's shoulder, saw his memorandum, and noted that he had a big "no" at the end of each proposition. Radcliff thereupon interrupted the meeting and announced to Harshman and his fellow conferees : "What is the use of sitting down and arguing this thing, because it has already been decided?" Despite this accusation, however, the conference continued. As each point came up, the respondent said : "We will take it under consideration." None of the propositions was granted. On July 21, 1937, Flints Local 88 elected Radcliff chairman. That same evening the local decided to call a strike of the operators, effective that night, to enforce the Flints' closed-shop agreement with the re- spondent. Shortly before midnight, representatives of the local in- formed Myers, assistant to the superintendent of production, that they would not work on the midnight to 6: 00 a. m. shift, nor on the subse- quent shifts, if the respondent allowed operators not members of the Flints to work. Myers telephoned the demand to Nelson at his home; Nelson hurried to the plant, arriving shortly after midnight. He testified : "The plant was shut down, the entire hot end. No flow spouts were plugged up but the men . . . were refusing to work." Nelson inquired about the difficulty and was told the men would not work because there were two operators on the midnight shift who had not joined up with the Union. "I got pretty mad about it," Nelson testified, "because they would take advantage of me at an hour such as that, to enforce that. I asked them why they had not discussed this thing with me prior to that time, or at least given me a list of names of those fellows who were not in good standing, and they said, well, they had nothing to do with it ; that was the instruction from Harvey Harshman; that they had had a meeting that night and those were the instructions which he had given them." So Nelson had Harshman come over to the plant, and then had another meeting with the committee. Nelson testified : "I, at first, told the committee to go ahead and go on home, and said : `If that is the way you do business, go ahead."' The committee left, but Nelson then recovered somewhat from his anger and called them back. - He telephoned Weaver, who was in New York City. Weaver told Nelson to concede to the Flints. He did so. Op- erators Means and Rymer were not allowed to work that night, nor were other operators who did not join the Flints. Guy Radcliff did not participate personally that night in the ne- gotiations with the respondent. Nelson testified that he never knew 0 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Radcliff had anything to do with the incident until the hearing; that he did not even know who was president of the operators' local at that time because "that local had presidents galore. They were in and out and resigning, and it was pretty difficult for me to keep in touch with them." Weaver returned to the plant several weeks after the strike was settled. Radcliff testified that he and Harshman conferred soon- thereafter with Weaver and that the strike was mentioned; that Weaver said : "I don't like it. You shut my plant down ... You did not give me enough time." During Weaver's testimony, he was interrogated by counsel for the respondent as follows : "I believe Guy Radcliff has testified here that when this event was over that you squawked to him, I believe was his expression, about this incident. Do you recall anything about that?" Weaver replied: "If squawking is the term that he applied, I at least did that." It thus seems clear and we find that the respondent's officials knew Radcliff was president of the local at that time; that they believed him responsible, at least in part, for the calling of the strike, and that they were angered at its being called without any notice, because of the inconvenience and the interruption in production. A short time thereafter, another dispute arose between Radcliff and Nelson. The latter had instructed his foremen not to carry any more help than was absolutely necessary. On this particular evening, Nelson told Foreman Russell Phares that he would not have over two machines running that night and that it would not be necessary for him to carry an upkeep man (sometimes referred to as a floor mechanic). Accordingly, Phares told Luther Deems that he was not needed and that he should go home. Radcliff then went to Phares and said there was an agreement that the company would maintain an extra operator and a floor machinist whenever there were two or more machines in operation, and that Deems should work. " Phares said he got authority from Blackwell and Nelson to let Deems go. Rad- cliff replied : "They are all wet. This man is supposed to work." Foreman Phares then put Deems back to work. When Nelson returned in about an hour and a half, Phares reported the incident to him. Nelson thereupon told Phares he did not want him going against the instructions given him and that his "instruc- tions emphatically were not to work an upkeep man on that tank and for him to send him home." Phares did so. Thereupon Local 88 had a meeting that night and discussed "ways and means of getting V. L. Nelson out of the plant . . . because he was . . . subjecting the employees to what we termed unfair labor practices and ... we wanted to get rid of him." HAZEL-ATLAS GLASS COMPANY 389 The next day Nelson called Radcliff to the office and said : "Where do you get the idea of telling us who can work and who can not work?" Radcliff said that was the agreement with the Flints. Nelson replied that the Star Island Agreement was the only agreement the company signed and, "By God, I am in charge of production and I am not going to let you or any union run it; the supervision is running this plant." Nelson also said he had reports the committee was trying to relieve him of his job but that it did not concern him very much because he had not gotten his job from them and he did not consider it within the committee's power to relieve him of it. At sometime in August or September 1937, Nelson met with Rad- cliff and a committee from the Flints about a list of so-called inefficient operators. Nelson said the men so listed were inefficient and that as long as he was superintendent none of them would' ever operate another machine. Radcliff said that for a man in Nelson's position, "that was a very narrow minded statement to make ... and that if it got back to any employee, they would not have any tendency to become better workers in the future." Radcliff further said that the men were not inefficient and that he wanted access to the com- pany records to prove their efficiency. This was refused. Radcliff thereupon told Nelson he thought "it was an unfair advantage which was taken over the men; that they were not given a square deal." In about October 1937, Radcliff, Leidy, Muhleman, and Shay con- ferred on behalf of the Flints with Nelson and Strider, who acted for the respondent. This conference was in regard to a proposed strike on the automatic machine devices. The extra operators and floor mechanics were asking for more men per job. Radcliff took the position that there was too much work being placed on the mem- bers of his union and said it was "absolutely impossible for one man to perform the work." The respondent disagreed. However, when the employees voted a strike in October, Radcliff opposed it because orders were slack. He said the Union should "wait to catch them with their pants down and then put it to them." Throughout the autumn of 1937 there were disputes with the re- spondent and within the Flints as to whether Local 88 and Branch 566 should be consolidated. Nelson and Weaver thought they should be, apparently because the division between skilled and unskilled workers was hard to maintain. Some of the men agreed. But Rad- cliff opposed it "tooth and toenail," and had some hot words with Nelson about it. However, in October or November 1937, the two divisions did consolidate. Radcliff continued to oppose consolidation. He circulated a petition against consolidation, and he wrote a letter to the Flints' national officers for assistance. He was eventually suc- cessful. Sometime in November the operators and boys split up again 451269-42-vol. 34-26 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and went back to their respective locals. In December 1937, Radcliff's term of office expired; however, he was then elected vice chairman of his local and continued as such thereafter. There were other conferences, disagreements, and threatened strikes. Radcliff participated in these as chairman of Local 88. Weaver testi- fied : "I will admit that he expressed himself on different matters, but I don't recall that he monopolized the time at all." The respondent's briefs summarize various critical testimony of the supervisory officials to the effect that Radcliff was always com- plaining, playing along on the job, arguing with his superiors, and that he was slow and far inferior to the other extra operators. How- ever, two supervisors testified to the contrary. Thus Carder, who served as relief foreman over Radcliff in 1937, testified that Radcliff never refused to do any work required of him, that he was attentive to his duties, that he was not slow, but instead was "very efficient," and that in melting ware, "he is one of the best men I have ever worked with," and that he was "an A No. 1 worker ... a very good extra operator, take-out boy, stick-up boy and a fair new operator." Plummer Goff also served as relief foreman at various times, and in 1937 supervised Radcliff to some extent. He testified that Radcliff never complained about his duties, or about overwork, that he was not slow, that he set the glaziers properly, did not spoil any ware, and was a very good extra operator. Goff said : "I have saw him work until he looked black in the face, and never said a word, but went right along with it." There thus seems to be considerable doubt as to the validity of the criticisms about Radcliff. They could be attributed partly to the nature of his job, which would normally involve the making of some mistakes and some departures from his machine. Upon consideration of all the facts we find, as did the Trial Examiner, that Radcliff was among the better qualified of the respondent's workers. The respondent's brief also notes : "Radcliff's mental attitude toward respondent and his work for his employer does not reflect much credit upon him. He admits that he proceeded to tell a foreman at the plant what he could or could not do with respect to keeping one Luther Deem on a particular job. And he admitted that he advocated a strike when respondent's production .got higher, so that it would have its `pants down."' This statement refers to two above-described inci- dents in Radcliff's union career. There were other similar incidents, all of which were known to the respondent. Thus, as has been found above, Radcliff interrupted a conference by accusing the respondent's representatives of having made their decision before coming to the conference; he was at least partially responsible for striking the re- spondent's plant at midnight, without notice, in order to enforce the HAZEL-ATLAS GLASS COMPANY 391 closed-shop agreement; he discussed with his local members ways and means of removing Nelson from his job; he accused Nelson of being narrow-minded and demanded access to the respondent's records in order to prove Nelson's statements false; he also opposed the respond- ent's desire for amalgamation of the locals and was eventually suc- cessful. In pursuing these activities, he came to be considered a troublemaker, a disloyal employee, or-as the respondent's brief phrased it-one whose mental attitude toward the respondent did not reflect much credit. We believe and find it was because of this mental attitude and militant activity on behalf of the Flints that the respond- ent came to consider Radcliff an undesirable employee and therefore failed to reinstate him. As appears above, the respondent, at about the same time that the Flats began to organize its employees, encouraged the G. B. B. A. to come in and organize, aided it in many ways, and coerced its employees into joining it. We are convinced that the respondent did so because it felt from the highly unsuccessful efforts of the G. B. B. A. over a great many years to organize the respondent's employees, and from its conferences with G. B. B. A. officials, that this organization would be far less active and more amenable to the respondent's suggestions than the Flats. When the G. B. B. A. ceded jurisdiction to the Flints, the respondent had no alternative but to adopt toward the latter the same attitude as it had toward the'G. B. B. A. Furthermore,' we be- lieve that the respondent felt from past experience that the Flints also would be more easily controlled than the Flats, and therefore prefer- able as the lesser of two evils. Consequently, when some of the re- spondent's employees who were active in the Flints became aggressively militant on behalf of that organization, they went beyond the respond- ent's plans, and indeed counter to them. We find it was for this reason that the respondent failed to reinstate Guy Radcliff on March 15, 1938, and at all times since, and that the respondent thereby, violated Sec- tion 8 (3) of the Act, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act.78 4. The lay-off of and failure to reinstate James C. Casto Casto started working for the respondent in 1902, but his last period of continuous employment, and hence his seniority, date from April 1, 1935. In 1911 Casto was a carry-in boy, working on the lehrs. Then he became a take-out boy, and later a stick-up boy. After this he ""A discriminatory discharge may just as well be directed toward domination of a labor organization as toward a dissolution or driving out of a labor organization," National Labor Relations Board v. American Potash & Chemical Corporation, 98 F. (2d) 488, 495 (C. C. A. 9). 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went through a period of learning to be an operator, during which time he relieved both boys and operators during their rest periods. Finally he was promoted to the position of regular journeyman oper- ator, and served as such from 1913 until 1918. When he returned to work on April 1, 1935, he was made a floor machinist, and served continuously in that position until he was laid off in January 1938. A floor machinist or upkeep man has the job of adjusting the ma- chines or presses so as to produce the different kinds of ware that are desired at different times. They thus help make job changes, make adjustments in the presses from time to time, and set up the machines for the different operations. Casto testified this was more difficult than the work of the operators because "the floor machinist has to completely set up the machine for the operator." This may not be quite accurate, however, since the remuneration is slightly less. Oper- ators get a guaranteed base pay of 90 cents per hour plus a bonus depending upon the output of their respective shops. During 1939 their total income averaged $1.38 per hour. Floor machinists get a guaranteed base pay of 89 cents per hour plus a bonus which can raise their total pay up to, but not higher than, 75 per cent of the operators' total pay. Floor machinists, however, are definitely considered highly skilled employees. They were members of the Flints' Local 88 along with the operators and extra operators. They attained their positions only through experience and through promotions from the relatively easy and unskilled work of the boys, in the manner illustrated by Casto's job history. In contrast to their relatively high pay was that of the boys'. Boys working in production received a guaranteed base pay of only 60 cents per hour plus bonuses ranging from 53 per cent to 63 per cent of the operators' total wages. The bonus percentages de- pended on the tasks performed by the boys. During one period, the total pay of all the boys averaged slightly over 84 cents per hour. Extra operators received a straight wage of 85 cents per hour. Un- classified boys, or those not engaged directly in production, received a flat wage of 65 cents per hour. It thus appears that the floor machin- ists' remuneration was just under the highest amount paid by the respondent to any of its non-supervisory employees in the production department. Casto joined the Flats right after their Masonic Temple meeting on April 21, 1937; this was at the factory. Soon thereafter, Atkinson gave him some blank application cards for the Flats and Casto began to solicit the employees for membership. He approached his fellow workers in the factory, in the poolrooms, on the public streets, and in their homes. He secured about 20 memberships. He also regularly attended the Flats meetings except when working on the night shift. HAZEL-ATLAS GLASS COMPANY 393 During this period Casto's foreman, Joseph McIntyre, asked him tQ join the Flints, and also to get three of his friends on the tank to join the Flints.79 Casto took the three Flints cards, talked to his friends, and returned the cards unsigned to McIntyre. He told him that he belonged to the Flats and did not feel like signing a Flints card. Mc. Intyre then said, "You had better get that out of your system .. . Before the company would ever recognize the C. I. 0. . . . they will nail up the gates." McIntyre also said that Nelson had given him orders that if any man was caught with C. I. 0. cards in the plant, he should be fired on the spot; whereupon Casto pulled out some C. I. 0. cards and said, "Here is some." McIntyre grabbed the cards out of Casto's hand, tore them in two, threw them into the waste can and said, "If Nelson sees you with those cards, he will fire you so darn quick your head will swim. He has orders from Weaver to do so." During the first part of April 1937, McIntyre told Casto that the company knew every man who had signed a C. I. 0. card and that "every man having that radicalism in them would be eventually laid off." In the latter part of that year, McIntyre told Casto he was being watched and if he did not get that C. 1. 0. out of his system, he "would eventually get laid off for it." Casto was notified on January 21, 1938, that he was being laid off on the 22nd. He and McIntyre were "the very best of friends." There- fore, he asked McIntyre the next day the reason for his lay-off. Mc- Intyre said, "I can't tell you now." Casto asked if it was anything against his work. McIntyre said no, that his work was very satisfac- tory; that he would tell him later. In March 1938, at a time when a large number of employees was rein- stated, Casto met McIntyre by chance on the streets and asked if Mc- Intyre thought he would be called back to work. McIntyre said, "No, Jim, I had warned you several times that the C. I. 0. would catch up with you . . . confidentially, Jim, Mr. Nelson gave me orders when the 19 This and following findings about McIntyre are based largely on Casto's testimony Each of these incidents was, as the Trial Examiner found, politely but curtly denied by McIntyre. However, McIntyre also denied other incidents , testified to by Casto, on which the record leaves little doubt. Thus Casto testified McIntyre spoke to him about the G. B. B. A, saying : "We have got a union out here for you to sign up a card for," and telling him that he would have to sign up if he worked there. McIntyre denied this, as did the other foremen . But weaver's notice of March 29 clearly stated that the company wanted the employees to sign up and expected Its foremen to execute that policy. We find, as did the Trial Examiner , that McIntyre's denial thereof is not credible. McIntyre also denied telling Casto he had to sign a Flints application blank in order to continue working for the respondent or that he ever asked him to get his three friends to sign Flints cards. However , the sudden growth of the Flints , the respondent's premature granting to them of exclusive recognition , check-off, and closed shop and the testimony of Rogers , Carder, and Kidd indicate such assistance by foremen was common and was expected by the company. We agree with the Trial Examiner that McIntyre's denial is again not credible. Upon the entire record in the case, we accept Castro's statements as true and discredit the denials thereof. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lay-off came, to pick you first, for he said you had too much Communist, red blood in your system." From the above incidents it would appear that Casto was laid off by the respondent on January 22, 1938, because of his activity in the Flats. However, there were also other factors, the most important of which was his lack of seniority. In January the respondent had 23 floor machinists, of whom 9 were laid off, including Casto. He was next to the youngest in point of service. Not only Casto, but also the man who ranked under him and the man just above him in seniority were laid off. Every man who was retained had at least 11/3 years' seniority above that of Casto. As has been found above, the respondent considered seniority one of the important factors in selecting the men to be laid off. We therefore believe that Casto would have been laid off because of his lack of seniority as a floor machinist even though he had not been a member of the Flats during the preceding year. Thus we do not find that Casto's activities or membership in the Flats affected the disposition made of him by the respondent in January 1938. In February and March 1938 the respondent rehired or reinstated a large number of employees previously laid off in January. Most of these were taken back as boys. On March 14 the Flints trans- ferred the extra operators and floor mechanics from Local 88 to Branch 566, so they could be rehired as boys. As has been found above, the respondent thereupon transferred or reinstated all but 5 out of its 20 extra operators as boys. Similarly the respondent rehired or reinstated as a boy one of the floor machinists (Walter Kerrigan) who had been laid off in January. However, Casto was not so reinstated. The question thus arises as to whether the respondent's failure to reinstate Casto was caused by his union activities. Casto understood that Nelson agreed that if the extra operators and floor machinists were "kicked back into Branch No. 566," Nelson would recall them to work as boys. Consequently, Casto, who had reluctantly joined the Flints, and other Flints members went to Flints' national headquarters in Toledo, Ohio, and made arrange- ments for the transfer, which culminated in the Flints' letter dated March 14, 1938, notifying the respondent that the floor machinists had been transferred to Branch 566. On his return from Toledo. Casto telephoned Nelson at his home and said he understood that after they were placed in Branch 566, they would be called back to work. Nelson replied, "The hell you say." Casto said, "That is my understanding." Nelson then retorted, "Go see Mr. McCabe HAZEL-ATLAS GLASS COMPANY 395 and some of your C. I. O. boys and get a job ." 8e Within the next day or so, on March 15, 1938, the respondent reinstated a substantial number of employees as boys. Eleven of those so reinstated on that day had less seniority than Casto.81 Regarding Casto's ability as a floor machinist , Foreman McIntyre testified, "Mr. Casto was a good, willing worker, and lacked experience, and would become nervous, and at times almost flighty , I would say. Take, for instance , if we had a couple of breakdowns at one time, he would get confused and probably run from one to the other." Other foremen also criticized Casto's work as a floor machinist. However, Carder , who supervised Casto's work about one day a week during 1937, testified that Casto was a dependable worker and that he was not nervous or excited when working around him. Carder said that, although he did not like to have a man leave one repair job for another , nevertheless floor machinists did sometimes get away to make a minor repair on another machine . Furthermore, Atkinson, who was a machine operator from 1934 until July 1937 , testified that Casto worked for or with him , repairing machines , for about 3 weeks in July 1937. Atkinson said he would have to rank Casto "at the top" of all the machinists that had worked with him. Casto did not seem to the Trial Examiner to be nervous or flighty at the hearing ; instead the Trial Examiner characterized him as a calm, methodical type of workman . His long record at the plant, and especially his experience of nearly 3 years as a floor machinist, at the correspondingly high salary of a skilled worker, indicate him to be exceptionally well qualified as an employee in a lower capacity. such as a boy . In view of his long and varied service record and ability, and also in view of his union activities and the repeated warnings given him, we find that the respondent failed to reinstate Casto on and after March 15, 1938, because of his activities in the Flats. We find that the respondent by failing to reinstate James Casto on March 15, 1938, and thereafter , discriminated in regard to his hire and tenure of employment , thereby discouraging membership in the Flats and interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 5. The lay-off and failure to reinstate the "boys" During the period ending January 15, 1938, the respondent had about 565 employees in the production department . Of these, 90 to 11 McCabe was then international President of the Flats ' Westfall, Swiger, Clark, Kelley, 0. A. McIntyre , McGowan, Duty , Boggs, Roy Blackwell, Herrod, and Squires. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 100 were machine operators, 20 were extra operators, 23 were upkeep men or floor machinists , others were mould changers, some were take- out attendants, and about 390 were boys. During the last 2 weeks of January, however, the respondent laid off 225 employees in that department. No operators were laid off, but 13 extra operators, 9 floor machinists, and about 200 boys were in the group. As pointed out above, these so-called boys were not juveniles but were, instead, adults performing comparatively unskilled, manual work. They were usually engaged in taking partly finished glassware out of a press machine, or placing it in some other machine such as a cupper or lipper, or transferring it to the lehr machine. Each piece of ware must be picked up and set down by hand in these processes. The glass is very hot and very soft so that it must be handled with con- siderable skill and care. The boys also ran the cupper and Lipper machines which were hand operated and were used to change the shape of the ware slightly, for example, by putting the lips on jugs. In addition, boys performed various miscellaneous tasks required to guide the glassware through the machines and prepare it for packing. Shortly after New Year's Day in January 1938, Nelson called a meeting of the foremen in the production department and told them they would have to cut the force of boys down to 45 men for each of the 4 shifts. He gave each foreman a list of the men on their respective shifts, on the basis of which they were to select the men to be laid off and those to be retained. He said that efficiency and length of service were to be considered in making the selections : if employees apparently had the same efficiency, then their length of service was to govern, and if they had the same length of service, then their efficiency was to be the determining factor. Nelson retained copies of the lists used by the foremen on each of the four shifts, except that on his lists there had been noted by the personel director, at Nelson's request, the hiring date and marital status of each employee. Some of the more obvious decisions regarding employees to be laid off or retained were made at this meeting, but the selections could not be completed. Nelson testified : "It was very difficult and it is hard to lay men off. Each foreman was very reluctant." So a second and then a third meeting were held in order that the fore- men might make their determinations on the borderline cases. All foremen testified that it was a hard job to get down to the final 45 men. Foreman William Blackwell said : "We came to the place where it was pretty hard to cut down the list, and we were getting all about the same kind of boys, that is, of the same equal." Presum- ably it was in these cases of approximately equal ability that the respondent allowed seniority to determine the selection of employees to be retained and laid off. HAZEL-ATLAS GLASS COMPANY 397 Among the boys laid off in this process were Rogers, William Radcliff, Reed, Gaines, and WhytseJl. All five were laid off on January 19, 1938; none of them has been offered reinstatement since, although other employees laid off have been reinstated. The ques- tion thus arises as to whether the respondent laid off or failed to reinstate any of these five boys because of their activities in the Flints or in the Flats, as the complaint alleged. G. E. Rogers started work for the respondent in 1908, but his last period of continuous employment and hence his seniority, dates from February 11, 1935. He started in 1908 as a carry-in boy; then he became a take-out boy; he helped repair machines. He also swept the floor, carried water, and did general and relief work. After the World War, he was an operator, operating two R-press machines at once. In 1923 he worked as a take-out boy until his tank went down. In 1933 he worked on the floor, i. e., swept the floor, carried water, worked as a boy, and did about anything "just the same as the other men in the plant were doing . . . There were no other types of work in the hot end to do, only to be operator or a foreman." Immediately prior to his lay-off in January 1938, Rogers worked part of the time as a relief man. Sometimes he worked regularly on a "shop," either as a take-out or a stick-up boy. Rogers testified : "A relief man was an all around man, and could handle all the jobs made in the plant. He had to be .. . They were selected from the more efficient men, whenever possible to do so." When the G. B. B. A. came into the plant on about March 29, 1937, Rogers became a business committeeman for Branch 566, the boys' branch. As Weaver testified, he "seemed to have this matter of organization very much on his mind." As has been found above, the respondent then proceeded to use Rogers as its instrument for establishing the Flints at the plant. Thus on the afternoon of Saturday, April 24, Nelson instructed Rogers to tell every man in the production department the Flints were coming in to organize the plant and that the men should join the Flints instead of the C. I. O. or the plant would close down. Rogers did so. On Mon- day, April 26, Nelson told Rogers how to contact Gillooly, the Flints' International President; that afternoon Rogers helped Gil- looly arrange the mass meeting held that night. Rogers officiated in a minor capacity at the meeting; after it was over, he had notices typed for the next meeting and, with special permission from the watchman, who said he was• acting on instructions from the re- spondent, entered the factory at midnight and posted the notices. On Tuesday, April 27, Rogers helped spread the word about the second Flints meeting to beheld that evening. At the meeting that night he distributed Flints applications. The next day, Wednesday, 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 28, Rogers roamed through the plant at will, soliciting Flints applications for membership, collecting them from employees and supervisors. There is no doubt that he did this not only with the knowledge but also with the support of the respondent and its offi- cials. On that same day, he assisted in arranging the meeting with Weaver and getting exclusive recognition from the implied check-off and closed shop for the Flints. Rogers thereafter continued his campaign for Flints membership, telling McClung, as an instance, in front of Nelson and Blackwell, that he had to sign up; that "it was orders from Mr. Weaver." He participated prominently in the May 20 meeting at the Stonewall Jackson Hotel, insisting, for ex- ample, that Harshman read the Star Island Agreement four times before voting on it. After the respondent's offer had. been discussed at this meeting, Rogers made the motion to accept the proposition. His motion was carried with near unanimity. However, the next month, June 1937, Rogers began to depart from the respondent's plan. He telephoned Weaver and arranged to meet him at the curb in front of his house for a conference. Rogers then told Weaver that "the CIO was still making a drive to take the plant and that he (Weaver) had not complied with the promises that he had made me for those men and neither had the Flints complied with the promises that they had made to me for the men and that I was through fighting for the Flints and that I was not going to fight the Flats no more." 82 Weaver replied "I hope that the men don't take the CIO." 83 The promises which Rogers thought violated were made when the Flints were recognized and were promises for negotiations between the respondent and the Flints' locals and branches. These negotia- tions were expected by Rogers to conclude in "local working agree- ments" which would deal with local working conditions and "general relief of the situations that were not as they really should be in the plant." Rogers' insistence in the boys' branch on these local agree- ments was paralleled by Guy Radcliff's insistence in the operators' local. Rogers' position as business committeeman, or business officer, of G. B. B. A. Branch 566 carried over from the G. B. B. A. into the Flints, as did the positions of the other officers. He thus continued to hold office throughout the spring of 1937. However, at about the time he told Weaver he was dissatisfied with the Flints, he also sub- mitted his resignation as an officer of Branch 566. He told the branch at the June meeting that "up to that time, every effort to 88 This statement was not denied by Weaver. "Weaver testified : "I would deny that statement as alleged to me " But he did not state what he did reply, nor did he offer any explanation There is thus no account of the incident to rely upon except that related by Rogers. Since it appears reasonable, we accept it, as did the Trial Examiner. HAZEL-ATLAS GLASS COMPANY 399 accomplish the things that the American Flint Glass Workers Union and the Hazel-Atlas Glass factory had promised on behalf of the men for the acceptance of that organization into the plant, had been a total failure." However, the branch refused to accept the resigna- tion, so he continued in office. In July 1937 Rogers, Leidy, Shay, and Sigwart met with Nelson on a grievance arising in the factory. During this conference Rogers told Nelson that "Mr. Weaver had promised us a local working agree- ment and that we were determined that we should have a local working agreement." Leidy, however, volunteered that the Flints did not believe in a local working agreement. Nelson then turned to Rogers and asked why he wanted it. Rogers told him that it had been promised to them and that he wanted it posted in the department so that when the foreman or the men violated it, they could see where they violated it and get it straightened out.84 Nelson thereupon told Rogers that he was too conscientious.85 At about this time Weaver told the Flints' international repre- sentative, Harshman, that Rogers was talking too much and was indulging in too many union activities for his own good. Weaver suggested that Harshman should tell Rogers to cease.86 Harshman testified that at that time, Rogers "was just engaged in assisting me in organizing" and that he was then a "very active" member of the Flints. Thereupon Harshman did speak to Rogers about it, merely telling him, however, that Weaver had requested him to tell Rogers that if he did not slow down on his union activities, Weaver was going to discharge him; that he was too active in the union. Harsh- man made no recommendation himself. Rogers continued to press for the local working agreements despite the warning. He likewise continued to be active on the boys' com- mittee that met with the management on grievances and items of dispute. Rogers testified he thought they met at least twice a month ; sometimes he presented the grievances or requests; sometimes one of the other committee members did so. He further testified : "I don't think . . . that we ever had a meeting . . . that we did not stress the need of a local working agreement." In September 1937 the committee met with Nelson and David Blackwell, who wanted some operators demoted from Local 88 to 84 This part of the conversation was not controverted at the hearing Si Nelson testified : "I never made any statement like that." However, he did not give his version of the conversation . His bare denial was rejected by the Trial Examiner and is not credited by us. 81 Weaver testified that Rogers and Braddock were not remaining at their posts as much as they should; that they were apparently "roaming the plant"; that he sug- gested to Harshman "that he just give them a friendly caution." The finding, however, is based on the testimony of Harshman who has been previously described as a reluctant witness, and also on the Flints' minutes about Harshman 's comments made at the meeting held on October 15, 1938, between the Flints and the National Association of Manufacturers of Pressed and Blown Glassware. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Branch 566. The committee agreed to that. During that same month there was another meeting to discuss the respondent's lay-off or discharge of certain employees., The foremen claimed the men were inefficient. However, Rogers argued that they should be re- tained, pointing out that some of them had been in the company's service for as long as 29 years. He said "it was unfair, and there was nothing fair about it, that these men should be turned out as they were . . . because of their long years of service to the company." It is uncontested that the management, however, said it was not run- ning an orphanage and that if a man could not take care of his work, then he could not work. In the fall of 1937 the committee also met with Weaver and Nelson who had prepared a list of allegedly inefficient men. These the management wanted to put on an "extra list" and call to work only when the efficient men had worked their regular quota of time. Rogers protested that these men had to live the same as the other employees and that working time should be divided with them. Nei- ther he nor the Flints' committee approved of the respondent's plan. However, they were overruled by the respondent and it was tried for about 3 weeks. On about October 1, the committee requested that the list be abandoned; the respondent acceded. In October 1937 the movement to consolidate Local 88 and Branch 566 took on strength. As has been found above, Guy Radcliff and the Flints' national officers strongly opposed consolidation, while the respondent favored it. On this issue Rogers sided with the respond- ent in that he fervently argued for the amalgamation. He was tem- porarily successful and consolidation was effected. Then Muhleman came from the Flints' national office and argued against it. Rogers debated with him, saying that the only thing the Flints had ever done since they came into Clarksburg was to try to destroy any con- structive move that the men might make. He said the Flints were "a company outfit and that they had sold us out for a dollar a head, before they ever came here to attempt to organize us." Nevertheless the consolidation movement was broken up. On October 25, 1937, Rogers was nominated by Flints Branch 566 to succeed himself as business officer of that unit.. However, he rose in the meeting and declined the nomination. He said they had been trying to carry out the promises made to them but were never able to accomplish anything; that the respondent was giving them the run- around in every way possible; that every constructive move they might try to make was broken down by the Flints' national officers in one way or another and that the Flints were not giving the em- ployees representation at all. Rogers then again announced to the Flints that he was through with them. HAZEL-ATLAS GLASS COMPANY 401 However, Rogers continued his membership in the Flints and he continued to talk to the workers, urging them to "fight for their rights." He attended every meeting that the Flints held. In addi- tion to this, and at some subsequent time not revealed by the record, Rogers also became an active member of the Flats. Whether this was before or after his lay-off in January 1938 is not clear.81 The respondent's brief notes that "if strict seniority had been applied" in the January 1938 lay-off, and if Rogers' seniority date of February 11, 1935, had been used, Rogers would have been laid off for lack of seniority. This is true, but it does not apply to the issue at hand. The respondent's personnel record used at that time stated Rogers was hired on March 1, 1933. Also the list of employees which Nelson and the foremen used during their conferences gave Rogers' seniority date as March 1, 1933. Thus, if the foremen had followed seniority principles on the basis of the information they had, they would have retained Rogers. Instead they let him go and re- tained 167 boys who had been employed since March 1, 1933; of these, 154 were still working at the plant in January 1940. It therefore appears that Rogers was laid off in violation of the seniority practice which the respondent generally followed. Some of the respondent's foremen who supervised Rogers' work at various times testified in criticism of it. Thus Otto Wolfe, under whom Rogers worked for the last 6 months, said Rogers was not as good a man as some others; that he could not handle the ware nor serve as relief boy on fast jobs. Other foremen who had supervised Rogers at earlier periods said he was slow and "visited around the factory a good bit and bothered the other boys when they was `a working."' This testimony, however, was general in character and was unsupported by any documentary evidence. It was disputed by testimony of equal value given by Foreman Carder who said: "Mr. Rogers is one of the best take-out boys that the Hazel-Atlas ever had in the plant for the past several years. He would stand a lot of heat during the summer months in the hottest shops in the factory, and he was a steady worker, and I believe a very honorable man." Carder testified Rogers was a fast worker; that he was experienced on a variety of different types of jobs; and that he could take-out on either the right- or left-hand side, which was difficult. Employee William Radcliffe also testified that Rogers could work on a "back- handed machine." He said that occasionally he had been asked to relieve Rogers because "the job was running so fast that the boy who was working relief could not take them out." In view of this evi- dence, and more particularly in view of Rogers' long record of em- 8' On April 6, 1940, he signed a letter to the respondent as the recording secretary of Flats Local 48. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployment and the different character of operations performed by him,88 we find he was unusually well qualified as a boy. Ernest Kidd was another employee whom the respondent used as its instrument in getting the Flints established at the plant. As found above, he served as an unofficial "protector" at the Flints' meeting in the high school and he also freely solicited Flints appli- cations in the plant during working hours. He testified he did this because: "I was expecting a good job out there after they (the Flints) came in there, and I got the good job." He was made a floor ma- chinist. However, before he was able to accept these comparatively skilled duties, he was assigned "to work under [Delbert Owens] to try to learn something about them." After he thus "learned some- thing," he went to work on a floater crew and as a relief man. When the lay-off came the following January, it did not interest Kidd "one bit"; his job was secure and he was not laid off, although his own testimony indicated he was a poor workman. However, after the lay-off was completed, Kidd resigned from the respondent's employ of his own volition on March 29, 1938. We believe that if Rogers had heeded Weaver's warning in July 1937 and, like Kidd, had remained a docile member of the Flints, pursuant to the respondent's plan, he would not have been laid off in January 1938. Instead, he became an exceedingly militant mem- ber of the Flints, even to the extent of finally censuring them for their alleged bad faith and ineffectiveness. His union activity was so very prominent, his warning was so direct, and his seniority was so much greater than that of boys retained or reinstated, that his militant activity seems the inescapable explanation for his lay-off. We find that the respondent by laying off G. E. Rogers in January 1938, and by thereafter failing to reinstate him, discriminated in regard to his hire and tenure of employment, in violation of Section 8 (3) of the Act, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. William J. Radcliff first started working for the respondent in 1928, but his last period of consecutive service dates from May 24, 1933. He worked steadily as a boy, doing mostly stick-up and take- out work. He also ran a lipper, •a cupper, shoved-in, and carried-in. He did transferring and worked as a relief boy, that is, relieving other boys during their 10-minute rest periods. He was a fast worker and could handle jobs other men could not maintain. Thus at one time he ran the cupper on job #376, a heavy water glass, at the 88 Foreman Riley testified : "Versatility of the boys is the most important thing in production." HAZEL-ATLAS GLASS COMPANY 403 rate of 42 per minute and turned out 13,200 good pieces of ware in one shift. As stated above, Foreman William Blackwell testified that in selecting those to be laid off, the decisions became difficult because "we were getting all about the same kind of boys, that is, of the same equal." Regarding Radcliff, Blackwell testified : "The way it was, at that time we come down to the place where all these fellows was on the same equal, and we had to get some of them off and later to get the list down to 45, and on account of him being single, and retaining his brother on, he was the one to be laid off." Rad- cliff's own foreman, Otto Wolfe, testified : "Well, he was about the last, along the last boy decided on, and when we got down to where we had to lay some boys off we had to do it. By him being single, and his brother working, I decided to lay him off." However, if the foreman decided Radcliff's case on the basis of his marital status or his having a brother working in the plant, they violated Nelson's instructions, for he had told them that "where they apparently had the same efficiency, then their length of service was to govern that. The one with the greatest length of service was the one to be retained." Radcliff's seniority was admittedly sufficient to entitle him to his job. In fact, he had greater seniority than 154 of the boys who were retained, of whom 142 were still working at the plant in January 1940. Although Nelson's lists noted the marital status of each worker, nevertheless neither his instructions nor the record indicate this was an important factor. Nelson himself testified that only in respect to Radcliff was marital status "even mentioned." Otto Wolfe could came only one other employee on his shift whose marital status had been considered. That was B. A. Thrash, who was single and who was not retained. However, his hiring date was April 2, 1934; he was thus not entitled to retention because of insufficient seniority. Despite this deficiency and his unmarried status, Thrash was rein- stated within 2 months after his lay-off. Moreover, the respondent's records show that of the 45 men retained on the Otto Wolfe-William Blackwell shift, 8 were single.89 The fact that the respondent re- tained single men belies its claim of a policy against retaining such men. It thus appears that Radcliff's unmarried status could not have been the reason he was laid off. The question of brothers working in the plant had about the same effect on the selections as did their marital status. In two cases where brothers were working, one of the brothers was laid off. How- ever, in a substantial number of other cases, two or more brothers were retained at the plant, either by not being laid off in January "Houston , Gould, Douglas , Watson, Leasburg, Riley, Barnes, and Mayfield. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1938 or by being reinstated in the next few months. Examination of the record reveals that 32 sets of 2 or more people with the same family names were either retained or rehired by the respondent after the lay-off. Of these 32 sets of men so employed, at least 12 were brothers. Whether there were more than 32 duplications of name and whether there were more than 12 sets of brothers is not shown. However, from these minimum figures, it appears that being a brother to a man working in the plant did not militate seriously-if at all- against one's being retained or reinstated. We therefore do not be- lieve that Henry Radcliff's employment was the reason for the lay-off of William Radcliff. On the other hand, Radcliff had long been active in the Flats and then the Flints. As early as February 1937, he spoke to E. R. Cutwright, of the Flats' local at the Rolland plant, about the Flats organizing the respondent's plant. When the Flats later announced their Masonic Temple meeting by distributing notices at the factory gates, Radcliff took two or three notices inside the plant; one of them he carried back through the packing room and mould shop, holding it up so the employees could read it. He himself joined the Flats in the middle of April. At the Masonic Temple meeting, Radcliff got into an argument with Myers, Nelson's assistant, as to whether the C. I. O. would be able to slow down the company's production. Radcliff said the C. I. O. could if anybody could. The next day, April 22, 1937, he joined Cutwright in soliciting Flats memberships outside the company gates. They set up a card. table near the roadway for their literature and talked to the em ployees as they went by. While they were doing so, Weaver drove past in his car; he noticed Radcliff and Cutwright. Radcliff also attended the Flats' Carmichael meeting on April 25 and was there when the respondent's officials, Nelson, Sims, and Brown were stand- ing in the back of the hall observing those present. Radcliff solicited members at this meeting also. He attended the Flints' meeting held in Fraternal Hall on April 26. When Preacher Williams attempted to bring order to that meeting by giving a prayer, Radcliff climaxed the prayer by shouting : "Give us our freedom. We 'want the CIO." The next night he went to the Flints' meeting in the high school. At first he was not allowed in the auditorium ; the watchman said he was a C. I. O. and a Flat. Later, he and other Flats members were let in by the sheriff. Radcliff did not join the Flints until he was told he had to in order to hold his job. Even then he refused to sign a card, but did permit a card to be turned in for him. However, he continued to attend the Flats' meetings held every Wednesday night in Fra- ternal Hall. After the closed-shop contract was enforced on July HAZEL-ATLAS GLASS COMPANY 405 22, the attendance at these meetings decreased; in August 1937 they were abandoned. Radcliff was on the committee of less than a dozen men who carried on thereafter for the Flats. He also attended the Flints' meetings and participated therein. In October 1937 he joined in the protest about the respondent's installation of automatic ma- chines and was partly responsible for the Flints sending a committee to Washington, D. C., to see if anything could be done about that. The record indicates that the respondent knew of Radcliff's Flats activities. Myers, Weaver, Nelson, Sims, and Brown saw him so engaged. Also his foreman, Creed Wolfe, knew he was soliciting Flats memberships in 1937. On several occasions a fellow employee named Ash came to Radcliff and got Flats application blanks for someone else to sign, but never returned them. Finally Radcliff creased one of the cards which he gave Ash. A few minutes later Foreman Wolfe handed the card back to Radcliff, saying : "Here, Bill, is your card."- In view of Radcliff's seniority and admitted ability which ordi- narily would have entitled him to retention, in view of his prominent and extended union activities, and in view of the unpersuasive nature of the respondent's reasons advanced at the hearing for laying him off, we find that the respondent laid Radcliff off in January 1938 because of his union activities. We find that the respondent by laying off William L. Radcliff in January 1938, and thereafter failing to reinstate him, discriminated in regard to his hire and tenure of employment in violation of Section 8 (3) of the Act, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. Carl K. Reed, Jr., started with the respondent in 1916 and worked for 4 years as a carry-in boy and take-out boy. From about 1932 to 1935 he worked as a take-out, stick-up, carry-in, and transfer boy. On March 5, 1934, he again started work with the respondent and worked continuously thereafter until the January 1938 lay-off. During this period he ran a cupper, a lipper, worked in the mainte- nance crew, and also served as take-out, stick-up, transfer, and floor boy. Reed joined the Flats at the Masonic Temple meeting on April 21, 1937. He, too, helped organize the employees for the Flats. He dis- tributed cards and solicited memberships in the poolrooms and on the streets in Clarksburg. He also helped in the distribution of cards near the Company's gate. When he got applications signed, he gave them to William Radcliff. He attended the Flats' meetings regularly. Sev- eo This was not controverted except by a showing that Creed Wolfe had died before the bearing commenced. 451269-42-vol. 34-27 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eral times when he went out to lunch someone wrote "CIO" in chalk on a tin shield which he used in front of the glazier to protect him- self from the heat; once someone wrote "CIO" on the back of his shirt, likewise in chalk. Reed testified he did not know who did this. Foreman Otto Wolfe told Reed that if the C. I. O. took possession of the plant, the respondent would close up and "the hinges would rust off." Around May 1, 1937, Otto Wolfe told Reed : "Eventually, you CIO boys are all going to lose your jobs." At about the middle of May a salesman gave Wolfe some samples of tobacco. Wolfe did not want them and gave them to Reed ; Reed thereupon gave Wolfe a Flats application card in whimsical exchange. Wolfe returned the card and remarked : "Sooner or later all you boys are going to be ousted." 91 Just before the lay-off Reed and his foreman, Creed Wolfe, had an argument about the amount of work Reed was getting; as a result of this, Reed complained to David Blackwell and Nelson. He was then transferred to Grover Junkins, who was his foreman when the lay-off came. Junkins testified Reed was laid off because : "I kind of con- sidered that he was not as good a boy as we was keeping ahead of him ... I thought I had better boys." Dissipating the effect of this language, however, is Junkins' testimony on cross-examination, in the following colloquy : Q. And the work he was called upon to perform by you, I take it that that was satisfactorily done? A. Thoroughly. The respondent's brief points out that if strict seniority had been applied during the lay-off, Reed would not have been retained. This is true. The respondent, however, did not apply strict seniority, although it was an important factor that was considered. Lack of seniority certainly did not occasion Reed's lay-off since the respondent retained 99 boys who had less seniority than Reed, 91 of whom are still working for the respondent. Reed was closely associated with the Flats' organizers during the drive of that union, and was active in its campaign although he did become an officer. The respondent's foremen seemed to identify him as part of this group. There was no particular complaint evidenced against his work. In fact Foreman Carder testified he was "very efficient . . . and none of the boys knew more about that line than he did." We believe and find that the respondent did not lay Reed off in January 1938 because of his seniority or his work, but because of his activity on behalf of the Flats. We do not credit Wolfe 's denials to the foregoing remarks attributed to him. Cf. footnote 67 supra. HAZEL-ATLAS GLASS COMPANY 407 We find that the respondent by laying off Carl K. Reed, Jr., in January 1938, and thereafter failing to reinstate him, discriminated in regard to his hire and tenure of employment,'thereby discouraging membership in the Flats, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. Howard Gaines started work for the respondent in 1921, and had since been continuously employed by the respondent from June 1, 1922, until the time of his lay-off on January 19, 1938. Gains worked 3 years as a carry-in boy; then became a stick-up boy. In about 1930, he worked 6 months as an extra operator. Then he worked for over a year as an operator. He has also done work as a floor machinist. Most of the time Gaines, however, worked as a boy. He was considered a fast boy inasmuch as he removed castor cups, which was considered a fast job. Gaines testified that he asked between 200 to 300 of his fellow employees to join the Flats, and that he secured about 35 signed application cards. He solicited membership in the plant itself, out- side the plant, "in the pool rooms, wherever I saw a man, if I didn't know his name and I recognized his face and I knew that he worked there, I asked him." Gaines openly associated with Ike Lewark, prominent Flats organizer'92 on at least one occasion while Lewark was signing up memberships. Moreover, Gaines argued the cause of the Flats at the plant in the presence of his foreman, Grover Junkins. We are satisfied and find that Gaines was an active Flats member whose activities on behalf of that union were brought home to the respondent. It is true that Gaines' testimony as to his union activities, particularly as to attendance at Flats meetings, was, as found by the Trial Examiner, "vague." We believe, however, that this deficiency in Gaines' testimony is explained by the circum- stance that Gaines lived at the town of Wilsonburg, at some distance from the Flats meeting place in Clarksburg, with the result that he could not regularly attend Flats meetings. In any event, the intensity of Gaines' union activity is only material as it tends to prove the respondent's motive in severing Gaines' employment. On this issue, we find that the respondent was well aware of Gaines' open espousal of, and solicitation on behalf of, the Flats. In determining the respondent's reason for laying off Gaines in 1938, we note that Gaines' unusually-long seniority (almost 16 years) would normally have entitled him to remain at work at the plant and survive the wide-scale lay-off of boys. Two hundred forty-six of the boys retained in January 1938 had less seniority than Gaines; of these 231 were, at the time of the hearing, still employed by 'the re- e0 And president of Flats Local #6 at the Rolland Glass Company in Clarksburg. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent. The respondent contended that, and introduced some testi- mony tending to show, Gaines was lazy and a slow worker. Gaines, nevertheless, was complimented on his work by his foreman, Grover Junkins, who admitted at the hearing telling Gaines after his lay-off that "when things started up he would get back on." Carder, who had opportunity to observe Gaines' work, testified that Gaines was not lazy and "could do the different jobs." We find that Gaines was a competent workman and not laid off for insufficiency of merit. We deem persuasive on this issue Gaines' long service record of work for the respondent at a variety of occupations. The respondent made some effort to show that partial causation for Gaines' lay-off was that Gaines had once reported to work intoxicated in May or June of 1937, more than 6 months before the lay-off. Assuming without deciding that Gaines had once reported so intoxicated'93 the record makes ap- parent that this contention is specious. Foreman Riley, the respond- ent's' witness, admitted at the hearing that Gaines "was not laid off because he came out to work drunk one time," that this incident was "not marked down against him as a black mark." Riley_ also stated at the hearing, "I did not hold it against Howard Gaines." We find that the above-described incident had no bearing on Gaines' lay-off in January of 1938. In view of all the circumstances, giving weight to the unsatisfactory character of the respondent's explanations for the lay-off of Gaines, Gaines' unusually long seniority in working for the respondent, Gaines' open espousal of the cause of the Flats which was known to the respondent, and the respondent's pattern of discrimination against other employees who assumed the cause of the Flats, we find that Gaines was laid off for his Flats membership and activity. We find that the respondent by laying off Howard Gaines on Jan- uary 19, 1938, and thereafter failing to reinstate him, discriminated in respect to his hire and tenure of employment, thereby discouraging membership in the Flats and interfering with, restraining, and co- ercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. Flemie D. Whytsell started work for the respondent on April 9, 1928, and worked continuously thereafter for the respondent until the 1938 lay-off. At first Whytsell helped repair a tank; then he worked in the packing room and the box shop. Soon thereafter he was trans- ferred to the production department where he worked until the lay- e3 Foreman Riley testified that Gaines was the only employee he knew who had reported to work intoxicated and that he remembered "that [Gaines ] had been drinking," but Riley in the next interrogation by counsel inconsistently testified, "I make it a rule I don't tolerate drinking on my time ; I send them home If they come out drinking on my time I send them home." Gaines admitted that at the time he was sent home he had some beer but stated he told Foreman Riley "he could do that work all right," pot protesting, however, when Riley asked him to leave. HAZEL-ATLAS GLASS COMPANY 409 off. He, was a carry-in and stick-up boy, and he ran cupper and Lipper machines and relieved other boys during rest periods. Whytsell re- - ceived a number of compliments about his work from his foreman. Carder testified that Whytsell could handle fast jobs and that he re- garded him as "an A-1 stick-up boy." We find that Whytsell was a well qualified boy, and not an inefficient worker as contended by the respondent ' Whytsell joined the Flats on or about April 15, 1937, thereafter taking an active part in its affairs. Whytsell passed out cards, signed up members, "talked up C. I. O. inside the pool halls, on the sidewalk and in my friends' homes and also in my home." He also distributed flyers announcing C. I. O. meetings outside the respondent's grounds at the time of rotation of shifts and solicited membership during the rest periods at the plant, where Foreman Ezra Riley saw him so en- gaged. Whytsell testified that when he received notice that he would be laid off he asked his foreman, Riley, why this was taking place. Riley replied, "The Union is not running this Company, but the Com- pany officials are running it, and fellows we keep on are the fellows we can get along with and will do as the Company says." Although Riley denied making this remark, for the reasons above stated in commenting on the testimony of Riley and other foremen, we credit the testimony of Whytsell, who seems to us to have been a credible witness, and find that Riley made the remark attributed to him. Such finding is consonant with testimony of Lloyd Phares to the effect that Foreman Riley said of Whytsell, "he is too much for the C. I. O. and is always going to the- Company with the C. I. O.... we can- not tolerate anything like that." We find further that Riley made the remark attributed to him by Phares 95 While there is some un- certainty in Whytsell's testimony as to various Flats meetings, Whyt- sell, like Gaines, lived out of town and did not attend such meetings as regularly as other employees, although attending, as the Trial Ex- aminer found, "whenever he could, or whenever he was in town." For the reasons stated above in discussion of the case of Howard Gaines, we do not deem Whytsell's irregular attendance at Flats meetings material to our disposition of this case. We find that the respondent was well aware of Whytsell's activity on behalf of the Flats. Whytsell would normally have-been retained because of his seniority which far exceeded that of the average employee. Two hundred eight of the boys retained had less seniority than he. Of these, 194 were still working for the respondent at the time of the hearing in this proceeding. We have found above that Whytsell was a well quali- 94 At the hearing there was testimony from the respondent's foremen tending to show that Whytsell was slow and not a versatile worker. Upon the entire record, and for reasons elsewhere stated, we disbelieve the foremen testifying to this effect. 95 Upon the entire record we do not credit Riley's denial of the foregoing. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fled employee, and we do not credit the respondent's explanation that Whytsell was laid off because of inefficiency, giving consideration also in reaching this result to Whytsell's long service for the respondent in a variety of functions. We believe under all the circumstances and we find that the respondent laid off Flemie D. Whytsell on January 19, 1938, and thereafter failed to reinstate him because of his activity on behalf of the Flats. We find that the respondent by laying off Flemie D. Whytsell on January 19, 1938, and thereafter failing to reinstate him, discrim- inated in regard to his hire and tenure of employment, thereby dis- couraging membership in the Flats and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 6. The lay-off of and failure to reinstate Francis W. Flynn. Flynn first started working for, the respondent in 1910, and worked from then until 1923; from July 7, 1933, he worked continuously until the lay-off in January 1938. Flynn was a machine operator; he operated the "0. A." machine, which the respondent gradually abandoned and replaced with the more modern "M. P. L." machines. In February 1935 Flynn's right hand was injured while he was running a machine and he lost the thumb of that hand. However, he continued to operate thereafter. The replacement of the "0. A." machines by the "M. P. L." machines was completed by the spring of 1937. Flynn operated the new machines for a time but did not have much success with them. When Nelson became production manager in July 1937, he discussed Flynn with David Blackwell and decided to transfer Flynn to the maintenance crew under Lynch. - On Lynch's crew there were C. E. Purnell, Guy Klein, Pickens, and Flynn. Purnell and Klein had been with Lynch for the longest time and "had begun to get the idea and understand the machines." Flynn was not so experienced in repair work. Lynch testified Flynn "was capable of doing minor things, such as writing an order, going to the store room and bringing up things, filling lubricators and wiping grease and dirt off. We had one large lubricator that had glass sight feeds on it and we kept this glass clean, and minor things of that kind." Flynn did considerable oiling and lubricating of machinery and cleaning machines when they were not in operation. In January 1938, Pickens and Flynn were laid off from Lynch's crew; Purnell and Klein were retained. Flynn's work of filling lubricators has since been replaced by a system of siphons that run to the lubricators from tanks that have to be filled only every 8 HAZEL-ATLAS GLASS COMPANY 411 or 10 hours; these are now taken care of by a boy in the production department. Flynn's job has been absorbed by others and is not done now by any one employee. Flynn joined the Flats on Friday, April 23, 1937. He did not attend the Masonic Temple meeting, but he was present at the Flats' Carmichael meeting. He testified that, he then solicited members for the Flats in the poolrooms , on the streets, at the factory, and in the homes . "I didn't care what anybody saw. I was out in the open with it," he said . This was undoubtedly true. Nevertheless it is difficult to tell the extent of Flynn's union activities because of the character of his testimony . He was a voluble witness, ready to volunteer, and rested largely on generalities. Some of his testimony was improbable. Flynn testified that "every foreman in the plant" observed him soliciting Flats members. Even when cautioned by counsel that "that is a lot of foremen ," he insisted that 50 foremen had so observed him. Flynn also testified that Foreman Nicholson told him every day : "They are going to fire every darn one of you. . . . That was brought up every day." Yet Nicholson was a relief foreman and thus did not work with Flynn every day. When asked to estimate in round figures the number of times foremen had spoken to him about his Flats activities , Flynn replied : "500 times, and then I would miss it . . . I am underestimating." Flynn also testified he saw about 100 feet from the watchbox in the plant a large company notice, as big as a door , with letters the size of a man's hand, and containing about one paragraph of the above -described notice which Weaver issued on March 29, 1937 . Yet no one else saw such a notice. Flynn also testified that 90 percent of the people at the Flints' Fraternal Hall meeting were women and that the Flats' president, McCabe, spoke there. • But these statements are in opposition to all the rest of the testimony. Because of these exaggerations and in- accuracies, we find it impossible to determine the extent of Flynn's union activities or prominence in union affairs. Because of Flynn's injury to his band, his demotion from the position of operator, and his relative inexperience and his minor duties in the maintenance crew, and because of the uncertainty of his union activities, we find that the respondent laid him off in January 1938 because of a curtailment in production and not because of his union activities. 7. The discharge and refusal to rehire Harry E. Carder Carder first began to work for the respondent in 1904 at the age of 11 years. He worked during school recesses until about 1919, at which time he left the respondent to work in other glass factories. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During this time he joined the G. B. B. A. and met Campbell, now G. B. B. A. vice president. He was also a Flints member at one time, while working in Louisiana. He returned to the respondent's Clarksburg plant in May 1929 and worked there continuously until December 1939. At the time of his discharge he was a foreman in the hot-end department and had been for over 10 years. In December 1939, the operators' local had a disagreement with the respondent regarding the cleaning of their machines. When no adjustment was reached, the operators' local called a strike com- mencing on Tuesday, December 12, 1939. The operators reporting on the 6 a. in. shift that day stopped their machines, refused to work, and walked out. Nelson then went to Dwight Radcliff, chairman of the Boys' Branch of the Flints, and asked what the attitude of the Boys' Branch was concerning the strike. Radcliff replied: "Well, I won't operate," and walked away. Weaver then called John Leonard, also in the Boys' Branch, and asked him if he would have the boys meet with him (Weaver) in the packing room. Weaver and Nelson then walked back to the packing room. However, none of the boys followed. So Weaver again asked Leonard to tell the boys that he wanted to talk to them and that he would be in the packing room to talk to anyone who wanted to listen. This time some of the boys came. Weaver spoke about the causes of the strike and said that if any of them wanted to work, there were jobs available. Thereupon some of the boys went back to work, not as operators, however, but as boys. Nelson then called Foremen Trent, Junkins, and Carder into his office.96 He mentioned an important and urgent order the respondent had in the plant and asked if any of the foremen had any objections to operating the machines. Trent and Junkins consented; Carder made no reply. All the foremen then went out into the plant and - made some changes in the machines so that this special order could be run even though the rest of the production stopped. Carder assisted in making these preparations. Carder then went to Nelson and said: "Nels, you are having labor trouble and under the conditions, I can't work up there, and I have not operated in 22 years. I hope there are no hard feelings." Nelson according to his own testimony then replied : "Well, Harry, there is no hard feelings on my part, but I would suggest that you get your hat and coat and leave the plant." Nelson then called to Weaver and told him Carder did not want to work. Weaver approached the tanks and met Carder, who said 98 Another foreman, Joe McIntyre, was also working in the plant that morning, but Nelson overlooked him in the confusion. HAZEL-ATLAS GLASS COMPANY 413 to him : "I wasn't hired to operate., When I came back to this plant, I - had certain definite understandings with John Kirkpat- rick"97 that I would not have to operate a machine. Weaver testi- fied that he thereupon assumed that Nelson had told Carder to operate a machine and that Carder was refusing to do so. Weaver was very anxious to get production started again in order to preserve business. He therefore told Carder, in the words of his own testi- mony, "that I presumed that if he did not care to perform the only work which was available for that turn, and the work that the other shift foremen was performing, that he was quitting, and that if that was the situation, I would recommend to him that he leave the plant promptly, because we were in a state of emergency, and I certainly did not have time to go into any differences of opinion or to discuss what he and John Kirkpatrick years ago might have had in the way of an understanding." Carder replied that he was not quitting; that he was not an operator and that the plant was having labor trouble and that he had not operated for many years. He thereupon left the plant and went home. On Thursday night, December 14, 1939, a conference started be- tween the respondent and the Flints' officials which ended in a settlement of the strike during the early hours of Friday morning, December 15. The conference was devoted entirely to the problem of getting the men back to work. It was finally agreed that "every- thing was returned to normal operation" and that the operators were to return to work. As the conference was ending, Muhleman, the Flints' representa- tive, said : "Mr. Weaver, I wish you would think about Mr. Carder, and see what you could do for him. I would like to see him back at work." Weaver testified : "I told Mr. Muhleman that Mr. Carder had not been a member of his union, and I didn't see that he was the proper person to represent Mr. Carder, and I told him that if Mr. Carder wanted to talk to me, he could see me through the regular channels, coming to my office and meeting me at a time it was mutually convenient." That Friday evening, Muhleman met Carder on the street and said: "Harry, go over to the plant. Mr. Weaver wishes to see you and make arrangements and talk it over with you about going to work." On Saturday morning, December 16, 1939, Carder went to Weaver's office and said to him : "Mr. Weaver, I understand that you sent for me, and wish to see me with regard to going back to work, and talking it over." Weaver replied : "Harry, you are mistaken. I Aid not send for you. I presume you have either talked to Mr. 97 Former plant superintendent. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Muhleman or some member of the committee who was present when your name was discussed, and the arrangement was if you wanted to see me, you could come to the plant and see me just like anyone else might come to see me." Weaver testified : "I further told him that if his presence there was on the basis that I had sent for him, he was mistaken, and I considered the conversation at an end." There was then some miscellaneous talk which Carder concluded by saying : "I guess, Mr. Weaver, there is nothing more to discuss, and I might as well go home." Weaver replied:-"That is right, Harry." Carder thereupon departed. He has not since been employed by the respondent. On May 24, 1940, he wrote a letter to the respondent saying : "I wish to renew my demand that I be reinstated to my former job as foreman." The record thus indicates that Carder refused to do the work of an operator when the operators went on strike; that he was then sent home ; that when the strike was settled and the operators re- turned to work, the Flints requested Carder's reinstatement also; that the respondent refused to discuss the matter with the Flints and the next day refused to discuss it with Carder; that it thereby refused to reinstate Carder. The record further shows that if the Flints' request had been granted, he would have returned to work on Friday, December 15, 1939, upon the reopening of the plant. It is clear and we find that the respondent's refusal to reinstate Carder was made because of Carder's sympathy for 98 and assistance rendered the strikers 99 through his own refusal to work. Regarding Carder, the respondent states in one of its briefs: We deny the right of a foreman, who was neither a member of the Union, nor eligible for membership therein, to leave his employer in the lurch in such an emergency situation, without suffering the consequences. This contention, however, in so far as it is based on lack of member- ship in the Union, is clearly without merit. The Board has fre- quently held that discrimination to discourage union membership is no less a violation of Section 8 (3) of the Act when it is directed against a non-union employee.- Likewise, ineligibility for member- 98 Matter of Rapid Roller Co., a corporation and Local 120, United Rubber Workers of America, of giated with the C I. 0 , 33 N. L. R B, 557. w The respondent moved at the close of the hearing that a finding be made that the strike was illegal because it was allegedly in violation of the Star Island Agreement. The Trial Examiner denied this motion in his Intermediate Report on the ground that the matter is irrelevant . We affirm the ruling of the Trial Examiner. 100Matter of North Shore Dye House, Inc et al . and Cleaners and Dyers Local 183 of the Am. Cl. Wkrs. of Am., 24 N. L. It. B 507; Matter of Mexia Textile Mills anc 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) ; Matter of La Paree Tlndewgarment Company, Inc. and International Ladies' Garment Workers' Union, Local No. 166, C. I. 0., 17 N. L. It. B. 166; Matter of Berkshire Knitting Mills and American , Federation of HAZEL-ATLAS GLASS COMPANY 415 ship is irrelevant. It is well recognized, for example, that members of one union or even non-union employees, may join sympathetically in the activities of another union in which they are not eligible for membership, or may even assist the employees of another employer, without relinquishing the protection afforded by the Act 102 The respondent's statement also suggests that because Carder was a foreman , he had no right to join in concerted activities with the striking employees. It is true that we have frequently held foremen to be supervisory employees, whose interests lie with the management and for whose acts the employers are responsible. However, it is also true that foremen frequently do join labor organizations and that in many respects their interests lie with the employees as well as with their employers. The Act does not exclude foremen from its protection, but instead applies, by virtue of its own wording, to employees generally, i. e., to "any employee." Both the Board and the courts have held that foremen come within this category 103 Thus in the case of Skinner and Kennedy, the Circuit Court of Appeals for the Eighth Circuit said : It is first argued that Eckert is not an employee within the mean- ing of the Act. The contention is that being a foreman he is an employer and not an employee. Section 2 (2) of the Act is relied upon wherein an "employer" is defined to include "any person acting in the interest of an employer." Section 2 (3), of Hosiery Workers, Branch #10, 17 N L R B 239; see also Matter of Air Associates, Incorporated and International Union United Automobile Workers of America, Local No. 365, affiliated with the C 1. O , 20 N L R B 356; enf'd as mod., National Labor Rela- tions Board v. Air Associates, Pncorporated, 121 F ( 2d) 586, decided July 9, 1941, (C C A 2). 102 Matter of Club Troika, Inc., and Hotel and Restaurant Employees Alliance, Local et at, 2 N. L . R B. 90, 94; National Labor Relations Board v. Bites -Coleman Lumber Co , 98 F (2d) 18 C C. A 9 enf'g Matter of Riles -Coleman Lumber Company and Puget Sound Dis- trict Council of Lumber and Sawmill Workers, 4 N. L R B 679. In the latter case, the United States Circuit Court of Appeals for the Ninth Circuit noted : "Particular objection is made to the order requiring reinstatement of two of respondent 's foremen who walked off with the others , but who, by reason of their supervisory positions or location in the woods, could not have belonged to the Union even had they so desired The order was proper " Cf: Matter of The Niles Fire Brick Company and United Brick Workers L. I U No. 198, affiliated with the Congress of Industrial Organizations, 30 N L R B 426 10 Matter of Skinner and Kennedy Stationery Company and St Louis Printing Pressmen's Union No. 6, Inc. et al 13 N. L. R B. 1186, 1193, enf'd National Labor Relations Board v. Skinner it Kennedy Stationery Company, 113 F. (2d) 667 (C. C. A. 8) ; Matter of Atlantic Greyhound Corporation and Brotherhood of Railroad Trainmen, 7 N. L R B 1189, 1196; Matter of Eagle-Picker Mining it Smelting Company, etc . and International Union of Mine, Mill it Smelter Workers, etc., 16 N. L. R . B 727, enf'd as mod , Eagle Picker Mining it Smelting Co v National Labor Relations Board, 119 F. (2d) 903 (C. C. A. 8), rehearing den , June 9 , 1941 ; Matter of North Shore Dye House , Inc, et al. and Cleaners and Dyers Local 183 of the Amalgamated Clothing Workers of America , 24 N L R B. 507, Matter of Theurer Wagon Works, Inc. and International Union, United Automobile Work- ers of America, Locals 259 and 374, 18 N. L. R. B 837 . Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, etc, 8 N L R B. 440E 472; Matter of The Warfteld Company, etc and International Union of Operating Engineers, Local No. 399, et al, 6 N L. R. B. 58; Matter of Chambers Corporation and Allied Stove Mounters at al., 21 N L. R B. 808 ; National Labor Relations Board v. Biles -Coleman Lumber Co., see footnote 101, supra. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act is ignored. It provides that "The term `employee' shall include any employee." There is no inconsistency in these pro- visions when facts are taken into consideration. A foreman, in his relation to his employer, is an employee, while in his relation to the laborers under him he is the representative of the employer and within the definition of Section 2 (2) of the Act. Nothing in the Act excepts foremen from its benefits nor from protection against discrimination nor unfair labor practices of the master. As a striking employee Carder was entitled to reinstatement at the end of the strike, unless his place was already filled.104 We find the respondent's refusal to reinstate him because he joined in the strike constituted a discrimination as to his tenure of employment by which the respondent discouraged membership in labor organizations, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 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 commerce and the free flow of commerce. THE REMEDY Having found that the respondent has engaged in unfair labor prac- tices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. We have found that the respondent discharged Thomas Berry on May 24, 1937, and that the respondent failed to reinstate said Berry in June 1937 and on March 15, 1938, failed to reinstate Carl C. McClung, Lloyd L. Phares, Guy J. Radcliff, and James C. Casto because of their membership in and activity on behalf of either the Flats or the Flints. We have further found that the respondent refused to reinstate Harry E. Carder on December 15, 1939, because of his ac- tivity on behalf of the Flints. We shall therefore order that the respondent offer each of these men immediate and full reinstatement 104 National Labor Relations Board v. Mackay Radio & Telegraph Company, 304 U. S 333, iev'g 92 F. (2d) 761, which aft'd 87 F. (2d) 611 ( C. C. A. 9 ) which set aside Matter of Mackay Radio & Telegraph Company, a corporation and American Radio Telegraphists' Association, San Francisco Local No. 3, 1 N. L R. B. 201. HAZEL-ATLAS GLASS COMPANY 417 to the positions which they would have otherwise received, without prejudice to their seniority and other rights and privileges.105 We shall order the respondent to make whole Carl C. McClung, Lloyd L. Phares, Guy J. Radcliff, James C. Casto, and Harry E. Carder for any loss of pay they may have suffered by reason of the failure to reinstate them, by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of the the discriminatory failure to reinstate him to the date of the offer of reinstatement, less his net earnings 106 during said period. Since the Trial Examiner found that the respondent had not dis- criminated against Thomas Berry, we shall in the exercise of our dis- cretion order the respondent to make Thomas Berry whole for any loss of pay he has suffered by reason of his discharge and the respond- ent's failure to reinstate him by payment to Thomas Berry of a sum of money equal to the amount he would normally have earned as wages from May 24, 1937, the date of his discharge, until November 12, 1940, the date of the Intermediate Report, and from the date of our order to the date of the offer of reinstatement, 107 less his net earnings 108 during said period. -We have also found that the respondent laid off -and* failed to reinstate G. E. Rogers, William J. Radcliff, Carl K. Reed, Jr., Howard Gaines, and Flemie D. Whytsell on January 19, 1938, be- cause of their membership in or activity on behalf of either the Flats or the Flints. It will therefore be ordered that the respondent offer each of these men immediate and full reinstatement to the posi- tions from which they were laid off, or equivalent positions, without prejudice to their seniority and other rights and privileges. We shall 106 Any existing valid closed-shop contract between the Flints and the respondent offers no obstacle to our order of reinstatement since the stipulation of partial settlement of the case referred to above, entered into by the respondent , the Flints, the Flats, G. E. Rogers, on behalf of himself and other complainants, and the Board, expressly provides in part: In the event that the American Flint Glass Workers Union is chosen as the collective bargaining representative by the employees in the election heretofore referred to, it is agreed that . . . the other complainants named in the complaint [those excepting Carder whose cases of alleged discrimination are discussed above] should it ultimately be determined in this proceeding that the termination of their employment was in violation of the National Labor Relations Act, shall also be given the opportunity to become members of the American Flint Glass Workers Union within 30 days after such determination 1°e By "net earnings" is meant earnings less expenses , such as for transportation room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union , Local 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 Relations Board, 311 U. S. 7. IDT Matter of E. R. Haffelfinger Company, Inc and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R . B. 760. lox See footnote 106, supra. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order the respondent to make whole G. E. Rogers, William J. Rad- cliff, and Carl K. Reed, Jr. for any loss of pay they may have suffered by reason of their lay-off, by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of his lay-off to the date of the offer of rein- statement, less his net earnings 109 during said period. Since the Trial Examiner found that the respondent had not discriminated against Howard Gaines and Flemie D. ,Whytsell, we shall, in the exercise of our discretion, order the respondent to make Howard Gaines and Flemie D. Whytsell whole for any loss of pay they have suffered by reason of their lay-offs, by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of his lay-off until November 12, 1940, the date of the Intermediate Report, and from the date of our order to the date of the offer of reinstatement, less his net earnings 110 during such period. We have found that the respondent did not lay off, terminate the employment of, or refuse to reinstate Francis W. Flynn because of his membership in or activity- on behalf of either of the labor or- ganizations here involved. We shall therefore order that the com- plaint be dismissed in so far as it alleges that the respondent has vio- lated Section 8 (3) of the Act with respect to Francis W. Flynn. 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. ,The Glass Bottle Blowers Association of the United States and Canada, the American Flint Glass Workers Union of North America and Locals 5, 54, and 88 thereof and Branches 565, 566, 567, 568, 569, 570, and 580 thereof, and the Federation of Flat Glass Workers and Hazel-Atlas Local 48 thereof,"' are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of em- ployment of Thomas Berry, Carl C. McClung, Lloyd L. Phares, Guy J. Radcliff, James C. Casto, G. E. Rogers, William J. Radcliff, Carl K. Reed, Jr., Howard Gaines, Flemie D. Whytsell, and Harry E. Carder, thereby discouraging membership in the American Flint Glass Workers Union of North America and in the Federation of Flat Glass Workers,112 the respondent has engaged in and is en- gaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 109 See footnote 108, supra. uo See footnote 106, supra. m See footnote 3, supra. See footnote 3, supra. HAZEL-ATLAS GLASS COMPANY 419 3. 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 practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practiced are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent, by terminating, laying off, and refusing to reinstate Francis W. Flynn, has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Hazel-Atlas Glass Company, Clarksburg, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in the American Flint Glass Workers Union of North America and Locals 5, 54, and 88 thereof and Branches 565, 566, 567, 568, 569, 570, and 580 thereof, and the Fed- eration of Flat Glass Workers and Hazel-Atlas Local 48 thereof '113 or any other labor organization of its employees, by laying off, dis- charging, or refusing to reinstate any of its employees because of membership in, or activity in connection with any such labor or- ganization, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of'their employment; (b) 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) Offer to Thomas Berry, Carl C. McClung, Lloyd L. Phares, Guy J. Radcliff, James C. Casto, and Harry E. Carder immediate and full reinstatement to the positions to which they normally would have been reinstated, without prejudice to their seniority and other sights and privileges previously enjoyed by them; °3 See footnote 3, supra 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Offer to G. E. Rogers, William J. Radcliff, Carl K. Reed, Jr., Howard Gaines, and Flemie D. Whytsell immediate and full rein- statement to the positions from which they were laid off, or their ,equivalent, without prejudice to their seniority and other rights and privileges previously enjoyed by them; (c) Make whole said Carl C. McClung, Lloyd L. Phares, Guy J. Radcliff, James C. Casto, Harry E. Carder, G. E. Rogers, William J. Radcliff, and Carl K. Reed, Jr., for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them, respectively, of a sum of money equal to that which he normally would have earned as wages from the date of the discrimination against him to the date of the offer of rein- statement, less his net earnings during said period; (d) Make whole said Thomas Berry, Howard Gaines, and Flemie D. Whytsell, for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them, respectively, of a sum of money equal to that which he normally would have earned as wages from the date of the discrimi- nation against him to the date of the Intermediate Report, and from the date of this Order to the date of the respondent's offer of rein- statement less his net earnings during said periods; (e) Immediately post notices in conspicuous places throughout its plant, and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will not engage in the conduct from which it has been ordered to cease and desist in para- graphs 1 (a) and (b) of this Order, and that it-will take the affirma- tive action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order, and that the respondent's employees are free to become or remain members of the American Flint Glass Workers, or any other labor organization, and that the respondent will not discriminate against any employee because of membership in or activity on behalf of such organization; (f) Notify the Regional Director for the Sixth Region, in writing, within ten (10) days from the date- of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to Francis W. Flynn. MR. WM. M. - LEIsEasoN, dissenting : All issues with respect to the contract between the respondent and the Flints having been settled by stipulation, and the Board hav- ing conducted an election pursuant to the stipulation, I see no good HAZEL-ATLAS GLASS COMPANY 421 purpose served by rehashing the whole controversy and issuing this Decision and Order. The Flints won the election conducted by the Board. What good purpose is served by ordering the respondent to cease and desist from discouraging membership in this organization, which now has a valid closed-shop contract? On the other hand, the Flats lost the election and the closed-shop contract excludes their members from employment. What purpose is served by ordering the respondent to cease discriminating against the Flats when a valid closed-shop contract requires just such discrimination? It seems to me futile also to pretend to reinstate members of the Flats in the face of the valid contract which prohibits their employment. 451269-42-vol. 34-28