National Lumber Mills, Inc.

In the Matter of NATIONAL LUMBER MILLS, INC., COLONIAL PRODUCTS COMPANY, AND CHARLES PECHENIK and YORK FEDERATION OF TRADE UNIONS, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C 1901.Decided December 17, 1941 Jurisdiction : wood products manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: interrogating employees with regard to union meeting ; discharge of two employees to discourage formation of union. Discrimination : discharge of one employee. Remedial orders : reinstatement and back pay ordered, Definitions : plant manager who controls common production and labor policies of two corporate respondents doing business in same plant sharing equipment and the services of some employees held an employer within the meaning of the Act. Mr. Geoffrey J. Cuniff, for the Board. Mr. Samuel L. Einhorn, of Philadelphia, Pa., for the Colonial and Pechenik. Mr. Robert A. Warner, of York, Pa., for the Union. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon an amended charge duly filed on March 14, 1941, by York Federation of Trade Unions, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its complaint, dated March 25, 1941, against National Lumber Mills, Inc., Colonial Products Company, and Charles Pechenik,l an individual, Dallas- town, Pennsylvania, herein collectively called the respondents and respectively called the National, the Colonial, and Pechenik, alleging i At the commencement of the hearing , the charge, the complaint, and other formal papers were amended to show the correct spelling of the name of Pechenik. 37 N. L. R. B., No. 114 700 NATIONAL LUMBER MILLS, INC. 701 that the respondents, and each of them, had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 C1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondents and the Union. The complaint alleges in substance that the National, a Pennsyl- vania' corporation with its principal place of business at Dallastown, Pennsylvania, was engaged in the manufacture and distribution of wooden slats during the period between November 1938 and August 1940; that the Colonial, a Pennsylvania corporation with its prin- cipal place of business at Dallastown, Pennsylvania, has been en- gaged since May 1937, and is now engaged, in the manufacture and distribution of wooden slats; that the National and Colonial, during the period of the National's operation, made joint use of all plant facilities and that in August 1940, the Colonial succeeded to and has since then carried on the operations of the National; and that Pechenik is and has been president, general manager, and superin- tendent of the Colonial, that he was president, general manager, and superintendent of the National during its operating existence, and that he is the principal stockholder of the Colonial and owner of a large share of stock of the National. The' complaint further alleges that the respondents, and each of them, terminated the employment of Clifford Flaharty on or about March 15, 1940, and thereafter refused to reinstate him because he sought membership in and assisted the Union, thereby discriminating in regard to his hire and tenure of employment; that in and about March 1940 the respond- ents, and each of them, questioned their employees concerning their membership in, and the meetings of, the Union, and warned them that union membership would cause curtailment in employment; and that by the foregoing acts, and by other acts, the respondents, and each of them, discouraged membership in the Union and interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. On April 14, 1941, the Colonial and Pechenik filed a joint answer, admitting certain allegations of the complaint with respect to the business of the Colonial and the National, but denying the commis- sion of the alleged unfair labor practices and raising certain affirma- tive defenses to the alleged discriminatory discharge of Flaharty and the alleged corporate successorship. Pursuant to notice, a hearing was held at York, Pennsylvania, on April 17, 1941, before C. W. Whittemore, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the Co- lonial and Pechenik were represented' by counsel, and the Union by 702 DECISIONS OF NATIONAL -LABOR, RELATIONS BOARD its president. - All parties, except the National,2 participated-in the hearing., Full opportunity to be heard, to examine and cross-exam- ine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the close of the hearing, counsel for the Board moved to amend the complaint to conform with the proof. The Trial Examiner granted this motion. During the course of the hearing the Trial Examiner made rulings upon other motions and upon objections to the admission of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no prejudi- cial errors were committed. The rulings are hereby affirmed. At the close of the hearing, counsel for the Board and counsel for the Colonial and Pechenik argued orally before the Trial Examiner. After the close of the hearing, the'Colonial and Pechenik filed a joint brief with the Trial Examiner. On June 9, 1941, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all parties, in which he found that the National and Pechenik had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7), of the Act and that the Colonial and Pechenik had succeeded to the status of "employer" previously maintained by the National and Pechenik. The Trial Examiner recommended that the respondents cease and desist from their unfair labor practices and take certain affirmative action de- signed to effectuate the policies of the Act. ,On June 30, 1941, the Colonial and Pechenik filed their joint ex- ceptions to the Intermediate Report and a joint brief in support of such exceptions. None of- the parties requested oral argument. The Board has considered the exceptions and the briefs, and ex- cept insofar as the exceptions are consistent with the findings, con- clusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACTS 1. THE BUSINESS OF THE RESPONDENTS (A). The National and the Colonial The National, a Pennsylvania corporation, was incorporated in November 1938, and from that date to and including August 1940, at its principal place of business in Dallastown, Pennsylvania, was engaged in the manufacture, sale, and distribution of wooden slats. 'During its operations at Dallastown, the National used approxi- 2 Although the complaint and notice of hearing were duly served upon the respondent National, it was not represented at the hearing. NATIONAL LUMBER MILLS, INC; 703 lately 2,000,000 board feet of lumber, valued at approximately $100,- 000, about 90 per cent of which was shipped to its plant from points outside Pennsylvania. During the same period of operation, the National produced wooden slats valued at approximately $200,000, of which approximately 95 per cent were shipped from its plant to points outside Pennsylvania. The Colonial, a Pennsylvania corporation, was incorporated in May 1937. It. has its principal place of business at Dallastown, Pennsylvania. It is engaged in the manufacture, sale, and distri; bution of kitchen cabinets, and other wood products, including wooden slats. During 1940 the Colonial used approximately $80,000 worth of raw materials, including about 1,000,000 board feet of lum- ber, about 8,000 gallons of paint. and miscellaneous hardware. Ap- proximately 95 per cent of such raw materials were transported to its plant in Dallastown from points outside Pennsylvania. During the same year the Colonial manufactured at its plant products worth approximately $180,000, of which about 60 per cent were shipped from its plant to points outside Pennsylvania. The Colonial ad- mits that it is engaged in commerce within the meaning of the Act. (B). Pechenik and his relationship to, and the ope7ations of, the National, and the Colonial Charles Pechenik is now, and has been since its incorporation in 1937, president, general manager, and stockholder of the Colonial .3 In 1938, prior to the formation of the National, the Colonial suffered financial difficulties and Pechenik made various efforts to obtain ad- ditional capital. Among its other products, the Colonial was then making venetian blind (or wooden) slats. • Pechenik approached the representatives of Unit Venetian Blind Supply Company, New York City, herein called the Unit Venetian, and attempted to sell to the Unit Venetian the slats produced by the Colonial. The representa- tives of the Unit Venetian refused to buy from the Colonial because the Colonial was not in a financial position to guarantee a steady supply of slats. As a result of the negotiations between Pechenik and its representatives, however, the Unit Venetian furnished the re- quired capital and ethe National was formed and incorporated for the manufacture of wooden slats. ' Pechenik owned 40 per cent and Mor- ris Goldberg, 60 per cent of its capital stock.4 By a collateral agree- ment, however, Pechenik held 50 per cent control of the corporation $ The record is not entirely clear as to the amount of stock held by Pechenik in the Colonial At the time , of the hearing , Pechenik was a majority stockholder. Counsel for Pechenik admitted in his brief that Pechenik controlled the Colonial at that time. In answer to the question who were the stockholders of the Colonial in 1940, Pechenik testified that in 1940 he and his wife were the stockholders of the Colonial and that the Colonial was a "closed corporation " He did not disclose the names of any other stockholders nor did he disclose the percentage of stock held by himself or by his wife at that time. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management. -Pechenik was president and general manager of the National, a position which he held throughout the operating period of the corporation. Upon the organization of the National, the Colonial ceased to make wooden slats. About 20 employees of the Colonial who had been engaged in the manufacture of slats were placed upon the pay roll of the National. Joseph Millard Godfrey, the foreman or, superin- tendent of the Colonial, was transferred to the same position with-the National. The National purchased from the Colonial machinery which the latter had been using in the manufacture of slats, and also installed new machinery. Thereafter the National and Colonial per- formed their manufacturing operations in the same building under the common supervision and management of Pechenik. They shared office space and office equipment and overhead expenses. They used some manufacturing equipment in common. Under Pechenik's direc- tion the Colonial usually employed on an hourly basis 1 to 12 employees of the National from 8 to 10 hours per week when work for the Na- tional was short. Such employees were transferred on the pay rolls and at the end of the week drew pay envelopes from each corporation corresponding to the hours respectively served. Pechenik personally, or through- Godfrey, hired, supervised, and discharged employees of the National and of the Colonial. Pechenik thus coordinated the work- of both corporate respondents 5 and controlled the employment rela- tions throughout the plant. He drew a salary from each corporation for his services. On or about August 31, 1940, the National ceased manufacturing operations. Goldberg and Pechenik by agreement assigned all their 'stock to officers of the Unit Venetian who had advanced the capital for the incorporation of the National. The slat machinery was sold to the Colonial, and the latter company resumed the operation of the department and the making of venetian blind slats. Some of the National's employees were immediately transferred to the pay roll of the Colonial and some were laid off. Most of the latter were thereafter hired by the Colonial. At the time of the hearing the Colonial carried on its pay roll 30 former employees of the National. Godfrey was returned to his former position as superintendent of the Colonial's 4 The record does not reveal the exact identity of Goldberg , but it may reasonably be Inferred, since the Unit Venetian supplied the necessary capital for the new corporation, that Goldberg served as the Unit Venetian 's representative in the National. 6 Joseph Hyman , president of the Unit Venetian, spent some time at the plant-especially after the National began to lose money. He instructed the slat employees personally in production methods. During the operation of the National 85 percent of its output was sold to the Unit Venetian . Hyman represented at the plant the controlling financial inter- est of the National and its chief customer . The record is nevertheless clear that the gen- eial management of both the National and the Colonial remained continuously in Pechenik's hands and that from his joint management and control emanated a single labor policy which determined the employer-employee relationship for all the employees on the pay rolls of the National and of the Colonial. NATIONAL LUMBER MILLS, INC. 705 operations. The National has not been dissolved as a corporation ; its books and records are kept in the office of the Unit Venetian at New York City and it still retains certain assets." For purposes of liquida- tion, and by agreement with the Colonial, the National is to continue its corporate existence for a period of 5 years. C. Conclusions As we have found above, the National and the Colonial were engaged in manufacturing operations at.the same plant and under the same plant manager,'sharing, in part, the use of office and pro- duction machinery and the services of the same employees. Section 2 (2) of the Act reads: "The term `employer' includes any person acting in the interest of an employer directly or indi- rectly. . . ." It is clear that Pechenik in his activities set forth above, was acting "in the interest of" the National and Colonial while the National was operating the slat department and that Peche- nik continued to, and does at the present time, act in the interest of the Colonial. We find that as president and plant manager of each of the corporate respondents, with a substantial proprietary interest in each as stockholder, Pechenik in fact interrelated and dominated their common production and labor policies. We find that the,respondents National, Colonial, and Pechenik, and each of them, are employers of the employees herein involved within the meaning of the Act.' II. THE ORGANIZATION INVOLVED York Federation of Trade Unions is a labor organization affiliated with the American Federation of Labor, including in its member- ship locals of the United Brotherhood of Carpenters & Joiners of America, a labor organization admitting to membership employees of the respondents. C III. THE UN}4AIR LABOR PRACTICES A. Chronology of events Clifford Flaharty was employed by the National in January 1933 Like the other employees of the National, Flaharty was hired by the O Although the Colonial had originally been the lessee of the plant building , the National assumed the lease and at the time of the hearing was still lessee of the premises with the Colonial as its sub-tenant. ° Cf. Matter of H. F. Wilcos 'Oil and Gas Company ; Wilcox Refining Division and/or W. M Fraser and Oil Workers International Union, Local 57, 28 N. L. R. B., No. 19; Hopwood Retinning Company v N. L. R. B., 98 F . ( 2d) 97 (C. C. A. 2 ), enf'g as mod Mat- ter of Hopwood Retinning Company, Inc and Monarch Re tinning Company, Inc . and Metal Polishers, Buffers, Platers and Helpers International Union Local No. 8, and Teamsters Union, Local No 584, 4 N L R B. 922. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Colonial on an hourly basis when work for the National was slack. Early in 1940 he assumed leadership among his fellow employees in a movement to obtain a wage increase. After repeated appeals to Superintendent Godfrey had failed to obtain increases, Flaharty discussed with other employees the possibility of forming a labor organization. Early in March, in company with two other em- ployees, Wayne 'Sechrist and Harold Heilman, he consulted Robert Warner, president of the Union and an organizer of unions affiliated with the American Federation of Labor. Warner advised Flaharty and the men who accompanied him, to bring other workers to a meeting in the York Labor Temple on Wednesday, March 13, 1940. Announcement of the meeting was circulated among the employees of the National. A. few days before the union meeting, during working hours, Godfrey, by his own admission, asked both Flaharty and Heilman when and where the meeting was to be held. Flaharty replied that he knew nothing about the meeting. Heilman, however, fully dis- closed the time and place of the meeting and advised Godfrey that he would attend the meeting and join the Union if it provided the means to "better our conditions." On Tuesday, March 12, the day before the union meeting, Godfrey informed the employees of a general lay-off, which would be effective until the following Monday unless he sent for them before that day.' On Wednesday, as scheduled, the union meeting was held. About seven employees attended; six of them signed applications for mem- bership in the Union. Those present ascribed the lack of attendance to the distance from Dallastown to York. Arrangements were made to hold another meeting at Dallastown on the following Monday night. Gordon Keller, an employee present at the union meeting, had not been working for a number of weeks before the general lay-off because of an injury. On March 12, the day of the lay-off, he went to the plant and told Godfrey that he would be-ready to work about Monday, March 18. Godfrey replied, "Your job will be open when you are ready to come to work."- Keller made his final trip to the doctor on Friday, March 15. He stopped at the plant to inquire about compensation due for his injury and at the same time notified Godfrey that the doctor said he could go to work. Godfrey replied, "There won't be anything for you to do now, because things are slack." On Friday, March 15, Flaharty, Heilman, and Sechrist, three of the employees who had attended the meeting, went to the factory 9 Although Flaharty testified that he believed the lay-off was for the purpose of "scaring" the Union , the complaint does not allege, and the evidence does not support a conclusion, that the lay-off was an unfair labor practice. NATIONAL LUMBER MILLS, INC. 707' for their weekly pay. Their pay envelopes contained their wages- in full, indicating their discharge.9 Flaharty received three pay envelopes for himself, two envelopes containing, respectively, his cur- rent and accumulated wages for work performed for the National and one envelope containing his wages for work performed for the Colonial.10 Flaharty also was given the discharge wages of his son, Earl, who likewise had been at the meeting. Cleve Weitcamp and Glenn Snyder, however, employees who had also attended the union meeting, were at work on March 15, prior to the expiration of the lay-off announced by Godfrey on March 12. Upon receiving their pay Flaharty," Heilman, and Sechrist went to Pechenik's office and asked him why they had been discharged. Pechenik told them that they were, inefficient and were lowering the morale of employees by "doing a lot of talking." Flaharty requested Pechenik to specify an incident or bring forward a witness to dem- onstrate his inefficiency. Pechenik did not respond. They then asked if the real reason was not their attendance at the union meeting two nights before. 'According to the testimony of the discharged men, which we credit, as did the Trial Examiner, Pechenik did not directly deny the accusation. He told them that he had always been ready to cooperate with them and that they should have come to him before "taking the course" followed by them "with regard to the union meeting." 12 , The three discharged men and Keller then consulted Warner, who agreed to interview Pechenik early the next week. On the follow- ing Monday night, March 18, only the discharged' employees and Keller were present at the proposed "mass" meeting at Dallastown. On the next morning Warner and McDermott, an international repre- sentative of the United Carpenters and Joiners of America, called upon Pechenik. Pechenik protested that the employees had been 6 The National and Colonial each followed a practice of withholding one week's pay from employees - 11 There is conflict in the evidence whether the work performed by Flaharty for the Colo- nial was performed during the pay-ioll period ending March 7, as Pechefilk testified,, or during the period ending March 14, as Flaharty testified We find it unnecessary to resolve this conflict u Flaharty also acted as spokesman for his son, Earl sa Pechemk testified that in response to their question whether their attendance at the union meeting was the cause of their discharge, he told the discharged men that he did not know of, or have any objection to, their efforts to organize ; that he previously had had amicable relations with members of the American Federation of Labor at another plant; that lie advised the discharged men that he "would never have refused to meet with the men if they had any complaints that they wished to put befoue me" ; and that "then the inteuview ended " The Trial Examiner did not credit Pecbenik's testimony , nor do we. In February Pechenil: personally questioned an employee of the slat department concerning Heilman 's reputed talking at the plant . Pechemk personally kept watch upon all employees and even informed Godfrey of his observations of unrest among the men. On the basis of the whole record , we find that Pechemk knew of the union activities taking place in the plant, that he identified the most active men, and that he pursued a course which he thought a ou1d , and did, curb such activities 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged because of their inefficiency, but finally agreed to reinstate all of them, and to provide work for Keller: 3 On Wednesday morning Flaharty, Sechrist, Heilman, and Keller reported for work at'the mill. They were told by Godfrey that he had no orders to put them to work and that they should inquire at the office. Some hours later Pechenik called them in and told Sechrist, Heilman,, and Keller that they might work, but that Flaharty could not 14 His three fellow workers said that unless Flaharty were reinstated they would not accept Pechenik's offer, but the latter countered by declaring that he would notify them formally by mail, and thereby would perform his obligation under the Act. When Flaharty warned Pechenik that he would appeal to the Board, Pechenik, according to Heilman's testimony, which we credit, replied : "Well, if we have to pay, we will pay." Heilman, Sechrist, and young Flaharty were returned to work on or about the following Monday. Keller, however, obtained a job elsewhere, and did not accept Pechenik's offer of work. Flaharty advised Warner that he had been refused reinstatement. The complaint alleges that Flaharty was discriminatorily dis- charged on March 15, 1941, and thereafter refused reinstatement. On or about March 26 Warner and McDermott again approached Pechenik, who stated that he could not reinstate Flaharty because other employees had advised him that they would not work with Flaharty. Warner asked and was granted permission to question the employees in this regard. After Warner had questioned three employees, each of whom stated that he was willing to work with Flaharty, Pechenik joined Warner and refused to permit further questioning by Warner outside his presence. A fourth employee in Pechenik's presence stated that he was not willing to work with Flaharty. Warner then refused to proceed further with the ques- tioning and thereafter filed the charges herein. As found in Section I above, the National ceased to manufacture slats and to operate as an employer at Dallastown at the end of August 1940. The Colonial, however, resumed the control of the 13 Warner' s account of this conference , upon which oui finding is based , was substantially corroborated by Peclienik Pechenik, however, further testified that he told the union rep- resentatives that he would reinstate the discharged employees "providing they would mend their ways and we would not have any further complaints " ; that Warner then stated that he would tell them not to "disorganize the plant" ; that McDermott remarked that he had previously warned them that "they had no right to attempt to organize inside the factory" ; and that he then agreed to reinstate the discharged employees . While we think it not un- likely that Warner and McDermott agreed to cooperate with Pechenik in an effort to curb the excessive talking which Godfrey stated was prevalent throughout the plant, we do not believe either that the alleged talking of Sechrist, Heilman , and Flaliarty was the real cause for their discharge or that the union leaders so conceded at this meeting 11 The record does not disclose that Earl Flaharty was present or specifically mentioned at this meeting. Since Godfrey thereafter sent for him , we find that Pechenik included Earl Flaharty in his offer of reinstatement. NATIONAL LUMBER MILLS, INC. 709 slat department and placed upon its pay roll almost all the employees who had been working for the National. At the time of the hearing, the work formerly performed by Flaharty, while an employee of the National, was being performed by an employee of the Colonial. B. Conclusions] In their answer the Colonial and Pechenik alleged that Flaharty was discharged and refused reinstatement "for numerous causes" un- related to his union activity. At the hearing, as on previous occa- sions mentioned above, the respondents contended that Flaharty and the other employees were discharged because of their "inefficiency" and that Flaharty was refused reinstatement because his fellow em- ployees refused to work with him. More particularly in regard to the reasons for the discharges, the respondents sought to establish through the testimony of Pechenik and Godfrey that Flaharty, Heil- man, and Sechrist engaged in constant discussion among themselves, and with other employees, to the detriment of their work and that of other employees 15 No specific testimony was adduced to explain the discharge of Flaharty's son. It is clear that Flaharty's discharge on March 15 cannot be considered apart from the discharges of Heilman, Sechrist, and Flaharty's son. When Flaharty, Heilman, and Sechrist appeared at Pechenik's office on March 15 to ascertain why they and Flaharty's son had been discharged, Pechenik gave them the same explanation- their inefficiency. Moreover, at one point during his testimony, Pechenik admitted that it was a "group" discharge. Godfrey af- firmed this statement. The record does not disclose the length of Earl' Flaharty's service with the Company. We cannot, however, ignore, the fact that Sechrist and Heilman were formerly employees of the Colonial who had been shifted to the pay roll of the National in November 1938 when the National took over the operation of the slat department. They had served 2 or more years under Pechenik, who admitted that they had been entirely satisfactory employees until shortly before their summary discharge. The Trial Examiner found that the testimony of Pechenik and Godfrey with respect 'to the discharges and the reasons therefor was so confused by reason of their many evasions and self and mutual contradictions that he gave little credit to it except where it was corroborated by other evidence. We agree with the Trial Examiner's evaluation. At one point in his examination Godfrey testified that because of their inefficiency he told Flaharty and the others on the 15 While Pechenik and Godfrey testified that Flaharty's work as a rip-saw operator had been unsatisfactory, they conceded that Flaharty's work as a facer operator, which he had performed continuously for a considerable period prior to his dismissal , was satisfactory. 433257-42-voL. 37-46 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day of the general lay-off that their services were no longer needed. At another point he admitted that he did not tell them on March 12 that they were discharged. At another point he stated that Flaharty was discharged "in the end" because of complaints from fellow em- ployees, rather than because of inefficiency. And, finally, he testified that he did not know that these employees were to be discharged or that they had been discharged until Friday, the day of the discharge. Pechenik, on the other hand, testified that he had instructed Godfrey, on a single occasion, to discharge Flaharty and the others. If Pechenik is to be believed, this occasion must have been before the lay-off of March 12, since he declared that this order was the result of having received from Godfrey, for the third time, a complaint that Flaharty was talking during working hours. There were no working hours for Flaharty and the others between March 12 and March 15. Pechenik further testified that about the time of the general lay-off he told Godfrey "to let Flaharty go"; and when asked whether or not Flaharty was told on March 12 that "he was through forever," replied, "He might have been; I do not know that." Pechenik, however, on cross-examination conceded without explanation that neither Heilman nor Sechrist was notified of his discharge on March 12. On the basis of the whole record, we find, as did the Trial Examiner, that the reasons advanced by the respond- ents were not determinative factors in the discharge of Flaharty or of the other persons above named. If, as the respondents contend, the men were inefficient and were discharged for that reason, it is inexplicable that the respondents did not discharge them on March 12, 1941, when the general lay-off occurred, rather than on March 15. On the contrary, the men were told on March 12 that slack work required a temporary lay-off and that they would be recalled in a week or less. Furthermore in deter- mining the real reason for the discharges, we are impressed by the fact that, while testifying at length as to why they had considered Flaharty, Heilman, and Sechrist to have been "inefficient;" 16 neither Pechenik nor Godfrey explained why Flaharty's son had been dis- charged. 16 Godfrey testified that "beginning the last part of 1939" he had seen Flaharty "getting together and talking" ; that in 1940 "it kept getting worse," and "occurred once or twice a day " On the other hand, Pechenik testified that Godfrey in his weekly report complained to him only three times concerning Flaharty and that on the third occasion he gave orders for his discharge If Flaharty's offenses had been as setious as Godfrey endeavored to make them appear at the hearing, it is reasonable to believe that Godfrey would have taken decisive action for his discharge long before March 15. Godfrey, however, admitted that he had reprimanded Flaharty only once in the 4 months before his discharge and Heilman and Sechiist only once or twice Godfrey further testified that talking was prevalent during working hours at the plant and other employees were reprimanded for talking The record does not disclose that any specific rules were ever promulgated or notices posted in the plant about talking. NATIONAL LUMBER MILLS, INC. 711 Pechenik contends that he had no knowledge that his employees were engaged in union activities. Godfrey's own testimony estab- lishes that' he made inquiries concerning the union meeting before it was held and, as set forth above, Heilman fully disclosed to Godfrey the time and place of this meeting.17 Pechenik admitted his personal investigation of Heilman's reputed talking among the employees. It may reasonably be inferred that Pechenik learned who were pres- ent at the- union meeting from Weitcamp or Snyder, or both, since they attended the meeting and were especially privileged in being taken back to work before the general lay-off period expired. Further support for this inference may be found in the fact, discussed below, that Pechenik attempted to rely upon a complaint of Weitcamp, among others, for the abrogation of his agreement with Warner to take back all four men, including Flaharty. On the basis of the whole-record, we are convinced and find that the union activity of the men was known to the respondents and that Flaharty, Flaharty's son, Heilman, and Sechrist were discharged for the sole reason that they had been^actively engaged in organizing a union and had attended the union meeting on March 13. As to the reason for Pechenik's refusal to reinstate Flaharty'on March 20, when Heilman, Sechrist,,Keller, and Flaharty's son were offered reinstatement, the testimony of Pechenik is unconvincing. Pechenik testified that he told Godfrey to put them all back to work. Godfrey, however, testified that he had received no such instruction when Flaharty, Heilman, Sechrist, and Keller reported for work on March 20, and further testified that following the meeting between Pechenik and these employees on this day, Pechenik told him to put Heilman, Sechrist, Keller, and Flaharty's son to work, but not to put Flaharty to work. Pechenik. testified that the reason that Fla- harty was not reinstated, despite his instructions, was that Godfrey told him that certain other employees, including Weitcamp, had stated that they would not work if Flaharty were reinstated. Godfrey, however, stated that he did not tell Pechenik of their "refusal" until after Flaharty had been refused reinstatement. In view of the glar- ing inconsistencies and contradictions in the testimony of Pechenik and Godfrey on a matter which Pechenik admitted was "unusual" in his experience, i. e., the refusal of employees to work with another, we must conclude that, whatever, if anything, Weitcamp and other 'T In this connection the record shows that early in 1940 Flaharty was the leader among employees in seeking wage increases by appeal to Godfiey, and that near the end of Febru- ary 1940 Godfrey reported to Pechenik that Flaharty had thus exhibited his dissatisfaction with working conditions From the foregoing, and from the fact that Godfrey questioned Flaharty with regard to the union meeting of March 13, we find , as did the Trial Examiner, that Pechenik and Godfrey regarded Flaharty as a leader in the organizational efforts of employees 712 DECISIONS OF NATIONAL LABOR RELATION'S BOARD employees may have said to Godfrey or Pechenik with reference to, working with Flaharty, their advice had nothing to do with Peche- nik's decision to abrogate his agreement with Warner and refuse re- instatement to Flaharty. On all the evidence, we concur with the Trial Examiner and find that, on the day of Flaharty's discharge, March 15, Pechenik had no intention of reinstating him. Upon the basis of the whole record, we find that the respondent, and each of them, on March 15, 1940, discriminated in regard to the hire and tenure of employment of Clifford Flaharty, thereby discouraging membership in the Union and that, by such discrimination, the re- spondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that by the discharges of Earl Flaharty, Harold Heilman, and Wayne Sechrist, and by Godfrey's acts in querying their em- ployees as to the union meeting, the respondents, and each of them, interfered with, restrained, and coerced their employees in the exer- cise of the rights guaranteed in Section 7 of the Act.la IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent described in Section III above, occurring in connection with the operations of the respondents de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondents liave' engaged in certain unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action which we find will effectuate the policies of the Act. In order to effectuate„ the`, policies of the Act, we shall order the respondents to offer Clifford Flaharty immediate and full reinstatement to his former or substantially equivalent posi- 18 The Trial Examiner found that the respondents National and Pechenik had discrimi- nated in regard to the hire and tenure of employment of Keller on March 15 for the reason that he had attended the union meeting on March 12 The record is not entirely clear as to Keller. It appears that on March 12 Keller expected to return to work on Monday, March 18 , and notified Godfrey to that effect . Keller, however, appeared at the plant on March 15 and announced his immediate readiness for work . Godfrey told Keller that work was slack, which was undoubtedly true The record does not clearly disclose how long the lay-off lasted . Godfrey did not give any indication to Keller when there would be work for him Although Keller may have concluded from the discharges of Flaharty , Heilman, and Sechrist that Godfrey 's reply to him was in effect a refusal to hire him because of his attendance at the Union meeting on March 12, we are not convinced that the respondents' failure to put Keller to work on March 15 , or tell him when uu ork would be available, was due to his union activities. NATIONAL LUMBER MILLS, INC. -713 Lion without prejudice to his seniority and other rights and privileges. We shall further order that the respondents make Clifford Flaharty whole for any loss of pay he may have suffered by reason of the re- spondents' discrimination by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of such discrimination to the date of the offer of rein= statement, less, his net earnings 19 during, that period.10 Upon-the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF IIAW 1. York Federation of Trade Unions and United Brotherhood of ,Carpenters & Joiners of America are labor organizations within the meaning of Section 2 (5) of the Act. 2. National Lumber Mills, Inc., Colonial Products Company, and Charles Pechenik, and each of them, are employers of Clifford Fla- harty, and other employees herein involved, within the meaning of Section 2 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Clifford Flaharty, thereby discouraging membership in a labor or- ganization, the respondents have-engaged in and are engaging in labor practices within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in unfair labor practices affecting commerce within the, meaning of Section 8 (1) of the Act. ' By "net earnings" is meant earnings less expenses , such as for transportation , rooms, and board , incurred by an employee in connection with his obtaining work and working elsewhere than for the respondent , which would not have been incurred but for the unlawful discrimination against him and the consequent necessity of his seeking employment else- where 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 Steer Corpoi etion v. National Labor Relations Board, 311 U S 7. 20 In their joint brief the respondents Colonial and Pechenik contend that the Union was guilty of laches in filing is amended charge with the Board on March 14, 1941, about one year after "the unfair labor practices were committed and that a diminution Hof a full back pay- order is theiefore fitting. we-find_no merit in such contention : The Union applied to Pechenik for redress promptly after the discharges, and again after Pechenik 's failure to reinstate Flaharty in accordance with his promise to Warner, and filed its original charge immediately thereafter on March 27 , 1940. The amended charge was filed on March 14, 1941, incorporating the original charge. It is thus apparent that there was no such pro- cedural delay as to warrant any limitation on our award of back pay . Cf. Matter of Mont- Ilomery Ward it Company, Incorporated and United Mail Order and Retail Employees of Kansas City, Local 131, affiliated with the United Retail and Wholesale Employees of America, C. I. 0 , 31 N . L. R. B., No. 134. - - - 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10, (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondents, National Lumber Mills, Inc., Colonial Products Company, and Charles Pechenik, Dallastown, Pennsylvania, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Brotherhood, of Carpen- ters & Joiners of America, affiliated with the American Federation, of Labor and with York Federation of Trade Unions, or in any other labor organization of their employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment; and (b) In any other manner interfering with, restraining, or ceorcing their 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 purposes 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 Clifford Flaharty immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges; (b) Make whole Clifford Flaharty for any loss of pay he may have suffered by reason of the respondents' discrimination against him by payment to him of a sum of money equal to that which he would ,normally have received as wages from the date of such discrimination to the date of such offer of reinstatement, less his net earnings during said period; (c) Post immediately in conspicuous places throughout the respond- ents' plant at Dallastown, Pennsylvania; and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees stating : (1) that the respondents will not engage in the conduct from which, they are ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondents will take the affirmative action set forth in paragraphs 2 (a) and (b) NATIONAL LUMBER MILLS, INC. ' 715 of this Order; and (3) that the respondents' employees are free to become or remain members of United Brotherhood of Carpenters & Joiners of America, affiliated with the American Federation of Labor, and that the respondents will not discriminate against any employee because of membership or activity in said organization; and (d) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply herewith.