Dain Manufacturing Co.

National Labor Relations Board - Board DecisionsJul 24, 1940

25 N.L.R.B. 821 (N.L.R.B. 1940)

In the Matter of DA IN MANUFACTURING COMPANY AND DEERE & COM- PANY and FARM EQUIPMENT WORKERS ORGANIZING COMMITTEE, UNITED FARM EQUIPMENT WORKERS OF AMERICA, LOCAL 117, C. I. O. Case No. C-1673.-Decided July 24, 1940 Jurisdiction : agricultural machinery and equipment manufacturing industry. Unfair Labor Practices Discrimination: refusal to reinstate one employee following nondiscriminatory lay-off because of his union membership and activities;, charges of alleged discriminatory discharges dismissed as to four persons. Remedial Orders : reinstatement ordered ; back pay awarded. Practice and Procedure : effect given to agreement compromising unfair labor practices participated in by Board agent. Mr. Lee Loevinger, for the Board. Mr. H. W. Pike, of Moline, Ill., and Jones and White, by Mr. R. E. White, of Ottumwa, Iowa, for the respondent and for Deere. Meyers and Meyers, by Mr. Ben Meyers, of Chicago, Ill., for the Union. Mr. Harold Weston, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges duly filed by Farm Equipment Workers Organizing Committee for and on behalf of Local 117, United Farm Equipment. Workers of America, herein called,the Union, the, Na- tional Labor Relations Board, herein called the Board, by the Re- gional Director for the Eighteenth Region (Minneapolis, Minnesota), issued its complaint, dated January 23, 1940, against Dain Manufac- turing Company, Ottumwa, Iowa, herein called the respondent, and Deere & Company, Moline, Illinois, herein called Deere, alleging that the respondent and Deere, and each of them, had engaged in and were engaging, in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called- the Act. Copies of the complaint and notice of hearing were duly served upon the respondent, upon Deere, and upon the Union. 25 N. L . R. B., No. 93. 821 283036-42-vol. 25-53 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged, in substance, that the respondent and Deere, jointly and severally, discharged and refused to reinstate five named employees 1 and refused to reemploy five other named employees 2 following a seasonal lay-off, because they joined and assisted the Union and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection; and that by the aforesaid acts and by other acts the respondents interfered with, restrained, and coerced their em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. On February 5, 1940, the respondent and Deere filed separate answers denying that they, respectively, had engaged in or were engaging in unfair labor practices, admitting that the respondent is a wholly owned subsidiary of Deere, but affirmatively asserting that they are separate corporate entities, and that Deere does not control the corporate, manufacturing, or employment activities of the re- spondent.. In its answer, the respondent admitted the alleged lay- offs or discharges and affirmatively alleged that one of these em= ployees 3 was discharged for cause and that the other men were laid off because of a shortage of work and denied that its failure to rehire' them was due to their'union activities. At the same time, Deere filed a written motion for the dismissal of the complaint as to it, reciting that the complaint showed upon its face that Deere was a separate corporation operating independently of the respondent. Pursuant to notice, a hearing was held in Ottumwa, Iowa, on February 8, 9, 10, 12, 13, 14, and 15, 1940, before R. N. Denham, the Trial Examiner duly Aesignated by the- Board. The Board, the respondent, Deere, and the Union were represented by counsel, and were afforded full' opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. Before the close of the Board's case, counsel for;the Board' moved to amend the complaint by adding the name of Harold Mc- Daniel to -those employees who- were alleged to have been discrim- inatorily discharged and refused reinstatement. Counsel for the Board also moved to strike from the complaint allegations of dis- crimination ' against five employees. At the close of the Board's case counsel for the Board moved to conform the complaint, as to formal matters, to the proof. No objection to these' motions was raised and' they were granted by the Trial Examiner. After the Board had rested, the respondent 'and Deere moved to strike from 3 Lawrence Horn, Earl Latta , Gus Leedom , Raleigh Annis , and Harold McDaniel 2 Charles Brumbaugh , Floyd L. Stevens , John L. Scully , Lloyd Leedom, and Charles J. Thorne 5 Otis Leedom. DAIN MANUFACTCTRING COMPAN 1 823 the complaint allegations that they had violated Section 8 (1) of the Act. Their motion was based on the contention that the alleged violation of the Act had already been adjusted. The Trial Examiner denied the motion, subject to certain qualifications that will herein- after appear. Ruling on Deere's motion to dismiss the complaint, so far as it pertains to it, was reserved by the Trial Examiner and the motion was thereafter granted in his Intermediate Report. During the course of the hearing the Trial Examiner made rulings on other motions and on objections to the admission of evidence. We have reviewed the foregoing rulings of the Trial Examiner and find that no prejudicial errors were committed. The rulings are hereby affirmed. . - 7 On March 2, 1940, the respondents filed a brief which was con- sidered by the Trial Examiner. On May 5, 1940, the Trial Exam- iner issued his Intermediate Report, copies of which were duly served upon the respondent, Deere, and the Union. The Trial Ex- aminer found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) by failing and refusing to reemploy Earl Latta but found that the respondent had not violated the Act in any other respects, and 'found that Deere had engaged in none of the unfair labor practices alleged in the complaint. He accordingly recommended that the respondent cease and desist from the unfair labor, practices, that.it offer to Earl Latta immediate and full rein- statement with back pay, and that it take certain other appropriate action to remedy the situiltion brought about by its unfair labor prac- tices. He also recommended that the complaint be entirely dismissed as against Deere and dismissed as against the respondent, with re- spect to the charges of discrimination, against , Lawrence Horn, Raleigh Annis, Harold McDaniel, and Gus Leedom. Pursuant to notice,, a hearing vas-held before the Board on June 25, 1940, in WashingtonD. C., for the purpose of oral argument. The -respondent and the Union were represented by counsel and participated in the oral argument. At the argument, counsel for the Union was heard in support of, and counsel for the respondent in, opposition to, a .motion. filed by the Union on May 9, 1940, to reopen the record Ifor the purpose,.of taking additional testimony based upon a supplemental charge filed on May 10, 1940. As stated by counsel for the' Union, the siipplemelital charge relates to an alleged 'violation by the respondent'of Section 8 (2) of the Act' aiid is based upon 'incidents: that ocehrred after the hearing before the Trial Examiner. ' There, being no sufficient connection between the'new matter set forth in the charge and the, present proceeding to 'arrant its reopening, the motion 'to reopen is hereby denied. 824 DECISIONS OF NATIONAL LABOR RELATIO\S BOARD The Board has considered the ,exceptions to the Intermediate Report and the briefs filed by the parties, and, in so far as the excep-- tions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Dain Manufacturing Company, an Iowa corporation, is engaged pat' its plant and principal place of business at Ottumwa, Iowa, in the design, manufacture, sale, and distribution of sweep rakes, shock sweeps, hay loaders, hay stackers, hay pressers, kafir headers, pump jacks, concrete mixers, and other products. During the fiscal year ending October 31, 1939, raw materials valued at approximately $500,000 were shipped to the respondent from points outside the State of Iowa. During this same period, the value of the respondent's finished products amounted to $1,400,000; approximately 86 per cent of which were transported to points outside the State of Iowa. - The respondent employs over 220 employees during the greater part of the year.4 II. THE ORGANIZATION INVOLVED Local 117, United Farm Equipment Workers of America, is a labor organization affiliated, through the Farm Equipment Workers Or- ;ganizing Committee, with'the Congress of Industrial Organizations. It admits to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In January 1939 the Union 'began its drive to organize the re- spondent's employees. Gus Leedom, a plant watchman, testified that during the same month Allen Kough, the ' respondent's superintend- ent, learned that Lloyd Leedom, Gus', brother, had joined the Union, and asked Gus to, discover the nature of ' Lloyd's ' grievance and to have Lloyd see him about it. When, according to Gus Leedom, he' reported to Kough that his brother felt aggrieved because his wage rate had been reduced and that he had been advised by the Union not to discuss the matter with Kough individually, the latter exclaimed; "Those damn Reds down there, radicals, has got the boys scared. He is a good kid and he will come out of it all right." Gwen Stuffle-, beam, president of the Union, testified that in February the union 4 The respondent's business is seasonal and annual lay-offs of from 2 to 4 months affect its production employees during the summer and fall of each year. DAIN MANUFACTURING COMPANY , 825 grievance, committee met with representatives of the respondent,' and among other matters, brought up the question of Leedom's wage cut. Gus Leedom testified that about a month or so later Kough advised him that he had "fixed up" his brother's "job" and that Lloyd ,should therefore take off his union pin. Leedom further testified .that.at that time Kough also suggested that he tell Lloyd that their other brother, Clem Leedom, had started "an organizing move here in the plant some years ago and he lost about two years work here over it, but we 'finally forgave him and put him back to work." Lloyd Leedom testified that Kough called him into his office several weeks later and declared that, "It is all over the experimental shop, it is all over the P. Y., it is all over the forge shop, that the C. I. 0. got you this back pay. They didn't. I gave it to you . . . Now, I see you are still wearing your button . . . Don't forget your brother got into trouble here and lost his job, and I don't want you to do the same." At about the same time Kough told Stufflebeam to inform ,the union committee that "they had nothing to do with getting Lee- dom his former price-back on this job and the back pay." About 1 week later, Lloyd Leedom ceased wearing his union button. Earl Latta, an employee, testified that in February, Frank Mc- Clellan, the foreman of the forge department, warned employees, during a conversation concerning the Union, that he would "fire the first man to put on a Union button" and in the course of a similar conversation several weeks later, threatened, to "get rid of the son- of-a-bitches." Latta further testified that about a month or so later, sometime in May, while he was awaiting materials at the toolroom, McClellan said, "hurry up and get this man his tools, he is a C. I. 0. man and I am going to have his head examined." In June Gus Leedom was instructed by Jim McCoy, foreman of the paint shop, to circulate a loyalty petition 6 among the employees and when Leedom protested on the ground that his duties required him to be elsewhere in the plant, he was assured that Kough knew all about it. During his rounds with the petition, A. G. Dooley, foreman of the power- house and maintenance department, shouted to Leedom to "take it to all of my men for their signatures. I don't want them to join the damn C. I. 0. and probably get laid off or fired." After circulating the petition around the plant, Leedom turned it over to Kough.7 5 The union committee consisted of "Gwen Stufflebeam , naiold McDaniel , Chadwick, Rhoades, Woodrow, and Blmmne Loyal Hollenbeck , business agent of the Congress of Industrial Organizations , also attended the 'conference The respondent was represented by•Herman Moschel, general manager of the respondent ' s plant , Bough, and Dale McCol- lough, the respondent 's personnel manager This ' petition read as follows . "We, the undersigned , are satisfied with, the present organization existing in the plant and conditions in general " The above incident is based upon the uncontroverted testimony of Gus Leedom Kough testified that he received the petition but that he made no use of it Neither McCoy nor Dooley was called upon to testify. I 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gus Leedom testified that in August Kough asked him to try to learn the names of the union members. Leedom further testified that at about the same time he requested McClellan to see whether or not he could find some work for his unemployed son and McClellan replied, "It will not be long now' until we are closed down here for the purpose of invoicing. When we do, there will be a big lay-off; in fact, there has been a few men laid off already. We will be shut down perhaps six weeks, and then we will begin to call men back to work, but there isn't to be a damn union man coming back in my department, I just had that up with them up there in that office; regardless of how much service he has got with the company, he isn't coming back in my department, and there will be an opportunity up there for your boy, at least one of them,' to be put to work." Kough and -McClellan categorically denied'making any of the above statements. The testimony as to the foregoing incidents is clear and convincing, however, and the-Trial Examiner, who had an opportunity to observe the witnesses' demeanor and to evaluate their credibility, did not. credit the denials of Kough and McClellan. • We conclude, as -did the Trial Examiner, that-the above related incidents took place as Gus and Lloyd Leedom, Earl" Latta, and Gwen Stuflle- beam testified. Undoubtedly, by the conduct and statements of Kough, McClellan, and Dooley, set forth above, the respondent made plain to its em ployees its hostility to the Union. The respondent, however, contends that the Board is barred from considering and making findings with respect to any unfair labor practices in which it may have' en- gaged prior to August 24, 1939. It is' true that the above recited evidence relates to acts that occurred prior to August 10, 1939, when the Board issued a complaint against the respondent and several other corporations," alleging, among other things, substantially the same violations of Section 8 (1) of the Act as are charged against the respondent in the instant case.' The matters alleged in that com- plaint were adjusted on August 24, 1939, by a' settlement, stipulation' and agreement in which representatives -of the respondent and the other corporations involved, on one hand, and counsel for the Board, on the other, participated.' The stipulation was embodied in a 8 Deere if Company and John Deere Tractor Company were the other corporations named as respondents in that case. o So far as is pertinent to the above discussion , the complaint in that case , No. XIII-C- 988, alleged that the respondent corporations , had, jointly and severally , violated Section 8 (1) `of the Act in that they "did cause operatives to be present among their employees to report to respondents any concerted activities for the purpose of collective bargaining or other mutual aid or protection of the employees , did advise , urge , and warn their employees to refrain from -7oinink or assisting the Union , did threaten to blacklist employees who joined or assisted the Union ; did interrogate their employees with respect to their union affiliation or activities ; [and] did deride the leaders of the Union to their employees 10 Charles F. McErlean and Jack G . Evans signed the stipulation as representatives of the Board DAIN MANUFACTURING COMPANY 827 Board order issued on September 30, 1939,11 and enforced by a consent order entered on December 16, 1939, by the United States Circuit Court for the Eighth Circuit.12 It has consistently been our policy to give effect to an agreement made in settlement of unfair labor practices allegedly engaged in by an employer, if an agent of the Board participated in the settlement and if the employer observed the terms of the settlement agreement and did not thereafter continue to engage in unfair labor practices.13 We agree with the Trial Ex- aminer that, in the instant case, the policies of the Act will best be effectuated by making no finding that the respondent violated the Act by the conduct and statements of its supervisory employees prior to August 24, 1939, the date of the settlement. We shall, however, in accordance with the recommendation of the Trial Examiner, con- sider the testimony, set forth above, as necessary background in the light of which we shall consider subsequent unfair labor practices in, which the respondent is alleged to have engaged.14 We turn, therefore, to a consideration of the alleged violations by the respondent of Section 8 (3) of the Act. B. Discrimination in regard to hire and tenure of employment The amended complaint alleges that the respondent discriminated in regard to the hire and tenure of employment of five employees,15 namely, Earl Latta, Gus Leedom, Raleigh Annis, Lawrence Horn, and Harold McDaniel. The respondent's business is seasonal and a great number of production employees are laid off during the summer of each year.1, The Trial Examiner found that the respondent dis- criminated against Latta, by refusing to reinstate him after such a seasonal lay-off. To this finding the respondent has excepted. The Union excepted to the Trial Examiner's recommendation that the complaint be dismissed as to the remaining four employees. "Matter of Deere if Company, a corporation; John Deere Tractor Company, a corpora- tion, and Dain Manufacturing Company, a corporation and United Farms Equipment Work- ers of America, through Farm Equipment Workers Organizing Committee, 15 N L R. B. 779. 12 N ational Labor Relations Board v John Deere Tractor Company, a corporation, and Dam Manufacturing Company, a corporation, December 16, 1939, C C. A. 8. 13 Matter of Shenandoah-Dives Minting Company and International Union of Mine, Mill if Smelter Workers, Local No 26, 11 N. L R. B 885 Also see Matter of Corn Products Refining Company and United Cannery, Agricultural, Packing if Allied Workers of America, Local 169, 22 N L R B 824, and the cases therein cited 14 As the 'Supreme Court of the United States pointed out in Texas if N. 0. By. Co v Brotherhood of Railway and Steamship Clerks, 281 U S 548, 559, "Motive is a persuasive interpreter of equivocal conduct " The background material in this case is of vital impor- tance in weighing the other evidence as to alleged discrimination by the respondent. 15 As already noted, charges of discrimination as to five other employees were dismissed on motion of Board counsel. 11 13 During 1939, the year in question, the respondent employed from 230 to 250 employees until the end of June. Lay-offs reduced this number to 205 by the end of July, to 130 by the end of August, and 97 on September 16 Thereafter, employees were recalled and on December 16 the respondent had 220 employees in its employ. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robert Earl Latta 17 was employed by the respondent in its forge shop from May 17, 1935, until his lay-off on July 1, 1939. Since January 1936 Latta had operated a punch-press machine. His em- ployment was interrupted during the summer and fall of each year by the lay-offs of from 1 to 3 months which affected the majority of production employees. Latta joined the Union in February 1939 and thereafter solicited members and became shop steward. While at work he constantly wore his membership and steward buttons. On July 1, 1939, Latta was laid off along with 10 other employees in his department, which during August and September was further reduced.," According to the testimony of Latta and the finding of .the Trial Examiner, there was no discrimination in Latta's lay-off, and although the Union filed exceptions to other portions of the Intermediate Report, it did not except to this finding. We find that Latta's lay-off occurred in the normal course of staff reduction and was not due to his membership in or activities in behalf of the Union. In October and November 1939 when laid-off employees were being rehired,19 Latta unsuccessfully applied for work. Upon the first occasion, in October, he was informed by Dale McCullough, the re- spondent's personnel director, that no work was then available for him. Latta testified that when he called again, on or about Novem- ber 9, Kough told him that his work was unsatisfactory and that they did not expect to reemploy him. Kough then referred him to McClellan, his foreman, who, according to Latta, informed him that since he had joined the Union his work was unsatisfactory, that he was too "cocky" and would be taught a lesson, and "would be all right after he had cooled off." As already noted, McClellan had engaged in anti-union conduct prior to this time. McClellan, how- ever, denied having made the above statements, and claimed that he merely told Latta that he would not be reemployed until "you [Latta] mend your ways." Under the circumstances, we find, as did the Trial Examiner, that McClellan made the above statements at- tributed to him by Latta. On November 9 all but one punch-press operator, O. Pettit, had been returned to work in the forge shop. Pettit was reinstated on December 16. At the time of the hearing, the forge shop was working with a full complemept, all operators other than Latta having been recalled and a man having been employed to take Latta's place. 11 Described in the complaint as Earl Latta 1s The forge shop consisted of 42 employees prior to Latta's lay-off. This number was reduced to 28 by the end of July , 11 by the end of August , and 7 on September 16 19 The forge shop ' s staff , which included 7 employees ' in September , was increased to 28 by the end of October No new employees were employed during November but in December 11 were added and on Januaiy 20, 1940, the forge shop consisted of 43 employees DAIN MANUFACTURING COMPANY 829 The respondent contends that Latta was not reemployed because his work was unsatisfactory and McClellan testified that a large pro- portion of the articles produced on Latta's machine was rejected by inspectors, that Latta's earnings were lower than those of the other punch-press operators, and that, lie frequently failed to earn the minimum required by the respondent. The latter contention is not supported by the record, for the evidence shows that during the last year of his employment Latta's earnings exceeded the minimum during all but 2 weeks in the latter part of 1938, and 3 weeks in January 1939. With respect to the alleged rejections of Latta's work by inspectors, we note that no record was maintained that would attribute rejections to individual employees or machines. It does not appear that Latta ever was told that too large a proportion of his work was being rejected. Roy Pottorff, McClellan's assistant foreman and a witness called by the respondent, testified, moreover, that rejections result from the improper setting up of the press machine in the first instance and that he not only checked the set-up of the machines before the operators began to operate them but also, passed upon the articles produced on those machines before they were examined by the inspectors. It must be apparent, therefore, that the forge shop's supervisory force, rather than Latta, was pri- marily responsible for the rejections, if there were any. The record does reveal that Latta's earnings were below those of the other punch, press operators.20 McClellan testified that there was no selective assignment of work. Latta, on the other hand, testified that the foremen frequently distributed the work and that he re- ceived "more than his share" of difficult jobs. The fact that the pay rolls reveal such a disparity in piece-rate earnings affords reason- able. basis for the inference that favoritism played a substantial part in the distribution of work by McClellan and his assistants, espe- cially in view of the fact that a new and inexperienced operator is shown to have earned more than did Latta during 1939. As already noted, McClellan's conduct reflects a strong anti-union bias. In any event, in view of McClellan's admission to Latta that he was re- garded as "too cocky" since he joined the Union, we are convinced that the true cause for the respondent's failure to reemploy Latta was other than the reasons advanced by the respondent, two of which plainly were without legitimate basis in fact. In view of the re- spondent's clearly expressed desire to discourage union activities and rid the plant of union members, as revealed by McClellan's above- 20 During 1938 four other punch-press operators were employed in the forge shop The respondent ' s pay-roll records , introduced in evidence at the hearing, reveal that during 1938 these operators earned , on a piece-work basis , respectively, $.7692, $ 7340, $ 6067, and $.5616 per hour, as compared with Latta' s hourly earnings of $.5549. During 1939 the same operators earned $ .8136, $ 7259, $ 6258, and $ 5731. Latta' s earnings averaged $.5365, while a new employee earned $ 5513. - 830, DECISIONS OF •NATIONTAL LABOR RELATIONS BOARD described reply to Latta's application for reemployment on Novem- ber 9, and his statements that "I'll fire the first inen-Ao put on a union button," "we are going to get rid of the son-of-a-bitches," and-"there isn't a damn union man coming back [after the lay-off]," we .find that Latta was singled but for discrimination because of his position of leadership in the Union. The respondent further contends, however, that after August 31 Latta was no longer its employee but occupied the status of a new applicant for a position. In support of its contention,-the- respondent, relies on testimony by Herman Moschel, its secretary-treasurer and plant manager, that its employees are employed on a yearly contractual basis and that-their contracts expire annually on August 31, the close of-the factory year.2' The respondent urges that since Latta's con- tract was not renewed after August 31, 1939, the employer-employee relationship between the respondent and Latta ceased to exist as of that date. Moschel admitted, at the hearing, that employment is not conditional on the signing of the alleged contract, and that, In some instances, contracts are not signed for the new work year until elnl- ployees have, already begun their employment. He further testified that, whenever possible, 'employees are advised at the time of their lay- off when they might expect to return to work, and that, when other circumstances are equal, they are recalled to work on the basis of seniority and ability. In view of the foregoing, we cannot subscribe to the respondent's contention that at the close of the factory season the employer-employee relationship ceases to exist between • the re- spondent and the employees laid off. On the contrary, we think it clear and we find, in accordance with the Trial Examiner's conclusion, that the relationship is preserved and that, had it not been for his -union membership and activity, Latta would have been recalled to work by the respondent. Upon all the evidence we find that the respondent failed and refused to reemploy Latta on November 9, 1939, because of his membership in and activities on behalf of the Union, thereby discouraging member- ship in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Gus Leedom was first employed by the respondent in 1919 and worked intermittently as a molder until 1930 when he became a watch- man, a position which he held until his discharge on September 14, 21 Moschel also testified that this alleged contractual system had been adopted by the respondent prior to 1913. Copies of the so-called contracts of Latta and other complain- ants were introduced in evidence at the hearing They all follow the same form and provide for the maintenance of wage rates by the respondent and the compliance with company rules by the employee. The alleged contracts , in themselves , impose no legally enforceable obligation on the respondent, which does not undertake to furnish the employee with any minimum amount of work during the 1 -year period DAIN MANUFACTURING COMPANY 831', 1939.. Leedom 'joined the Union on July 15, 1939, but the respondent claims not to have known of Leedom's union membership -until -after he had been discharged. Leedom never wore his union button in the plant but testified' that, late in August during- his vacation, he had served. on a picket line in front of the plant of 'another Ottumwa company andthat while on the line' had seen some of the respondent's office force walk by and once thought he saw Kough.'pass' in his-car. Leedom also claimed that he marched .in "the'C. I. O: victory parade" in Ottumwa after the strike had been settled: According. to Leedom, when he thereafter returned to work, Kough questioned him about his vacation and when Leedom replied that he had been in Missouri one morning but returned to Ottumwa the same day, asked "What was your-hurry?. To get back and get on the picket line?" Leedom testi- fied that on the following day Kough told him in the presence of Lafe Nichols, his foreman, .that "I heard today that all you lacked of belonging to the C., I.O. was having the nerve to wear youi':button." Kough denied making the above remarks or having any conversation with Leedom concerning union activities following the latter's return from his vacation. On September 7 and 8, two ,and one-half tons of scrap iron were taken from the respondent's premises, while Leedom was the lone watchman on duty in the plant. Several days later, on September. 11, the thief confessed and turned out to be an employee, who, on occasion, relieved ,Leedom's watch. Kough testified that he ascer- tained also that on September, 7 Leedom. missed four consecutive clocks on his route. Kough further testified that after the theft he investigated Leedom's record and found that he had on several occasions left the plant without permission, slept during his working hours, drunk while on duty, and missed some of the clocks on his rounds. According,to Leedom, he never left the plant without per- mission and slept once about 3 years ago when he had been on con- stant duty for 7 days. Leedom admitted, drinking a tablespoon of whiskey in the plant daily for medicinal purposes. On September 14 Leedom was -discharged, allegedly because of his 'failure 'to detect the theft. , - While the circumstances surrounding the theft are highly suspi- cious and, together with the respondent's anti-union campaign, create some doubt as to the propriety of Leedom's discharge, we are not convinced by the record that Leedom was discharged because of his union activities. In view of the importance of vigilance on the part of a watchman and Leedom's failure to detect the theft, there appears to have been a reasonable and natural basis for his discharge. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, in accordance with the Trial Examiner's conclusion, that no discrimination was practiced by the respondent in the termina- tion of Leedom's employment. k Raleigh Annis was employed by the respondent as a foundry worker on the night shift from December 1934 until July 26, 1939. Annis joined the Union in February 1939 and thereafter wore his union button while at work. He was not otherwise active. Prior to January 1939 and the advent of the Union, according to Gus Leedom and Kough, the respondent had instructed its watch- men to allow no strangers in the plant unless they wished to enter for business reasons. As had been customary in the past, however, wives and relatives of the night workers continued to bring them their supper and, at times, to wait in the plant for them to finish their work. According to the uncontroverted testimony of Leonard Harward, a working foreman in the foundry, Annis: also was visited by his wife during his working hours without objection on the part of the respondent. He received more lengthy and persistent visits, however, from another woman, who, according to Harward and J. A. Shipley, the foundry foreman, embarrassed the employees by,` at times, sitting around the locker room.22 Kough and Shipley testi- fied that they first learned of these visits in the. fall of 1938 and 1 hat Annis was warned, at that time, to see that they were discon- tinued. Kough further testified that at about the same time, on about November 10, 1938, Annis received a 3-day lay-off for report- ing to work under the influence of liquor. Harward testified to like effect. At the hearing, Annis admitted the lay-off, but denied that he had, in ' fact, been intoxicated. Kough testified that early in 1939 he suggested the discharge of Annis but that Shipley objected to "breaking in" a new man at that time. It is the uncontroverted testimony' of Shipley and Kough that thereafter until the summer of 1939, Annis continued to receive frequent visits from the above- referred-to woman, to the detriment of his working morale. Kough also testified that on about April 14, 1939, he received a report that Annis had been "drinking on the job." Watchman Meagher testified that he "smelled liquor on his [Annis'] breath several times" and reported these occasions to The management. - 'Shipley testified that he spoke to Annis more than once about his drinking and that, upon one occasion, he warned him that "he was on pretty thin ice" because of his "drinking and that lady in the shop." On July 26, 1939, the last day on which he worked, Annis sustained an injury while at work. About 6 weeks later he returned to the 22 This finding is based upon the uncontroverted testimony of Foremen Shipley and Harward, Superintendent Kough, and Thomas Meagher, a plant watchman Annis ad- mitted that he received visits from "some woman" in the plant during working hours. DAIN MANUFACTURING COMPANY 833 plant. He found that in the meantime the seasonal lay-offs had considerably affected his department .23 He nevertheless asked for work and was told by Personnel Director McCullough that there was "nothing doing" at the time. Annis testified that in September he was called to the plant and was informed by Kough that he would not be returned to work by the respondent because during the past year he "came, to work drunk" and "had this w oman coming down to see you [him]." Kough testified that during the fall Shipley and he discussed the reemployment of the men laid off And decided not to ,recall Annis to work because of his misconduct during, the preceding year. . The Union maintains that Annis was' laid off becitbse of his .membership in and activities on behalf of the Union. Upon all the evidence, it would seem a fair conclusion that the respondent had reasonable justification_to consider Annis an' unde- sirable employee. In view of the foregoing and Annis' extremely limited union activity, we find that the record does not support the allegations in the complaint that Aiinis was discharged and refused reinstatement because of his membership in and activities on behalf of the Union. Lawvienee Horn, it storeroom employee, and Harold McDanniel, a welder, were respectively laid off on February 9 and July 16, 1939, allegedly because of lack of work. Horn was it charter member of the Union. having joined in January' 1939. McDaniel joined the Union in February 1939 and was a member of the grievance committee. Both wore their union buttons while at work. Horn and McDaniel had less seniority than any of the other em- ployees doing corresponding work and neither has been replaced by the respondent. In February 1939 Mosehel informed the union griev- ance committee that Horn was a satisfactory employee and would be reemployed when additional regular help was required in the store- room. Kough stated at the hearing that McDaniel would be rein- stated as soon `as it vacancy existed.among,the welders. In view of the fact that no employees have been assigned to the positions occupied by Horn and McDaniel prior to their lay-offs and in view of the respondent's position that it will reinstate them when work is available we find as did the Trial Examiner, that- Horn and McDaniel were not discharged and refused reinstatement by the respondent because of their union membership and activities'. IV. THE EFFECT OIL THE UNFAIR LABOR PRAOTICES,UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial 21 On August 79, 1939, 32 of the .50 foundr3-department employees were laid off. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 RE1%J1EDY It is essential to an effectuation of the purposes and policies of the Act.that the respondent be ordered 'to cease and desist from certain unfair labor practices in which we' have found it has engaged, and in aid of such order and as a means of removing and avoiding the consequences of such practices'that the respondent be directed to take certain affirmative action, more particularly described -below. We have found that the respondent has interfered with, -restrained, and' coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. We shall order the respondent to cease and desist from such interference, restraint, and coercion. We have found that the respondent laid off Robert Earl'Latta in 'the normal course of its business but discriminated against' him by denying, him reemployment on November 9, 1939, becaiise of his union activities. We shall, therefore, order the respondent to offer Latta immediate and full reinstatement to his former or substantially equiv- alent position with the respondent, without prejudice t,o his seniority and,other•rights and privileges. We shall also order the respondent to make Latta whole for any loss he may have suffered'by reason of'the aforesaid discrimination, by payment to him of a sum of money 24 equal to that which he would have normally earned as wages from November 9, 1939; the date of said discrimination, to the date of the respondent's offer of reinstatement, less his net earnings'25 during said period. , . ' , Upon the basis of the above findings of fact and upon 'the entire record in the case; the Board makesrthe following:' 1• i . i CONCLUSIONS,oF LAW' 1. Farm Equipment Workers; Organizing, ,,iOmmittee', ](local, 117, United Farm Equipment Workers' of America, C. L'0., is a, labor organization, within the meaning of Section 2, (5) of the, Act. az This sum of:money , shall be . computed od ;the basi 's'of Latta ' s' ave`rage' hourly earnings during the year preceding his lay-off , i ] , ,,, . ,,.1, 'I,._ s 25 By "net 'earmngs" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- wherethan for the'respoudent , which' would riot have been incurred but` for '' the discrimina- tion against him and the consequent necessity of his seeking employment elsewhere. See Matter , of '-Crossett t umber;Comgen i and , United' Brotherhood ' o f' Carpenters and -Joiners of America, Lumber and Sawmill Workers, Union, Local 2590, 8 N. L.,R B. 440. Monies received ' for work performed '`pon Fedeial, 1State, ' county, 'municipal ,' or other workrelief projeets, ,are not , considered' as 'earnings , ; but as ' provided below - in the Order, 'shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal , or, other government or governments which suppled the funds for said work-relief projects DAIN MANUFACTURING COMPANY 835 2. By discriminating in regard to the hire and tenure of employ- ment of Robert Earl Latta, thereby discouraging membership in 'Farm Equipment Workers Organizing Committee, Local 117, United Farm Equipment Workers of America, C . I. 0., the respondent has engaged in and is engaging in unfair labor practices, within'the meaning of Section 8 ( 3) of the Act. 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 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 Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Dain Manufacturing Company, Ottumwa, Iowa, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Farm Equipment Workers Organizing Committee, Local 117, United Farm Equipment Workers of America, C. I.-0., or any other labor organization of its em- ployees by discharging, laying off, transferring to less favorable positions, or refusing to reinstate aiiy of its employees, or in any `other manner discriminating in regard to their hire or tenure of 'employment, or any term or condition of employment; (b) In any ,other 'i`nanner interfering with, restraining, or co- ercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain -collectively through representatives of their own choosuig, 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 Robert Earl Latta immediate and full reinstatement to his former or to a substantially equivalent position,, without prejudice to his seniority and other rights and privileges ; (b) Make whole Robert Earl Latta for any loss of pay he may have suffered by reason, of the respondent's discriminatory acts, by paying to him a sum of money equal to that which he would normally have earned as wages from November 9, 1939, the date on which he was refused reinstatement, to the date of offer of reinstatement, less his net earnings -during said period, deducting, however, from the 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount otherwise clue him monies received by him during said period for work performed on Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects, and paying over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for such work-relief projects; (c) Immediately post and keep posted for a period of at least sixty (60) consecutive days from the date of posting, in conspicuous places throughout its plant, notices to its employees stating (1) that the respondent will cease and desist in the manner set forth in para- graphs 1 (a) and (b) ; (2) that it will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3}• that the respondent's employees are free to become or remain members of the Farm Equipment Workers Organizing Committee, Local 117, United Farm Equipment Workers of America, C. I. 0., and that the respondent will not discriminate against any employee because of membership or activity in that organization; (d) Notify the Regional Director for the ' Eighteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. IT IS FURTHER ORDERED that the allegations of the complaint with respect to Raleigh Annis, Charles Brumbaugh, Lawrence Horn, Gus Leedom, Lloyd Leedom, Harold McDaniel, John J. Scully, Floyd L. Stevens, and Charles V. Thorne be dismissed. AND IT IS FURTIIER ORDERED that the complaint be, and it hereby is, dismissed without prejudice in so far as it charges that Deere & Company has engaged in unfair labor practices. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.