Inland Lime and Stone Co.

National Labor Relations Board - Board Decisions

Aug 18, 1938

8 N.L.R.B. 944 (N.L.R.B. 1938)

Q
In the Matter Of INLAND LIME AND STONE COMPANY and QUARRY
WORKERS INTERNATIONAL UNION OF NORTH AMERICA; BRANCH No.
259
Case No. C-301-Decided August 18, 1938
Stone Quarrying Industry-Disciunrniation : discharges ; for union member-
ship and activity ; charges of , not sustained as to one person-Reinstatement
Ordered-Back Pay: awarded from date of filing of charges to offer of rein-
statement-Complaint Dismissed : as to charges of espionage.
Mr. Bernard J. Donoghue, for the Board.
Pope cC Ballard, by Mr. Edward W. Ford and Mr. Merrill Shep-
ard, of Chicago, Ill. and Hinson di Herbert, by Mr. J. Joseph Her-
bert, of Manistique, Mich., for the respondent.
Miss Ida Klaus, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Quarry Workers International Union
,of North America, Branch No. 259,1 herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Twelfth Region (Milwaukee, Wisconsin)
issued its complaint dated September 16, 1937, against Inland Lime
and Stone Company, Manistique, ,Michigan, herein called the re-
spondent, alleging that the respondent had engaged in and was en-
gaging 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 accompanying notice of hearing were
duly served upon the respondent and upon the Union.
The complaint alleged- In substance, so far as here material, that
the respondent discharged George Drew, D. C. Miller, and Alex
Durno, employed at its quarries in Manistique, by reason of their
membership in and activities in behalf of the Union, thereby dis-
1 Reterred to in the charge as Quarry Workers Local 259
S N L. R. B , No. 116.
944
DECISIONS AND ORDERS 945
criminating in regard to the hire and tenure of these persons and dis-
couraging membership in the Union ; that by such discharges the
respondent interfered with, restrained, and coerced its employees
in the exercise of rights secured them by the Act.- The complaint
further alleged, in paragraph 7 thereof, that the respondent em-
ployed certain individuals to engage in espionage, and to spy upon
the organizational activities of its employees. On September 24,-
1937, the respondent appeared specially and moved to dismiss the
complaint for want of jurisdiction of subject matter on the ground
that the respondent was not engaged in interstate commerce. The
respondent also filed an answer denying generally the averments
of the complaint, and alleging affirmatively that it laid off Drew
upon the completion of temporary work for which he was em-
ployed; that it discharged D. C. Miller "for carelessness and miscon-
duct . . . and for other good, sufficient. and legitimate reasons con-
nected with his employment," that it discharged Alex Durno "for
insubordination, inefficiency, incompetence, carelessness, and other
good and sufficient reasons connected with his employment." At the
hearing the respondent amended its answer to make the affirmative
allegations more specific, and to add as further ground for its dis-
charge of Drew that he was inefficient, insolent, and insubordinate.
Pursuant to notice, a hearing was held at Manistique. Michigan,
from September 27 to October 5, 1937, both inclusive, before Charles
Bayly, the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues, was afforded all parties. At the close of the Board's case, the
respondent moved to dismiss the allegations of the complaint in so
far as they charged that the respondent had engaged in espionage.
This motion was allowed by the Trial Examiner, and his ruling is
hereby affirmed. Accordingly, we will dismiss the allegations of
paragraph 7 of the complaint, and so much of paragraphs 8, 9, and
10 thereof as relate to paragraph 7. During the course of the hear-
ing, and at the close, both the respondent and the Board made vari-
ous motions, among others to amend the complaint and answer, upon
all of which motions the Trial Examiner ruled. Other rulings were
made by the Trial Examiner or. objections to the admission of evi-
dence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On November 3, 1937, the Trial Examiner filed his Intermediate
Report, finding that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning of
946 NATIONAL LABOR RELATIONS BOARD
Section 8 (1) _ and (3) and Section 2 (6) and (7) of the Act, and
recommendng that the respondent cease and desist therefrom, reinstate
Drew, Miller, and -Durno, with back pay; to their former positions,
and take certain other specified affirmative action to effectuate the
policies of the Act. Exceptions to the record and the Intermediate
Report were thereafter filed by the respondent.
Pursuant to notice, a hearing for the purpose of oral argument on
the record and exceptions was held before the Board in Washington,
D. C., on March 3, 1938. The respondent was represented by counsel
and presented argument. On April 11, 1938, it filed a brief in sup-
port of its exceptions. In its argument before the Board, and by its
exceptions and brief, the respondent contended and contends, among
other things, that it was prejudiced by conduct of counsel for the
Board and of the Trial Examiner at hearing, that the respondent
thereby was deprived of its right to give testimony, and, in general,
was denied due process of law and its right to a fair and impartial
hearing. We have examined and reviewed the record of all of the
instances at the hearing mentioned by the respondent in support of
its contention and find nothing of substance or consequence. We are
of the opinion that the respondent was afforded full opportunity to
give evidence, that it was not denied due process of law, and that
it was accorded a full and fair hearing; that the conduct complained
of was not prejudicial to it. The Board also has .considered the
exceptions to the Intermediate Report, and, in so far as they are incon-
sistent with the findings, conclusions, and order set forth below,
finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Michigan corporation engaged in the business
of quarrying, preparing, and selling stone, including limestone, for
use in the production and manufacture of steel, cement, glass, and
paper, and in highway and marine construction. Its office is located
in Manistique, and its quarries and sole place of business in Mackinaw
and Schoolcraft Counties, Michigan. It employs approximately 334
persons.
The respondent is a wholly owned subsidiary of Inland Steel Com-
pany, a corporation having its principal office in Chicago, Illinois,
and functions as an operating unit of the parent company. Adver-
tising statements 2 of Inland Steel Company, hereinafter referred to
as Inland, in describing the quality of Inland steel, refer to the iron
ore and limestone used in manufacture as "being brought together
2 Board Exhibit No. 3.
r
DECISIONS AND ORDERS 947
from Inland's own mines and quarries" and as typifying "Inland
control of quality and uniformity at every stage of steelmaking."
The respondent reports monthly to Inland on operating matters.
Financing management of the respondent's business and operations
is conducted and directed, in large part, by Inland. The respond-
ent's net surplus is transmitted monthly, by check, to the main office
of Inland at Chicago, and the operating deficits are met by Inland.
Seventy-five per cent of the respondent's cash receipts are kept on
deposit in Chicago. The treasurer of Inland is treasurer of the re-
spondent, and two of Inland's officers are the president and vice
president, respectively, of the respondent.
The respondent is one of four large national producers of stone.
Its annual output is about 1,500,000 tons, and, during 1936, its sales
amounted in the aggregate to about $1,500,000. All of the respond-
ent's fluxing stone, constituting approximately 70, per cent of its total
production, is shipped to steel companies located outside the State
of Michigan. In 1937 these purchasers of its stone, apart from In-
land, included Bethlehem Steel Corporation in New York and
Youngstown Sheet & Tube Company in Indiana and Illinois. One-
third to one-half of the remaining 30 per cent of the respondent's
output is sold and delivered to purchasers outside the State of Michi-
gan, principally in Wisconsin and Minnesota. The respondent also
sells to contractors of the United States Government. Seventy per
cent of the respondent's product is produced on special requisition
and 80 per cent thereof is shipped on contract to purchasers outside
the State of Michigan. A large number of these contracts are
negotiated by Inland and executed by the respondent.
Products destined for shipment to purchasers outside the State are
loaded on boats at the respondent's docks and on railroad cars run-
ning on trackage on the respondent's property and connecting di-'
rectly with the Minneapolis, St. Paul, and Sault Ste. Marie Railroad,
an interstate carrier.
The annual cost of supplies and equipment purchased by the re-
spondent and used at its quarries is approximately $50,000, of which
40 to 60 per cent is incurred for goods brought in from outside the
State of Michigan. The most important of these supplies is blasting
powder, and one-half of the amount used, about 200,000 pounds an-
nually, is purchased from, and shipped to the respondent by the
DuPont Powder Company, located in New England.
Monthly freight charges paid to the Minneapolis, St. Paul & Sault
Ste. Marie Railway Company on shipments to and from the respond-
ent's place of business averaged about $8,000 as of the date of the
hearing, and have reached a maximum of $15,000.
There is no doubt that the operations of the respondent affect trade,
traffic, and commerce among the several States.
117213-39-vol.8 -61
11
948 NATIONAL LABOR RELATIONS BOARD
II. THE UNION
Quarry Workers International Union of North America, Branch
No. 259, affiliated with the American Federation of Labor, is a labor
organization admitting to membership certain classes of employees
of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background of the discharges
Commencing some time in July 1933 and continuing until May
1936 matters relating to the industrial relations of the respondent
with its employees were handled through a form of employee repre-
sentation plan, known as the Industrial Representation Plan. The
Plan was both conceived of and brought into operation by the general
superintendent of the respondent, one Cayia, who considered it his
"big work." Cayia drafted the terms and provisions of the Plan ;
he had booklets, setting it forth, printed and distributed among all
of the employees. About July 1933 the employees were asked by the
respondent to signify their approval of the Plan by signing a state-
ment to that effect. Upon a majority of the employees so signing,
representatives under the Plan were elected and the Plan went into
effect.
The general purpose of the Plan was stated in the booklets, as fol-
lows:
A plan of representation is established by the Inland Lime &
Stone Company , Manistique , Michigan , and its employees in
order to provide effective contact and discussion of matters per-
taining to industrial relations . To provide for such contact, a
Council representing the workmen will be elected whose duty will
be to consider and discuss with the Management all matters
pertaining to :
1. Industrial relations.
2. Safety and prevention of accidents.
3. Works practice and methods of economy.
Provision was made under the Plan for an annual election by the
employees of employee representatives to a "Workmen 's Council."
Officers of labor organizations were ineligible to serve as representa-
tives. The respondent- furnished the "necessary facilities " for the
carrying on of all elections . It was contemplated that the Council
would meet once each month with the plant superintendent "for the
discussion and adjustment of all matters that would arise." In the
event no "satisfactory adjustment " could thus be reached , the matter
would be referred to the president of the respondent, for decision.
Employees having individual grievances were to submit their com-
DECISIONS AND ORDERS 949
plaint first to their foreman and department superintendent, and then
to the Council, for consideration. Council meetings were to be held
during working hours at a place provided by the respondent, with all
expenses incident thereto paid by the respondent. Representatives
likewise were paid by the respondent for time spent at meetings, at a
rate "commensurate with their average earnings." The Plan, as a
whole, was subject to termination either upon a decision of the board
of directors of the respondent to that effect or by a majority vote of
the representatives.
Pursuant to the Plan, the Council held about 12 meetings, the last
in the fall of 1935. Sometime thereafter the Plan became inactive,
and apparently was abandoned finally in May 1936 when the term
of office of the representatives last elected expired. No formal termi-
nation or dissolution ever took place.
In September 1935 the Union began organizational activity among
the quarry workers of the respondent. Within a few months, a sub-
stantial majority of the employees joined. A local was formed, offi-
cers were elected, and a grievance committee set up.
In November representatives of the Union met with Cayia and
informed him that a majority of the employees had joined the
Union. They asked whether the Union might post notices on the
bulletin board at the quarries. They also asked if the respondent
would recognize and deal with the Union as the exclusive agent of
the employees for purposes of collective bargaining. Cayia refused
to allow the use of the board. With respect to according recogni-
tion he took the position that the Act required an employer to meet
only with such representatives of a majority of its employees as had
been designated in an election, and that consequently, under the
mandate of the Act thus interpreted by Cayia, the respondent was
bound in matters of collective bargaining to deal with the employee
representatives elected to its Workmen's Council in the spring of
that year. One Miller, president of the Union, who was present,
told Cayia that "the Labor Law knocked that company union on
the neck" and suggested that the respondent poll its employees on
the question of representation by the Union. Cayia then advised
the union representatives that the Workmen's Council might con-
duct such a poll if it so chose but the matter was not for him. The
conference then ended.
By December 90 per cent of the employees had become members
of the Union. With the assurance that so substantial a number
was then on its membership rolls, the Union appointed a committee
of three, including one Weaynent, an organizer, to meet with Cayia.
A conference between the committee and Cayia was had. The com-
mittee informed Cayia of the extent of membership in the Union
and requested recognition by the respondent of the Union as the
exclusive bargaining agency. Again Cayia purported to find refuge
950 NATIONAL LABOR RELATIONS BOARD
in the Act, averring that it would be illegal for him to deal with
any group other than the elected representatives under the Plan.
Weaynent suggested that an application be made to the Board for
the conduct of an election under its direction among the respond-
ent's employees to determine the claim and status of the Union as
collective bargaining representative. Cayia objected, saying, "I
don't want any election of any kind." The committee then de-
parted. With the exception of two attempts by Weaynent himself
to persuade Cayia to change his position, no further requests were
made by or on behalf of the Union to secure recognition. The
rebuffs it received from the respondent at the hands of Cayia, along
with the acts of the respondent hereinafter set forth, resulted in
a discouragement of membership in the Union and a loss of its
strength and prestige.
It is clear, and the respondent does not deny, that the Workmen's
Council was a labor organization, within the meaning of the Act.
It is equally clear from what has been set forth above, and the record
so establishes, that the Council was organized by the respondent;
that throughout its existence, both before and after the passage of
the Act, its affairs were dominated and interfered with, and financial
and other support contributed to it, by the respondent. Had the
respondent, by the testimony which it introduced at the hearing, not
shown the abandonment of the Plan, the facts would have warranted
further proceeding by the Board, and the issuance of an order direct-
ing the respondent to cease and desist in extending recognition to the
Council as a representative of the employees and to disestablish it as
such-representative.3 However, in view of this showing, and nothing
to the contrary appearing, we will withhold such further action.
Of relevance here, however, is the determination of the respondent,
as revealed in Cayia's treatment of the union representatives, to corn-
bat the Union as an agency of the employees for collective bargain-
ing, and to destroy the organization which the Union had succeeded
in establishing among the quarry workers for such purpose. At a
time when the Union had been designated by an overwhelming
majority of the employees as their collective bargaining agent, the
respondent, instead of according it the recognition to which it was
entitled under the Act, refused to do so on the ground that the
designation had not been had by way of an election. Under the
circumstances the respondent's pious pronouncements of a duty under
the-Act to lend an ear only to the collective bargaining requests of
the mute representatives elected pursuant to the Plan bear a clear
mark of disingenuousness. That Cayia was not misled as to the
3 National Labor Relations Board v Pacific Greyhound Lines, Inc, 303 E. S 272;
National Labor Relations Board v. American Potash and Chemical Corporation, 9th
Cir., 98 F. ( 2d) 488, decided June 27, 1938.
DECISIONS AND ORDERS 951
mandate of the Act is shown, among other things, by his refusal to
have "any election of any kind," when the Union suggested that the
Board be invited to conduct one and resolve the issue. Earlier Cayia
had suggested that the Council might take the poll. Cayia's advert-
ence to the Council in such connection, as well as his insistence that
the Council alone could be recognized as representative of the em-
ployees, is significant. Despite the ban placed by the Act on the
continuance of such recognition, as Miller pointed out to Cayia, the
respondent nevertheless persisted, contrary to the statute, in an at-
tempt to divert the desires of its employees for self-organization into
a channel which it dominated.
At the hearing Cayia sought to explain the stand he had taken at
the November and December conferences with the Union by stating
that he knew that the Council representatives had been elected
earlier in the year by a majority of the respondent's employees;
that he assumed that inasmuch as the Plan had not been terminated
by action of those representatives it was still in effect and the Coun-
cil's representation of a majority persisted; that he "went merrily
along" and when he met with the representatives of the Union "they
had nothing to talk about." Cayia did not explain how, in the light
of its domination by the respondent, the Council properly could be
recognized by the respondent. We are satisfied that the respondent's
treatment of the Union, contrary to the provision of the Act, was
moved by the respondent's determination to defeat it. _
B. The discharges
George Drew was employed as a boat millwright at the respond-
ent's docks for about 21/2 years. The work is of seasonal character,
coinciding in period with the months of the year when the Great
Lakes are open to shipping. Between operating seasons Drew en-
gaged in other work for the respondent.
Drew joined the Union in September 1935 and served as financial
secretary of the organization. He probably was its most active
member. During the months following September he solicited large-
numbers of his fellow workers to join, and himself succeeded in
enlisting as members about 100 of the employees, approximately one-
third of the total number on the respondent's pay roll. It is clear
that the respondent knew of Drew's union affiliation and activities.
Shortly after Drew joined the Union his foreman, one Binder, in-
quired of Drew how the Union was "getting on," and upon being
told "All right," said, "It may be all right and it may not." Drew
replied to the effect that he proposed remaining a member of the
Union. While at the hearing Binder testified that he did not recall
952 NATIONAL LABOR RELATIONS BOARD
having discussed the Union with anyone; we are satisfied that his
conversation with Drew occurred as stated.
Early in December, about the time that the Union again sought
recognition from the respondent, as above-mentioned, after its first
unsuccessful meeting with Cayia in November, Drew was transferred
from his position as boat millwright to some carpentry work. He
was told by the foreman, Binder, that when the new work was com-
pleted he, Drew, would be "all through." Two other employees, one
Schneider, a mill millwright, and one Jacobs, a worker junior in
service to Drew, were assigned Drew's work at boat millwrighting.
On December 21 Binder notified Drew that there was no more work
for him to do, that Drew's "lay-off" was on "Cayia's orders." No
reason was given him therefor. Usually the laying off of employees
for slack work is not done by the general superintendent but by the
foremen themselves. While the respondent in transferring or laying
off employees conforms to a general practice of seniority, no such
rule was followed in Drew's case. It also appears, and Binder so
testified, that no investigation of the possibility of assigning Drew
other work was made. On the last night of Drew's employment with
the respondent the night foreman, one Rasmussen, remarked to Drew,
"George,, you are going to take a long rest."
At the hearing the respondent urged many reasons as the basis of
its "lay-off" of Drew, all of which, with one exception, its counsel
expressly repudiated during the oral argument before the Board.
The contention was made that Drew was inefficient. The record,
however, is barren of any showing of incompetency. Drew was
considered a good workman. He had been praised by superiors in
the presence of his helpers, had been given considerable independence
and latitude in the performance of his duties, and had never received
any complaints about his work. It also was contended that Drew
was insolent and insubordinate. Evidence was introduced by the
respondent showing that Drew had complained on several occasions
about having to work unusually long hours, and in making such
complaints had "gone over the head" of his foreman to the plant
superintendent. Other proof was submitted showing that one of the
persons whose name Drew had given the respondent as a reference at
the time it hired him had stated that Drew was disagreeable and
hard to get along with. Such evidence hardly supports the conten-
tion of insolence and insubordination. Both the general superin-
tendent and the foreman agreed at the hearing that an employee who
worked unduly long hours had a justifiable cause for complaint. The
record shows that Drew worked extremely long hours and had car-
ried his grievance to the superintendent only after he had failed to
obtain satisfaction from his foreman. Other employees, who made
DECISIONS AND ORDERS 953
similar complaint, never were discharged therefor. With regard to
the matter of the reference, there is no showing that Drew mani-
fested any of the alleged shortcomings during his service of 21/
years with the respondent, or that he ever had been apprised thereof.
We are satisfied that Drew was not inefficient, insolent, or insubordi-
nate. At the oral argument before the Board, counsel for the re-
spondent admitted that Drew's work and conduct had been good.
The remaining explanation advanced by the respondent for the ter-
mination of Drew's employment was that Drew had been hired for
"temporary work," upon the completion of which he was laid off.
Three variations of what it meant by "temporary work" were given by
the, respondent during the course of the hearing. First, it offered the
theory that Drew had been hired to perform certain construction
work of temporary duration and was discharged upon its completion.
In view of the respondent's admissions that Drew was hired for, and
during each operating season regularly performed, work as a boat
millwright, this version of what was meant by "temporary work"
may be disregarded. Then it contended that Drew had been hired
to do boat millwrighting, a job that was to exist for a limited period,
and that his services were no longer needed when that job was abol-
ished. This explanation is untenable in view of the undisputed testi-
mony that the job of boat millwright continued after Drew's em-
ployment was terminated.
The respondent urged most strongly, however, that Drew enjoyed
only a temporary work status because he had-been hired, it was al-
leged, merely to replace Schneider, the millwright above mentioned,
who, it was proposed, would be assigned to certain construction
work; that in this circumstance, Drew's period of employment was
measured by the duration of the construction work in which
Schneider would be occupied. The evidence shows that Schneider
engaged in directing various construction work from December 1933
until November 1935. Other proof showed that prior to the hiring
of Drew in June 1933, Schneider had been engaged in both mill and
boat millwrighting, that following Drew's employment as boat mill-
wright, and during the 6 months thereafter until Schneider engaged
in construction work, Schneider had-worked as mill millwright and
performed no boat millwrighting. We are not satisfied that Drew
was employed to replace Schneider and that his work was to end
upon the completion of Schneider's construction work. At no time
during his 21/2 years of employment was Drew either expressly or
impliedly apprised by the respondent, or otherwise, of the fact that
his employment was temporary. Two weeks after his discharge, he
was first told that he had had "another man's job." The circum-
stance of 6 months intervening between Drew's employment in June,
954 NATIONAL LABOR RELATIONS BOARD
allegedly for the purpose of releasing Schneider for construction
work, and Schneider's commencement of such work in December, was
not satisfactorily explained by the respondent. Cayia's statement at
the hearing that Drew had to be "broken in" impresses us as an after-
thought, which, in the absence of explanatory proof, cannot be given
credence. We are of the opinion, and find, that Drew was employed
on a permanent basis as boat millwright, that the respondent did
not hire him on the theory that his position would terminate if and
when some years in the future Schneider concluded various con-
struction work to be assigned him sometime in the future.
In the light of the foregoing facts and the record we are convinced
that the respondent removed Drew from his regular duties as boat
millwright and terminated his employment shortly thereafter, be-
cause of his union leadership and organizational activities, and that
it did so for the purpose of discouraging membership in the Union.
Drew's efforts had contributed substantially to the highly successful
growth of the Union among the quarry workers in the months im-
mediately preceding his "lay-off." As already noted, by November
the respondent through Cayia had- determined upon denying the
Union recognition. In this it remained obdurate, and its resolution
to undermine the Union was no less certain when in December the
Union returned as representative of the vast majority of the em-
ployees. We are satisfied that discrimination was utilized by the
respondent in Drew's case as a challenge to the demand of the Union
for recognition. The multiple reasons advanced by the respondent
for its treatment of Drew were not causes of the termination of his
employment but attempted justification.
The respondent urged in addition that it had merely laid off Drew,
not discharged him. That Drew was in fact discharged, as Ras-
mussen's remark confirms, we entertain no doubt.
We find that the respondent has discriminated in regard to the
tenure of employment of George Drew, thereby discouraging mem-
bership in the Union ; that by said acts the respondent has inter-
fered with, restrained, and coerced its employees in rights guaranteed
them by Section 7 of the Act.
Alex Durno was discharged -by the respondent on September 4,
1936. He had been in its employ for over 3 years. In the months
preceding his dismissal Durno worked on the respondent's dredging
boat at Manis'tique.
Durno joined the Union in September 1935 and was a strong
organization member. When the Union, in the spring of 1936, called
meeting of the employees to consider the advisability of a strike
because of the respondent's conduct toward the Union, Durno under-
took to and did go among the men and persuaded them to attend.
DECISIONS AND ORDERS 955
The record shows that at that time, and in the months which fol-
lowed, the hostile attitude and acts of the respondent toward the
Union occasioned great fear in those who had joined respecting the
security of their jobs and resulted in a sharp decline in membership
and attendance at meetings. There is no question that the respondent
knew of Durno's union affiliation. Cayia, himself, on several occa-
sions spoke with Durno about the Union. A few months before the
discharge, Rasmussen, the night foreman, told one William Durno,
Durno's brother, that if Durno "wasn't a little more quiet on the
Union question he would be let out." William Durno so testified at
the hearing on subpena of the Board and was an extremely reluc-
tant witness. The respondent did not call Rasmussen or any other
witness to testify with regard to this conversation.
At its last meeting in August of 1936, a few days before Durno's
discharge, the Union nominated Durno as its president, in an attempt
to bolster its falling membership, and arranged to elect and install
him at the following meeting. He was the only candidate for the
office. Plans were also made for participation of the Union in the
Labor Day parade to be held in Manistique on September 7. Both
of these acts were publicized by the Union. The marked decline in
union membership and in attendance at meetings, which the Union
hoped Durno's election would remedy, was explained by many wit-
nesses as resulting from fear of tenure of employment instilled by
the respondent's conduct toward the Union.
At the Labor Day parade, after the supervening discharge of
Durno, only one of the quarry workers marched under the Inland
banner, prepared by the Union for the respondent's employees. Many
of them testified that they were afraid to walk behind that banner.
Durno was in fact never installed as president, for, according to the
testimony, his discharge dealt a fatal blow at attempts to revive
the Union.
As already stated, Durno was discharged on September 4. When
he arrived at work that day he found the dredging boat tied up
at the dock and was told by the foreman, Binder, to see Cayia. This
Durno did, attended by Binder. Cayia read to Durno a tabulation
of various alleged faults it was claimed the respondent found with
Durno and his work. It was charged that Durno carelessly had
broken a "spud," 4 that on one occasion he had taken the dredging
boat in too early, that on another he had taken it in too late causing
a boat to delay in docking, that he had read a newspaper twice whilo
on duty. With the exception of the incident with regard to taking
the dredge in too early and one instance of reading a newspaper, all
the asserted offenses had occurred at least 2 months before the dis-
' A "spud" is a type of anchor
956 NATIONAL LABOR RELATIONS BOARD
charge. Cayia referred to an interoffice communication written by
himself dated August 5 referring'to these various matters and recom-
mending Durno's displacement. Durno denied that he had been at
blame. He explained the incidents, showing among other things,
that the spud had been broken without anyone's fault during a
severe lake storm. Cayia then abandoned further discussion of these
matters. Binder, however, stated that Durno was discharged and
left. Cayia then said that he had no objection to Durno's reemploy-
ment provided the foreman, Binder, did not oppose it. Upon being
asked some minutes later by Durno, Binder stated that he had no
objection if Durno were placed elsewhere at the plant. Durno.
during his employment with the respondent, had been assigned
various jobs. In the days immediately thereafter Durno made sev-
eral inquiries about the reemployment Cayia had promised but was
unsuccessful in getting work. On September 11 another foreman
told Durno that Binder objected to his being employed, that there
was "nothing doing."
The respondent contended that it discharged Durno for inefficiency,
insubordination, incompetence, carelessness, disobedience, quarrel-
someness, inattention to duty, misconduct, and failure to cooperate
in the performance of duties: There is a total failure of any proof
of inefficiency. The record shows that Durno's work was satisfactory.
With respect to the remaining contentions, these rested in the cir-
cumstance that Durno had complained about his working con-
ditions and low wages, that he had broken the spud and engaged
in the other acts discussed in the September 4 conversation with
Cayia. While Durno had made complaint about working conditions
and wages, it also appears that the respondent increased his pay
in consequence. Upon a careful consideration of the above-men-
tioned facts, and the record, we do not feel that the reasons advanced
by the respondent, or any of them, in fact induced Durno's dis-
charge. Some relate to patently frivolous matters; others seek to
lay blame where none existed; most occurred months before the
discharge. The respondent's superintendent, himself, was satisfied,
after reviewing the reasons here urged by the respondent, that, Durno
properly merited employment. The record does not support the re-
spondent's asserted multiple causes of Drew's loss of employment.
We are convinced that Durno, like Drew, was discharged by the
spondent's asserted multiple causes of Drew's loss of employment.
courage membership in the Union. That the respondent had con-
sidered discharging Durno if the occasion required is shown by
Rasmussen's advice that if Durno "wasn't a little more quiet on
the Union question he would be let out." It chose September 4,
1936, as the day for his discharge in order to prevent the Union
from regaining prestige at that time through Durno's leadership
0
DECISIONS AND ORDERS 957
as president, and through the participation of the respondent's em-
ployees in the Labor Day parade. That the respondent succeeded
in its purpose is evident from the statement of numerous witnesses
that the discharge of Durno so intimidated the respondent's em-
ployees as to inhibit them from participating in the Labor Day
festivities and from the fact that the Union was never revived after
September 4, 1936.
We find that the respondent has discriminated in regard to the
tenure of employment of Alex Durno, thereby discouraging inem
bership in the Urdon; that by said acts the respondent has inter-
fered with, restrained, and coerced its employees in rights guaranteed
them by Section 7 of the Act.
Since his discharge, Durno has earned, as wages, $165.
D. C. Miller was discharged by the respondent earlier in the year,
on February 13, 1936. He had been president of the Union since
September 1935, was active in its organizational work, and had par-
ticipated in the union conferences with Cayia, above mentioned.
Miller operated one of the large electric shovel machines owned
by the respondent. On January 6, 1936, while engaged with an
assistant at work, he rested the bucket of the shovel on an over-
hanging rock bank, preparatory to making certain repairs. The
bank collapsed and Miller was injured; his helper was not. Miller
was taken to a hospital with a fractured rib, from which he did not
recover until February 13. The respondent then discharged him.
Several hours after the accident Cayia visited Miller to inquire about
the accident. According to Cayia's testimony Miller at that time
said, "It was just dumb carelessness. There is no excuse,for it."
At the hearing Miller testified, "I was always talking safety first.
That was one time I slipped." It appears from the record that the
placing of the shovel upon the bank violated a safety rule of the
respondent. Miller testified that his action probably had been con-
trary to an unwritten safety rule.
A few days after the accident, Cayia also visited Miller's assist-
ant, the'only eyewitness to the accident, and asked for his account
of the occurrence. When the assistant had completed his statement,
Cayia asked him whether he was secretary of the Union. The assist-
ant replied that he had decided to resign on the day of the accident.
Cayia was the first person to whom this information was given.
At the hearing evidence offered by the respondent narrowed the _
reasons which it argued had motivated the discharge of Miller to
three : inefficiency. roughness on machines, and carelessness. In
addition to proof concerning the accident, a comparison of the ef-
ficiency of the shovel operators was attempted. The record also
shows some damage to machinery committed by Miller in the fall of
1937 and in October 1935.
958 NATIONAL LABOR RELATIONS BOARD
We do not find it necessary to consider whether any or all of the
reasons advanced by the respondent in explanation of Miller's dis-
missal are supported by the record, for the evidence as a whole
fails to establish that Miller's organizational membership and activ-
ities were a cause of his discharge. While the questioning by Cayia
of Miller's assistant regarding the assistant's office in the Union
arouses some suspicion concerning the respondent's motive, the
matter is too speculative. Accordingly, we do not find that the
respondent discriminated in regard to the tenure of employment of
D. C. Miller. The allegations of the complaint in so far as they
relate to D. C. Miller will be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above with respect to George Drew and Alex Durno, occurring
in connection with the operations of the respondent described 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 discriminated in regard to the
tenure of employment of George Drew and Alex Durno, we will
order the respondent to offer each of said persons full reinstatement
to his former position, and to make each whole for any loss in pay
he may'have suffered. by reason of such discrimination, subject only
to one qualification. The record shows that the Union first filed its
charges herein on July 22, 1937, 19 months after Drew's discharge
and about 11 months after Durno's. The respondent argues in its
brief that in view of this circumstance back pay in any event should
not be directed as is our usual practice for the period commencing
with the date of discharge. We find merit in the respondent's con-
tention and accordingly will order the respondent to make whole
each of these men for any loss of pay he may have suffered during
the period from July- 22, 1937, until the date of the offer of rein-
statement by payment to him of a sum equal to the amount which
he normally would have earned as wages during said period at the
rate he was paid at the time of his discharge, less his net earnings 5
during said period. We will further order the respondent to cease
5 By "net earnings" is meant earnings less expenses such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
tea, Lumber and Sawmill Workers , Local $590, 8 N . L R B 440
DECISIONS AND ORDERS 959
and desist from its unfair labor practices and to take certain affirm-
ative action which we deem necessary to effectuate the purposes
and policy of the Act.
Upon the foregoing findings of fact and upon the entire record
in the case , the Board makes the following :
CONCLUSIONS OF LAW
1. Quarry Workers International Union of North America,
Branch No. 259, is a labor organization, within the meaning of
Section 2 (5) of the Act.
2. The respondent, by discriminating in regard to the tenure of
employment of George Drew and Alex Durno, and thereby dis-
couraging membership in the Union, has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of
the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, 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.
5. The respondent has not engaged in unfair labor practices,
within the meaning of Section 8 (1) and (3) of the Act, in respect
to D. C. Miller.
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, Inland Lune and Stone Company, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) In any manner discouraging membership in Quarry Workers
International Union of North America, Branch No. 259, or any
other labor organization of its employees, by discharging or refus-
ing to reinstate any of its employees or in any other manner dis-
criminating in regard to their hire or tenure of employment or any
term or condition of employment;
(b) In any other manner-interfering with, restraining, or coerc-
ing its employees in the exercise of the right of self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, or to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
960 NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to George Drew immediate and full reinstatement to the
position which he formerly held with the respondent in or about
December 1935, prior to his transfer from boat millwrighting to
carpentry work, without prejudice to his seniority and other rights
and privileges :
(b) Offer to Alex Durno immediate and full reinstatement to his
former position, without prejudice to his seniority and other rights
and privileges;
(c) Make whole the said George Drew and Alex Durno for any
loss of pay they have suffered after July 22, 1937, by reason of -the
respondent's discrimination in regard to their tenure of employment
by payment to each of them of a sum of money equal to that which he
normally would have earned as wages during the period from said
July 22, 1937, to the date of the offer of reinstatement, less his net
earnings during that period ;
(d) Post immediately, and keep posted for a period of at least
thirty (30) consecutive days from the date of posting, notices to its
employees in conspicuous places at its quarries and plant stating
that the respondent will cease and desist in the manner set forth
in paragraph 1 of this order;
(e) Notify the Regional Director for the Twelfth Region in writ-
ing 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 allegations of the complaint
with respect to D. C. Miller, and the allegations of paragraph 7 of
the complaint and so much of paragraphs 8, 9, and 10 thereof as
relate to paragraph 7, be, and the same hereby are, dismissed.