Midwest Steel Corp.

National Labor Relations Board - Board Decisions

May 29, 1941

32 N.L.R.B. 195 (N.L.R.B. 1941)

In the Matter Of MIDWEST STEEL CORPORATION and STEEL WORKERS
ORGANIZING COMMITTEE
Case No. C-1611-Decided May 29, 1941
Jurisdiction : scrap metal, rag, and paper purchasing, selling, and distributing
industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements ; granting employees
a week's vacation with pay to induce them to forego the union.
Discrimination: lay-offs to discourage membership in union.
Remedial Orders : reinstatement and back pay awarded one employee laid off;
as to one employee who refused an offer of reinstatement because of his
illness back pay awarded from date of the discrimination to, date he became
physically incapacitated from working because of his illness ; back pay awarded
remaining employees from date of their discriminatory lay-off to date of
their reinstatement.
Mr. Guy Fanner and Mr. Oscar Grossman, for the Board.
Silrverstein, Davis c6 Rich, by Mr. Sam Silverstein and Mr. Joe L.
Silverstein, of Charleston, W. Va., for the respondent.
Mr. Paul J. Fasser, of Pittsburgh, Pa., for the S. W. O. C.
Mr. Bliss Daffan, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Steel Workers
Organizing Committee, herein called the S. W. O. C., the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Ninth Region (Cincinnati, Ohio), issued its complaint
dated April 15, 1940, against Midwest Steel Corporation, Charleston.
West Virginia, herein called the respondent, alleging that the re-
spondent had engaged and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act,
32 N. L. R. B., No. 43.
195
44S692-42-vol 32--14
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
49 Stat. 449, herein called the Act.' Copies of the complaint and
accompanying notice of hearing were duly served upon the respondent
and the S. W. O. C.
Concerning the unfair labor practices, the complaint, as amended
at the hearing, alleged in substance that the respondent discriminated
with regard to the hire and tenure of employment of 11 named em-
ployees because of their membership in the S. W. O. C. and because
they had engaged in concerted activities with other employees for
purposes of mutual aid and protection and collective bargaining,
and that the respondent thereby discouraged membership in the
S. W. O. C. The complaint further alleged that the respondent
by the foregoing and other acts interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
On April 24, 1940, the respondent filed its answer in which it ad-
mitted certain facts with respect to the nature of its business but
denied that it had engaged in the unfair labor practices alleged in
the complaint.
Pursuant to notice, a hearing was held in Charleston, West Virginia,
on April 29 and 30 and May 1, 1940, before Herbert Wenzel, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent were, represented by counsel and the Union by its repre-
sentatives; all participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing upon the issues was afforded,all parties. During the
course of the hearing the Trial E.4aminer granted a motion of the
Board's counsel to amend the complaint to include the name of William
M. Smith within the allegations charging discrimination with respect
to hire and tenure of employment. A corresponding motion by the
respondent to amend its answer to conform to the amendment to the
complaint was granted by the Trial Examiner. At the conclusion of
the hearing the Trial Examiner granted motions by the Board's coun-
sel to amend the complaint specifically to conform to stipulated facts
relative to the character of the respondent's business and to conform
the pleadings to the proof adduced at the hearing. During the course
of the hearing the Trial Examiner made numerous other rulings on
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings of the Trial Examiner
are hereby affirmed.
1 The charge and amended charges also alleged a violation of Section 8 (5) of the Act.
However, the respondent was not charged with such a violation in the complaint , no proof
to support such an allegation was introduced at the hearing , and on May 9, 1940, the
charge of unfair labor practices within the meaning of Section 8 (5) of
withdrawn by the S. W. O. C.
the Act was
MIDWEST STEEL CORPORATION 197
On June 12, 1940, the Board, pursuant to Article II, Section 36 (a),
of National Labor Relations Board Rules and Regulations-Series
2, as amended, ordered the proceeding transferred to and continued
before it and, pursuant to Article II, Section 37, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, directed
that no Intermediate Report be" issued by the Trial Examiner, that
Proposed Findings of Fact, Proposed Conclusions of Law, and Pro-
posed Order be issued, and that the parties shall have the right, within
20 days from the date of the Proposed Findings of Fact, Proposed
Conclusions of Law, and Proposed Order, to file exceptions and to
request oral argument before the Board, and, within 30 days from the
date of the Proposed Findings of Fact, Proposed Conclusions of Law,
and Proposed Order, to file a brief with the Board.
On March 12, 1941, the Board issued Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order, copies of which
were duly served upon all parties. Exceptions to the Proposed Find-
ings of Fact, Proposed Conclusions of Law, and Proposed Order were
filed by the respondent on April 3, 1941. The Board has considered
the exceptions to the Proposed Findings of Fact, Proposed Conclu-
sions of Law, and Proposed Order and, save as they are consistent
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, Midwest Steel Corporation, is a West Virginia
corporation having its principal office and place of business at Charles-
ton, West Virginia. It is engaged in the purchasing, processing, sale,
and distribution of scrap ferrous and non-ferrous metal, paper, rags,
rope, and new and relaying rails, and in the fabrication and sale of
angle and splice bars. Of $280,000 worth of ferrous materials and
$120,000 worth of non-ferrous materials purchased by the respondent
in 1939, it obtained approximately 65 per cent and 100 per cent,
respectively, outside the State of West Virginia. During the same
year, of $369,000 worth of ferrous materials- and $156,000 worth of
non-ferrous materials sold and shipped by the respondent from its
Charleston plant, approximately 25 per cent and 95 per cent, re-
spectively, were sold and shipped to points outside the State of West
Virginia.
All the paper sold by the respondent in 1939, amounting in value to
$27,000, was sold and shipped by it to points outside the State of West
Virginia.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During 1939 the respondent, acting as a broker, also purchased and
sold $471,000 worth of materials. Of these, the respondent purchased
and sold 50 per cent in States other than West Virginia, deliveries of
such materials being made to States other than those in which they
were purchased. The balance of the materials handled by the re-
spondent in its brokerage business was purchased by the respondent
within the State of West Virginia. Of these materials, approximately
25 per cent were sold outside the State of West Virginia:
U. THE ORGANIZATION INVOLVED
Steel Workers Organizing Committee is a labor organization.' affil-
iated with the Congress of Industrial. Organizations, admitting to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
At the end of March 1939 the respondent's employees in its scrap
yard began discussing formation of a labor organization. On March
31, 1939, R. L. Glenn, an employee, circulated a "petition" among the
employees working in the respondent's scrap yard and obtained the
signatures thereto of many employees who were in favor of organizing
a union. On April 4, 1939, at the conclusion of the day's work, 12
of the respondent's employees went to the office of the West Virginia
Industrial Union Council in Charleston and signed membership cards
in the S. W. O. C. On the following day several more employees
joined the S. W. O. C.
The respondent was fully aware of the organizational activities
among the employees almost as soon as they began. Earl Stricker,
superintendent of the respondent's scrap. yard, testified that he knew
that the employees were organizing early in April, that he advised
Joe L. Silverstein, the respondent's secretary and treasurer, of this
fact as soon as it was made known to him, and was instructed by
Silverstein not to interfere with" the employees in the exercise of 'their
rights under the Act. Stricker testified further that he in turn-trans-
mitted these instructions to other supervisory employees' 'of the
respondent. Although the respondent's supervisory employees' tes-
tified at the hearing that they had adhered to these instructions, it is
clear that, with the advent of organizational activities among the
employees, Stricker and other supervisory employees engaged in con-
duct to discourage membership in the S. W. O. C. Buster Vance-4n
employee working in the scrap yard, testified that on March 31, 1939,
Stricker saw him sign' the petition being'' eirculated''by Glenn" and
asked him what he was signing, and that on the following day Ernest
MIDWEST STEEL CORPORATION 199
Moles,- a foreman, asked him whether he had joined the S. W. O. C.,
and when Vance replied that he had, warned him that he would be
discharged. On the same day, according to Vance, Stricker stated, in
his presence that he would discharge the first man whom he caught
"taking the union paper around." Albert Skeens, another employee,
testified that on or about April 1, 1939, Stricker remarked to him,
"Albert, I understand they are going to organize a union here?"
When Skeens replied that he did not "know anything about it,"
Stricker continued, "If they do, why we will all stop. We are going
to shut down." Herschel Smith, an employee in,the scrap yard, tes-
tified that a few days before he joined the S. W. O. C. on April 5 he
overheard Stricker say that "he did not think there was much to the
C. I. 'O. union" and that "all they are fit for was trouble makers."
Smith testified further that on the evening of April 4, while he was
at work, Moles asked him what he thought about the S. W. O. C. and,
when Smith replied that he had not given it much thought, Moles said,
"I wouldn't join that union if I was you. It is liable to get you out.
with the company. Before I would sign it, I would quit and go home."
Both Stricker and Moles denied making the respective statements
attributed to them by Vance, Skeens, and Smith. We do not credit
their denials, however, in view of the mutual consistency of the tes-
timony of Vance, Skeens, and Smith and the consistency of their
testimony with the evidence of other anti-union statements and con-
duct on the part of the respondent's various officials, discussed' below.
We find that Stricker and Moles made the statements attributed to
them by Vance, Skeens, and Smith substantially as testified to by the
three employees.
On April 4, 1939, the day on which the first group of the respond-
ent's employees signed S. W. O. C. membership cards, Joe L. Silver-
stein, the respondent's secretary and treasurer, advised Stricker to dis-
continue processing "country scrap" and reduce the respondent's force
of employees accordingly.2 As a result of this order a number of em-
ployees were laid off on April 5, 1939.3 A majority of these employees
were reemployed by the respondent on or about April 24, 1939, or
within a short time thereafter. With the return of the laid-off em-
ployees to work the respondent continued its campaign to thwart and
prevent their • self-organizational activities. Shortly after Wilbur
Bonham, one of the laid-off employees, returned to work on April 24,
2 The term country scrap is used by the respondent to designate ferrous metal , consist-
ing principally - of low-grade scrap iron , obtained by the respondent from sources other
than industrial plants. This metal is obtained in a rough form and is "processed" by
being sheared or broken to the proper size and then assorted so that it can be sold on the
market to industrial concerns . A large portion of the labor performed by employees in
the respondent's scrap yard is in connection with processing country scrap.
2 The circumstances surrounding the respondent's decision to discontinue processing
country scrap and the lay-off of employees are discussed in Section III, B, infra.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1939, A. P. Silverstein, the respondent's president, remarked to him,
with reference to the S. W. 0. C., that "if it was A. F. of L. I wouldn't
care" and that he (Silverstein) "wasn't going to let nobody come in
and run his place and tell him who to hire and fire; that he would
close up first."
At about this time a committee of the S. W. 0. C. met with the of-
ficials of the respondent on several occasions for the purpose of col-
lective bargaining. It appears that among other requests made by the
S. W. 0. C. at these meetings was one for vacations with pay. Shortly
after,these conferences A. P. Silverstein asked a group of employees
working in the scrap yard, "How would you all like to have a vaca-
tion with pay?" When the employees replied that this would be "fine,"
Silverstein continued, "I am going to give you a vacation with pay.
You understand, the union ain't making me do this. I ain't got any-
thing against the union; I am doing this myself." The employees
were thereafter given a week off from work for which they were paid.
Wilbur Bonham testified that, at about the same time that A. P. Sil-
verstein spoke to the employees regarding vacations, Moles suggested
to Bonham and William Peck, both members of the S. W. 0. C., that
if they "would talk to the boys and get them to drop the union and go
up there to the office we could get whatever we' asked for," and said
that "The union had played the devil with the shop ... it was a pretty
fair shop and it was worth nothing now." While Moles in his testi-
mony denied having made any statements to the employees' regarding
the S. W. 0. C., he testified that, having learned that the employees
were joining the Union, he advised them that if they would form a
committee "first" and go to the office they could get what they wanted.
He testified that he gave the employees this advice because of his fear
of a strike and its effect upon his employment. In view of Moles'
partial corrobation of the testimony of Bonham regarding the in-
cident, we find that Moles made the foregoing statements substantially
as testified to by Bonham.
We find that by the foregoing statements of A. P. Silverstein,
Stricker, and Moles, and by granting the employees a week's vacation
with pay, stressing that such concession had' not been obtained for
them through the efforts of the S. W. 0. C., thus indicating the futility
of collective action by the employees, discrediting the S. W. 0. C., and
discouraging its_ employees from becoming members thereof,4 the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
* Cf National Labor Relations Board v Whittier Mills Company et al., 111 F. (2d) 474
(C. C. A. 5), enf'g Matter of Whittier Mills Company et al. and Textile Workers Organizing
Comntittee, 15 N L R B 457. -
MIDWEST STEEL' CORPORATION 201
B. Discrimination with respect to hire and tenure of employment
The complaint, as amended, alleges that the respondent laid off 10
named employees for certain periods set forth therein, and also laid off
and refused to reinstate one employee, because they joined and as-
sisted the S. W. 0. C. and engaged in concerted activities for the pur-
poses of collective bargaining and other mutual aid and protection.
We will consider the lay-offs in the light of the evidence showing the
respondent's antipathy to the S. W. 0. C., related supra, discussing
first the lay-off of R. L. Glenn and then those of the other employees
as a group.
R. L. Glenn was a shearman and had been in the respondent's em-
ploy for approximately 14 years when he was laid off on March 31;
1939. As shown above, Glenn was the leader of the movement to form
a labor organization among the respondent's employees, prepared the
petition circulated among them on March 31, 1939, and was responsible
for most of the employee signatures obtained thereto. When Glenn
reported for work on the morning of March 31, 1939, he was advised
by Stricker that he was not needed any more and was then laid off
without further comment or explanation.
In about the middle of July 1939 Glenn went to the respondent's
plant to sell it some iron which he had collected. While Glenn was un-
loading the iron A. P. Silverstein asked him why he was not working
for the respondent. When Glenn replied that he was not working be-
cause he was the one "that got up that little union up here," Silver-
stein said, "if I would have been here, that wouldn't have happened.
It looks like that son, Joe L., of mine, is going to ruin me yet. You
come on back and go to work. You are a good man and I need you
here." Glenn advised Silverstein that he was not then able to work
because of illness. However, on August 8, 1939, Glenn had recov-
ered sufficiently from his illness to work, was reemployed by the re-
spondent, and was still employed at the time of the hearing.
The respondent contends that Glenn was laid off on March 31, _ 1939,
because he had been "loafing" in the shower room of the respondent's
plant during working hours on the previous day. In this connection
Stricker testified that on March 30 he discovered that Glenn was miss-
ing from his work in the scrap yard, went to look for him, and found
him sitting in the shower room talking to Vance; that Stricker then
reported the incident to Joe L. Silverstein, received instructions from
Silverstein to lay Glenn off, and did so when Glenn reported for work
on the next day. Stricker testified further that he had previously
warned the employees against wasting time in the shower room during
working hours and that it was the respondent's custom to admonish an
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee for engaging in this practice for the first offense and to dis-
charge him for the second . While Stricker testified that Glenn had
been "dilatory" on other occasions and had been reprimanded for this,
he stated that the occasion when he found Glenn in the shower room
on the day prior to his dismissal was the first time that he had "caught"
Glenn there "actually loafing and talking. " Stricker also admitted
that he did not know how long Glenn had been in the shower room on
this occasion and that no disciplinary action was taken against Vance,
the other employee involved, although Stricker did not know whether
or not Vance was supposed to be working at the time . Stricker also
admitted that Glenn was one of the best shearmen in the respondent's
employ.
Glenn testified that he, like most of the employees , frequently had
occasion to go to the shower room because the employees ' lockers,
toilet, and drinking fountain were located there. He recalled seeing
Stricker in the shower room on the morning of his lay-off but did
not recall any occasion when Stricker found him there engaged in
a conversation with Vance.
The evidence fails to support the respondent 's claim that Glenn
was laid off for "loafing" in the shower room. This claim is belied
by Stricker 's testimony that he knew of no other occasion when
Glenn had been guilty of "loafing" in the shower room, that the
respondent customarily did not discipline an employee for such an
offense in the absence of prior admonishment , and that the respondent
did not discipline Vance, the other participant in the incident.
Under these circumstances , it is incredible that the respondent, in the
absence of some other reason therefor, would lay off, without warn-
ing, one of its best shearmen after 14 years ' employment. On the
other hand, it was at precisely this time that the organizational
movement was being undertaken by the respondent's employees and
Glenn was an active participant in that movement which the re-'
spondent opposed. Furthermore, A. P. Silverstein's reply to Glenn's
statement to the effect that he had been laid off by the respondent
because of his activities on behalf of the S. W. 0. C. constituted an
admission by the respondent 's president that Glenn 's lay-off was
brought about by such activities.
We find that in laying off R. L. Glenn the respondent discriminated
in regard to his hire and tenure of employment , thereby- discouraging
membership in the S. W. O. C . and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Wilbur Bonham, 0. H. Lambert , Albert Skeens , Oscar Shaffer,
Buster Vance, Leon Skiles, Clarence Haid, Herschel Smith, William
M. Smith, and E. M. Webb were laid off by the respondent on April
MIDWEST STEEL CORPORATION 203
5, 1939, and were, with the exception of E. M. Webb, who has not
been reemployed, reinstated on the dates indicated opposite their
respective names in Appendix A. -
As stated above, on April 4, 1939, the first day on which a large
group of the respondent's employees signed S. W. O. C. membership
cards, the respondent decided to discontinue processing country scrap
and lay off the employees engaged in that work. At about 6: 30 or 7
o'clock that evening Joe L. Silverstein called Stricker on the tele-
phone at his home and told him of the respondent's decision. On the
following day Stricker ceased processing country scrap and laid off
the employees named in the immediately preceding paragraph and
several others, when they reported for work.5
While the respondent contends that its decision to discontinue
processing country scrap and to lay off the employees engaged in that
work was not influenced by their organizational activities but was
due entirely to business conditions, we find that the evidence sup-
ports the contrary conclusion. In this connection Joe L. Silverstein
testified th otiin about the middle of January, 1939, he noticed that
the cost of processing country scrap hid increased considerably.°
He testified that the respondent then sold two carloads of unprocessed
country scrap, one in the middle of February and,one in about the
middle of March, and found this more profitable than processing the
scrap under the increased costs; that he then instructed Stricker that
unless the costs of processing were decreased the respondent would
change its method of operations and sell country scrap without proc-
essing. Silverstein testified further that the processing costs were
not lowered thereafter and that, upon examining the condition of
the market on April 4, he concluded to sell country scrap without
processing. Stricker corroborated Silverstein's testimony regarding
the increased cost of processing country scrap, conferences between
them on the subject, and Silvestein's instructions to him on the eve-
ning of April 4 regarding the change in the method of operations.
Both Silverstein and Stricker testified that they had no knowledge as
5 All the employees named in the immediately preceding paragraph except Bonham, Webb,
Shaffer , and Lambert were engaged in processing country scrap. With the exception of
Webb, the employees laid off on April 5 were reinstated between 1pril 24 and May 29,
1939. The respondent claims that it did not reinstate Webb because be was a temporary
employee and it had no further work for him. However, it is clear that Webb's lay-off
on April 5 occurred under the same circumstances and for the same reasons as did the
lay-offs of the other employees on that date
While it appears that the respondent did not resume processing country scrap until
September 1939 , Joe L. Silverstein testified that it became necessary to increase the force
of eml ioyees on April 24 and thereafter because 14 cars of "material " were received
"overnight."
6 He attributed this increase in costs to the fact that A. P. Silverstein, the respondent's
president , who was in Florida, no longer personally supervised the work of the employees
in the scrap yard, as had been his custom, and that they were taking advantage of his
absence and "stalling" in their work.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to which of the laid-off employees were members of the S. W. O. C.
and that all the employees working on country scrap were laid off
indiscriminately. We are of the opinion that the condition of the
country-scrap market on April 4, 1939, was not the reason for the
respondent's discontinuing processing the material and laying off the
employees thus engaged but merely provided an opportunity to do
so. The organizational activities among the respondent's employees
were centered in the country scrap processing employees.? Joe L.
Silverstein admitted in his testimony that on April 4,he had received
a call from a representative of the S. W. O. C. and thus knew that
the employees were attempting to organize and had joined or were
about to join the S. W. O. C. In addition, Stricker testified that
Silverstein's decision to discontinue processing country scrap and to
lay off the employees engaged in that work came after he (Stricker)
had advised Silverstein of the organizational activity among the
employees. Joe L. Silverstein conceded in his testimony that April
1939 was the first time that the respondent had discontinued process-
ing country scrap since he had entered the respondent's employ in
1937 and Stricker testified that it was the first such occ sion within
his knowledge in his more than 20 years' employment with the re-
spondent. It is significant also that, although the alleged increased
cost of processing country scrap was first noticed in January 1939,
nothing was done to remedy the situation for several months and
that the respondent did not seek to prove the increased costs by means
of its records. Under these circumstances, considered in connection
with the anti-union activities engaged in by the respondent as set
forth above, we are convinced that the respondent was motivated
by its desire to discourage the organization of its employees, rather
than by any consideration of business expediency, in making the lay-
off of April 5, 1939.
The respondent urges that the allegations of discrimination as to
the above-named employees are not sustained since the evidence dis-
closes that some employees laid off on April 5, 1939, were not members
of the S. W. O. C., and that some who joined the S. W. O. C. on April
4 and 5 were not laid off. Organizational activities began among the
employees engaged in processing country scrap. The respondent,
with knowledge of this fact and because of it, discontinued processing
country scrap and laid off all the employees engaged in this work
thus ridding itself of most of those who joined the S. W. O. C. The
'Of the above -named employees , Bonham , William Smith , Shaffer , Lambert, Skiles, and
Webb signed the Glenn petition on March 31 and joined the S W. 0 C on April 4. Vance
signed the Glenn petition on March 31. While he did not personally sign the petition,
Skeens ' name was placed thereon . Both Vance and Sheens joined the S W. O. C. on April
5. The record does not disclose whether or not Herschel Smith and Haid signed the Glenn
petition but Haid joined the S . W. O. C. on April 4 and Smith on April 5.
MIDWEST STEEL CORPORATION 205
fact that the respondent laid off several employees engaged in pro-
cessing country scrap who had not joined the S. W. O. C. and did
not lay off some S. W. O. C. members who were not so engaged, does
not disprove that the respondent seized the opportunity presented by
the claimed business convenience of discontinuing country -scrap pro-
cessing' for the purpose of ridding itself of the bulk of the employees
who were engaging in union activities . It shows merely that in
accomplishing its unlawful purpose the respondent adopted a means
in accord with its business, convenience and, by the same token, the
means most likely to accomplish its purpose and at the same time
conceal its real motive. Moreover , the respondent has offered no
explanation for its lay -off on April 5 of Bonham , Shaffer, and Lam-
bert, who had all joined the S. W. O. C. on the afternoon of April 4
and who were engaged in work other than processing country scrap.
The respondent 's explanation for its lay-off of Webb on April 5,
reiterated in its exceptions herein, namely , that the temporary job on
which he was employed was completed, is not supported by the evi-
dence. While Webb was a temporary employee , it is clear , as we have
found above, that the respondent was motivated, in making the lay-
off of April 5, by its desire to discourage the organization of its em=
ployees and that, in this respect, Webb's lay-off did not differ from
that of other employees. That Webb was a temporary employee made
his lay -off no less a discrimination in regard to hire and tenure of
employment to discourage membership in a, labor organization.
We find that in laying off Wilbur Bonham, O. H. Lambert, Albert
Skeens, Oscar Shaffer , Buster Vance, Leon Skiles , Clarence Haid,
Herschel Smith, William M. Smith, and E. M. Webb on April 5,
1939, the respondent discriminated with regard to their hire and tenure
of employment , thereby discouraging membership in the S. W. O. C.
and interfering with, restraining , and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent 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.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices , we shall order it to cease and desist therefrom and to
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take certain affirmative action which we find necessary to effectuate
the policies of the Act.
We have found that the respondent discriminated against R. L.
Glenn, E. M. Webb, and the employees listed in Appendix A with
regard to their hire and tenure of employment. All said employees
except E. M. Webb have been reinstated to the respondent's employ.
We shall order the respondent to offer to Webb immediate and full
reinstatement to his former or a substantially equivalent position 8
without prejudice to his seniority and other rights and privileges, and
to make him whole for any loss of pay he has suffered by reason of the
respondent's discrimination against him by payment to him of a sum
of money equal to that which he normally would have earned as wages
from April 5, 1939, the date of the respondent's discrimination against
him, to the date of the respondent's offer of reinstatement, less his net
earnings 9 during said period.
R. L. Glenn was offered reinstatement by the respondent in July
1939 but was unable to accept employment at that time because of
illness. Since the record does not disclose for how long a period prior
to the date of the respondent's offer of reinstatement to him, Glenn
was physically incapacitated from performing his duties with the re-
spondent, we shall order the respondent to make him whole for any
loss of pay he suffered by reason of the respondent's discrimination
against him by payment to him of a sum of money equal to that which
he normally would have earned as wages from March 31, 1939, the
date of the respondent's discrimination against him, to the date when
he became physically incapacitated from working because of illness,
less his net earnings 10 during said period.
As to the remaining employees, listed in Appendix A, we shall
order the respondent to make them whole for any loss of pay they
suffered by reason of the respondent's discrimination against them by
payment to each of them of a sum of money equal to that which he
normally would have earned as wages from April 5, 1939, the date of
the respondent's discrimination against him, to the date of his rein-
8 Webb is entitled to reinstatement to whatever employment he would now have had he
not been discriminatorily laid off on April 5, even though such employment may be only
of a temporary nature.
'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 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 Cai penters
and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R B 440
Monies received for work performed upon Federal , State, county, municipal , or other
work-relief projects shall be considered as earnings See Republic Steel Corporation v.
N. L R B., 311 U. S 7.
10 See footnote 9, supra.
MIDWEST STEEL CORPORATION 207
statement, as shown in Appendix A, less his net earnings 11 during said
period.
Upon the foregoing findings of fact and upon the entire record in
the case the Board makes the following:
CONCLUSIONS OF LAW
1. Steel Workers' Organizing Committee is a labor organization,
within the meaning of Section 2 (5) of the Act.
2. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of 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.
13. The respondent, by discriminating in regard to the hire and
tenure of employment of its employees, thereby discouraging mem-
bership in a labor organization, has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (3) 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 Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent Midwest Steel Corporation, Charleston, West Virginia,
and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Steel Workers Organizing Com-
mittee or in any other labor organization of its employees by dis-
charging, laying off, or in any other manner discriminating in regard
to their hire and tenure of employment or any term or condition of
their employment;
(b) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
1 See footnote 9, supra.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to E . M. Webb immediate and full reinstatement to his
former or a substantially equivalent position , without prejudice to
his seniority and other rights and privileges;
(b) Make whole the said E . M. Webb for any loss of pay he may
have suffered by reason of the respondent 's discrimination against
him by payment to him of a sum of money equal to that which he
normally would have earned as wages during the period from the
date of such discrimination to the date of the respondent 's offer of
reinstatement , less his net earnings 12 during said period;
(c) Make whole R. L. Glenn for any loss of pay he may have
suffered by reason of the respondent 's discrimination against him
by payment to him of a sum of money equal to that which he nor-
mally would have earned as wages during the period from the date
of such discrimination to the date when Glenn became incapacitated
from working because of illness, less his net earnings 13 during said
period ;
(d) Make whole the employees listed in Appendix A for any
losses of pay they may have suffered by reason of the respondent's
discrimination against them by payment to each of them, respectively,
of a sum of money equal to that which lie normally would have
earned as wages during the period from the date of such discrimina-
tion against him to the date of his reinstatement , as shown in
Appendix A, less his net earnings 14 during said period ;
(e) Post immediately in conspicuous places throughout its plant
in Charleston , West Virginia, and maintain for a period of at least
sixty ( 60) days from the date of posting , notices to its employees
stating ( 1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; ( 2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), (c), and (d ) of this
Order; and ( 3) that the respondent 's employees are free to become or
remain members of Steel Workers Organizing Committee and that
the respondent will not discriminate against any employee because of
membership or activity in that organization ;
(f) Notify the Regional Director for the Ninth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
12 See footnote 9, supra
13 See footnote 9, supra.
14 See footnote 9, supra.
MIDWEST STEEL CORPORATION 209
APPENDIX A
Laid O ff Reinstated
Wilbur Bonham____________________________________ April 5 April 24, 1939
O. H. Lambert_____________________________________ April 5 April 24, 1939
Albert Skeens_____________________________________ April 5 April 24, 1939
Oscar Shaffer-------------------------------------- April 5 April 24, 1939
Buster Vance______________________________________ April 5 April 26, 1939
Leon Skiles---------------------------------------- April 5 April 27, 1939
Clarence Haid_____________________________________ April 5 May 3, 1939
Herschel Smith_ ___________________________________ April 5 May 3, 1939
William M. Smith_________________________________ April 5 May 29, 1939