R.C. Mahon Co.

National Labor Relations Board - Board Decisions

Dec 17, 1940

28 N.L.R.B. 619 (N.L.R.B. 1940)

In the Matter of R. C. M ANON COMPANY and STEEL WORKERS ORGAN-
IZING COMMITTEE (AFFILIATED WITH THE C. I. 0)
Case No. C-1428.-Decided December 1'7, 1940
Jurisdiction : steel manufacturing industry.
Unfair Labor Practices
Interference, Restralnt,-and Coercion: interrogation concerning union affiliation.
Discrimination: discharge of employee and refusal to give another employee
full-time employment because of their union activities; dismissal of allegations
concerning certain employees.
Remedial Orders : back pay awarded.
Mr. William J. Avrutis, for the Board.
Mr. Albert E. Meder and Mr. Thomas E. Wilson, of Detroit, Mich.,
for the respondent.
Mr. Julius Sobonya, of Detroit, Mich., for the Union.
Miss Marcia Hertzmark, of counsel to the Board.
AMENDED DECISION
AND
ORDER
On May 22, 1940, the Board issued a Decision and Order in these
proceedings.', On November 22, 1940, it served upon the parties an
Amended Decision and Order and notified them that unless sufficient
cause to the contrary appeared by December 9, 1940, it would issue said
Amended Decision and Order. None of the parties has filed objections
to the issuance of the Amended Decision and Order. The Board there-
fore substitutes its Amended Decision and Order for its Decision and
Order of May 22, 1940. -
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Steel Workers
Organizing Committee, herein called the Union,2 the National -Labor
Relations Board, herein called the Board, by the Regional Director for
the Seventh Region (Detroit, Michigan), issued its complaint dated
123 N. L. R. B. 1084.
The particular organization involved herein.is Local 1279 of Amalgamated Association
of Iron , Steel and Tin Workers, an affiliate of Steel Workers Organizing Committee. Both
are affiliated with the C. I. O. .
28 N. L . R. B., No. 93.
61'9
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 29, 1939, against R. C. Mahon Company, Detroit, Michigan,
herein called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. The complaint and notice of hearing were duly sei ved upon
the respondent and upon the Union.
Concerning the unfair labor practices, the complaint alleged in
substance (1) that in or about November 1937, and at various times
thereafter, the respondent questioned its employees as to their union
membership and compelled them to sign written statements indicating
their preference between the Union and a shop committee for pur-
poses of collective bargaining; (2) that the respondent discharged or
laid off 18 named persons 3 between August 1937 and March 8, 1938, and
thereafter refused to reinstate said persons, for the reason that they,
had joined and assisted the Union, and engaged in concerted activities
for the purposes of collective bargaining and other mutual aid and pro-
tection; and (3) that during the period from February 1938 to Febru-
ary _1939 the respondent - discriminated against Edward Bell } by re-
stricting his employment to part-time work for the reason that he had
joined and assisted the Union and engaged in concerted activities for
the, purposes,of collective bargaining and other mutual aid and pro-
tection.
On July 7, 1939, the Union filed a Second Amended Charge, alleging
that in December 1937 the respondent discriminated against Felix
Rumienski in regard to his hire and tenure of employment. On July
8, 1939, counsel for the Board served notice of motion to amend the
complaint by adding thereto the name of Felix Rumienski as one of the
employees discriminatorily discharged and refused reinstatement, and
by,indicating that Frank Szableski, an employee previously `alleged
to have been laid off and refused reinstatement, had been reemployed
by the respondent on or about January 17, 1939.
On July 10, 1939, the respondent filed an answer to the complaint
denying the commission of the unfair labor practices alleged in the
complaint and alleging affirmatively that the employees named in the
complaint were laid off for lack of work and had not been reinstated'
because of an absence of work for which they had proved themselves
capable. . The respondent also alleged that matters contained in cer-
tain paragraphs of the complaint, concerning the respondent's inter-
rogation of employees, had been adjudicated in an earlier proceeding
Theodore Benyk, Ignatius Bosek , Louis Chrostowski;' George Harker, Charles D: Hoff-
man, Lawrence Jamrlsko , Frederick Morse Johnson ,- Joseph Jovanov, Nick Klosich, John
Kovacich , Zdislew J . Kurmanoski , Walter Loser, Sidney McNa , Hugh McNeilly , Melvin
I'lgula, Harry Simen , Frank Szableski, and Jesse Thorn.
4 Incorrectly designated In the complaint as James Bell.
R. C. MAHON COMPANY 621
before the Board, and for this reason it moved to strike such para-
graphs from the complaint.
Pursuant to notice, a hearing was held at Detroit, Michigan, from
July 17 through 20, 1939, before Peter F. Ward, the Trial Examiner
duly designated by the Board. -The Board and the respondent were
represented by counsel and participated in the hearing. A repre-
sentative of the Union appeared in its behalf. 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 com-
mencement of the hearing the Trial Examiner 'granted a motion by
counsel for the Board to amend the complaint pursuant to the notice
previously given. At the conclusion of the Board's case, the Trial
Examiner reserved ruling upon a motion of counsel for the Board
to conform the pleadings to the proof. The motion is hereby
granted. During the course of the hearing the • Trial Examiner
made a number of other rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed. After the hearing. the respondent submitted a brief
to the Trial Examiner.
Thereafter, the Trial Examiner issued his Intermediate Report,
dated November 20, 1939, copies of which were duly served upon
all the parties,, finding that the respondent had engaged in unfair
labor practices within the meaning of Section 8 (1) and (3) of the Act.
He recommended that the respondent cease and desist from engaging
in unfair labor practices, and that it make whole Edward Bell for the
monetary losses suffered by him as a result of the respondent's discrim-
ination against him. He also recommended that the complaint, as
amended, be dismissed as to 19 of the complainants, but that 16 of them
be placed upon a preferential' hiring list to be offered employment as
soon as a need for their services arose. The Union and the respondent
filed exceptions to- the Intermediate Report. The respondent filed
with the Board a brief in support of its exceptions and a supplemental
brief in opposition to the Union's exceptions. It also requested, per-
mission to argue orally before the Board.
Pursuant to notice, a hearing was held before the Board in Wash-
ington, D. C. on April 11, 1940, for the purpose of oral argument.
The respondent was represented by counsel. The Union did not
appear. The Board has considered the exceptions to the Intermedi-
ate Report; and the briefs and oral argument of the respondent in
support of its exceptions, and, in so far as the exceptions are incon-
sistent with the findings , conclusions , and order set forth below, finds
no merit in them.
622 DECISIONS OF NATIONAL LABOR ,RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
R. C. Mahon Company, a Michigan corporation with its plant
and office in Detroit, Michigan, is engaged in the fabrication and
manufacture of structural steel, sheet-metal equipment; rolling doors,
roofing, and other sheet-metal products. Its operations are carried
on in a structural-steel division, consisting of three plants and a
warehouse, and a sheet-metal division, composed of a plate shop
and a sheet-metal shop.5
The respondent fabricates from 1 to 11/2 per cent of the total
fabricated structural steel sold in the United States. From Novem-
ber 1, 1936, to October 31, 1937, the respondent expended in excess
of $3,000,000 for raw materials, principally steel, and during the
period from November 1, 1937, to October 31, 1938, expended in
excess of $2,000,000 therefor. Over 75 percent of these sums repre-
sented the cost of raw materials shipped to Michigan from outside
the State. The respondent's sales from November 1, 1936, to October
31, 1937, amounted to $6,088,499.62; and from November 1, 1937, to
October 31, 1938, its sales were in excess of $4,000,000. Approxi-
mately 50 per cent of these amounts represented products shipped
from Detroit to points outside the State of Michigan.
On July 4, 1939, the respondent employed 336 production and
maintenance employees but the number has, on previous occasions,
varied from about 300 to 700.
H. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee and Amalgamated Association
of Iron, Steel and Tin Workers, Local 1279, are labor organizations
affiliated with the Congress of Industrial Organizations. • Local 1279
admits to membership all employees of the respondent except bridge-
men, clerks and office help, draftsmen, watchmen, and persons in a
supervisory capacity.
III. THE UNFAIR LABOR PRACTICES
A. Backgro nd
In about February 1937 the Union began, a campaign to organize
the respondent's production and maintenance employees. On.March
9 1937, at a meeting, of the Union which was held on the respond-
ent's premises," a list of demands was .drawn up and R: C. Mahon,
president of the respondent, was.theil called in to discuss the various
items with the assembled group. Mahon stated that he would recog-
5 All of the respondent 's plants and divisions are located on the same premises and are
under one roof.
R. C. MAHON COMPANY 623
nize the Union only after the American Bridge Company had rec-
ognized it , but he agreed to grant wage increases requested by the
Union, and he reached an agreement with the Union as to hours
of work. There is a conflict in the testimony , which we will dis-
cuss more fully hereinafter , as to whether or not ah agreement was
reached on the question of seniority.
In July 1937 a committee of employees met with Mahon and
requested that he meet Charles Kiser, the district - director of the
Steel Workers Organizing Committee , for the purpose of discussing
an agreement with the Union. Mahon refused to meet Kiser, or
any "outsider ," but agreed to meet with the shop committee at any
time. On July 28, 1937, Kiser addressed a letter to the respondent
requesting a conference . The letter was not answered .' During the
following month the committee of employees again called on Mahon
and asked that he meet Kiser, but were once more informed by
Mahon that he would not meet with "outsiders." Mahon's refusal
to meet with the representative of the Union discredited the, Union
and discouraged membership therein.
Other examples of the respondent's efforts to discourage union
activity among its employees are shown by the testimony of Walter
Loser, who had been employed as a helper in Plant 1, and Lawrence
Jamrisko , a millwright helper. Loser quoted George Kliner, a fore-
man on the paint floor in Plant 1 as saying , in July 1937, that Mahon
"would never recognize a union. Before he would recognize the
Union he would close the shop." Jamrisko testified to the same
effect. In addition , Kliner told Jamrisko , during the same con-
versation concerning the Union , according to the latter 's testimony,
"some day you be sorry." Kliner did not testify and the statements
attributed to him are not denied. We find that they were made.
Frederick Morse Johnson, previously employed as a helper in the
warehouse', testified that, on an occasion in the summer of 1938 when
he applied for work, John Nuber , a labor foreman , told him that
"if the C. I. O. or the Steel Workers Organizing Committee gained
control in the Mahon shop , Mr. Mahon was likely to sell out" to
some "men from Boston, bankers or such." Mahon denied having
told Nuber that he planned to sell out. Nuber did not testify, and
it is not disputed that he made the - above statement to Johnson.
Whether or not Mahon actually made such a statement is not con-
trolling here since the expression of such a threat by a foreman
served to discourage union activity whether based upon fact or not.
These incidents were not specifically alleged in the complaint as
constituting unfair labor practices in and of themselves; and it
was understood at the hearink that evidence concerning them would
be :admitted only as showing background circumstances relevant to
the unfair labor practices which were alleged . Accordingly, we
do not find that these incidents were unfair labor practices as such;
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we do find that they are indicative of the respondent's attitude prior
to, and' cast light upon its motives in connection with, the activities
alleged in the complaint.
B. Interference, restraint, and coercion
On June 19, 1937, the Union filed with the Board a petition, and
on October 27, 1937, an amended petition, requesting an investigation
and certification of representatives of the respondent's employees.
On November 26, 27, and 29, 1937, Mahon summoned to, his office,
one at a time, 3618 production and maintenance employees and,
in the presence of_ M. A. Snyder, personnel manager, and a stenog=
rapher, read to each the following statement :
We are to appear before the National Labor Board on Decem-
ber 6th..
Local 1279, Steel Workers Organizing Committee is asking
that it represent in bargaining all our employees.
In order that we may know how our employees feel about
the matter we have prepared a questionnaire we would like to
have you fill out. '
There will be no discrimination shown against you regardless
of how you answer the questions.
Each employee was thereupon asked the following questions, after
which the card was filled out and signed by the employee :
Badge No. ------ Employee's Name ---------------------
Have you ever signed an application for membership in Local
#1279, Steel Workers Organizing Committee? Yes ( )
No ( ).
If you ever joined Local #1279, Steel Workers Organizing
Committee, when did- you join? Date ---------------------
If you ever joined Local. #1279, Steel Workers Organizing
Comlittee, for what month did you pay your last dues?
Month ------------ 19
Do you want Local #1279, Steel Workers Organizing Com-
mittee to bargain with The R. C. Mahon Company for you?
Yes ( ) No ( ).
Signed --------------------
Date ----------------------
Witness--------------------
The evidence discloses that immediately upon being called to Mahon's
office and being informed as, to the purpose of , the interview, the
men became apprehensive and hid or discarded their union buttons.
e Although the exact number of persons then employed is not shown , it appears that on
November 9, 1937, 489 production and maintenance employees were working."
R. C. MAHON COMPANY 625
A hearing upon the Union's petition was held on December 13,
1937, following which the Board issued a Decision and Direction
of Election.7 The Board conducted an election at the respondent's
plant on February 25, 1938, to determine the employees' choice of
a representative for the purpose of collective bargaining. On Oc-
tober 20, 1938, the Board issued a Supplemental Decision and Order 8
stating that the results of the election showed that no collective
bargaining representatives had been selected by a majority of the
employees within the appropriate unit. The decision further indi-
cated that on March -2, 1938, the Union filed with the Regional
Director objections to his Election Report, contending that the
respondent had engaged in unfair labor practices regarding the con-
duct *of the election, and that certain employees excluded by the
Board from :the appropriate unit had participated in the election.
The decision stated further that the Regional Director informed
the Board that the Union had failed to submit any evidence re-
garding its objections, that the secret ballot was fairly and im-
partially conducted, and that he recommended that the objections
be overruled. The Board thereupon dismissed the petition for
investigation and certification of representatives.
The respondent contends that it did not engage in unfair labor
practices by questioning its employees as to their union affiliation
since Mahon's action was prompted by a desire to ascertain whether
or not the Union had a majority and that, in the event he found
that it did, he intended to bargain with the Union without the neces-
sity for an election by the Board. Even though we assume the truth
of this contention, the respondent's conduct was in violation of the
Act. The Act requires that the Board settle questions concerning
representation, and provides that it may conduct an election by
secret ballot to this end. The purposes of such provisions, among
others, are to prevent an employer from having to determine such
problems, especially by questioning his employees, and to allow indi-
vidual employees to- express their desires concerning representation
without disclosing them to their employer. Mahon's action
thwarted the purposes of the Act. He knew that a petition had
been filed with the Board and that the question he sought to resolve
.would be determined by the Board in accordance with the purposes
and provisions of the Act.
Moreover, the employees were not told the purpose of the interview,
other than that it was "in order that we may know how our em-
ployees feel about the matter." In addition, the method of conducting
the poll was not conducive to a free choice on the part of the em-
'Matter of R. O. Mahon Company and Local 1179, Steel Workers Organizing Committee,
5 N. L. R . B. 257.
eMatter of R. C. Mahon Compdnl/ and Local 1279, Steel Workers Organizing Committee,
9 N. L. R B 430
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ploy,ees since the 'vote was taken by the president of the respondent
in the presence of the personnel manager, who admittedly does all
the hiring for the respondent. Further, if Mahon merely, wanted
to enlighten himself and dispel his doubts as to the Union's majority,
it is difficult to understand why he found it necessary to,have mimeo-
graphed cards-signed, dated and witnessed. Also unexplained is
the respondent's reason for inquiring on what date employees joined
the Union and when they last paid their dues. Neither of these
questions is necessarily pertinent in determining representation for
collective bargaining since employees who have never joined the
Union may designate it as their agency for that purpose.
The respondent contends also that the question of whether or not
its interrogation of employees was an unfair labor practice has'been
adjudicated by the Board in its Supplemental Decision and Order
in the representation case. This contention is without merit. No
unfair labor practices were alleged or proved, nor could they have
been, in that proceeding. The Board's decision in that case was
merely" that the election had been fairly and impartially conducted
and that no representatives for collective bargaining had been chosen
by the respondent's employees. It did not purport to settle the
charge made here.
We find that the respondent, by questioning its employees as to
their union membership and desires for representation," has inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed to them in Section,,7 of the Act.
C. The charges of discrimination
During the period from November 30, 1937, to March 8, 1938, the
respondent's business declined to such an extent tliat it was necessary
to make extensive reductions in its production and maintenance
force. The complaint, as amended, alleges that in the process of
reducing its force the respondent discriminated against the 20 persons
named in the complaint by discharging or laying off 19 of them and
failing to reinstate them, and by putting another on half time, for
9 The Board has held that it is an unfair labor practice to question employees as to their
union membership and activity See Matter of Trention Garment Company and Interna-
tional Ladies' Garment Workers Union . Local 278, 4 N L R B 1186 ; Matter of Coninion-
wealth Telephone Company and Theodore R..Siplon, Walter P Seidler and International
Brotherhood of Electrical Workers, 13 N L. R. B 317. The Board has also held that
it is an unfair labor practice for an employer to conduct an election among its employees
See Matter of Remington Rand, Inc and Remington Rand Joint Protective Board of the
District Council Office Equipment Workers, 2 N. L R . B 626, enf 'd. National Labor Rela-
tions Board V. Remington Rand, Inc., 94 F. (2d ) 862 (C. C. A 2) ; Matter of Eagle
Manufacturing Company and Steel Workers Organizing Committee, 6 N. L. R B. 492,
enf'd . National Labor Relations Board v. Eagle Manufacturing Company , 99 F. (2d) 930
(C C A. 4) ; Matter of McNeely & Price Company and National Leather Workers 4ssocia-
tion , Local No 30, of the C I 0 , 6 N. L R B 800, enf d as mod , McNeeley d Price Co.
v. National Labor Relations Board, 106 F. (2d) 878 ( C. C. A. 3).,
R. C. MAHON COMPANY 627
the reason that they had joined and assisted the Union and engaged
in concerted activities for the purposes of collective bargaining and-.
other mutual aid and protection.
1. The respondent's seniority and hiring policies
It is undisputed that the respondent followed no seniority policy
prior to March 9, 1937. The Union contends, however, that at the
meeting between Mahon and the Union on March 9, 1937, the respond-
ent agreed to observe a seniority plan. Although the Board's wit-
nesses at the hearing were in accord that Mahon had agreed to follow
a seniority plan, they did not concur on the question of whether
Mahon had promised to follow "'straight," plant, or shop seniority,
nor did these witnesses all give the same meaning to the terms which
they testified were used. It is impossible to determine from their
testimony what type of seniority the Union contends the respondent
agreed to use. The respondent denies that any agreement on seniority
was reached. Mahon testified that when the question was raised in
the meeting of March 9, he told the employees that "they were on a
very big subject when they wanted seniority, and it wasn't a matter
that could be decided in a minute, and I thought the best way to take
that subject up was to have their committee discuss it with me and
go over it." He stated that his suggestion was thereupon agreed to
but that, although the committee came to see him twice thereafter,
seniority was not mentioned on either occasion. After Mahon gave
the foregoing testimony, seven witnesses for the Board testified.
Only one, Harker, was questioned with reference to Mahon's version
of what had occurred and Harker's testimony supported in a measure
that of Mahon 10 The Trial Examiner found, as do we, that the
10 Harker testified, in part, as follows :
Q. Do you recall anything being said by Mr. Mahon or anyone else as to the
appointment of a committee to see him after the meeting and discuss the details of
seniority?
A. Yes.
Q. What was said about that?
A. He said he would meet the committee after the other fellows all went home.
Q. To discuss seniority?
A. To discuss seniority.
A. I don't remember very clearly what was said , but I know there was a grievance
committee.
Q. A grievance committee? .
A. Yes.
Q. I am talking not about a grievance , committee , but I am talking about
seniority.
A. Oh, yes.
Q was anything said about a committee for seniority?
A. Mr. Mahon agreed to the seniority right here in the meeting.
Q I say, did he say that a committee should see him later about seniority?
A. Oh, I don't recollect anything of that.
413597-42-vol 23-41
I
628 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD
respondent did not enter into an, agreement whereby seniority was
to be recognized. We find that no seniority rule has ever been fol-
lowed in the respondent's plant, either in laying off or rehiring
employees.
All hiring for the respondent is done by Snyder, the personnel
manager, at the respondent's employment office. Persons seeking
employment gather in this office and, when employees are needed,
are interviewed and hired by Snyder. At times the respondent's
superintendents, in charge of construction projects outside the plant,
come to Snyder and request men to take jobs immediately. Snyder
thereupon hires men from those waiting in the employment office or
sends out men already employed and replaces them with new em-
ployees. The respondent has no policy of recalling former employees
when vacancies occur in the plant,'nor does it take applications for
future employment when work is not available at the time. The
Union, in its exceptions to the Intermediate Report, points out a
number of instances when employees are alleged to have been called
back to work by telegram or by foremen. The evidence does not
sustain the Union's exceptions in this respect.,'
Since about 1935 the respondent has made an attempt to employ
men of good health and versatility in order to reduce the cost of
compensation claims and stabilize employment. Since 1936 the
respondent has required a physical examination of all men hired.
The results of such hiring policy have been in general to secure
younger and better educated personnel. The Union does not ques-
tion that the respondent has put into effect and carried out such
policies.
In view of our finding above as- to the respondent's method of
hiring, we also find that the persons alleged in the complaint to have
been "laid off for an indefinite period," had no expectancy of being
reinstated and that they were in reality discharged,, rather than laid
off.12 This finding does not, however, preclude us from determining
whether or not the respondent has discriminated against any of the
complainants herein by failing to rehire them upon the resumption of
full operations in the plant.13 Nor are we precluded, by our findings
that the decline in the respondent' s business necessitated a diminution
of force and that no seniority policy was in effect , from determining
11 We refer specifically to the allegations that Benyk, Chrostowski, McNa, and Johnson
were recalled.
12 The terminations of employment will hereinafter be referred to as discharges , although
the witnesses testified that they were laid off.
za Matter of Waumbec Mills, Inc . and United Tevtele Workers of America , 15 N. L R. B. 37.
R. C. MAHON COMPANY 629
whether the complainants were discriminatorily chosen for discharge.
We turn to a consideration of the circumstances surrounding the
alleged 'descrimination against each of the complainants.
2. The complainants
Edward Bell was reduced to half-time employment during the
period from December 18, 1937, to January 30, 1939, allegedly be-
cause of his union activity. Bell became president of the Union in
the summer of 1937. He was a member of the- committee which
requested Mahon to meet with Kiser, the union' organizer, and had
interviewed the respondent's general superintendent, Reynolds, and
Foremen Graham Dick and Frank Walden in regard to the discharge
of Joseph Jovanov, one of the complainants herein, in August 1937.
Bell was employed by the respondent in 1929 as an electrician.
He was laid off in 1931 and 1932 along with a large number of other
employees during a slack period. He was reemployed in 1933 and
worked as a machinist until November 18, 1936, when he again started
working as an electrician. On December 18, 1937, he was put on a
half-time basis, working alternate weeks with Lawrence Christian,
who had commenced working for the respondent as an electrician
on June 6, 1936. Christian was also a union member but not an
especially active one. On November 21, 1938, Christian was re-
turned to full-time status and on January 30, 1939, about 9 weeks
later, Bell was put back on a full-time basis.
The respondent admits that it was not a common practice to
divide the work of employees as was done in the case of Bell and
Christian. In so far as the record discloses, this was the only in-
stance in which work was shared. The respondent contends, how-
ever, that it desired to retain the services of both electricians rather
than to discharge either.
We have found that the respondent interfered with the efforts of
its employees to organize; that Bell was one of the leaders in such
organizational activities and was president of the Union; that the
relegation of Bell to half-time employment was not in accordance
with the respondent's usual practice ; and that Christian was re-
turned to full-time employment about 9 weeks before Bell. Under
these circumstances we find that the respondent refused to employ
Bell on a full-time basis from December 18, 1937, to January 30,
1939, because of his union membership and activity.
We find that the respondent discriminated against Bell with re-
gard to terms or conditions of employment, thereby discouraging
membership in the Union, and by such action has interfered with,
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.14
Charles Hoffman was vice president of the Union and a member
of the committee which called upon Mahon in July and August 1937.
Hoffman was employed as a riveter in 1934 and ordinarily worked
in plant 2 of the structural-steel division. At the time of a general
shut-down in plant 3, from March 4 to 8, 1938, Hoffman was tempo-
rarily working in that plant because the bulkhead on which he was
engaged was too large for plant 2. His foreman, Graham Dick,
discharged him on March 8 and, when Hoffman protested that he
rid not belong in plant 3, told him, "I didn't have nothing to do
with it; it came from the head office." Dick also told Hoffman that
there were no rivets to drive, but Hoffman stated at the hearing
without contradiction that he still had some riveting to do when he
was discharged. The evidence shows that four other riveters were
ordinarily employed by the respondent, that all of them were union
members, and that one of them was discharged on February 25,
1938. The respondent made no attempt to show that, at the time
Hoffman was discharged, there was not sufficient work in plant 2 for
him, nor that he would have been discharged had he been working
in plant 2 at the time plant 3 was closed.
Hoffman testified that John Olson, also a union member, who,
previous to the decrease in personnel, was Hoffman's helper and who
was discharged at the same time, was rehired on August 24, 1938,
as a riveter and now has his job. When Hoffman learned that Ol-
son had been taken back he inquired of Snyder, the personnel man-
ager, why Olson was given his job. Snyder replied that the arrange-
ment was only temporary. Hoffman testified, and Snyder admitted,,_
that Olson was known as a heavy drinker, but Snyder denied that
Olson had, on one occasion, been discharged for drinking.
The respondent offers no reason for discharging Hoffman, who was
regularly employed in plant 2, at the time of the shut-down of
plant 3. It defends its failure to rehire him instead of Olson on
the ground that Graham Dick, Hoffman's foreman , did not want
him back in his department because he was too argumentative and
"hot tempered." Mahon testified that Hoffman would have been
rehired had there been a vacancy under another foreman. Hoffman
denied that he had had any arguments with Dick before his dis-
charge, and from the undisputed testimony as to what Dick told him
14 See Matter of Fort Wayne Corrugated Paper Company and Local No 182, International
Brotherhood of Pulp , Sulphite, and Paper Mill Workers, 14 N L. R. B 1, enf 'd, Fort
Wayne Corrugated Paper Company v. National Labor Relations Board, March 28, 1940
(C. C. A. 7 ), where we found discrimination as between two union members, one more
active in the Union than the other.
R. C. MAHON COMPANY 631
at the time of his discharge and the' evidence as a whole, we find
that he had not.
We find that Hoffman was discharged because of his union mem-
bership and activity. By discharging Hoffman the respondent dis-
criminated in regard to his hire and tenure of employment, thereby
discouraging membership in a labor organization, and by such action
has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
About 6 weeks after his discharge Hoffman obtained work on the
W. P. A. where he received $60 a month and later $85 a month.
Thereafter he worked for 1 week in a Navy Yard, and about August
1938 obtained a job with Mechanical Handling Company. He
worked there until about December, 1938, was out of work for 3
weeks, and was employed on about January 1, 1939, by Steel Plate
and Shape Company, where he is now working. Hoffman does not
desire reinstatement.
Hugh McNeilly, a member of the Union, began working for the
respondent, in 1925 and was employed hs an assembler at the time of
his discharge on March 8, 1938. Only one other assembler, Dobbs,
also a union member, is listed on the respondent's pay roll of No-
vember 9, 1937, and he was discharged on the same date as McNeilly:
It does not appear-that any assemblers have been employed by the
respondent since that date. McNeilly alleges that La Frambois, his
junior in the respondent's employ but also a union member, has re-
placed him. La Frambois' employment card shows that he was
hired as a helper and the respondent states that he is now employed
as a "pusher" in charge of a gang of men erecting or fabricating
steel. In view of the fact that the respondent does not take into
consideration seniority, that McNeilly was not especially active in
the Union, and that La Frambois is also a union member, we find
that the respondent did not discharge McNeilly because of his union
membership.
We have found that the respondent's policy was to hire at its
employment office the persons it needed who were then present.
There is no showing that McNeilly was refused employment at a
time when his services were required or that any other persons were
employed on the dates when McNeilly applied for work. We find
that McNeilly was not refused employment because of his union
membership.
-George Harker, a member of the Union, was employed by the
respondent on May 10, 1934, as a fitter's helper. He was discharged
on March 8, 1938, at which time he was employed as a crane opera-
tor. He charges that Joe Mankis, who is also a union member, has
replaced him. Mankis and Harker had been operating alternate
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shifts on the same crane. The respondent had in its employ at the
time of Harker's discharge 15 other crane operators, all of whom
were members of the Union. One other crane operator was also
discharged at about the time Harker was dismissed.
We find that Harker was not discharged because of his union
membership, and, for the reasons stated in discussing the case of
McNeilly, we find that Harker was not refused reemployment because
of his union membership.
Nick Klosich, a member of the Union, was employed as a fitter's
helper in August 1935. He testified that his work was never criti-
cized but that his -foreman, John Nuber, laid him off on January
16, 1939. He applied for work on three occasions thereafter but
each time was told that there was no work available. The respond-
ent contends, and we find, that Klosich wag discharged because his
work was unsatisfactory and because he refused to obey orders,
although he had been warned to do so. There is no evidence that
he applied for work at a time when other persons were being hired to
perform jobs which he was capable of doing.
We find that Klosich was not discharged or refused employment
because of his union membership.
Frank Szableski, Walter Loser, Theodore Benyk, Joseph Jovanov,
John Kovacich, Jesse Thorn, Harry Simen, Louis Chrostowski, Felix
Rummienski, Melvin Pigula, Zdislew Kurmanoski, Ignatius Bosek,
and Lawrence Jammisko were helpers or_ loaders in the structural-
steel division prior to November 30, 1937. They may be considered
as a group for the purpose of determining whether or not they were
discriminated against by being discharged at the time of the re-
duction in the number of the respondent's employees and by the
subsequent failure to reemploy them. It appears from the re-
spondent's pay roll of November 9, 1937, that 119 helpers and loaders
were employed in the structural-steel division. Of that number
105 were union members and 14 were not. Thereafter the respondent
discharged approximately 30 percent of these employees, some of
whom were subsequently rehired. An examination of the respond-
ent's pay-roll records indicates that neither the number of union
men discharged nor the number of non-union men rehired was
disproportionately large.
The employment cards of the complainants disclose that, as to all
except two, Loser and Benyk, it is recommended that they be re-
employed. In addition, one of the complainants, Jovanov, was em-
ployed on a night crew, and another, Kurmanoski, was working
alternate day and night shifts. It is not disputed that the respond-
ent has not operated a night shift in any department since the
discharges.
R. C. MAHON COMPANY 633
A number of the complainants allege that they were replaced by
other employees or by new employees. The evidence shows that, in
each instance where new employees were hired, the date of such
hiring was about the time that business had improved.
The respondent cites, in reply to the allegations of discrimination
in rehiring the helpers and loaders, its policy of hiring "at the door,','
its efforts to employ more versatile men who might be shifted from
one type of job to another in the event the need arose to do so, and
the fact that none of the 13 complainants was a skilled laborer.
It contends that it filled positions from men who applied on the
days when employees were needed and that it would have employed
some of the complainants had they been present at those times. One
of them, Szableski had been reemployed at the time of the hearing.
There is no showing that any of these complainants was refused
employment at the time another person was hired.
Of the 13 complaints in the group now under consideration, only
two, Loser and Kovacich, were shown to have been in any way
active in the Union. Loser was a shop steward and Kovacich was
a member of the committee which called on Mahon to request that he
meet Kiser, the union organizer. Although Kovacich testified that
he was one of the organizers of the Union, he added, "Now Mr.
Mahon can know:'
We find that the respondent did not discharge or refuse to re-
employ Szableski, Loser, Benyk, Jovanov, Kovacich, Thorn, Simen,
Chrostowski, Rumienski, Pigula, Kurmanoski, Bosek, and Jamrisko
because of their union membership or activity.
Frederick Morse Jokv8on, a helper in the structural-steel division,
began working for the respondent in 1933 on outside erection work.
In 1935 he was made a fitter's helper, and in 1936 he was transferred
to the warehouse as a general helper on the night shift. He was
discharged on November 30, 1937. -
On February 3, 1938, Johnson applied for work to Superintendent
Reynolds who told him to come to work the following Monday. As
Johnson was leaving the plant he encountered Edward Bell, presi-
dent of the Union, and requested that Bell supply him with a Febru-
ary union button. About 30 minutes later, Johnson was notified
at his home that he was `not to report on Monday. Johnson testi-
fied that Reynolds' son-in-law, Edwards, an assistant to the ware-
house foreman, was standing about 3 feet from Bell and him at the
time he requested the union button. In view of the fact that the
respondent had known of Johnson's union membership at least since
the date of the Board's hearing in the representation case, when it
was given a list of union members, we do not find that the respond-
ent's change of its plan to hire Johnson was due to his union mem-
634 , DECISIONS OF NATIONAL LABOR RELATIONS '30ARD
bership. It is not shown , moreover , that Edwards heard or reported
the conversation between Bell and Johnson.
About May 1, 1938, Johnson applied for work on a construction
job being performed by the respondent in New Boston, Illinois.
He worked 2 days, was given a physical examination by the respond-
ent's doctor, who recommended that he be rejected because of a
physical disability , and was discharged on May 5.
In view of the facts stated above , and the further fact that John-
son worked on the night shift in the warehouse which has not been
,resumed, we find that Johnson was not discharged or refused re-
employment because of his union membership.
Sidney McNa is the only complainant who was employed in the
sheet-metal department . He started working in 1935 as a helper
and continued until November 11, 1938, when he was discharged.
He applied for work on numerous occasions thereafter. He was
a member of the Union.
The record shows that the reduction in the force of the sheet-
metal division was spread over a longer period than iri the structural-
steel division , and that of 110 helpers and loaders previously em-
ployed, of whom 12 were union and 98 non -union, 67 were laid off
between about August 1937 and April 1939 . Of those dismissed,
5 were union and 62 were non-union . Twenty-two of the persons
so discharged , one union member and 21 non-union , had been rehired
at the time of the hearing . Although the greatest number of lay-
offs occurred during the same period as those in the structural-steel
division , a-further decrease in business in the sheet-metal division
commenced in August 1938. There is no showing that McNa was
refused employment at a time when his services were required or
that any other persons were employed on the dates when McNa
applied for work.
We find that McNa was not discharged or refused reemployment
because of his union membership.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate , and substantial
relation to trade, traffic , and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices , we shall order it to cease and desist therefrom and to take
R. C. MAHON COMPANY 635
certain affirmative action which we find necessary to effectuate the
policies of the Act.
We have found that the respondent discriminated against Edward
Bell by refusing to employ him on a full-time basis from December
18, 1937, to January 30, 1939. We shall order that he be made whole
for any loss of pay he has suffered by reason of such discrimination
by payment to him of a sum of money equal to the amount which
he normally would have,earned as wages during the period the
respondent discriminated against him, less his earnings 15 during
such period.
We have further found that the respondent discriminatorily dis-
charged Charles Hoffman on March 8,,1938. Hoffman obtained an-
other job on January 1, 1939, which he held at the time of the hear-
ing. He testified that he did not desire reinstatement. We shall
not order his reinstatement. We shall, however, order the respondent
to make Hoffman whole for any loss of pay he has suffered by reason
of the discrimination against him by payment to him of a sum of
money equal to the amount which he normally would have earned
as wages during the period from the date of his discharge to January
1, 1939, the date upon which he secured the job he held at the time of
the hearing, less his net earnings 16 during such period.
Since we have found that the respondent has not discriminated
against the remaining complainants, we shall order that the complaint
be dismissed as to them.
The Trial Examiner recommended that Ignatius Bosek, Theodore
Benyk, Walter Loser, John Kovacich, Jesse Thorn, Harry Simen,
Zdislew J. Kurmanoski, Louis Chrostowski, Felix Rumienski, Melvin
Pigula, Lawrence Jamrisko, Hugh McNeilly, Sidney McNa, Joseph
Jovanov, Frederick Morse Johnson, and George Harker, be placed
upon a preferential list for employment as soon as a need for their
services arises. In view of our finding that these employees were
discharged, rather than laid off, and were, therefore, no longer
employees of the respondent, we shall not order the respondent to
place them upon a preferential hiring list.
16 Although we ordinarily deduct "net earnings " from an award of back pay to a dis-
criminatee , since Bell continued to work for the respondent and was not employed else-
where, it is only necessary in this instance to deduct his earnings Cf footnote 16, infra.
11 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
dischaige and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N L. R. B 440. Monies received for
work performed upon Federal , State, county , municipal , or other work -relief projects shall
be considered as earnings . See Republic Steel Corporation v. N. L. R. B , decided by
United States Supreme Court , November 12, 1940.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Steel Workers Organizing Committee and Amalgamated Asso-
ciation of Iron, Steel and Tin Workers, Local 1279, are labor
organizations, within the meaning of Section 2 (5) of the Act.
2. 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.
3. By discriminating in regard to hire and tenure of employment
and terms or conditions of employment of Edward Bell and Charles
Hoffman, thereby discouraging membership in a labor organization,
the respondent 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 practices affect-
ing commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not engaged in unfair labor practices by
discharging and refusing to reemploy Nick Klosich, Ignatius Bosek,
Frank Szableski, Theodore Benyk, Walter Loser, John Kovacich,
Jesse Thorn, Harry Simen, Zdislew J. Kurmanoski, Louis Chrostow-
ski, Felix Rumienski, Melvin Pigula, Lawrence Jamrisko, Hugh
McNeilly, Sidney McNa, Joseph Jovanov, Frederick Morse Johnson,,
and George Harker.
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
respondent, R. C. Mahon Company, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Steel Workers Organizing Com-
mittee and Amalgamated Association of Iron, Steel and Tin Work-
ers, Local 1279, or any other labor organization of its employees, by
discriminating in regard to hire or tenure of employment or any
term or condition of employment;
(b) In any other manner interfering with, restraining, and coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
R. C. MAHON COMPANY 637
concerted activities, for the purposes of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the National
Labor Relations Act. -
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Edward Bell for any loss of pay he may have
suffered by reason of the discrimination against him, by payment to
him of a sum of money equal to the amount which he would nor-
mally have earned, as wages during the period the respondent
discriminated against him, less his earnings 14 during such period;
(b) Make whole Charles Hoffman for any loss of pay he may have
suffered by reason of the discrimination against him, by payment to
him of a sum of money equal to that which he would normally have
Earned as wages during the period from the date of his discharge on
March 8, 1938, to January 1, 1939, less his net earnings 18 during said
period;
(c) Post immediately in conspicuous places at its plants and ware-
house, and maintain for a period of at least sixty (60) consecutive
clays 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) and (b) of this Order; and (3) that the
respondent's employees are free to become or remain members of
Steel Workers Organizing Committee and Amalgamated Association
of Iron, Steel and Tin Workers, Local 1279, and the respondent will
not discriminate against any employee because of membership or
activity in those organizations.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices in regard to Nick Klosich, Ignatius Bosek,
Frank Szableski, Theodore Benyk, Walter Loser, John Kovacich,
Jesse Thorn, Harry Simen, Zdislew J. Kurmanoski, Louis Chro-
stowski, Felix Rumienski, Melvin Pigula, Lawrence Jamrisko, Hugh
McNeilly, Sidney McNa, Joseph Jovanov, Frederick Morse Johnson,
and George Harker.
CHAIRMAN HARRY A. MILLIS took no part in the consideration of
the above Amended Decision and Order.
17 See footnote 15. supra.
18 See footnote 16, supra.