The National Lime and Stone Co.

National Labor Relations Board - Board Decisions

Aug 26, 1946

70 N.L.R.B. 637 (N.L.R.B. 1946)

In the Matter of THE NATIONAL LIME AND STONE COMPANY and
UNITED CONSTRUCTION WORKERS, AFFILIATED WITH UNITED MINE
WORKERS OF AMERICA -
Case No. 8-C-1809.-Decided August °L6, 1946
Mr. Richard C. Swander, for the Board.
Marshall, Melhorn, Wall & Block, by Mr. Richard S. Cole, of
Toledo, Ohio, and Mr. Louis C. ' Love, of Findlay, Ohio, for the
respondent.
Mr. Frank C. Corwin, of Findlay, Ohio, for the Union.
Mr. Herbert C. Kane, of counsel to the Board.
DECISION
AND
ORDER
On May 28, 1946, Trial Examiner Sidney L. Feiler issued his
Intermediate Report in the above-entitled proceeding, finding that
the respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist there-
from and take certain affirmative action as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the respond-
ent filed exceptions to-the Intermediate Report and a supporting brief.
On August 6, 1946, the Board, at Washington, D. C., heard oral
argument in which the respondent and'the Union participated.
The Board has reviewed the Trial Examiner's rulings made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs of the respondent, and
the entire record in the case, and finds merit in the respondent's
exceptions as stated below.
.
The Trial Examiner found that the respondent discriminatorily
discharged Maurice Gaster because of his leadership in, and other
activities in behalf of, the Union. The respondent denied that
Glister was discharged for this reason and alleged, instead, that
Gaster was discharged for violating an order forbidding him to visit
in the lime plant. This restriction against. Gaster was imposed by
70 N. L. R. B., No. 46.
637
638 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
General Manager Love in June 1944 because of Gaster's excessive
visiting in the plant, including parts of the plant where he was not
actually engaged. Despite these instructions, Gaster admittedly
continued to visit as,frequently in the past as he had theretofore. On
August 30, 1944, Superintendent Reynolds discovered Gaster in the
lime plant visiting with -other -employees during these employees'-
working hours. Gaster was not on duty at the time and he admitted to
Reynolds that this visit contravened the orders given him. Several
days later, Manager Love discharged Gaster for violating his in-,
structions and for interfering with the work of other employees.
The Trial Examiner fount] that-the r,,spondeiit"s anti-union back-
ground,' coupled with the fact that Gaster was known to the re-
spondent as a leader of the Union, supported the inference that the
respondent's order against Gaster and his subsequent discharge for its
violation were motivated by anti-union considerations. We agree that
the discharge of a leading union member is to be scrutinized most care-
fully where the employer involved has demonstrated hostility toward
the organizational efforts of his employees. However, upon the rec-
ord in this case, we are not convinced that the respondent discharged
Gaster for the reasons alleged in the complaint. -
As Gaster's discharge is the only matter involved herein, we shall
dismiss the complaint in its entirety. .
ORDER,
Upon the basis of the foregoing findings of fact and the entire
record in the case, and pursuant to Section 10 (c) of the National
Labor Relations Act, the National Labor Relations Board hereby
orders that the complaint against the respondent, The National Lime
and Stone Company, Findlay, Ohio, be, and it hereby is, dismissed.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr Richard C. Swander, for the Board.
31r. Richard S. Cole, of Marshall, Melhorn, Wall & Block, Esqs., of Toledo, Ohio,
and Mr. Louis G. Love, of Findlay, Ohio, for the respondent.
Mr. Frank C. Co? win, of Findlay, Ohio, for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed by United Construction Workers, affiliated with United
Mine Workers of America, hPreiu called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the Eighth Region
(Cleveland, Ohio), issued its complaint dated April 22, 1946, against The Na-
tional Lime and Stone Company, Carey, Ohio, herein called the respondent, al-
I See Matter of The National Lime anti Stone Company , 62 N. L . R. B 282.
0
THE NATIONAL LIME AND STONE COMPANY 639
leging that the respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1) and (3) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint, together with notice of hearing there-
on, were duly served upon the respondent and the Union
With respect to unfair labor practices, the complaint alleges in substance that
on or about September 6, 1944, the respondent discharged Maurice Gaster and
thereafter refused to reinstate hint because of his union activities. The answer
of the respopdent, dated May 1, 1946, admits certain jurisdictional allegations
contained in the complaint, admits the discharge of Gaster, but alleges that he
was discharged for cause, denies the commission of the unfair labor practices
alleged in the complaint, and sets forth a separate defense of Inches'
Pursuant to notice, a hearing was held at Carey. Ohio, on May 6, 1946, before
the undersigned, Sidney L. Feller, the Trial Examiner designated by the Chief
Trial Examiner. The Board was represented by counsel ; the respondent, by
counsel and a representative; the Union, by a representative. 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 outset of the hearing,
the respondent moved to dismiss the complaint for laches Decision was reserved
upon this motion which also was renewed at the close of the respondent's case-
It is disposed of hereinafter The respondent also moved to dismiss the com-
plaint on the merits at the close of the Board's case. This motion was denied.
Decision was reserved when the motion was renewed at the close of the re-
spondent's case. This motion is hereby denied At the close of the Board
case, counsel for the Board moved to conform the pleadings to the proof as to
formal matters The motion was renewed after the presentation of all the evi-
dence. The motion was granted without objection. After the introduction of all
the evidence, counsel for the Board and the respondent presented oral argument.
A brief was received from the respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS of FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is an Ohio corporation having its principal office at Findlay,
Ohio. It operates plants for the production of commercial stone, railroad stone,
and other lime and stone products at Findlay, Bucyrus, Carey, and Lima, Ohio.
These proceedings are concerned solely with the plant at Carey, Ohio, where the
respondent operates a quarry and is engaged in manufacturing products valued
in excess of $500,000 annually, of which approximately 30 percent is shipped
to points outside the State of Ohio Approximately 200 employees are employed
by the respondent at its Carey plant.
The respondent concedes that it is engaged in commerce withih the meaning
of the Act.
It. THE ORGANIZATION INVOLVED
United Construction Workers, affiliated with United Mine Workers of America,
is a labor organization admitting to membership employees of the respondent.
e
'At the hearing, the respondent moved-to amend paragraph 4 of its answer and insert
material therein in amplification of its defense on the merits. The motion was granted
without objection.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The discriminatory discharge of Maurice (a8ter
1. The defense of laches
At the outset of the hearing, counsel for the respondent moved that the com-
plaint be dismissed for lathes. The chronology of events pertinent to this
application is as follows:
September 6, 1944-Maurice Gaaster was discharged.
September 30, 1944-The Union filed a charge with the Regional Director of
the Board for the Eighth Region, dated September 25, 1944, alleging that Gaster
was discharged because of his union activities.
October 2, 1944-The Regional Director notified the respondent by letter of
the filing of the charge.
October 26, 1944-The respondent advised the Regional Director by letter
that Gaster was discharged for cause.
June 2, 1945-The Union requested withdrawal of the charge without prejudice.
June 4, 1945-The request was granted by the Regional Director and the
respondent was notified of his action by letter dated June 6, 1945.
June 14, 1945-The Union filed a petition for certification of representatives
of the respondent's employees at its plant at Carey, Ohio. The petition was
docketed on June 15.
June 15, 1945-The Union filed the charge herein which was dated the preceding
day. The charge in substance repeated the earlier charge.
The respondent contends in its answer that the delay in proceeding to hearing
herein until May 6, 1946, had caused it hardship. Counsel for the respondent also
orally advanced the argument that the withdrawal of the charge and its refiling
shortly thereafter was improperly designed to facilitate the consideration of the
representation petition.
The respondent did not substantiate its contention that it had suffered hardship
by reason of the delay herein. There was no showing that it had been unable
to properly prepare its case. Furthermore, counsel for the Board moved that
back pay be tolled from August 11, 1945. Counsel for the respondent opposed
the motion and it was denied.
The respondent's second argument is untenable. The Regional Director's
approval of the request for withdrawal of the original charge was made in
accordance with the Rules and Regulations of the Board and did not constitute -
an abuse of discretion.
The undersigned concludes that the defense of lathes should be and is rejected
in view of the failure to show any prejudice to the rights of the respondent.'
2. Background
Union activity started at the plant during the winter of 1943. The development
of subsequent organizational efforts and related matters has been chronicled in
detail in a prior case before the Board.'
Early in 1944, a group of employees under the leadership of.Maurice Gaster,
the dischargee herein, invited the Union to assist in organizing the plant. In
March 1944, the Union filed a representation petition with the Board. The
2N. L. R. B. v. Electric Vacuum Cleaner Company, Inc., 315 U. S. 685, reversing 120 F.
(2d) 611 (C. C. A. 6), setting aside 18 N L. R B. 591 ; N. L. R. B. v. Berkshire Knitting
Mills, 121 F. ( 2d) 235 (C. C. A. 3), remanding 17 N. L. R B 239 ; The Triplex Screw Com-
pany v. N. L. R . B., 117 F. ( 2d) 858 (C. C. A. 6), enforcing 25 N. L. R. B. 1126; Matter of
English Freight Company, 67 N. L. R. B. 643.
3 Matter of The National Lime and Stone Company and Labor Relations Institute, 62
N L. R. B. 282.
0
THE NATIONAL LIME AND STONE COMPANY ' 641
respondent signed a stipulation for a consent election in May. The Union lost the
election which was held on May 23 and it then filed charges alleging that the
respondent had been guilty of unfair labor practices. It also requested that
the election be set aside.
The Board, after a hearing, found that the respondent had committed unfair
labor practices. It also set aside the election. Some of the acts, that the Board
found violative of the Act were the activities of General Manager Louis G. Love
in questioning Gaster concerning the extent of union organization at the plant,
vilifying and disparaging the Union,' addressing groups of the employees prior
to the election urging them to vote against the Union and to set up an independ-
dent union, and urging Gaster and another employee to form an independent
union after the election.' The Board further found that the respondent employed
the Labor Relations Institute, a private firm of labor relations consultants, to
help defeat the Union and to encourage the formation of an inside union. The
Board also found that an employee had been discharged because of his union
activities. The Board then ordered that the respondent take certain action to
remedy the effect of the unfair labor practices and the respondent complied with
the order.
In June 1945, the Union filed a new representation petition. The Union won
an election held on September 18, 1945, and was certified as collective bargaining
representative on September 25. Since that time the respondent and the Union
have entered into a contract and labor relations at the plant have apparently
been satisfactory. -
3. The discharge
Maurice Gaster had two periods of employment with the respondent. His last
employment began in 1940 and ended with his discharge on September 6, 1944.
During this period, Gaster was employed as a welder.
When the employees at the plant began to consider self-organization Gaster
took a leading part. He was the chairman of the various meetings held. He
also was active in distributing membership cards for the Union. His activities
were duly noted by management. The record of the prior hearing, hereinbefore
referred to, as well as that of the present hearing indicates clearly that Manager
Love knew of his activities and dealt with him as a leader of the union faction at
the plant.
The day after the election of May 23, 1944, Love called Gaster from his work
and discussed with him the possibility of forming an independent or inside union.
He authorized Gaster and another employee, who already had books prepared
to sign up the men for an independent union, to talk to the employees during
working time to sound them out, stating that he would go 100 percent with them.
Gaster testified that he carried out Love's plan and discussed with the men the
possibility of forming an independent union. The men, he testified, were cold
to this idea and were desirous of continuing organizational efforts on behalf of
the Union. He then reported to Love that the employees were not in favor of
forming an independent union and the plan was dropped. Gaster testified that
I Love's attitude towards the Union is illustrated by Gaster's credited testimony that in
March 1944, Love referred to the Union as a "blood-thirsty outfit" which had used violence
against workers in a specific instance in the past, which he mentioned, and that there would
be bloodshed.
6 Detailed testimony was introduced in the prior case to prove these unfair labor prac-
tices. Testimony to the same effect was introduced in the present proceeding. It was
undenied and, in fact , Ras corroborated by Love. The undersigned independently finds that
the above acts occurred and were violative of the Act.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter he continued to organize the employees on behalf of the Union His
testimony is credited.
During the month of June 1944, Love spoke to Gaster concerning his visiting
other employees; that is, talking with them on non-company matters either on or
off his shift. The respondent's attitude toward this practice was summarized
by Love, as follows :
Our operation at Carey covers quite a large extent. It is something over a
mile in one way, east and west, and something over half a mile north and
south. There are at least six or seven entirely separate operations usually
going on simultaneously The property is crossed by two highways and
three railroads.
We have a very fine group of men, very fine group of employees, native
mostly to this territory.
Now, -it isn't operating a plant of that extent and of that nature-it isn't
like running a machine shop which has brick walls all around it and is all
closed up. We do not have any barricades or wire fences or any formal en-
trance. We have several times in the years past gotten a little bothered by
too much visiting and have put up signs such as were mentioned here, "No
Admittance," and "No Trespassing," and "No Admittance Without Permit
from Office," and so forth
But, by and large, we operate on a quite informal basis We have no ob=
jection to one of the employees talking to another employee or even going over
to some other part of the property to see some improvement that has just
gone in. We have no objection to neighbors or children or wives bringing a
man his lunch or coming down to tell him the baby has arrived, or the life
insurance salesmen collecting premiums
We have since I have been around here, since 1926, operated on what would
seem to outsiders away from this plant to be a pretty free and easy basis
There has only been a couple of tunes when an effort was made to tighten up
and know who was coming on the property One of these, of course, was at
war time .. .
I would say that, by and large, visiting by employees on their own time or
their free time, or by outsiders, lia& not been excessive It has not been
burdensome. I do not recall in 20 years that any particular complaint was
made against any particular man There were times that general complaints
were made, at which time we put up signs and tried to shoo them away-
Several employees testified concerning visiting by employees with one another.
They were in substantial agreement that while "No Visiting" signs of various
kinds were posted at the plant during the war period, there was no enforcement of
this notice by management and that employees and others were free to enter
the plant on non-company purposes and (lid so This testimony was not contro-
verted by the respondent and, in fact, was corroborated by Love's testimony.
Gaster testified that sometime in June 1944, Love spoke to him and a group
of employees, showed them a document, and said, "All you boys wanted the
Union so * * bad, well, you wanted a raise, and the raise has been de-
layed." Gaster could not specify to what the document related, but his testimony
indicates that he understood that Love was blaming the Union for the delay
in the salary increase. Gaster further testified that Love, after the aforesaid
remark to the men, followed him to his place of work and then said, "From now
on stay the * out of the lime plant and mind your own * * busi-
ness." Love testified that he did speak with Gaster, that lie was prompted to do
so by complaints from Jack Reynolds, superintendent of operations at the plant,
THE NATIONAL LIME AND STONE COMPANY 643
concerning Gaster. Love testified that Reynolds told him "The fellow has gone
haywire. He's running all over the place all the time ; he's bothering all the
people His own work is suffering, and he's bothering other people." e Love testi-
tied that after receiving Reynolds' report he spoke to Gaster and said to him :
"Maurice, it, has come to my attention that you are bothering people at their
work, and the quality and the quantity of your work is suffering because of
visiting around and talking to employees You are being paid for work, and
you are coming back at night and bothering other people that are being paid
by the Company for working " . .
"From now on you conduct yourself this way. This is your station,
this welding shop. Now, when your foreman sends you to some other
part of the property to weld, you go and do what he tells you to do and
return immediately to your station here and do not visit or waste time
with anyone, and don't come back at night and interfere with employees."
Gaster denied, that Love had told him that he was bothering others or that
his own work was suffering Love did not directly advert to Gaster's testi-
mony that discussion of the Union and wage increases had preceded Lovers order
to him. The undersigned credits Gaster's version of Love's warning to him.
No further incidents took place until August 30, 1944. Gaster, by his own
testimony, continued to visit at the plant very much as he had done prior to
Love's order. He further testified that no supervisor ever spoke to him about
it This actrvity did not come to Love's attention He testified that he re-
ceived no complaints of Gaster's conduct and was told that Gaster was doing
"all right."
The period from June to August 30 was not one of stable labor relations at
the plant. Adherents of the Union, according to Gaster's credited testimony,
were continuing their organizing efforts Gaster was participating in the cam-
paign and N+as passing out cards Charges of unfair labor practices had been
filed by the Union in June. These charges and the objections filed to the May
23 election were being investigated On August 21, a complaint was issued
against the respondent and a hearing was set for September 6.
On August 30, 1944, Caster returned to the plant after his regular shift His
purpose, he testified, was to speak with Clyde Zender, a lime kiln operator,
on a personal matter. There were 14 lime kilns at the section of the plant
Gaster visited. They were operated by four employees. Gaster entered the
plant about 9: 30 p in. and found the four operators and one other who had come
,early for the next shift which was scheduled to start at 10 p. in It is clear
from the testimony of two of the operators, McKernan and Puckett, that the
men had completed their tasks except for routine checking. McKernan was
eating some lunch.
When Gaster entered the kiln room he proceeded to talk with Zender, the
employee whom he came to visit Shortly thereafter, other employees on the
firing floor joined them In about 10 minutes, Reynolds entered the room and
took Gaster outside According to Gaster, the following conversation then
occurred :
REYNOLDS: Didn't the boss tell you to stay out of here?
G _"TER • He made some remark about that, . . . Put this is my own time,
and there is no guards outside, and I don't know whether there is any rules to
Reynolds did not testify and no evidence was introduced in amplification and corrobora-
tion of these general charges.
712344-47-vol. 70-42
I
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
keep a man from visiting outside of his requirements-when he is on his own
time . . : When does this rule take effect.
REYNOLDS : From now on.
Caster's undenied testimony concerning this conversation is credited.
Love's duties required him to be absent from the plant occasionally. He
testified that he was at the plant on September 5 and received a report from
Reynolds that he had found Gaster in a corner of the lime kiln section talking
to the men. Love then telephoned Richard S. Cole, of counsel to the respondent,
and discussed Gaster's case with him. Cole advised that no action be taken
until be investigated the case at the plant. On the afternoon of September 6,
Dole testified, he spoke with some of the employees who had been present during
Caster's visit on August 30. He ascertained that Gaster had in fact been
there and had spoken with the men. He did not check as to whether Gaster
had called the men together or whether they gathered around him of their
own accord. Nor did he endeavor to ascertain to what extent Caster had
interfered with operations. Cole testified that the only point in which he was
interested was whether Caster was present at the plant on the evening of
Angus 30, and whether he was talking to the men. After he had completed his
investigation, Cole reported to Love and the latter decided to discharge Caster.
There is no disagreement as to what took place at the time of the discharge.
Love and Cole proceeded to Gaster's place of work. Love called over two other
workmen and the following conversation took place:
LovE: Maurice, Jack Reynolds tells me he found you up on the firing floor
last Wednesday night talking to all of the men, employed there. Is that
right?
GASTER : Yes.
LovE: Do you remember that back in the summer I told you specifically
what you were to do and what you weren't to do, were not to do?
GASTER : Yes.
LovE: Did you think I was kidding at the time?
GASTEa : No, I thought you meant it.
(Gaster then asked whether Love had any proof that he was interfering with
the men )
LovE: We have proof.
CASTER: I wasn't talking about the unions.
LOVE : I don't care what you were talking about. You remember your
instructions from me. You understood your instructions from me. You'
knew that I was serious in the matter, and you elected to violate my orders
to you of your own will?
GASTER : Yes.
LovE : You're discharged, get your tools together and get your time at
the office. You're no longer an employee
Gaster testified that at the office, when he was paid off, Love said to him,
"Now, -I hope you'll go out and mind Jour own, business from now on." His
undenied testimony is credited.
Gaster was admittedly the only employee who had ever received orders against
visiting. No other employee had ever been reprimanded or discharged because
of visiting.
4 The foregoing is taken from Love's testimony which was corroborated by Cole and the
two employees who were present, Kitzler, and Bare. The undersigned credits Love's
testimony.
THE NATIONAL LIME AND STONE COMPANY 645
4. Contentions of the parties ; conclusions
The respondent contends that Gaster had received specific orders against visit-
ing and that these orders were given him -because he was bothering other
employees . It also points to the admitted fact that Gaster violated these orders
and contends that Gaster was fired for disobedience and that he was not dis-
charged for his union activities . The Board contends that in singling out
Gaster for a prohibition against any visiting , when full freedom was allowed
other employees and strangers , and in the strict application of that rule to
Gaster, the respondent was actuated by Gaster's prominence in union activities
and that he was discharged because of it.
The incidents herein can best be evaluated in the light of the surrounding
circumstances . In the early part of 1944 , the Union had started its organizing
campaign at the plant . The respondent had countered with a campaign to
break the drive by vilification and disparagement of the Union and its leaders,
attempts to form an inside union , and the discharge of a union leader. The
election of May 23, 1944, did not resolve the labor difficulties at the plant.
Love attempted to have the plan of the formation of an inside u nion carried
out, but the employees were not receptive . The Union filed objections to the
-election and charges of unfair labor practices'against the respondent. These
matters were under investigation during the summer months and came on to be
heard on September 6. The Union , meanwhile , was continuing its organizing
campaign.
Gaster from the beginning took a leading part in the union campaign and
was especially active in recruiting members Management had knowledge of
his activities . This was evidenced when Love singled out Gaster as his source
of information as to union activities and when he used Gaster in his effort. to
have an independent union formed . Love, by his own testimony , knew that
Gaster was a leader in the Union.
Love's knowledge of Gaster 's active interest in the Union cannot be ignored
in his treatment of Gaster . The undersigned is convinced that when Reynolds,
as Love testified , reported to him that Gaster was talking to the men and
"bothering" them, Love concluded that the subject of Gaster 's discussions was
the Union . That he had this thought in mind is evidenced by the fact that he
ordered Gaster not to visit the lime plant immediately after he had spoken to a
group of the men and implied that the Union was blocking their wage increase.
The testimony clearly indicates that employees and others were allowed full
freedom to visit the plant on personal matters and did so without hindrance.
That the respondent was not particularly concerned with this practice is shown
by Love's testimony that no employee had ever been reprimanded at discharged
for visiting , other than Gaster. This is not to say that the respondent could
not take action if an individual abused the privilege allowed the employees.
However, in Gaster's case , conceding that he was abusing the privilege of visit-
ing (of which there was no evidence ), the respondent did more than attempt
to have Gaster conform to the standard presumably followed by others. It
sought to stop his visiting altogether . In other words, from the time of Love's
order to him , there were two standards set for the employees with respect to
visiting , one for Gaster and one for all the,other employees . The undersigned
concludes and finds that Love, aware of Gaster 's union activities , sought to halt
those activities by prohibiting his visiting employees while permitting all other
employees full freedom.
Later developments indicate clearly that there was one standard for Gaster
and one for all other employees. Love had word that Gaster has visited the
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant on his own business Love thereupon discharged him. Yet Caster had
actually clone nothing more than ' other employees were doing all the time and
for which they did, not even receive a reprimand The undersigned concludes
that the disparate treatment of Caster and the imposition of a hard penalty
upon him for doing something for which other employees had tacit approval was
attributable to Caster 's leadership in and activity on behalf of the Union and
the respondent ' s desire to interfere with and curtail his union activities
The respondent contends that there is no evidence that Love discussed the
Union with Caster or that the respondent committed any anti-union acts for
several months prior to the discharge . It also argues that if it had wished to
discharge Caster for his union activities it would have done so prior to the May
1944 election and not afterward It is true that there was no testimony of any
independent acts of uufair.labor practices by the respondent , except for Caster's
case, for several months prior to the discharge herein . However , it is equally
true that the unfair labor practices committed prior thereto were unreniedied
during the period and that they still evidenced the respondent 's attitude and
position . It is not germane to the issues herein to ascertain when the respondent
would have deemed it best to get rid of Caster At the time of his discharge,
the Union was pressing its campaign . There were also in existence outstanding
charges of unfair labor practices which were set for hearing the next day. There
was ample reason for the respondent to fear Caster 's union activities and the
undersigned concludes and finds that the respondent determined to stop those
activities and discharged Caster because of his failure to conform to the dis-
criminatory standard set for hint which wiis calculated to achieve that purpose
Accordingly , the undersigned finds that the respondent discharged Maurice Caster
because of his union leadership and activities and by such conduct has discrimi-
nated in regard to his hire and tenni e of employment , thereby discouraging mem-
bership in the Union and interfering with, restraining , and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act a
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the responedut set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and such' of them as have been found to be unfair
labor practices 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 violated Section 8 (1) and (3) of the
Act, it will he recommended that the respondent, pursuant to the mandate of
Section 10 (c), cease and desist therefrom The Board's decision in the prior
8 The respondent argues that assuming that there was a discriminatory discharge there
must be direct proof that it had the effect of discouraging membership in the Union it
alleges that there was no such proof and, in fact , the Union eventually secured collective
bargaining rights of the plant This contention is contrary to the weight of authority.
A discriminatory discharge may reasonably be inferred as discouraging union membership.
N. L R B. v. Walt Disney Productions, 146 F (2d) 44 (C. C. A. 9) ; N. L. R B v Brenner
Tanning Co ., 141 F. ( 2d) 62 (C. C. A. 1) ; N. L. R. B. v. J G . Boswell Co , 136 F. (2d)
585 (C. C. A 9) The case of N. L R B v. Air Associates, Incorporated, 121 F (2d) 586
(C C A. 2), cited by the respondent, is not authority for the contrary view See N L R B.
v Cities Service Oil Company, 120 I` (2d) 933 (C C.'A 2)
THE NATIONAL LIME AND STONE COMPANY 647
proceeding heretofore referred to and the findings herein establish the fact that
when the Union attempted to carry on an organizational campaign at the plant
in 1944 the respondent countered with an active campaign designed to hinder and
defeat the free expression of the will of its employees with respect to their choice
of a bargaining representative. Key officials of the respondent were active in
this campaign of interference They sought to have the employees form an
inside union, which presumably would be more amenable to their will. Only the
opposition of the employees prevented'the formation of such an organization. In
addition, the respondent discriminatorily discharged two union leaders. The
totality of the respondent's conduct is indicative of a fixed purpose by varying
methods to interfere with the rights of its employees under the Act. While the
recent history of labor relations at the plant, indicates that there has been a
period of tranquility, the record of the extensive violations of the Act in the past
indicates that steps must be taken to insure that there be no recurrence of unfair
labor piactices in the future In order therefore to make effective the inter-
dependent guarantees of Section 7 of the Act, and thus effectuate the policies of
the Act, it wn ill be recommended that the respondent be ordered to cease and
desist from in any manner infringing upon the rights guaranteed in Section 7
of the Act.
It has been found that the respondent discriminated in regard to the hire and
tenure of employment of Maurice Gaster. It will therefore be recommended
that the respondent offer hint immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority and other
rights and privileges It will be further recommended that the respondent make
him whole for any loss of pay that he may have suffered by reason of the re-
spondent's discrimination against him by payment to him of a sum of money
equal to the amount lie would have earned as wages from the date of the dis-
criniination to the date of the respondent's offer of reinstatement less his net
earnings ' during said period. _
Upon the basis of the foregoing findings of fact and the entire record in the
case, the undersigned makes the following:
CONCLUSTONS OF LAW
1. United Construction Workers, affiliated with the United Mine Workers of
America, is a labor organization within the meaning of Section 2 (5) of the
Act
2. By discriminating in regard to the hire and tenure of employment of
Maurice Gaster, thereby discouraging membership in the Union, the respondent
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (3) of the Act
3 By interfering with, restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has, engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
° 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
elsewhere than for the respondent , which would not have been incurred but for his unlaw-
ful discharge and they consequent necessity of his seeking employment elsewhere See
Matter of Crossett Lumber Company , 8 N. L It. B. 440. Monies received for work per-
formed 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.
e
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair , labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law the
undersigned recommends that the respondent, The National Lime and Stone
Company, Carey, Ohio, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in the United Construction Workers, athliated
with United Mine Workers of America, or any other labor organization of its
employees, by laying off, discharging or refusing to reinstate any of its em-
ployees and-from refusing to employ any member of that Union or in any other
manner discriminating in regard to their hire and tenure of employment or
any term or condition of employment;
(b) In any other manner interfering with, restraining or coercing its em-
ployees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist United Oonstruction Workers; affiliated with United Mine
Workers of America, or any other labor organization, to bargain collectively
through representatives of their own choosing and' to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual aid or protection
as•guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Maurice Gaster immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges ;
(b) Make whole Maurice Caster 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 the amount he would normally have earned as
wages from the date of the discrimination to the date of the respondent's offer
of reinstatement 1e-s his net earnings" during said period;
(c) Post immediately at its plant at Carey, Ohio, copies of the notice attached
to the Intermediate Report herein marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Eighth Region, after being
signed by the respondent's representative, shall be posted by the respondent
immediately upon the receipt thereof, and maintained by it for sixty (60) con-
secutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the
respondent to insure that said notices are not altered, defaced or covered by
any other material ;
(d) Notify the Regional Director for the Eighth Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the.
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
10 See footnote 9, supra.
THE NATIONAL LIME AND STONE COMPANY, 649
As provided in Section 33 of Article II, of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended , effective November 27,
1945, . any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case to the Board , pursuant
to Section 32 of Article II of said Rules and Regulations , file with the Board,
Rochambeau Building , Washington 25, D C ., an original and four copies of
a statement in writing , setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding ( including rulings upon all
motions or objections ) as he relies upon, together with the original and four
copies of a brief in support thereof . Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file
a copy with the Regional Director. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of the order transferring the case to the Board. Any party desiring to,
submit a brief in support of the Intermediate Report shall do so within fifteen
(15) days from the date of the entry of the order transferring the case to the
Board, by filing - with the Board an original and four copies thereof, and by
immediately serving a copy thereof upon each of the other parties and the
Regional Director
SIDNEY L. FEmm,
Trial Examiner.
Dated May 28, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor
organizations, to join or assist UNITED CONSTRUCTION WORKERS,
affiliated with UNITED MINE WORKERS OF AMERICA , or any other
labor organization , to bargain collectively through representatives of their
own choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously en-
joyed, and make them whole for any loss of pay suffered as a result of
the discrimination.
Maurice Caster
All our employees are free to become or remain members of the above-
named union or any other labor organization . We will not discriminate in
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regard to hire or tenure of employment or any term or condition of employ-
ment against any employee because'of membership in or activity on behalf of
any such labor organization.
THE NATIONAL LIME AND STONE COMPANY,
Employer.
Dated-------------------- By----------------------------------
(Representative ) (Title)
NOTE-Any of the above-named employees, presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
O
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