The Ohio Public Service Co.

National Labor Relations Board - Board Decisions

Sep 18, 1943

52 N.L.R.B. 725 (N.L.R.B. 1943)

In the Matter of THE OHIO PUBLIC SERVICE COMPANY and UTILITY
WORKERS ORGANIZING COMMITTEE (C. I. 0.)
Case No. C-589.-Decided September 18, 1943 '
DECISION
AND
ORDER
Upon a complaint issued pursuant to charges filed by Utility Work-
ers Organizing Committee (C. I. 0.), herein called the Union,' against
The Ohio Public Service Company, Lorain, Ohio, herein called the
respondent, a hearing was held before a Trial Examiner in Lorain,
Ohio, on March 29, 30, and 31, 1943, in which the Board, the respond-
ent, and the Union participated by their representatives. The Board
has reviewed the Trial Examiner's rulings on motions and on objec-
tions to the admission of evidence and finds that no prejudicial error
was committed. The rulings are hereby affirmed.
On April 15, 1943, the Trial Examiner issued his, Intermediate Re-
port, attached hereto, in which he found that the respondent had en-
gaged in unfair labor practices. Thereafter, the respondent and the
Union filed exceptions to the Intermediate Report and briefs in support
of their exceptions. Oral argument was held before the Board at
Washington, D. C., on July 6, 1943.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, except inso-
far as they are inconsistent with our findings and order hereinafter
set forth.
1. We agree with the Trial Examiner's finding that around July
1942, Superintendent McCormick told Yingling that if the employees
joined a union, the respondent would deprive them of various existing
benefits.2 We further find that, notwithstanding Yingling's testimony
that he understood McCormick's statement to have been an expression
1 The term Union , as used herein, is descriptive of Local 267 of Utility Workers Organiz-
ing Committee ( C. I 0.), as well as of Utility Workers Organizing Committee ( C. I. 0 ).
2 We credit Yingling 's testimony that such statement was made, against McCormick's
denial , Yingling having impressed us as the more trustworthy witness.
52 N. L . R. B., No. 129.
725
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a personal, and not an official, opinion, and that McCormick's re-
mark did not affect him in his "choice," such statement, in view of its
nature and the authority of the person making it., was violative of
Section 8 (1) of the Act.
2. In February 1943, shortly after the formation of the Union, a
union representative told E. J. Burger, vice president of the respond-
ent and manager of the plant involved herein, that he would like to
speak to him about a grievance of employee Berthold Witte, a union
member. A day or two later, Burger assembled some of the employees,
including Witte, and told them that he had been approached "from
the outside" by one who wanted to represent an employee concerning
a grievance, that he did not like the employees "to . . . have
somebody else speaking for [them] when [they] are in trouble," and
that the' employees were free to submit their grievances to their supe-
riors. We find that Burger's remarks were designed to discourage the
employees in their union membership and activities, in violation of
Section 8 (1) of the Act.'
3. We find that, in view of the surrounding circumstances, the re-
spondent's assignment of Berthold Witte to various tasks not ordi-
narily performed by him, shortly after he commenced to wear a union
button at the plant, did not constitute discriminatory treatment and
was not violative of Section 8 (1) of the Act.
4. We agree with the Trial Examiner's conclusion that both Ying-
ling and Thomas were discriminatorily discharged.
(a) In connection with the incident concerning McCormick's sub-
stitution for Yingling on a night shift approximately 21/2 weeks prior
to the discharge, upon which the respondent relies as one of the causes
of Yingling's discharge, we are convinced that McCormick granted
express permission for Yingling to be off duty that night, and that
Yingling cannot be charged with any dereliction on the occasion in
question. However, even if it be conceded that McCormick was genu-
inely angry with Yingling over his failure to work that night, the
record discloses, and we find, that after a few days, and almost 2 weeks
prior to the discharge, McCormick forgave Yingling and the entire
matter was closed' That the incident in question was not a motivating
s without attempting to pass on the question of whether the Union represented a ma-
jority when Burger's remarks vrere made , we note that such remarks can hardly be
regarded as a declaration that the respondent would not deal with a minority union and
therefore not violative of the Act.
4 Thus, Yingling testified that on or about January 26, 1943, McCormick told him that
no other superintendent would "stand a man's shift" all night, and, when Yingling replied
that he appreciated it and that it would not happen again, McCormick said "All right, boy."
Yingling 's testimony was contradicted in part by McCormick . As already noted, we find
Yingling to be the more trustworthy witness, and we credit his testimony as against
McCormick's.
THE OHIO PUBLIC SERVICE COMPANY 727
cause of the discharge is further evidenced by the fact that Yingling
was not discharged until approximately 21/2 weeks after its occurrence.'
Another reason assigned by the respondent for Yingling's discharge
is that for approximately 7 weeks prior thereto he was listless in
his work. However, the only detailed evidence of such listlessness
which the respondent was able to adduce was McCormick's vague
testimony that Yingling did not "wipe up the oil, and so forth, on
auxiliary turbines, and so forth, that he was supposed to." More-
over, Yingling was never reprimanded because of his work .6 Nor
did McCormick include the alleged listlessness among the, reasons
which he gave Yingling for the discharge. Upon the basis of the
entire record, we find that there is no substantial evidence to support
the respondent's contention that Yingling was listess in his work
or that such alleged listlessness was a cause of his discharge.
(b) The Trial Examiner did not, nor do we, credit the respondent's
contention that Thomas was discharged for incompetence. It is clear
that on four of the five occasions relied upon by the respondent as
evidence of his incompetence, Thomas was derelict in the perform-
ance of his duties.' However, we do not believe that Thomas' dere-
lictions on the occasions in question were the motivating cause of his
discharge. During his 11/2 years of employment as the respondent's
storekeeper, Thomas handled four or five hundred transactions, out
of which the respondent could point to only four in which he had
committed some error, and it is clear that his errors or derelictions
were not regarded by the respondent as abnormal when committed.
Moreover, the four errors were inconsequential and resulted in prac-
tically no financial loss to the respondent. Also, on none of the oc-
casions in question was Thomas reprimanded .8 It is further to be
noted that the last of Thomas' derelictions occurred approximately
5 weeks prior to his discharge.9
6 McCormick testified that a certain problem of replacement prevented him from dis-
charging Yingling sooner. Upon the basis of the entire record, we do not credit McCormick's
explanation for the delay
° We credit Ymgling' s denial that he was ever reprimanded because of his work , against
McCormick 's testimony that he spoke to Yingling a "couple of times" about his listlessness
4 Four of the incidents relied upon by the respondent occurred around December 1941,
Maich 1942, December 26, 1942, and January 2, 1943, respectively, and the fifth (failure
to keep a complete record of safety equipment ) spread over a period of months prior to
January 1943. We find that Thomas was not guilty of any dereliction in connection with
the receipt of the two reels of cord in March 1942.
8 There is some vague testimony by McCormick to the effect that he reprimanded Thomas
on some of the occasions However, we credit, as did the Trial Examiner, Thomas'
unequivocal denial that he was ever reprimanded by McCoimick in connection with his work
6 The evidence as a «hole does not support McCormick's testimony that Thomas was
derelict in not getting his errors of December 26, 1942, and January 2, 1943, straightened
out with the trucking companies, which delivered the merchandise, by February 8. 1943. the
date of his discharge . The record discloses , and we find, that Thomas made reasonable
efforts in that regard.
728 DEGISt1ONTS OF NMFPO'W!AL LABOR RELATION'S BOARD
The reason given Thomas for the discharge affords an additional
basis for questioning the respondent's assertion that his repeated
derelictions were responsible for his discharge. According to Thomas'
testimony, which we credit, McCormick told him that he was being
discharged because the respondent 's Cleveland office was "raising hell"
with McCormick about Thomas' error of January 2, 194310 Thus, -
McCormick mentioned to Thomas only one of the five incidents now
relied upon by the respondent in justification of the discharge. More-
over, the record discloses that the reason given Thomas for the dis-
charge, namely, that the Cleveland office was "raising hell" with Mc-
Cormick about the error of January 2, 1943, had .no foundation in
fact.
(c) The respondent denied having any knowledge, prior to Ying-
ling's and Thomas ' discharge , of the employees ' organizational ef-
forts and of Yingling's and Thomas' election as officers of the Union.
We do not credit this denial. That such knowledge was had by the
respondent prior to their discharge is evidenced not only by the cir-
cumstances showing a discriminatory motive for their discharge
but also by the following: (1) for approximately a week prior to
their discharge, there were discussions at the plant, both during and
after working hours, among the employees, concerning the forma-
tion of and membership in the Union; 1' (2) Yingling initiated these
discussions and was the most active employee at the plant on behalf
of the Union; (3) Thomas signed his union application card at
31 McCormick ' s testimony was not substantially different from Thomas ', in this regard.
McCormick testified that he told Thomas that he was discharging him because he had not
straightened out with the trucking companies his errors of December 26, 1942, and
January 2 . 1943 , and that McCormick was embarrassed by all the correspondence coming
across his desk regarding these two incidents As already found, Thomas made reasonable
effort to correct these errors Further, neither the amount nor the contents of the
correspondence relating to these two erors which had passed through McCormick's hands
prior to Thomas' discharge were such as to have caused McCormick any embarrassment.
Among these circumstances are the following : ( 1) the inadequacy of the reasons
assigned by the respondent for their discharge , coupled with the fact that discharges at
the plant were very rare and that the respondent was suffering from the general ' manpower
shortage ; ( 2) the fact that Yingling had been employed by the respondent for many years,
was regarded as a competent worker, and had received many promotions ; ( 3) the fact that
neither Yingling nor Thomas had ever been reprimanded for his work , or disciplined, or
threatened with discharge or other form of discipline ; ( 4) the respondent 's hostility
toward the unionization of the employees ; ( 5) the fact that Yingling initiated the dis-
cussions at the plant concerning the formation of the Union and was the most active
employee on behalf of the Union ; ( 6) the fact that both Yingling and Thomas were
discharged 2 days after their election as officers of the Union.
"There was some general testimony which might be construed as indicating that the
employees who engaged in the organizational efforts attempted to conceal their activities
from the respondent , as dell as from a few employees whom they did not trust . However,
there is no credible , detailed evidence in support of such general testimony , nor is there any
evidence that the other employees in fact had no knowledge of the Union 's formation.
On the contrary , there is the testimony of Yingling , which we credit , that "the word
[regarding the formation of a union] drifted around [ among the employees at the_ plant],
and everybody was talking about it."
THE OHIO PUBLIC SERVICE COMPANY 729
the plant during working hours; (4) the employees at the plant
were a small, closely knit group, and Superintendent McCormick
was in constant touch with them, and worked with them on February
7, the day following Yingling's and Thomas' election as officers of
the Union; (5) on the morning of February 7, the day preceding the
discharges, one of the employees told Steve Does, who acted as fore-
man of the maintenance crew in the absence of the regular foreman,
that Yingling and Thomas had been elected officers of the Union the
night before, and Does had ample opportunity to convey this infor-
mation to McCormick before the discharges on the • afternoon of Feb-
ruary 8.
The Remedy
In determining whether an employee discriminatorily discharged
has wilfully incurred a loss of earnings subsequent to his discharge,
for which he should not be reimbursed'13 we have heretofore generally
followed a policy of restricting the scope. of our inquiry to the ques-
tion of whether the discharge has been guilty of an "unjustifiable
refusal to take," 14 or has given up, desirable new employment. In
view of the exigencies of war, the current manpower shortage, and
present employment opportunities, we shall, for the duration of this
war, permit employers to adduce evidence not only on whether a dis-
chargee has unjustifiably refused to accept, or has given up, desirable
new employment, but also on whether he has made a reasonable effort
to obtain such employment. In view of the availability of United
States Employment Service offices as a medium for seeking and ob-
taining employment, we shall regard registration with such an office
as conclusive evidence that a reasonable search for employment has
been made, and, where such registration is shown, the employer will
then be restricted to proof that the dischargee, without good cause,
rejected an offer of, or gave up, desirable new employment. If the
employer adduces evidence showing a failure to register with the
United States Employment Service, lie may then proceed to prove
that no other reasonable effort to obtain desirable new employment
has been made. In determining whether there has been such a reason-
able effort, we shall consider all the evidence, including circumstances
which would explain the failure to make such effort.
In the instant case, the record discloses that, subsequent to his dis-
charge by the respondent, and at least until the hearing herein,
Thomas was unemployed. At no time during this period did Thomas
register with the United States Employment Service office in Lorain,
Ohio, where he resided. Sometime subsequent to his discharge,
Thomas, who had been employed by the respondent first as a guard
18 See Phelps -Dodge Corp. v. N. L. R. B., 313 U. S. 177.
14 Ibid.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and later in a clerical capacity as "store keeper," unsuccessfully at-
tempted to obtain employment at a local bowling alley. He also
applied to the postmaster for employment and was offered a position
as carrier on a rural delivery route, which he rejected because it was
temporary and would have required his purchasing an automobile.
Thomas made no other attempt to obtain employment; nor did he
apply for work at the plant of the National Tube Company in Lorain,
where he had previously been employed. Under all the circum-
stances, we are of the opinion, and we find, that Thomas did not make
the kind of effort to obtain other employment which under present
conditions a discharged employee may reasonably be expected to
make. His loss in earnings is therefore found to have been a wilfully
incurred loss for which the respondent should not and will not be
directed to reimburse him.
It may be said that the loss thus incurred by Thomas is the amount
he would have earned if he had made a reasonable attempt to obtain
and had obtained other employment, and that the respondent should
reimburse Thomas for his back pay less any such amount. But
Thomas, himself, is at least in part responsible' for his present sit-
uation, and we therefore see no reason for engaging in any such
speculative computation of likely earnings. It is, however, possible
that Thomas has, since the hearing herein, obtained or made a reason-
able effort to obtain other employment, or will do so hereafter. We
shall therefore order the respondent to offer Thomas immediate and
full reinstatement to his former or a substantially equivalent position,
without prejudice to his seniority and other rights and privileges,
and to make him whole for any loss of pay he has suffered or may
suffer because of the respondent's discrimination against him by pay-
ment 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 on which
he obtained or shall obtain other employment, or on which he made or
shall make a reasonable effort to obtain other employment, to the date
of the respondent's offer of reinstatement, less his net earnings 15 dur-
ing such period.
ORDER
Upon 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 respondent, The Ohio Public- Service
15 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter of
Crossett Lumber Company, 8 N. L R. B . 440. Monies received for work performed upon
Federal , State , county , municipal , or other work -relief projects shall be considered as
earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
THE OHIO PUBLIC SERVICE COMPANY 731
Company, Lorain, Ohio, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Utility Workers Organizing
Committee, or in Local 267 of Utility Workers Organizing Committee,
both affiliated with the Congress of Industrial Organizations, or in
any other labor organization of its employees, by discharging or re-
fusing to reinstate any of its employees, or in any other manner dis-
criminating in regard to their hire or tenure of employment, or any
term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form.
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the 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 Board finds will
effectuate the polices of the Act :
(a) Offer to Cornelius L. Yingling and Ben F. Thomas immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights' and
privileges;
(b) Make whole Cornelius L. Yingling for any loss of pay suffered
by him by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount which he nor-
Inally would have earned as wages from the date of the respondent's
discrimination against him to the date of the respondent's offer of
reinstatement, less his net earnings during such period;
(c) Make whole Ben F. Thomas for any loss of pay he has suffered
or may suffer by reason of the respondent's discrimination against
him, by payment to him of a sum of money equal to the amount which
he normally would have earned as wages from the date on which he
obtained or shall obtain other employment, or on which he made or
shall make a reasonable effort to obtain other employment, to the date
of the respondent's offer of reinstatement, less his net earnings during
such period;
(d) Post immediately in conspicuous places at its power plant at
Lorain, Ohio, and maintain for a period of not less than sixty (60)
consecutive days'from the date of posting, notices to its employees,
stating: (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3)
that the respondent's employees are free to become and remain mem-
732 DEADISSON'S OF N'ArrrONAL LABOR RELAT'ION'S BOARD
hers of Utility Workers Organizing Committee, and Local 267 of
Utility Workers Organizing Committee, both affiliated with the Con-
gress of Industrial Organizations, and that the respondent will not
discriminate against any employee because of membership or activity
in those organizations;
(e) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
MR . GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Maas Johnstone, Esquire, and John A Hull, Jr., Esquire, Cleveland, Ohio, for
the Board.
Lee W. Heilman, Esquire, Youngstown, Ohio, for the Union.
G. A. Resek, Esquire, Lorain, Ohio ; H. H. Hoppe, Esquire, Warren, Ohio ;
William P. Clyne, Esquire, Cleveland, Ohio, for the respondent.
STATEMENT OF THE CASE
Upon the charge filed February 9, 1943, by Utility Workers Organizing Com-
mittee (C. I. 0.), herein called the Union, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Eighth Region (Cleve-
land, Ohio), issued its complaint dated March 4, 1943, against The Ohio Public
Service Company herein called the respondent, alleging that the respondent has
engaged in and is 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. A copy of the com-
plaint and charge accompanied by notice of hearing were duly served upon the
respondent and the Union.'
With respect to the unfair labor practices the complaint alleges in substance
that the respondent: (1) on or about February 8, 1943, discharged Ben F.
Thomas and Cornelius L. Yingling because they were members of ,and officers
in the Union and active in behalf of the Union, and in order to discourage mem-
bersbip in the Union and activities on behalf of it; (2) that on or about June
1, 1941, and on or about July 1942, the-respondent through the superintendent of
its plant at Lorain, Ohio, disparaged the Union and threatened its employees
that if they joined or formed a union the respondent would eliminate numerous
benefits then enjoyed by its employees, including such items as vacations with
pay, sick leave with pay and group life insurance ; and that in February 1943
the respondent discriminated against one employee by transferring him from his
regular employment to less desirable employment and that by such acts, the
respondent interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed to them in Section 7 of the Act.
'During the period particularly under consideration in this matter, the Union issued a
charter to Local No. 267 of the Utility Workers Organizing Committee. Local 267 is now
an active organization at Lorain, Ohio, where the alleged unfair labor practices took place.
Throughout this report the term "the Union" may be regarded as interchangeably applicable
to Utility Workers Organizing Committee (C. I. 0.) and Local 267 of Utility Workers
Organizing Committee.
THE OHIO PUBLIC SERVICE COMPANY 733
The respondent 's answer , duly filed , admits certain of the allegations of the
complaint with reference to the corporate structure and nature of its business
but denies all the allegations of the complaint with reference to the commission
of any unfair labor practice.
Pursuant to notice, a hearing was held on March 29 , 30, and 31, 1943, at
Lorain, Ohio, before R. N. Denham , the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondent were
represented by counsel and the Union by one of its officials . All parties partici-
pated in the hearing where full opportunity was afforded them to be heard, to
examine and cross-examine witnesses and to introduce evidence bearing upon the
issues. At the close of the introduction of evidence by the Board and again at
the close of the hearing , the respondent moved for the dismissal of the complaint
for failure of proof. The motion at the close of the Board's case was denied.
The motion to dismiss at the close of the hearing was taken under consideration
and is now denied. At the close of the hearing , counsel for the Board moved to
amend the complaint to conform to the proof . Without opposition , the motion
was granted to apply to all pleadings filed herein to the extent that such plead-
ings should be amended for the purpose of correcting names, dates , and other
minor recitals not affecting the issues in the case . All parties argued their
respective positions to the Trial Examiner on the record . The privilege of filing
briefs was waived by all parties
On the basis of the foregoing and after having heard and observed all the wit-
nesses and considered all exhibits in the evidence and upon the entire record
herein made , the undersigned makes the following:,
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent is a public utility corporation organized and existing under
the laws of the State of Ohio, and is a subsidiary of Cities Service Power and
Light Company which in turn is a subsidiary of Cities Service Company. The
respondent in turn is the parent of Ohio River Power , Inc., a wholly owned sub-
sidiary. The business of the respondent consists of the production , distribu-
tion, and sale of electric energy and the sale and distribution of electrical ap-
pliances in nine geographical divisions within the State of Ohio. One of these is
the Lorain District with a power plant at the city of Lorain , Ohio. In the
course of the conduct of its business the respondent purchases supplies and
replacement equipment consisting of coal , copper wire , insulators , poles, trans-
formers, oil , cross arms, and pole line hardware , which, during the year 1942,
exceeded in value, the sum of $1,000 ,000. Of these items the insulators and oil
are obtained wholly within the State of Ohio. Between 90 to 100 percent of all
the other items are obtained from outside the State of Ohio. In addition to
the foregoing, the respondent, during 1942 , purchased and marketed electrical
appliances in excess of $750,000 in value , consisting of refrigerators , ranges,
water heaters, motors , washing machines , vacuum cleaners , lighting equipment,
and radios , the major portion of which were obtained from within the State of
Ohio, although from 80 to 100 percent of the radios , lighting equipment, and
motors purchased and marketed were obtained from without the State of Ohio.
Among its customers , the respondent supplies electrical energy in and around
Lorain, Ohio, to the American Shipbuilding Company, the American Stove Com-
pany, the Cleveland Quarry Company , the B & 0 Railroad , the Nickel Plate
Railroad, the Lorain Telephone Company, and the Western Union and Postal
Telegraph Companies , for the operation of their respective businesses.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
Utility Workers Organizing Committee, (C I. 0 ) and Local 267 of the Utility
Workers Organizing Committee (C. I. 0 ) are labor organizations admitting to
membership the production, operating and maintenance employees of the re-
spondent at Lorain, Ohio.
III. THE UNFAIR LABOR PRACTICES
A Interference, restraint and coercion
The respondent operates in nine geographical districts in the State of Ohio,
each district functioning independently but tinder the. general direction of the
main office of Cleveland, Ohio. The Cleveland office is the chief executive office
of the respondent through which most of its administrative matters in the
respective districts are cleared. The Lorain district is tinder the immediate
supervision of W. D McCormick who is superintendent of the power plant at
Lorain. As such superintendent he has complete charge of all the men employed
in and about the power plant at Lorain, and, in practice, has complete control
of the hiring and discharging of the employees at the power plant although tech-
nically all employment and discharges are, in the course of routine, submitted
to the Lorain District General Manager and the General Manager of respondent
for final approval.
In early February 1941, Ben F. Thomas was employed by the respondent as
a guard at the Lorain power house. During the first month of his employment
it developed that he was above the age limit set by the respondent for its guards
and at the end of his first month, he was released by McCormick with the as-
surance that McCormick probably could find something for him to do at the
power plant a little later on. Following his dismissal, Thomas obtained employ-
ment at the plant of the National Tube Company at Lorain and continued in
this employment until late in May 1941, when McCormick advised him that the
job of store keeper was vacant. Thomas was employed for this job and in his
interview with McCormick just prior to assuming his responsibilities, when
they were discussing Thomas' activity during the past 3 months, McCormick
made the statement in effect, "I hope you don't belong to that God damned
CIO." Thomas told McCormick he had been required to join the C. I. O.
as an incident to his employment at the National Tube Company and, so far
as the record reflects, nothing further was said on the subject at that time.
McCormick testified lie did not remember having made the above statement but
that it was quite possible he did. It is found that in fact, the statement was
made substantially as above set out.
In July or August of 1942, the International Brotherhood of Electrical Work-
ers circularized the employees at the Lorain power house with letters soliciting
their membership in that organization. Shortly after the receipt of these let-
ters, one of the employees, Cornelius L. Yingling, asked McCormick whether
he had received one of the letters. McCormick replied that he had not, but
that one of the men had brought one to him. Yingling then asked what McCor-
mick thought about the letter, to which McCormick replied, in substance, that
he was not allowed to tell the employees what he thought about it, or to advise
them concerning it., This did not terminate the conversation, however, and
before it was over, McCormick had stated that if the men joined a union, the
Company undoubtedly would put all the employees on an hourly basis of pay
instead of the monthly basis then followed, and that it would do away with paid
vacations and pay while the men were out sick, as well as give up the group
insurance policy the Company had recently instituted for the benefit of its em-
THE OHIO PUBLIC SERVICE COMPANY 735
ployees. When McCormick testified, he denied the latter part of the conversa-
tion above referred to, but stated that Yingling brought him a copy of the letter
which he hurriedly read and that when Yingling asked him what he thought
about it, lie refused to comment, saying that he was not permitted to express an
opinion on the subject On the basis of all the circumstances reflected in the
record herein and McCormick's obvious antipathy to Yingling, which will here-
after be referred to, his denial in this instance is not credited and it is found
that the conversation took place substantially as above recited.
The record reflects no incident connected with the Union between this con-
versation of Yingling and McCormick in July 1942 and the beginning of the
Union activities on or about January 30, 1943 On or about the latter date,
Yingling, with one or two of the other men in the power plant, began a discus-
sion among the employees concerning the formation of a local of the Union at
that plant. During the next few days, Yingling personally discussed the matter
with over half of the approximately 32 men employed in the power plant, these
discussions being held at the homes of the men, at Yingling's home and at the
power plant both during and outside of working hours. During the next 6 or 7
days Yingling's efforts proved to be successful, he personally being responsible
for obtaining membership applications from 15 of the men, including Ben Thomas
who signed his application card on February 4, 1943. Although Yingling and
the others who were active in initiating the Union at the plant attempted to
keep their activities from the attention of McCormick and other officials, the
formation of the Union was a matter of general discussion among the men both
while on and off duty during the brief but successful campaign that was waged
bet veeu January 30, 1943, and February 6. 1943, when the local was formally
organized with Thomas as its president and Yingling as its financial secretary.
Yingling definitely was the man primarily responsible for initiating the Union
movement and for obtaining most of its memberships The extent to which
Thomas was active in organizing the Union after he signed his application card
on February 4 is not reflected in the record beyond the fact that on the evening
of February 6, 1943, some 16 or more of the employees gathered at Yingling's
home with the organizer of the Union, where they signed the formal application
for a charter and proceeded to organize themselves by electing Thomas president,
Yingling financial secretary, and Charles Staron corresponding secretary. The
charter application was thereafter forwarded to the headquarters of the Utility
Workers Organizing Committee and a 'charter was issued within a few days but
dated to be effective as of February 1, 1943.
The members of the Union did not begin to openly wear their C. I. 0. buttons
until February 9, 1943 McCormick and the other representatives of the respond-
ent who were in Lorain testified that they had no knowledge of any union activity,
in the plant until the men began wearing their buttons or until they read an
announcement in the local newspaper which appeared on Tuesday, February 9
and carried the story of the election of officers at the meeting of February 6.
McCormick stated that he first learned of it through his wife on February 9',
when she told him of a conversation she had had on the street during the day
with the wife of one of the men who was a member.
Considerable stress by Board's counsel was laid on the relationship of one
Steve Does and McCormick, in an effort to charge Docs with being an informer
who gained knowledge of the union activities not later than February 6, 1943,
and conveyed such knowledge to McCormick at some time prior to the discharges
of February 8, 1943. Credible testimony was offered and not controverted, that
Docs is and for at least a year and a half has been regarded by the employees
generally throughout the plant as a tale-bearer who keeps McCormick advised as
736 DECJSIONS OF NATIONAL LABOR RELATIONS BOARD
to any activities or special conditions existing among the employees which nor-
mally might not be expected to readily come to his attention . No incidents of
such tale bearing were shown , however . It was disclosed by the testimony of
Does that he was invited to join the Union on the afternoon of February 6 by
Staron and again on the morning of February 7 by another of the members,
Berthold Witte. Witte testified that in his conversation with Does on Sunday
morning, February 7, he told Does of the meeting of the preceding evening and
the election of Thomas , Yingling , and Staron as the officers of the new Union.
Does denied that Witte had given him the names of the officers , but his denial
is not credited.
Does has been an employee of the respondent for over 20 years He serves
as a member of the boiler room maintenance crew and acts as its foreman in
the absence of the regular foreman . In the past Does and Witte have frequently
been called upon by McCormick to do odd jobs for him at his home outside of
working hours, for which McCormick has always compensated them. Although
both Does and McCormick deny that the relationship between them is any closer
or more friendly than the relationship of any of the other workmen with Mc-
Cormick, the foreman of the boiler room maintenance crew testified that Does
probably was on more intimate and friendly relations with McCormick by reason
of his long employment than any of the other employees . It is found that this
is a fact.
When Does was approached on Saturday , February 6, to become a member of
the Union , the invitation was extended by Staron without the knowledge of his
fellow members who had, up to that time , questioned the advisability of bringing
Does into the organization because of his reputation for reporting employee affairs
to McCormick . When Witte invited him the next morning to join the Union, he
extended the invitation at the instance of all the others , who had determined
at, the February 6 meeting to urge all the employees to become members and to
come out in the open with their Union . At first Does hesitated and told Witte
that it would be necessary for him to consult with , his wife . On February 9,
Witte again approached Does at which time, according to Does' testimony, he
told Witte he had decided not to become a member of the Union because he did
not think the C. I. O. could benefit him and because he was afraid that if the
Union came into the plant the Company might change their basis of pay from
the monthly salary basis to an hourly rate , that it might take away the sick
leave with pay and might also give up the group insurance policy which it had
been carrying for the benefit of the employees. This is the last time Does is
reported to have discussed the Union with any of the members . Does denied
that he had ever at any time discussed either this or any other union with
McCormick , but the striking exactness of the objections which he raised to joining
the Union , and the threats heretofore found to have been made by McCormick
in July 1942 , leads to the conclusion that the paralleling of his statement with
that of McCormick was not a coincidence , but that it is a reflection of McCormick's
point of view as he expressed it to Yingling approximately 6 months before the
Union was actually formed and as he must have expressed it to Does.
The power plant employs about 31 to 32 men all told for the operation of its
three shifts . Normally five men constitute an operating shift in the boiler room
and in the turbine engine room. About nine men are employed on the boiler
room maintenance crew, normally working only on the day shift, while the balance
of the men are made up from the yard crew . Although McCormick is superin-
tendent in charge of the power house , he not only supervises the work done, but
when any emergency arises he also works with the men on whatever task may
be at band . He is in constant contact with the men in the performance of their
THE OHIO PUBLIC SERVICE COMPANY 737
jobs . Under such circumstances as these, with a small crew consisting of only
a handful of men with whom he himself works, and with whom he did actually
spend much of Sunday , February 7 cleaning out one of the boilers , it would be
more unreasonable to believe that he did not hear about the Union activities
which constituted the outstanding topic of conversation for the first week in Feb-
ruary, than to believe that he did learn about such activities from his contacts
with the men and from their incidental conversations , regardless of anything
Docs might have told him. There is no evidence upon which to make a finding
that Docs specifically informed McCormick of the Union's activity , but it is found
that Does had ample opportunity to so advise him prior to the morning of Feb-
ruary 8, and that, notwithstanding the denials of both Does and McCormick, there
had been discussions between them concerning labor organizations at the plant
and the respondent 's attitude toward such labor organizations . All the facts
disclosed in this record , when taken as a whole , lead to the conclusion that by
the afternoon of February 8, 1943, McCormick had been advised of the union
activities taking place at the power plant, of Yingling 's outstanding activities in
the organization and of the election of Thomas and Yingling as officers of the
newly formed labor organization . It is so found . It is further found that by
the remarks of McCormick to Thomas in June 1941 and to Yingling in July 1942,
concerning the probable reaction of respondent to the organization of a union in
the plant , the respondent has interfered with, restrained , and coerced its em-
ployees of the Lorain power plant , in the exercise of the rights guaranteed to
them in Section 7 of the Act.
B. The discriml'natorij discharges of Thomas and Yingling
Cornelius L. Yingling was continuously in the employ of the respondent from
December 1934 to February 8, 1943, when he was discharged . He admittedly
was a satisfactory worker and has received numerous promotions during the
course of his employment . At the time of his discharge , he was employed as an
oiler but had qualified for the position of engineer and had received a state
license as a third class engineer . About the middle of December 1942, Yingling
was negotiating with the superintendent of the Lorain water works for employ-
ment at the water works as an engineer at a salary slightly in excess of what he
was receiving from the respondent . When it appeared that there was a possibility
of his obtaining the position , he told McCormick of the possibilities of the new
job and asked him whether it would be possible for him to obtain a release from
the respondent in the event he was offered the employment . McCormick told him
he would not stand in the way of bettering his position . About the same time
the District General Manager of the respondent had a discussion with the super-
intendent of the water works concerning Yingling 's release , in view of the fact
that for a long time there had been an understanding between the water works
and the respondent that neither would offer employment to an employee of the
other without first conferring with his employer . Out of this discussion arose a
decision by the District General Manager and McCormick not to refuse releases
to any employee asking for one to go to a better position. Sometime after
Yingling's first conversation with McCormick , the subject was brought up again
at which time McCormick discouraged Yingling from taking this new position
and pointed out that the working conditions would not be so satisfactory and
that the difference in salary was only nominal . Yingling reconsidered the matter
and at about Christmas 1942 told McCormick that he had given up the idea of
going to the water works and that he was not going to want a release after all.
On January 23, 1943, Yingling 's father-in-law, who was something of a leader -
in the political and civic affairs in Lorain, was holding a supper party at his home
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for one of the local lodges. At that time Yingling was working on the night shift,
from 11 p in. to 7 a. in., and his father-in-law, without telling Yingling, telephoned
McCormick and obtained permission for Yingling to stay away from work that
night. Later when Yingling heard of it, he telephoned McCormick and stated
that he probably world be able to get to the plant by 1 or 2 o'clock and work
the last part of his shift. Several of the officials of the respondent, including
L. G. Copeland, office manager of the Lorain office, attended the party. During
the evening Yingling mentioned to Copeland that he intended to go back to the
power plant at 1 or 2 o'clock and that he preferred not to do so. Copeland
volunteered to "fix it" and telephoned McCormick at the plant at about 8: 30 or 9
o'clock that Yingling was not in any condition to report for work that night and
that he would not be in. According to Copeland, McCormick replied "all right"
whereupon Copeland hung up the receiver, turned to Yingling who was standing
close by, and said, "That's that" As a result, Yingling did not report for duty
until the next day. McCormick had not arranged to have a relief man on hand
to take Yingling s shift and apparently made no effort to obtain such a relief
although the conversation he held with Copeland was at least 2 hours before
Yingling was due to report for duty. As a result, McCormick stood Yingling's
shift that night and for some reason, growing wholly out of the fact that Yingling
was not on duty, conceived an antipathy to him which he made little effort to
disguise. The next time he talked with Yingling he was particular to call atten-
tion to the fact that no other superintendent would take a man's place on his
night shift in order to allow him to go to a party. This, however, was the last
heard of that incident until Febiuary 8
Yingling's activity in organizing the Union and his election as an officer at.
the meeting held at his home on February 6 has heretofore been set out in detail.
His work shift ended at 7 a. in on February 8 at which time he went home.
At about 4 o'clock that afternoon he received a telephone call from McCormick
asking him to come to the power plant. On arrival at the plant, Yingling found
McCormick at the gate waiting for,him, at which time, he handed him a letter of
release saying at the same time, "Here is a release for you, the one that you
have asked for a while back." The release was a letter of dismissal, reading
as follows :
Recently you asked for a release from the plant, as you were trying to get a
job at the Water Works. I know that you are more or less unhappy in your
present employment and I have decided to grant you this release for the fol-
lowing two reasons :
First, that you asked for it, and second, two weeks ago last Saturday night
after making arrangements with me over the phone to be off duty until one
or two o'clock in the morning you did not show up all night. This was rather
bad because of the fact that the men rotate shifts on Saturday night and we
had nobody to relieve. I had to do this myself.
Our present industry, as you well realize, requires us to operate twenty-four
hours a day, to furnish power to people engaged in war industry. You realize
what would happen if our plant was to go down. Therefore, I am issuing
this release of this date, when you will be relieved of your duties. However,
you will be paid until next Saturday night at midnight.
If we can be of any help to get you in a new location, we will be glad to do so.
With the letter of dismissal, Yingling was handed an envelope containing pay-
ment in full of all money due him up to the following Saturday night, in cash.
Yingling protested that he did not want the release and that he had so advised
McCormick some 6 weeks previous, but McCormick refused to discuss the matter
further and also refused Yingling permission to go into the plant to get his
THE OHIO PUBLIC SERVICE COMPANY 739'
engineer 's license and clothes , telling him that he would have one of the other
men get them and bring them to his home. Following this, Yingling obtained
some less remunerative employment at the National Tube Company in Lorain, but
stated that he desires to be reinstated to his previous job.
McCormick testified that with the exception of a watchman whom he found
asleep on duty, he has not had occasion to discharge any employee of the power
plant for 2 years and that discharges are very rare occasions The present short-
age of manpower and the difficulty which practically all employers in the United
States are experiencing in obtaining competent , experienced employees is a matter
of such general knowledge that notice may be taken of it in considering this
situation And it may be and is assumed that under present conditions no com-
petent superintendent is going to dispense with the services of an old and satis-
factory employee who has been guilty of no substantial offense. McCormick well
knew Yingling did not want a release and that lie had completely abandoned all
thought of employment with the water works. , He also knew or should have
known, that after his conversation with Copeland on the night of January 23,.
he was under a commitment not to expect Yingling for duty that night. Notwith-
standing, those two circumstances are relied upon to give legitimacy to Yingling's
dismissal . They carry no persuasive force, but , in the light of McCormick's
declared antipathy to the Union and his almost inevitable knowledge of the activi-
ties that were taking place in the plant, lead to the conclusion that he had learned
of the organizational meeting of February 6 and of Yingling ' s election as an officer
and that he had determined to further discourage interest in the Union by dis-
charging its most active member. It is accordingly found that Yingling was
discharged on February 8, 1943, because of his membership in and activity on.
behalf of the Union and to discourage membership in the Union.
Ben. F. Thomas is a long time resident of Lorain who has at times been engaged
in political activities in that city , and some yeais ago served as clerk of the
municipal court. As has been stated, he was first employed by the respondent in
February 1941 , but after a month was laid off and took employment with the
National Tube Company until his reemployment on or about June 5, 1941, as
store keeper . As has been stated, Thomas was a member of the Union and was
elected its first president at the meeting of February 6, 1943. At the close of
Thomas' work on February 8, McCormick called him to his office , told him that he
had been making so many errors in the records of the supply room that it was
becoming embarrassing and that he was being dismissed McCormick offered to
pay Thomas the amount due him at that time, in cash , which Thomas refused to
accept and later collected in the form of a check
When Thomas was appointed store keeper he received no special instructions
from McCormick but was turned over to the man whom he was succeeding and
went through the process of "breaking in" for a period of about 3 weeks The
general procedure with reference to the record of materials received and ma-
terials purchased is ordinarily set out on the forms used by the company in the
transactions . Technically , purchase orders are issued from the Cleveland office
only on requisitions issued by the district office. These requisitions originate
with Thomas , are approved by McCormick , and then sent to the Cleveland office
where the purchase order is issued and forward to the seller who makes de-
livery to the supply room at the Lorain power plant . Upon making delivery
the seller customarily presents to the store keeper a shipping memorandum of
the materials delivered. The store keeper is supposed to check the items and
enter them as received , on a copy of the purchase order , which , when the ship-
ment is completed , he forwards to the Cleveland office. Partial shipments are
reported to Cleveland on an appropriate form . According to the uneontradicted
549875--44-vol. 52-48
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony of Thomas, deliveries of materials so purchased will be made on an
average of one a day, although several may come in on one day'and several days
may elapse without any deliveries. Out of the four or five hundred such trans-
actions handled by Thomas as storekeeper during his employment, the respond-
ent relied upon five incidents during the entire period, as evidence of Thomas'
incompetency and as justification of his discharge. In analyzing these five
incidents, it is found that in December 1941, Thomas issued a requisition for a
number of castings to be obtained from the Lorain Casting Company and that
he estimated the total weight of the order to be 360 pounds which at 8.6 cents
per pound would represent an estimated cost of $30.96 whereas actually
the weight of the castings were 560 pounds which increased the actual
cost by $17.20. At the time, Thomas was not criticized for it although the dis-
crepancy was called to his attention, the entire record consisting of a memo-
randum from the purchasing agent to Thomas reciting the facts and asking
Thomas to advise him immediately if he found the revised figures incorrect.
The directions on the purchase order form require that if the quantity or
condition of materials delivered do not conform to the invoice, the store keeper
should note that fact on the invoice before signing for it. On January 2, 1943,
a quantity of castings were delivered, the shipping memorandum reciting that
the shipment consisted of 215 pieces. These castings were delivered by truck
just as Thomas was leaving for his lunch. He did not check them at that time
but nevertheless signed the freight bill and delivered it to the truck driver who
made the delivery. On re-checking he could discover only 213 pieces and re-
ported accordingly on his copy of the purchase order which was turned in, when
the shipment was completed. He made a similar notation on his partial delivery
report. He did not, however, have the truck driver confirm this shortage on
the freight bill and when the matter came to the accounting office in Cleveland
the shortage of the two castings was noted, and called to his attention. On
January 11, he wrote a memorandum to the Cleveland office explaining that they
had re-checked the shipment and could not find the two missing castings but
that he would take it up with the truck driver and have it traced. He. appears
to have made little progress at first and did not report on the matter again
while it was still open. In the meantime, however, the Cleveland office had
apparently not been advised of his efforts, and on February 8 wrote him a follow-
up memorandum to inquire what, if anything, had been clone This was never
delivered due to the fact he was discharged on that day and before'the mem-
orandum could be delivered to Lorain from Cleveland. The record also dis-
closes a second follow-up memorandum dated March 1, indicating that the Cleve-
land office had, up to that date, not been advised of Thomas' discharge.
The third matter for which Thomas was criticized was an incident that
occurred in September 1941 when a truck driver appeared at the gate of the plant
to make a delivery, about 30 minutes after it was time for Thomas to go off duty.
However, Thomas was still in the store room and was told by the watchman,
by phone, of the arrival of the truck. He told the watchman to have the truck-
man make the delivery at the supply room. He was advised by the watchman
that the truck driver refused to drive to the supply room, whereupon Thomas
assumed the material had been returned and would be brought back the next
day. However, the truck driver delivered the material at the gate and induced
the watchman to sign for it. The watchman signed the truck driver's receipt but
failed to note that the material was delivered in damaged condition . Nor did
he attempt to count or check it against the items listed in the receipt with the
result that when it was later inspected by Thomas, he discovered that some of
the items were missing, and one entire shipment described in the receipt had
THE OHIO PUBLIC SERVICE COMPANY 741
not been received . Thomas obviously had no hand in this matter and was In no
sense responsible for it. The watchman was not criticized but the incident was
followed by a notice posted on the bulletin board, forbidding watchmen there-
after to accept deliveries during working hours and to carefully note the contents
of deliveries made after hours and to have the truck driver note shortage or
damage on the freight bill.
The fourth incident dealt with the delivery of two tanks of oxygen by the Ali
Reduction Sales Company on December 26, 1942. On that day Air Reduction Sales
Company truck made delivery of two tanks of oxygen on a shipping memo listing
two cylinders by number. In the body of the delivery slip, the extended descrip,
lion indicated three cylinders. Thomas checked the cylinders delivered against
the cylinder numbers as they were received, and signed the shipping memorandum
without noticing the extension in the body of the memorandum. Following his
custom, he immediately made out a requisition for two cylinders which in turn
was followed by a confirming purchase order for two cylinders issued in Cleve-
land on December 29. On January 23 the purchasing department received an
invoice for three cylinders to the requisition which in fact called for only two
cylinders. This difference was called to Thomas' attention some time later and
on January 30, 1943, he wrote a memorandum to the purchasing agent confirming
that only two cylinders had been received, stating that he would check with the
truck driver who made the delivery when he returned on the following Saturday,
February 6, 1943, and get the difference straightened out. This memorandum
from Thomas to the Cleveland office went over McCormick's desk and was pre-
sumably read by him before it was forwarded to Cleveland. The matter did
not come to Thomas' attention until after January 23, when it first came to the
surface in the purchasing department office. On February 6, Thomas was ill and
did not report for work, although he was present at the meeting at Yingling's
home. The man who substituted for him in the store room on February 6 found
his memorandum to check with the truck driver on February 6 and reported it to
McCormick. McCormick testified that one of the outstanding causes for Thomas'
discharge was the long time it took him to get this matter straightened out. It
is obvious, however, that he proceeded expeditiously and that there can be no
merit to such a criticism. After his discharge, Thomas did in fact, get in touch
with the truck driver and arrange to have the error corrected, with the result that
on February 25, 1943, a corrected invoice and credit memorandum was issued
to the respondent because of the one cylinder overcharge. The record of invoices,
shipping memo, and requisition reflects that the error was initiated in the office of
the Air Reduction Sales Company. While Thomas was technically in error for
not scrutinizing the shipping memo more carefully, it is readily understandable
that he should have stopped after checking the cylinder numbers as listed.
The fifth and final incident of error charged to Thomas as one of the reasons
for his dismissal, concerned an error in the receipt of 250 feet of a flexible cord,
which was the first of that sort Thomas had ever handled. The seller shipped
two reels-of the cord, neither of which indicated either on the reel or the carton
the footage of material on each reel. The shipping memo called for 250 feet
and the respondent was billed for 250 feet of cord. Subsequently Thomas dis-
covered that each of the reels contained 250 feet and that there had been an
overshipment of 250 feet. He promptly reported this to the purchasing office
in Cleveland, with the result that the purchasing office arranged with the seller
to retain the extra reel and place it in stock.
The foregoing constitutes the respondent's history of Thomas' alleged errors,
out of some four or five hundred transactions which extended over a year and
a half. This does not indicate a willful course of conduct by Thomas. Two
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD}
of the incidents can hardly be charged as errors and the other three, scattered
over the period of his employment are of such minor consequence as to cast
suspicion upon the good faith of this contention that they were the cause of
Thomas' dismissal. There is no persuasive evidence that Thomas was ever
criticized because of the character of his work either by McCormick or the
Cleveland officials Nor is there any evidence that, at the time these instances
respectively occurred, they were regarded as anything more than normal errors
which inevitably will creep into transactions of that character when such trans-
actions occur in volume as they did here. The remarks that have been made
in connection with the discharge of Yingling with reference to the shortage of
manpower and the reasonable assumption that no employer will discharge a
reasonably satisfactory employee in these days and times except for gross neg-
ligence, inability or misconduct, are equally applicable here. Also the facts
(1) that McCormick decided to discharge two such men on the same day,
although it is most unusual to discharge any employee, (2) that the two men so
selected for discharge should be the president and the secretary of the Union,
(3) that the reasons given for their discharges should be as inconsequential as
are the reasons given here, indicate that Thomas was discharged because of his
activities in the Union and his official position in that organization and not for
the reasons above noted. It is therefore found that Thomas was discharged on
February 8, 1943, because of his membership in and activity on behalf of the
Union and to discourage membership in the Union.
'Since his discharge, Thomas has been entirely unemployed. Shortly after his
discharge he applied to the postmaster for employment and was told that lie
could have temporary employment on a rural free delivery route if he had the
facilities for making the deliveries. Because this was temporary and would
require him to purchase another automobile to replace his present one, Thomas
refused the position. He has also made application in a local bowling alley
for some kind of employment but has been refused. Other than this, Thomas has.
made no effort to obtain employment. He has not registered with the United
States Employment Office of Lorain, nor has he approached either the American
Shipbuilding Company or the National Tube Company in this city, both of which
are substantial sources of employment devoted to the war effort.
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 described in 'Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
V THE. REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and that it take
certain affirmative action designed to effecuate the policies of the Act. It has
been found that Ben F Thomas and Cornelius L Yingling have been discrim-
inated against by the respondent as to their hire and tenure of employment.
It will accordingly be recommended that they and each of them be offered im-
mediate and full reinstatement to their former or substantially equivalent poQi-
tions occupied by them respectively at the Lorain plant of the respondent, without
prejudice to their seniority and other rights and prii ileges ; it will also be recom-
mended that the respondent make Cornelius L. Yingling whole for any loss of pap
THE OHIO PUBLIC SERVICE COMPANY 743
lie may have suffered by reason of the respondent's discrimination in his hire
and tenure of employment by the payment to him of a sum of money equal to
the amount he normally would have earned as wages had he continued in his
employment with the respondent from the date of his discharge on February 8,
1943, to the date of such offer of reinstatement less his net earnings' during
such period.
It will not be recommended that the respondent make Ben F. Thomas whole
for any loss of pay. The conditions existing in the Nation today in connection
with our war effort are too obvious and well known to permit us to shut our
eyes to them. Among these is the insistent demand of all industries engaged
primarily in the war effort for additional manpower. The efforts of our war
agencies to supply such manpower are also well known. Failure of any able-
bodied man to make his services available for the prosecution of the war effort
when he is not otherwise engaged is hardly excusable, but to compensate him for
wages lost, while he is unnecessarily idle and is neglecting or refusing to make
his services available for the war effort and to be paid for such services as well, is
to put a premium on neglect of our National need in this war emergency.
The American Shipbuilding Company is engaged in building vital vessels for
the United States and has a constant demand for any labor that can assist in
the production of such ships. Although it is located in Lorain, Thomas made no
effort to obtain employment there. The same applied to the National Tube
Company in Lorain Nor has Thomas made an effort to make his services
available to other producers of essential war goods. The United States Employ-
ment Service exists and functions at this time almost exclusively for the purpose
of placing unemployed persons into vital industries. It has an office in Lorain,
but Thomas failed to register his availability there. Had he done so there is
small doubt that he could have been in vital employment. It cannot be said that
employment at any such industry was outside his capabilities for he has formerly
been employed at the National Tube Company and it is, well known that since
shipyards provide a large variety of employment, they will take in almost
any employable person. This recommendation is not intended to serve in miti-
gation of damages or to reduce the responsibility of the respondent. It grows
out of the demands caused by the present state of war and because of these
special circumstances it is not believed that the payment of back pay that would
normally be recommended will here effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF L.'.w
1. The Utilities Workers Organizing Committee (C. I. 0.) and Local 267 of
the Utilities Workers Organizing Committee (C. I. 0.) are respectively 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.
2 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 iiould not have been incurred but for his unlawful discharge
and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett
Lumber Company and United Brotherhood of Carpenters and Joiners of America , Lumber
Workers Union, Local 2590, 8 N. L. R . B. 440 . Monies received for work performed upon
-Federal , State, county , municipal , or other work -relief projects shall be considered as
earnings . See Republic Steel Corporation v. N. L. R. B., 311 U S. T.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discriminating in regard to the hire and tenure of employment of Ben F.
Thomas and Cornelius L. Yingling, thereby discouraging membership in Utilities
Workers Organizing Committee (C. I. 0.) and Local 267 of Utilities Workers
Organizing Committee (C. I. 0.) the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices, within the
meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law the under-
signed recommends that the respondent, Ohio Public Service Company and its
officers, agents, representatives, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Utilities Workers Organizing Committee
(C. I. 0.) and Local 267 of the Utilities Workers Organizing Committee (C. I. 0.)
or any other labor organization of its employees, by discharging any of its em-
ployees or in any other manner discriminating in regard to their hire or' tenure
of employment or any term or condition of employment :
(b) In any like manner interfering with, restraining, or coercing its employees
in the exercise of the rights to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargain-
ing or any other mutual aid and protection , as guaranteed in Section 7 of
the Act.
2 Take the following affirmative action which will effectuate the policies of
the Act.
(a) Offer to Ben F.• Thomas and Cornelius L. Yingling and each of them, fall
and immediate reinstatement to their former or equivalent positions as those
last occupied by them- at the Lorain power house of the respondent, without
prejudice to their seniority or other rights and privileges ;
(b) Make Cornelius L. Yingling whole for any loss of pay he may have suf-
fered as the result of the respondent's 'discrimination against him, by payment
to him of a sum of money equal,to that which he normally would have received
as wages, bonuses, or other earnings called income in the employment of the
respondent, during the period from the date of discrimination against him to
the date of the offer of reinstatement, less his net earnings during said period;
(c) Post immediately in conspicuous places throughout the power plant at
Lorain, Ohio, and maintain for a period of sixty (60) consecutive days from
the date of posting, notices to its employees, stating: (1) that the respondent
will not engage in the conduct from which it is recommended that it cease and
desist in paragraphs 1 (a) and (b) of these recommendations; (2) that the re-
spondent will take the affirmative action set forth in paragraph 2 (a) and (b)
of these recommendations ; and (3 ) that the respondent's employees are free
to become and remain members of the Utilities Workers Organizing Committee
(C. I. 0.), or Local 267 of the Utilities Workers Organizing Committee (C. I. 0.),
or any other labor organization, and that the respondent will not discriminate
against any of its employees because of membership in or activity on behalf of
these organizations or any other labor organizations.
(d) Notify the Regional Director for the Eighth Region in writing within ten
(10) days from the date of the receipt of the Intermediate Report what steps
the respondent has taken to comply herewith.
See footnote 2, supra.
THE OHIO PUBLIC SERVICE COMPANY 745
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.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board-Series 2-as amended, effective October 28,
1942, any party may within fifteen ( 15) days from the date of the entry of t$e
order transferring the case to the Board , pursuant to Section 32 of Article II of
said Rules and Regulations , file with the Board , Shoreham Building, Washing-
ton, 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.
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.
R. N. DENHAM
Trial Exanvlner
Dated April 15, 1943.