Heckman Building Products Co.

National Labor Relations Board - Board Decisions

Feb 16, 1943

47 N.L.R.B. 666 (N.L.R.B. 1943)

L
In the Matter of R. P. HECKMAN AND V. D. HECKMAN, CO-PARTNERS,
DOING BUSINESS AS HECKMAN BUILDING PRODUCrs COMPANY and STEEL
METAL AND ALLOY WAREHOUSEMEN AND HANDLERS UNION, LOCAL No.
785, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L
Case No. C-2428.-Decided February 16, 1943
Jurisdiction : tool manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements ; interrogating em-
ployees concerning union membership and activities ; threatening to discharge
employees who joined union ; threatening to close plant if union organized.
Discrimination: discharge of employee because of union activity.
Remedial Orders : cease and desist unfair labor practices; reinstatement and
back pay awarded.
DECISION
AND
ORDER
On November 21, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set out in the copy of the Intermediate Report
attached hereto. Thereafter, the respondents filed exceptions to the
Intermediate Report and a brief in support of the exceptions. The
Board has considered the rulings of the Trial Examiner at the hearing
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
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 respondents, R. P. Heckman and V. D.
Heckman, co-partners, doing business as Heckman Building Products
Company, Chicago,' Illinois, and each of them, their officers, agents,
successors, and assigns, shall :
47 N. L R. B., No. 88.
666
i
ITECI{MA` BUILDING PRODUCTS COMPANY 667
1. Cease and desist from :
(a) Discouraging membership in Steel Metal and Alloy Warehouse-
men and Handlers Union, Local 785, International Brotherhood of
Teamsters, Chauffeurs; Warehousemen and Helpers of America, affili-
ated with the American Federation of Labor, or any other labor organ-
ization of their employees, by discriminating in regard to the, hire and
tenure of employment or any term or condition of employment of
their employees;
(b) In any other manner interfering with, restraining, or coercing
their 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 activ-
ities for the purposes of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Ernest Garner, Sr., immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority and other rights and privileges;
(b) Make whole Ernest Garner, Sr., for any loss in earnings he may
have suffered by reason of his discharge, by payment to him of a sum
of money equal to that which he would normally have earned as wages
during the period from the date of his discharge to the date of the offer
of reinstatement, less his net earnings, if any, during such period;
(c) Post immediately in conspicuous places throughout their plant
at Chicago, Illinois, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to their employees
stating: (1) that the respondents will not engage in the conduct from
which they are herein ordered to cease and desist; and (2) that the
respondents will take the affirmative action set forth in paragraphs 2
(a) and (b) hereof; and (3) that the respondents' employees are free
to become or remain members of Steel Metal and Alloy Warehousemen
and Handlers Union, Local 785, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, affiliated
with the American Federation of Labor, or any other labor organiza-
tion, and that the respondents will not discriminate against any of
their employees because of membership in or activity on behalf of said
Union or any other labor organization;
(d) Notify the Regional Director for the Thirteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondents have taken to comply herewith.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Robert T. Drake, for the Board.
Sherman & Lewis, by Mr. L. A. Sherman, of Chicago, III, for the respondent.
- Mr. Richard Wilkie, of Chicago, Iil , for the Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on July 2, 1942, by Steel Metal and
Alloy Warehousemen and Handlers Union, Local No. 785, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of
L., herein called the Union, the National Labor Relations Board, herein called
the Board, by its Regional Director for the Thirteenth Region (Chicago, Illinois),
issued its complaint, dated September 23, 1942, against R P. Heckman and V. D.
Heckman, co-partners, doing business as Heckman Building Products Company,
herein called the respondents, alleging that the respondents had engaged in and
were 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 Rela-
tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice
of hearing thereon were duly served upon the respondents and the Union.
In respect to the unfair labor practices, the complaint alleged, in substance, that
the respondents: (1) from and after January 15, 1942, interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed in Section 7
of the Act by interrogating various employees regarding their membership in and
activity on behalf of the Union, by advising them against such membership and
activity, and by warning them that they would be dismissed if they joined the
Union; (2) on January 31, 1942. discharged Ernest Garner, Sr., an employee,
because of his membership in and activity on behalf of the Union ; and (3) by the
foregoing conduct violated Section 8 (1) and (3) of the Act.
On October 3, 1942, the respondents filed their answer in which they denied
that they had engaged in the unfair labor practices alleged in the complaint.
Pursuant to notice, a hearing was held on October 26 and 27, 1942, at Chicago,
Illinois, before the undersigned, Samuel Edes, the Trial Examiner duly designated
by the Acting Chief Trial Examiner. The Board and the respondents were
represented by counsel, and the Union by a representative. All parties partici-
pated in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded
all parties. At the close of the hearing, the undersigned, without objection
granted a motion by counsel for the Board to conform the complaint to the proof
adduced at the hearing. The undersigned reserved ruling on a motion by counsel
for the respondents to dismiss the complaint for lack of proof. The motion is
hereby denied. At the conclusion of the hearing, oral argument was had on
the record before the undersigned. An opportunity to file briefs with the under-
signed was afforded all parties. None were filed. Thereafter, upon motion
of counsel for the Board, and pursuant to notice, the record was reopened and
a further hearing held before the undersigned at Chicago, Illinois, on November
5, 1942, for the purpose of adducing additional evidence not theretofore available.
The Board and the respondents were represented by counsel, and the Union by
a representative. All parties participated in the further hearing, and were
afforded full opportunity to examine and cross-examine witnesses and to intro-
duce evidence bearing on the issues.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
HECKNIAN BUILDING PRODUCTS COMPANY 669
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS
The respondents, a co-partnership having their principal office and plant at
Chicago, Illinois, are engaged in the manufacture, sale, and distribution of tools,
dies, milling and drilling fixtures, metal stampings, and building specialties,
including wall ties, anchors, and inserts During the year 1941 the respondents
purchased materials in the amount- of $64,985.27, of which approximately 10
percent was transported to the plant of the respondents from points outside the
State of Illinois. In the same preiod, the respondents sold finished products
in the amount of $147,450 83, of which approximately 58 percent was sold and
shipped by the respondents to points outside the State of Illinois.
II. THE ORGANIZATION INVOLVED
Steel Metal and Alloy Warehousemen and Handlers Union Local No. 785,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization affiliated with the American Federation of
Labor, admitting to membership employees of the respondents.
III THE UNFAIR LABOR PRACTICES
A Intei ference, restraint, and coercion
In the period from November 1941 through January 1942, Richard Wilkie
and William T. Hogan, representatives of the Union, distributed membership
application cards in front of the respondents' plant on some 6 or 7 occasions.
In January 1942, according to the testimony of various of the workers in the
respondents' employ at the time, R P. Heckman, one of the respondents, ques-
tioned employees as to whether they had signed membership application cards,
sought to elicit information as to the identity of those who had signed, threatened
to discharge employees who became members, and otherwise indicated that mem-
bership in the uUnion would not be to the advantage of the employees In this
connection, Ernest Garner, Sr, an employee hereinafter found to have been
discriminatorily discharged by the respondents, testified that he was called into
the respondents' office and asked by R P. Heckman, in the presence of V. D.
Heckman, wife of R. P. Heckman and one of the respondents herein, whether
he had received one of the membership application cards distributed by the Union.
When Garner admitted that lie had, Heckinan inquired whether he intended to
sign it. Garner replied that he had not yet decided. Thereupon, Heckman
declared, "Well, if you sign it, . . . you won't have no job here . . . I will kick
you out." In addition, Heckman asked Garner whether lie was not satisfied
with working conditions. Garner replied that he "wasn't satisfied with the
pay" ; that he was working "long hours" but "wasn't making enough." Heckman
declared that Garner ought to "quit" and "go some place else where there is a
Union . . ." Further, Heckman announced that he would "turn . . . off"
Garner and all other employees who joined the Union, and threatened to "shut
the damn joint down" before permitting the Union to come into the plant.
Finally, according to Garner, Heckman asked how many of the employees had
joined and, when Garner indicated that he did,not know, warned Garner that
if lie signed the membership application card the respondents would "find it out."
James Batts-and Wilbert Lynch, employees of the respondents in this period,
testified to similar conversations with R. P Heckman in the respondents' office.
According to their testimony, Heckman questioned them as to whether they had
signed the union membership application cards, asked if they knew whether
670 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
any of the other employees had signed , and-requested them to bring their cards
to him. In addition , Heckman indicated that union membership would entail
monthly dues of $2 or $2 50 and an initiation fee of about $10, and stated that
he "didn 't see how " the employees "could pay that kind of money." According
to Lynch , Heckman , holding a union membership card in his hand, further
declared : "If I hear about or catch anyone signing one of these cards , I will fire
them." Batts and Lynch testified that they had signed applications for mem-
bership in the Union but that they advised Heckman that they had not.
Alexander Darden and Joe Armstrong , two other employees of the respondents
at the time , also testified to substantially identical conversations with Heckman.
They testified that Heckman approached them while they were at work in the
plant, asked them whether they had signed and forwarded application cards
for membership in the Union and, when they stated they had not, directed them
to'bring the cards to him . In addition , Darden testified that Heckman informed
him that the Union would only take his money without doing him any' good.
Darden and Armstrong admitted at the hearing that they had in fact applied for
union membership at the time Heckman questioned them on the subject
R. P. Heckman categorically denied that he had ever spoken to Garner, Batts,
Lynch, Darden , and Armstrong, or to any other employee with reference to the
Union or to union activity of any kind . V. D. Heckman also denied that she
had ever been present during any such conversations . R P. Heckman testified,
moreover , that he could not have had any of the conversations attributed to him
by the employees since he was confined to a hospital continuously from January 13
through January 23 .' Heckman's confinement was established by written state-
ments of the hospital bookkeeper and hospital dietician . The fact that Heckman
was hospitalized in this period would be significant , however, only if the wit-
nesses clearly placed their conversations with Heckman in the period of his
confinement . , That was not the case . Garner's signed membership application
card was mailed to the Union , as appears from the postmark thereon, on Janu-
ary 21. Garner was not certain at the hearing whether his conversation with
Heckman, detailed above, took place before or after he mailed the card. At one
point he testified that he had mailed the card after the conversation with Heck-
man, which would tend to place the date in the period when Heckman was in the
hospital. At other points he testified that the card was mailed prior to the
time he was called into Heckman 's oflice, which would tend to place the date of
the conversation after Beckman 's return to the plant . Garner made it addi-
tionally clear that he had no certain recollection as to when the conversation
occurred . When questioned concerning the date of the conversation , he testi-
fied : "No, sir, I. ain't sure , because I ain't kept no dates." In addition , Garner
testified as'follows:
Q. Do you remember whether Mr . Heckman got hurt at the plant?
A. Yes, sir.
* * * * * *
Q. Did you see him working at the plant just after he was hurt?
A. No-he disappeared ; he was out of the plant-
Q. I see.
A. For quite some time . I don't know exactly how long.
Q. Do you know whether or not, that was before you got the second card
which you signed, or was it after?
A. I can ' t remember . I can ' t remember whether it was before or after.
* * * * * * *
Q Do you know when it was that Mr. Heckman spoke to you about that card?
A. No, sir. I don't remember that.
HECKMAN BUILDING PRODUCT'S COMPANY 671
Similarly, it appears clear from the evidence that Batts, Lynch, Darden and
Armstrong could not recall with any exactness when their, conversations with
Heckman took place other than that it was during the month of January. Batts
testified that it occurred "about in the middle" of January or "sometime along
there." When asked whether be was certain as to the time, Batts testified : "I
don't remember the dates." Lynch testified that he could make no definite
statement as to when Heckman spoke to him about the Union, but that he believed
it was "about a week" before Garner's discharge which occurred January 31.
This would tend to place the conversation after Heckman's return from the
hospital. Darden testified that his conversation with Heckman occurred 1 or
2 days after he mailed his union membership application card which, the evidence
§hows, was postmarked January 22. Although first testifying further that he
was certain the conversation could not have taken place after January 23, Darden
thereafter indicated that he was not positive about the matter. Armstrong.
testified that Heckman spoke to him on Friday of the week during which he
mailed his union membership application card. That card, the evidence estab-
lishes, was mailed on January 19. The following Friday would be January 23,
when Heckman was still in the hospital. It is apparent, however, that Arm-
strong was merely mistaken. The evidence discloses that his memory in such
matters was not reliable ; he testified, for example, that he did not mail his appli-
cation card until about 2 weeks after Garner's discharge on January 31, although
the postmark thereon indicated that the card was mailed more than 10 days
before the discharge.
In view of the foregoing, the undersigned finds that the fact that Heckman,
was in the hospital and away'from the plant from January 13 through January
23 is not determinative on the issue of whether Heckman made the statements
attributed to him by Garner, Batts, Lynch, Darden, and Armstrong The testi-
mony of these witnesses, the undersigned finds, was entirely credible and may
not in any part be impeached by their failure to recollect with certainty the dates
of the conversations to which they testified.
The denial by R. P. Heckman that he engaged in the conversations attributed
to him, and the further denial of V. D. Heckman that she was present during
any such conversations, may not, in the view of the undersigned, be credited
Both amply demonstrated the untrustworthy character of their testimony. To
establish that the conversations could not have occurred, both testified that
they had no knowledge of the Union or of any activity on its behalf prior to
February,-and both denied ever receiving a letter from the Union advising them
that it had been designated as bargaining representative by a majority of the
employees and requesting a conference at an early date. A copy of the letter,
introduced in evidence, indicated that it was written on January 22 Wilkie
testified that he dictated the original on that date and that he thereafter handed
it to Hogan with instructions to mail it special delivery, registered mail, return
receipt requested. Hogan testified that he followed these instructions ; upon
mailing the letter he received a receipt from the post office, and thereafter received
a signed return receipt showing delivery to the respondents on January 23 Both
receipts were introduced in evidence' The signature appearing on the return
receipt, under date of January 23, is as follows : "Heckman Bldg Prod" "V. D.
Heckman". A comparison of the handwriting on the return receipt with various
specimens of the handwriting of V. D. Heckman made at the hearing shows a
marked resemblance between the two. A comparison of the handwriting on the
return receipt with the handwriting of V. D. Heckman appearing on three other
'The receipts were not available at the original hearing. Thereafter , the Union having
discovered the receipts, the hearing was reopened to allow their introduction in evidence.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return receipts in-the record, pertaining to service upon the respondents of the
complaint and notice of hearing and of orders continuing the hearing, shows
such further identity in the style and form of the writings, the angulation and
formation of the letters and syllables, singly and in combination, and other
definitive characteristics and peculiarities, that it cannot Pe doubted that V. D.
Heckman executed the return receipt for the letter of the Union of January 23. In
all of the circumstances, the undersigned finds that V. D Heckman did execute the,
return receipt for the Union's letter of January 23, that the letter was received
by V. D. Heckman on behalf of the respondents, and that as a result thereof
the respondents were on that date aware of the claims of the Union as majority
representative of the employees In view of, the unqualified and emphatic denial
by the respondents of the fact that the letter was received and that they had
knowledge of the Union and activity on its behalf at that time, and from his
observations of the witnesses, the undersigned cannot credit their testimony
respecting the conversations with the employees as detailed above.
In all of the foregoing circumstances, the undersigned finds that R.,P. Heckman,
at times in the presence of V. D. Heckman, spoke to various of the employees
and made the statements to them substantially as testified to by Garner, Batts,
Lynch, Darden, and Armstrong, and that the respondents thereby engaged in a
deliberate effort to discourage and defeat union organization by questioning
employees regarding their union membership, eliciting information from them
regarding the union affiliation of other employees, threatening to discharge
employees who joined the Union, and otherwise indicating that union membership
would be to the disadvantage of the employees. The undersigned further finds
that by such conduct the respondents, and each of them, have interfered with,
restrained, and coerced their employees in the exercise of the rights guaranteed in
Section 7 of the Act.
1 B. The discriminatory tetrnination of the employment of Ernest Garner, Sr.
Ernest Garner, Sr., was employed by the respondents on June 27, 1941. On
August 1, 1941, he left to visit an ill brother out of the State. Thereafter, on
-October 3, 1941, he returned and resumed his employment with the respondents,
until January 31, 1942, when the respondents terminated his employment. R. P.
Heckman admitted that Garner had been a satisfactory worker.
The respondents asserted at the hearing that Garner's employment was termi-
nated because of lack of materials and a decline in orders. The record bears
'out the fact that there was a shortage of materials and a decline in business
in this period. That fact, howevei, does not in this case explain why Garner
was selected by the respondents for separation. While R. P. Heckman asserted
that the respondents did "not always" follow a strict seniority policy, he pointed
out that : "We try to lay off the last man that we hire. That is the thing that we
have always tried to do." The evidence established that in Garner's case slight
attention was paid by the respondents to length of service. Assuming that
Garner's employment from June 27 to August 1, 1941 may not be counted in
determining his seniority status because of the hiatus in his employment from
August 1 to October 3, 1941, and \that his seniority,' therefore, commenced on
October 3, 1941, the record shows that at least 4 employees, hired in the month
prior to Garner's separation were retained in preference to Garner.' This may
2 On December 31, 1941, according to the respondents" payroll records, 18 persons were
employed at the plant . On January 23, 1942, 23 persons were employed including one
employee, Bowman, who was employed prior to December 31 but who may have been away
from the plant "on a tear" - and, therefore , not carried on the payroll of December 31.
Following Garner ' s dismissal, 5 other employees were separated from the respondents'.
employ; all 5 had been emplo yed for considerable periods prior to December 31.
HECKMAN BUILDING PRODUCTS COMPANY 673
not in the circumstances of this case , be explained on the ground that Garner was
employed for the limited purpose of operating the slitting and wall tie machines
in the plant as contrasted with other workers employed to operate a variety of
machines . Although the Heckmans and one of the shop supervisors , Joseph,
Dallmeyer , so testified , the undersigned does not credit their testimony in this
respect. Garner testified that he had operated practically . all of the different
kinds of machines in the plant . As put by Garner : "You work on one machine
you stop on this and go to the other and work that machine, and go the other."
R. P. Heckman , himself, indicated that in fact many of the employees were
"switched" from machine to machine as the needs of the plant required.. This
was true, the evidence discloses , even of individuals hired as truck drivers.
Indeed, when asked at the hearing to name other employees doing work com-
parable to that of Garner at the time of the latter 's dismissal , Heckman specified
Armstrong and Darden , who, the uncontradicted evidence shows, operated a`
variety of machines in addition to the slitting and wall tie machines . Further,
the Heckmans admitted that in the period of his employment Garner's duties
had included the operation of the punch press, the setting up of wall plugs, and
the sealing of cartons . In all of the circumstances , the undersigned finds that
Garner was not hired for the limited purpose of operating the slitting and wall
tie machines , that his duties included the operation 'of a wide variety of machines,
and that the dismissal of Garner , while retaining the 4 employees hired during
the preceding month, may not be explained by reference to any claim that
Garner 's, employment was of ,a limited character.
The unexplained departure by the l respondents from the policy of seniority
to which in other cases they "always tried " to adhere , appears particularly
significant when examined in light of other circumstances disclosed by the record.
The only other instance of such departure , so far as appears from the record,;
occurred the week after Garner's dismissal . In that case It. P:, Heckman
admitted that he dismissed five employees , Armstrong , Batts, Darden, Lynch,
and Rudolph , although there were other employees in the plant with less
seniority.
The Heckmans explained that seniority was not followed in the case of these
five because they had absented themselves from work one day during that week.
At least four of these five , as above indicated , were members of the Union who
had been questioned by R. P . Heckman in that regard , and whom clearly, Heck-
man suspected of union affiliation . In sharp contrast ; the respondents had
never taken like action in the case of another employee, Bowman,, who, as
V. D. Heckman testified , "would go out some weeks and stay out for several
weeks on a tear . . ." Indeed, Bowman was promptly reinstated to employment
following such a "tear " the week after the dismissal , out of seniority , of Arm-
strong, Batts, Darden, Lynch, and Rudolph. Further, the record shows that
following Garndr's dismissal the respondents never made any effort to recall
him, although , as Heckman testified , it was customary and the respondents
"would always try" to do so when work 'became available. Although the
Heckmans testified that Garner was not recalled only because no further work
became available , R. P. Heckman admitted that on February 20, only 3 weeks
after Garner was dismissed , the respondents hired Agnes Howell, ' a new em-
ployee, to pack wall ties, set , up wall plugs, and, at times , operate 'a punch
press machine, work which, as indicated above, Garner was capable of doing
and which he had performed in the course of his employment with the
respondents.
The failure of the respondents' explanation -, for the dismissal of and sub-
sequent neglect to recall Garner ' when viewed in light of the respondents'
513024-43-vol. 47-43
674 DECISIONS OFD NATIONAL LABOR RELATIONS' BOARD
interrogation of Garner concerning his union affiliation and of the blunt threats
to dismiss him if he joined the Union, detailed above, makes it clear, in the
view of the undersigned, that Garner, in fact, was dismissed because he had
joined .the Union or, at the least, because the respondents suspected that fact.
Garner apparently was particularly suspect. Not only had he admitted, when
questioned by R P. Heckman, that he was not satisfied with his hours and
rate of pay, but, as Armstrong testified, Heckman specifically asked Armstrong :
"Are you right sure Garner didn't talk you into the notion of joining this union?"
The undersigned credits Armstrong's testimony in this regard.
In all of the circumstances, the undersigned finds that the respondents, and
each of them, discriminated in regard to the hire and tenure of employment of
Ernest Garner, Sr., thereby discouraging membership in the Union and inter-
fering with, restraining, and coercing their employees in the exercise of the
rights guaranteed in Section 7 of the Act.
IV. THE, EFFECT OF THE UNFAIIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondents set forth in Section
III above, occurring in connection with the operations of the respondents de-
scribed in Section I above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and, tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
i
Having found that the respondents have engaged in certain unfair labor
practices, .the undersigned will recommend that they cease and desist there-
from and take certain affirmative action which the undersigned finds will
effectuate the policies of the Act.
Since it has been found that the respondents discriminatorily dismissed'
Ernest."Garner, Sr, the undersigned will recommend that the respondents'
offer him immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss in earnings suffered by him as
a result Of the respondents' discrimination, by payment to him of a sum of
money equal to the amount he would normally have earned as wages from
the date of his discharge to the date of offer of reinstatement, less his net
earnings during that, periods
Upon the basis of the foregoing findings of fact, and upon the entire record
in the'ease, the undersigned makes the following:
CONCLUSIONS OF LAW
1 Steel Metal and Alloy Warehousemen and Handlers. Union, Local No.
785, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. of L, is a labor organization, within the meaning
of Section 2 (5) of the Act.
'By "net eai nuigs" 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 respondents, which,would,not have been incurred but for the unlawful
discrimination against him and the consequent necessity; of his seeking employment else-
where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America, Lumber and Sawmill Workers Union, Local 259, 8 N. L. R. B. 440.
Monies received from work performed upon Federal, State, county, municipal, or other
work-relief projects shall be considered as earnings. , See Republic Steel' Corporation V.
National Labor Relations Board, 311 U. S 7.
HECKMAN-BUILDING PRODUCTS COMPANY 675
2. By'.discriminating in regard to the hire and tenure of employment • of
Ernest Garner, Sr., thereby discouraging membership in the Union, the .re:.
spondents have engaged and are engaging, in unfair labor practices, within
the meaning of Section 8 (3) of the Act. -
3. By interfering with, restraining, and coercing their employees in, the
exercise of the rights guaranteed in Section 7 of the Act, the respondents
have engaged and are engaging in unfair labor practices, within the meaning
of Section 8 (1) of the Act.
4. The foregoing 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 respondents, R. P. Heckman' and V. D. -
Heckman, co-partners, doing business as Heckman Building Products Com-
pany, Chicago, Illinois, and each of them, their agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Steel Metal and Alloy Warehousemen and
Handlers Union, Local 785, -International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpcrs of America. A F of L, No. 20732, or any other labor
organization of their employees., by discrimination in regard to the hire and
tenure of employment or any term or condition of employment of their employees ;
(b) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of the right of self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection
2. Take the following affirmative action. which the undersigned finds will
effectuate the policies of the Act,
(a) Offer to Ernest Garner, Sr, immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges ;
(b) Make whole Ernest Garner, Sr.. for an} losses in earnings that he may
have suffered by reason of his dismissal, by payment to him of a sum of money
equal to that which he would have earned as wages during the period from the
date of his dismissal to the date of offer of reinstatement, less his net earnings;
if any, during that period ;
(c) Post immediately in conspicuous places throughout their plant and main-
tain for a period of at least sixty (60) consecutive days fiom the date of posting,
notices to their employees stating: (1) that the respondents will not engage
in the conduct from which it is recommended that they cease and desist in para-
graphs 1 (a) and (b) hereof; (2) that the respondents will take the affirmative
action set forth in paragraphs 2 (a) and (b) hereof ; and (3) that the respondents'
employees are free to become or remain members of the Union, and that the
respondents will not discriminate against any employee because of membership
in or activity on behalf of that organization ;
(d) Notify the Regional Director for the Thirteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondents have taken to comply herewith.
4 See footnote 3, evpra.
676 DECISIONS'"OF NATIONAL LABOR 'RELATIONS BOARD
It is •further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report the respondents notify said Regional Director
in writing that they will comply ' with the foregoing recommendations , the Na-
tional Labor Relations Board issue an order requiring the respondents 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 14,
1942-any party 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, Shoreham Building , Washington,
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 pro-
ceeding ( including rulings . upon all motions or objections ) as he relies upon,,to-
gether 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 therefore must be made in writing to the Board within
ten (10 ) days from the date of the order tronisferring the case to the Board.
SAMUEL EDES,
Trial Examinet'.
Dated November 21, 1942.