L. C. Smith & Corona Typewriters, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1939

11 N.L.R.B. 1382 (N.L.R.B. 1939)

In the Matter of L. C. SMITH & CORONA TYPEWRITERS, INC. and
INTERNATIONAL METAL POLISHERS, BUFFERS AND PLATERS UNION OF
NORTH AMERICA
Case No. 0-804.-Decided March 30, 1939
Office and Business Equipment Manufacturing Industry-Jurisdiction: threat-
ened or actual stoppage of respondent's operations not a prerequisite to existence
of Board power or exercise thereof ; long delay in filing charges, as affecting
Board's power to order reinstatement-Inter ference, Restraint, or Coercion-
Discrimination: discharges; motivated by subject matter of conversations rather
than interference with other employees during working hours-Reinstatement
Ordered: discharged employees-Back Pay: awarded, from date of discharge to
last attempt to secure compliance of respondent with Act and from filing of
charges to date of offer of reinstatement ; monies received by employees for
work performed upon Federal, State, county, municipal, or other work-relief
projects to be deducted and paid over to agency which supplied funds for said
projects-Employee Status-Regular and Substantially Equivalent Employment:
employment 100 miles distant with three lay-offs of substantial duration, con-
sidered as-Procedure: denial of motion to produce original charge where com-
plaint raises no issue not encompassed in amended charge, as improper or
prejudicial.
Mr. Edward D. Flaherty, for the Board.
McKenzie, Smith and Michell, by Mr. W. H. Michell and Mr.
William L. Broad, of Syracuse, N. Y., for the respondent.
Mr. Frank P. Fenton, of Washington, D. C., for the Union.
Mr. Eugene R. Thorrens, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges filed on June 2, 1938, by International
Metal Polishers, Buffers and Platers Union of North America, herein
called the Union, the National Labor Relations Board, herein called
the Board, by Henry J. Winters, Regional Director for the Third
Region (Buffalo, New York), issued its complaint, dated June 7,
1938, against L. C. Smith and Corona Typewriters, Inc., Syracuse,
New York, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor. practices within the
11 N. L. R. B., No. 123.
1382
L. C. SMITH & CORONA TYPEWRITERS, INC., ET AL. 1383
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.,
The complaint alleged in substance that the respondent terminated
the employment of Edward Straub and Alfred Tyler on June 18,
1936, and has since that time failed and refused to reemploy them
because they joined the Union and engaged with other employees at
its Syracuse plant in concerted activities for the purposes of collec-
tive bargaining and other mutual aid and protection, thereby inter-
fering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act. Copies of the com-
plaint, accompanied by notices of hearing thereon, were duly served
upon the respondent and the Union. On June 20, 1938, the re-
spondent filed an answer in which it admitted the allegation of the
complaint that it was engaged in interstate commerce, and denied
that Edward Straub and Alfred Tyler were discharged for the
reasons above stated. The answer set forth that the respondent
terminated their employment "solely because of the conduct of said
Alfred Tyler and said Edward Straub . . . in interfering in
various ways with other employees of the respondent during working
hours and while at work, causing and resulting in agitation, in-
timidation and a state of confusion prejudicial to said other em-
ployees and to respondent," and alleged that, in any event, Straub
and Tyler had ceased to be employees of the respondent within the
meaning of the Act and hence were not entitled to protection
thereunder.
Pursuant to notice of hearing and notice of postponement, a hear-
ing was held on June 23 and 24, 1938, at Syracuse, New York, before
I. L. Broadwin, the Trial Examiner duly designated by the Board.2
The Board and the respondent were represented by counsel and
participated- in the hearing. Full opportunity to be heard, to ex-
amine, and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties.
At the commencement of the hearing, counsel for the respondent
moved that the Trial Examiner order the Board to produce the
original charge filed by the Union. The Trial Examiner denied the
motion. Since the complaint raised no issues not encompassed
within the amended charge, which was duly served upon the re-
spondent, we do not regard the Trial Examiner's ruling as improper
or prejudicial. Nor can we see merit to the respondent's contention
'The Union first complained to the Board of the discharges of the two men, who are
alleged in the complaint herein to have been discriminatorily released from the respond-
ent's employ, by the filing of a formal charge with the Regional Director for the Third
Region on March 3, 1938.
2 The reporter referred to the Trial Examiner as I. L. Gordon in the stenographic record
of the proceeding Subsequent to the bearing, the parties filed a stipulation to correct
this error with the Chief Trial Examiner of the Board.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Board's failure or refusal to serve or exhibit the original
charge deprived the respondent of due process of law, as it contends
in its brief. The complaint fully apprised the respondent of all
the issues to be met.3 The respondent's further contentions that the
Board is neither empowered by the Act or authorized by its Rules
and Regulations to issue complaints based upon an amended charge 4
and that Trial Examiners are not authorized by the Rules and Regu-
lations, or otherwise, to receive evidence, appear groundless.5 At
the conclusion of the hearing, a motion by counsel for the Board to
conform the pleadings to the proof with respect to formal matters
was granted. At the conclusion of the Board's case, and again at
the close of all the testimony, counsel for the respondent moved to
dismiss the complaint on the ground that the evidence failed to
establish the unfair labor practices alleged in the complaint. The
Trial Examiner reserved his rulings on these motions, pending the
issuance of his Intermediate Report. The respondent filed a brief
with the Trial Examiner.
Thereafter the Trial Examiner filed his Intermediate Report:
dated July 30, 1938, in which he denied the motions of the respondent
to dismiss the proceedings. He found that the respondent had en•
gaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1) and (3) and Section 2 (6)
and (7) of the Act, and recommended that the respondent cease
and desist from its unfair labor practices and offer reinstatement
with back pay to Edward Straub and Alfred Tyler.
On August 10, 1938, the respondent filed exceptions to the Inter-
mediate Report, taking exception to the Trial Examiner's rulings in
the course of the hearing upon its motions and objections as well as
to the Intermediate Report. On February 6, 1939, the respondent
filed a brief with the Board.
Pursuant to notice, a hearing was held before the Board on Feb.
ruary 7, 1939, for the purpose of oral argument on the respondent's
exceptions to the Trial Examiner's Intermediate Report and the
entire record. The respondent and the Union were represented by
counsel and participated therein. The Board has reviewed the
3 See National Labor Relations Board v. Mackay Radio & Telegraph Company, 304
U. S. 333.
4 Sec 10 (b) of the Act provides ' "Whenever it is charged that any person has engaged
. . In any unfair labor practice , the Board, or any agent . . . desig-
nated
plaint
by the Board for such purposes, shall have power to issue . . . a com-
'National Labor Relations Board Rules and Regulations-Series 1, as amended , Article
II, Section 23 provide : "The hearing for the purpose of taking evidence upon a complaint
shall be conducted by a Trial Examiner specifically designated by the Board, by the
Chief Trial Examiner , or by the Regional Director ." The Trial Examiner who conducted
the instant proceeding was specifically designated to so act by the Board' s Chief Trial
Examiner . See Board Exhibit No. 1
L. C. SMITH & CORONA TYPEWRITERS, INC., ET AL. 1385
rulings of the Trial Examiner on motions and on objections to the
introduction of evidence and finds that no prejudicial errors were
committed. The rulings are hereby affirmed. The Board has con-
sidered the exceptions to the Intermediate Report and briefs filed by
the respondent and finds the exceptions to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
L. C. Smith & Corona Typewriters, Inc.,' a New York corpora-
tion, having its principal office and place of business at Syracuse,
New York, is engaged in the manufacture, sale and distribution of
typewriters, typewriter supplies, portable machines, vivid ,machines,
adding machines, type, and inks. The respondent operates manu-
facturing plants at Syracuse, Groton, Cortland, and Geneva, New
York, and Aurora, Illinois. It maintains more than 50 branch
offices in at least 30 States and the District of Columbia where more
than 700 persons are employed. The present proceeding involves
only the employees of the Syracuse plant.
During the fiscal year, July 1, 1935, to June 30, 1936, the re-
spondent purchased raw materials, consisting principally of steel,
gray iron, rubber, enamels, and wood, for use in its manufacturing
process, at a cost of approximately $463,984 and manufactured
typewriters having an aggregate selling price of approximately
$4,780,393.' Of these amounts, the respondent bought approximately
70 per cent of its raw materials and shipped approximately 86 per
cent of its typewriters outside the State of New York. The same
relative proportions apply to the fiscal year, July 1, 1936, to June
30, 1937, and to the fiscal year beginning July 1, 1937. At the time
of the alleged unfair labor practices in June 1936, the respondent
employed 42 employees in its polishing department at the Syracuse
plant.
In its brief and at the oral argument the respondent urged that the
Board lacked jurisdiction in the present proceeding since no interrup-
tion in the respondent's business actually occurred during the 2-year
period intervening between the date of the alleged unfair labor prac-
tices and the hearing, thus establishing that the respondent's acts
have not led, and do not tend to lead, to a labor dispute burdening or
obstructing commerce. The respondent's position involves a mis-
From 1903 to 1924, when it incorporated its business , the respondent operated under
the name of L. C. Smith & Brothers.
7 The findings in this section are based , mainly, upon a stipulation of the parties,
dated June 23, 1938. The figures mentioned in these findings relate solely to the
respondent 's operations at its Syracuse plant.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conception of the Act. That an actual stoppage resulting from the
alleged unfair labor practices shall have occurred by the time of the
hearing is not a prerequisite to the existence or exercise of the Board's
power. Recently we so held with respect to a similar contention in
Matter of The Boss Glove Manufacturing Company and International
Glove Workers' Union, Local No. 85.8
II. THE ORGANIZATION INVOLVED
International Metal Polishers, Buffers and Platers Union of North
America is a labor organization affiliated with the American Feder-
ation of Labor, admitting to its membership employees of the re-
spondent in its polishing department at the Syracuse plant.
III. THE UNFAIR LABOR PRACTICES
A. The discharges
Edward Straub and Alfred Tyler were discharged from the re-
spondent's employ on June 18, 1936, after they had rendered more
than 20 years' service as first-class polishers in the respondent's pol-
ishing department at its Syracuse plant. Since the early years of
their employment, they had held cards in the Union, which had had
some members in the plant as far back as the first decade of this
century, and many years prior to the termination of their employ-
ment they had served as shop committeemen. However, throughout
these years, until the middle of spring 1936, the Union existed in the
plant as a quiescent organization, particularly after 1929, when it
suffered a drop in its membership rolls as the result of the financial
stringency of the times and of the institution of a group-insurance
plan among the employees in competition with the Union's death-
benefits arrangement. The Union never secured a contract from the
respondent; nor does the record indicate that the Union functioned
extensively in the adjustment of grievances. The Union remained
inactive at the respondent's plant until May 1936 when John J.
Flynn, international vice president of the Union appeared in Syra-
cuse in connection with a strike then in progress at the local Reming-
S 11 N. L. R. B 432 See also National Labor Relations Board V. Jones & Laughlin
Steel Corporation, 301 U. S. 1; National Labor Relations Board v. Fruehauf Trailer
Company. 301 U S. 49; Consolidated Edison Company v. National Labor Relations
Board, 59 S Ct 206; Clover Fork Coal Company v. National Labor, Relations Board,
97 Fed (2nd) 331 (C. C. A. 6th). In the latter case, where the petitioner sought to
have the Board 's order set aside because no strike or threat of strike had resulted from
the alleged unfair labor practices, the Court, in denying the petition , stated ( p. 334)
. . . The immediacy and directness of the effect of industrial strife upon interstate
commerce is the test of jurisdiction , and unfair labor practices fall within the scope
of the Act by reason of the fact that long and painful experience teaches us that in the
generality of cases, if not in particular instances , they lead to such strife
L. C. SMITH & CORONA TYPEWRITERS, INC., ET AL. 1387
ton Rand plant. The strike attracted the keen interest of the em-
ployees in the respondent's polishing department and constituted an
important topic of conversation between them. Several of the em-
ployees, including Straub and Tyler, met with Flynn and manifested
to him a renewed interest in the Union. An enrollment compaign
was initiated by the distribution of application cards for membership.
Twenty-eight of the 42 polishers in the respondent's employ joined
the Union prior to June 18. During the membership drive, Straub
and Tyler took the leading roles as organizational aides for the
Union in the solicitation of their fellow employees."
About 3 or 4 weeks before the discharges, William McCauley,1°
assistant foreman in the polishing department, informed Works
Manager W. C. Rodger, who had general supervision of the plant,
that "Straub and Tyler had been talking to the men about unions."
Rodger checked with Frank E. Spaulding, foreman of the polishing
department, for verification of McCauley's statement. Spaulding
told Rodger about "the running around . . . talking over other
peoples' shoulders . . . talking about the Union." 11 Some time there-
after, Rodger reported the matter to H. W. Smith, the president of
the respondent. Shortly before noon on Juno 18, officials of the re-
spondent met with, members of the supervisory personnel to consider
the charges.12 At the conference Spaulding reported that he had
reprimanded Straub and Tyler for "talking unions" . . . "disturb-
ing the others in (sic) their working hours." The conferees men-
tioned and discussed the Union. President Smith ordered that "the
talking . . . would have to be cut out." 13 Some time after the con-
ference, Vice-President Brown gave Spaulding a dismissal notice
for transmittal to Straub and Tyler. Late that afternoon Spaulding
handed them, an unsigned notice, dated June 18, 1936, which read :
It Has Been Decided To Dispense With Your Services Because
Of Your Actions In Carrying On Union Activities Through
Agitation, Solicitation, Intimidation And Interference With
Other Workers While In Your Department During Working
Hours.
O Flynn testified that he appointed Straub, Tyler, and an unnamed individual who was
still - in the respondent 's employ at the time of the hearing , as shop committeemen. At
the hearing Tyler did not recall his appointment.
10 Deceased at the time of the hearing.
n Our finding is based on Spaulding 's testimony We cannot credit the testimony of
Rodger that he was told by Spaulding that he did not know what Straub and Tyler
discussed with the other employees.
>s Among those present at the conference were : President Smith , Vice-President Brown,
Works Manager Rodger, Employment Manager Earl L. Chrystal , Spaulding, and McCauley.
33 About 11 a. in. the same day, Spaulding handed Straub and Tyler invitations to
attend the respondent 's annual picnic on July 20 and notified them to appear there to
receive tokens in recognition of their long service, in accordance with an established
practice of the respondent.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Straub and Tyler followed Spaulding's instructions to collect the
pay due them at the employment office and left the plant shortly
before 5 o'clock closing time.
Only 2 employees, in addition to Straub and Tyler, of the 28
polishers who applied for membership, attended a union meeting
which had' been scheduled for that night or the following night.
Efforts to secure reinstatement proved unsuccessful. Straub and
Tyler enlisted the aid, of Flynn, who accompanied them on June 19
to the respondent's plant. President Smith sent out word by his office
assistant that he was too busy to receive them. Flynn returned on
June 22 and found Smith out of the city and Rodger in conference.
Flynn wrote Smith the next day, requesting an interview to' discuss
the discharges. Under date of June 26, Smith replied, denying the
request with the statement that he saw no reason to discuss the matter
since Straub and Tyler were informed at the time of their dismissal
of the respondent's reasons for the termination of their employment
and had acquiesced in the respondent's action by their failure to
register any protest. Tyler and Straub gained an interview with
Rodger toward the end of July. Rodger explained that he was not in
a position to reinstate them since Smith and Brown were in control
of the respondent's affairs, but stated that he would endeavor to se-
cure employment for them elsewhere. In the course of the discussion,
Rodger characterized the work of Straub and Tyler for the
respondent as "perfect."
About 5 or 6 weeks after his discharge, Tyler saw Smith at the plant.
Smith informed Tyler that he could have Smith's recommendation to
aid him in securing other employment, but refused to reinstate him.
When Flynn succeeded in seeing Smith about 2 or 3 months after
June 22, he simply reiterated his position that Straub and Tyler had
forfeited their rights by their failure to appeal to the respondent's
officials at the time of their discharge. Smith's position was obviously
unsound. The evidence clearly shows that the discharged employees
complained of the respondent's action with dispatch and made prompt
application for their jobs. Moreover, an employee discriminatorily
discharged need make no application for reemployment to entitle him
to reinstatement under the Act 14
The respondent contends that it discharged Straub and Tyler be-
cause they left their own machines, talked to other employees in the
department while they were engaged in delicate polishing operations,
and intimidated them into joining the Union. Foreman Spaulding
testified that about a week or 10 days before June 18, his assistant,
14 Matter of Pennsylvania Greyhound Lines, Inc and Local Division No. 1063 of the
Amalgamated Association of Street, Electric Railway and Motor Coach Employees of
America, 1 N. L. R. B. 1, decree of enforcement granted in National Labor Relations
Board v Pennsylvania Greyhound Lines, Inc., 303 U S. 261 (1938).
L. C. SMITH & CORONA TYPEWRITERS, INC., ET AL. 1389
McCauley, reported Straub and Tyler to him for leaving their seats
and talking to other employees for 5- to 20-minute intervals while they
were at work at their machines. McCauley told Spaulding that
Straub and Tyler were "stirring trouble up here . . . over the Union
... and that there was "a gang outside of the Rand." '5 Despite the
fact that Spaulding sat in the department at a position which afforded
him a clear view of the entire polishing room, he, himself, found noth-
ing objectionable about the conduct of Straub or Tyler. Although
Spaulding observed Straub and Tyler talking to other employees, he
admitted in his testimony that their conduct in the shop did not ap-
pear to him as unusual or objectionable until McCauley informed him
that Straub and Tyler concerned themselves with the Union in their
conversations with their fellow employees.
There is conflict in the testimony as to whether Spaulding repri-
manded Straub or Tyler for their activities in the shop. Spaulding
claims that he warned them "not to talk about unionism or anything
else . . . in the factory" on the day he learned from McCauley that
they were engaging the other employees in conversation concerning the
Union; that thereafter he watched them; that 3 or 4 days later, and
again on the day of the discharges or the day before, he repeated his
warnings to them; and that, after the second warning, Straub and
Tyler did not leave their chairs as often as they did prior thereto, but
did not cease their objectionable activities entirely. Tyler and Straub
testified that at no time did Spaulding request them to cease walking
around, the room and talking to their fellow employees, and both de-
nied that they left their seats to talk to other employees at their ma-
chines about the Union or any other subject, except on one occasion
when Tyler left his chair to obtain a wheel for use in his work and on
his way met a fellow employee, who worked at the next machine, to
whom he spoke about the Union. On this occasion Tyler spent about
10 minutes away from his machine.- With this exception, not a sin-
gle witness testified that either Straub or Tyler solicited members for
the Union while away from their machines. Although Spaulding tes-
tified that Straub and Tyler left their seats three or four times a day,
the record discloses that the polishers normally changed their buffing
wheels at intervals, ranging from 1/2 hour to 2 hours, which necessi-
tated their leaving their seats to obtain new wheels. The Trial Exam-
iner who saw and heard the witnesses found that Spaulding made no
reference to the union activities of Straub and Tyler before he handed
them the dismissal notice on June 18. Under these circumstances, we
find that Spaulding did not warn Straub or Tyler to discontinue their
16 Apparently McCauley had reference to pickets at the Remington Rand plant.
16 According to the testimony of George Pettengill, the assistant foreman in the polish-
ing department at the time of the hearing, it takes about 3 or 4 minutes to change a
wheel.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activities in the shop or issue any other notice or warning of a
disciplinary nature to either of them at any time prior to the termi-
nation of their employment . Even if we assume that Spaulding
warned Straub and Tyler to discontinue their outside activities in the
shop, since Spaulding found no objection to their talking to other
employees during working hours, of which he was fully cognizant,
until he discovered that their activities involved organizational effort
in behalf of the Union, it is evident that the respondent applied a
discriminatory rule in connection with their hire and tenure of em-
ployment and terms or conditions of work.
The testimony of George Pettengill , McCauley's successor, and
three polishers , George Armstrong , Charles Long, and John Sam-
webber , who worked in the department in May and June 1936, all
called by the respondent, discloses that it was customary for the
employees to talk to each other about baseball and other subjects
of general interest while engaged at work; that the work of the
polishers normally required them to leave their machines in order to
change buffing wheels; that the work of Straub and Tyler required
them, more so than some of the other polishers to whom were
assigned specific machines , to shift from one type of machine to
another, depending on the nature of the operation to be performed;
and, that Straub and Tyler, respectively , talked about the Union
to fellow employees while seated next to them , within elbow's reach,
at their machines , without causing any stoppage of work. Although
Straub told Long that he would lose his job if he did not join the
Union, stated to Armstrong that "someone would come up and take
hiin" if he did not attend union meetings , and advised Samwebber
"we will have to get out after you " unless he enrolled in the Union,
Long and Armstrong admitted at the hearing , on cross-examination,
that they did not believe Straub 's statements and disregarded them.
Moreover, it is significant that the respondent makes no claim that
it warned Straub or Tyler to refrain from making any threats to the
employees in connection with their organizational activities as dis-
tinguished from warnings generally to cease talking about the Union.
Pettengill characterized the following occurrence as the worst
offense to his knowledge which Straub committed . About a week or
two before June 18, Ed Hamel , a polisher , led a group of employees
during working hours to the office of President Smith to ascertain
whether he approved of the Union . Straub refused to go. Pettengill
observed Straub, who worked at the next machine , move back from
his seat into the aisle and loudly call out, referring to Hamel and
his associates: "There he goes after I get everything organized; the
bunch goes up to the office and kills it on me." Straub consumed
about 20 seconds in snaking the utterance . Since Spaulding and
L. C. SMITH & CORONA TYPEWRITERS, INC., ET AL. 1391
McCauley were present at the time of this incident, it is significant
that there is no evidence that either of them made any complaint to
Straub at the time of its occurrence, or, on the other hand, that the
employees who left their machines to go to President Smith's office
during working hours were ever disciplined or reprimanded for
making such use of their time.
Other circumstances negate the respondent's alleged justification
for the discharge of the two ,men. Their fellow employees registered
no complaint with the management or Straub or Tyler that their
activities hampered the efficiency of the workers, the maintenance of
morale or discipline in the shop, or otherwise constituted any sort
of interference. Moreover, all employees in the polishing depart-
ment worked on a piece-rate basis. If Straub and Tyler had neg-
lected their own work and interfered with the operations of the
other employees in the department, the necessary consequences of
such conduct would have been reflected ii their earnings or in the
quality of their work. On the contrary, an examination of pay-roll
records, produced by the respondent, of Straub and Tyler for the
period from the week ending July 6, 1935, to the week ending June
20, 1936, indicates that their respective average hourly earnings for
May and a portion of June 1936, the period covering the alleged
objectionable activities of Straub and Tyler in the plant, exceeded
their respective average hourly earnings for the entire period of ap-
proximately 1 year. The respondent failed to produce pay-roll
records or other testimony as to the earnings of the other employees
in the department. Nor did the respondent offer any records or
other testimony to show that the polishers spoiled ulore metal pieces
during the period in question than during any other period. Thus
there is no convincing proof that the shop activities of Straub or
Tyler adversely affected the volume of output or the quality of work
of the employees in the polishing department.
From the evidence it is apparent that the respondent objected to
the subject matter of the activities of Straub and Tyler rather than
the effect of their activities upon their work or the work of other
polishers.' The respondent's employees generally engaged in conver-
sation during working hours about topics having no connection with
the duties of their employment. No company rule, written or un-
written, prohibited the custom. No other employee was ever dis-
charged or disciplined in any manner for talking to his fellow
employees in the shop.- Straub and Tyler had engaged in conversa-
tion with their fellow employees during working hours prior to May
1936. We are convinced that the respondent would not have dis-
17 Spaulding failed to name any individuals or dates to support his claim that be
reprimanded other employees for talking. Neither did the respondent call any employee
to corroborate Spaulding 's vague testimony.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged Straub or Tyler had they spent an equivalent amount of
time during working hours in discussing matters with their fellow
employees which did not involve the Union. At the oral argument
before the Board, counsel for the respondent admitted that the re-
spondent objected to the Union as a topic of conversation for its
employees because of its controversial or emotional nature, although
no rule existed in the plant forbidding discussion between its em-
ployees during working hours and such practice actually prevailed.
Thus the respondent itself recognizes that it was the subject matter
of conversation rather than the general practice of conversation in
which Straub and Tyler indulged which met with its disapproval.
Moreover, the record fails to disclose that the respondent limited the
employees in any other respect in their choice of conversation to
non-emotional or non-controversial subjects.
Since Straub and Tyler talked to the employees in a manner which
did not interfere with their efficiency or discipline, the alleged inter-
ference was not the real reason for the discharges but rather a ration-
alization to cover the respondent's opposition to the reorganization
of the Union among its employees at a time when a competitor in
the community, Remington Rand, was faced with a current labor
dispute involving plant picketing by organized employees. Thus, at
the hearing, Works Manager Rodger admitted that he was opposed to
the Union's reentry into the respondent's plant 18 The record dis-
closes that McCauley talked to Straub about union activities some
time prior to the Hamel incident and told him that those in the
department who supported the Union "were doing wrong." As we
have seen, in reporting the activities of Straub and Tyler to Spauld-
ing, McCauley accused them of agitation and pointed to the mainte-
nance of pickets at the Remington plant, and it was not until Mc-
Cauley's disclosure that Spaulding found displeasure with their
conversations.
For these reasons, we conclude that the respondent discharged
Straub and Tyler in order to eliminate from its employ two active
organizers in the polishing department,'9 and to warn other employ-
ees not to engage in similar activities.
We find, therefore, that the respondent on June 18, 1936, discrimi-
nated in regard to the hire and tenure of employment of Edward
Straub and Alfred Tyler, thereby discouraging membership in the
18 Although Pettengill claims that President Smith advised him that the respondent's
policy did not forbid its employees from joining labor organizations , there is no evidence
that Pettengill or any member of the supervisory personnel communicated this information
to the body of employees.
19
011 the day before Straub and Tyler were discharged, the respondent terminated the
employment of Mike Rayo , who was active in the Union Since neither the charge nor
the complaint contains any allegation with respect to Rayo's discharge , we make no
findings or order as to him.
L. C. SMITH & CORONA TYPEWRITERS, INC., ET AL. 1393
Union, and has thereby engaged in unfair labor practices within the
meaning of Section 8 (3) of the Act. We further find that by such
action, the respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set. forth in Section
III above, occurring in connection with the operations of the re-
spondent 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
The respondent contends that the remedies provided by the Act
cannot be invoked in this proceeding since Straub and Tyler secured
employment elsewhere and hence have severed their employment
relationship with the respondent. While we do not adopt the view
that the obtaining of other regular and substantial employment de-
prives the Board of power to reinstate individuals who have been
discharged for union activities, the employment records of Straub
and Tyler since the date of their discharges would not, in any event,
justify the application of the rule for which the respondent con-
tends. Straub and Tyler averaged about $30 to $32 a week during
a period of approximately 1 year immediately preceding the termi-
nation of their employment with the respondent. Straub was unem-
ployed from June 18 until August 1936 when he obtained a polisher's
job in Syracuse at which he worked for a period of 4 weeks, earning
$24 a week on a day-rate basis. Tyler did not secure other employ-
ment until September 1936. In the latter part of September both
obtained polishers' jobs with a firm in Buffalo, New York, at a
higher rate of compensation than the respondent paid. While em-
ployed in Buffalo they have each been laid off on two occasions for
periods approximating 2 months each prior to their last lay-off on
November 12, 1937, and have been laid off since that date to the
time of the hearing. In the period from the time of their discharges
to the time of the hearing, Straub has been unemployed a total of
approximately 14 months, Tyler, approximately, 15 months. During
the same period, Straub earned a total of $1,657.59, and Tyler, a
total of $1,505.73, or an average of approximately $46 and $48 a week,
respectively, during the time they worked. Despite the fact that
the new jobs carried a higher rate of pay and involved the same type
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of work, since they were in a city more than 100 miles distant from
Syracuse, they cannot be considered substantially equivalent to the
previous employment with the respondent. Moreover, Straub and
Tyler were idle at the time of the hearing and testified that they
desired reinstatement to their former positions. For these reasons,
and in view of the fact that they suffered three lay-offs, each of sub-
stantial duration, while employed elsewhere, we find that Straub and
Tyler have not obtained other regular and substantially equivalent
employment and hence have not lost their status as employees of
the respondent.
The respondent also maintains that Straub and Tyler should not
be reinstated, or awarded back pay from the date of the termination
of their employment to the date of filing charges with the Board, in
view of their long delay in filing such charges. Although the record
discloses that they last meeting between the Union and the respond-
ent for, the purpose of obtaining the reinstatement of the discharged
employees occurred in August or September 1936, no charges were
filed against the respondent until March 3, 1938. In our opinion such
delay does not affect the Board's power to order reinstatement of em-
ployees discharged for their union activities, or the occasion for its
exercise in this proceeding. It is worthy of note that the Union ap-
plied to the respondent promptly after the discharges to induce it to
repair the consequences of its unfair labor practices. No impelling
reason is shown why the reinstatement of the employees involved
herein in accordance with our usual practice is not necessary in order
to effectuate the policies of the Act. However, since such delay would
otherwise unduly prejudice the respondent, and with a view to en-
couraging the prompt disposition of charges, we shall not award back
pay to Straub and Tyler for the period in which the Union failed to
file its charges, in the absence of any showing of mitigating circum-
stances for this delay.- They are entitled to back pay, nevertheless,
for the period during which the Union negotiated with the respond-
ent to obtain reinstatement of these employees through its voluntary
action."
Inasmuch as we have found that Edward Straub and Alfred Tyler
were discriminatorily discharged, we shall order the respondent to
offer them reinstatement without prejudice to their seniority and
other rights and privileges. We shall further order the respondent
to make whole each of them for any loss of pay he may have suffered
during the periods from the date of the discharge to the date of the
20Matter of Inland Lime and Stone Co. and Quarry Workers International Union of
North America, Branch No . 259, 8 N. L. R. B. 944; Matter of Crowe Coal Company and
United Mine Workers of America, District No. 14, 9 N. L. R. B. 1149.
21 Matter of Crowe Coal Company and United Mine Workers of America, District No. 14,
9 N. L. R . B. 1149.
L. C. SMITH & CORONA TYPEWRITERS, INC., ET AL. 1395
last meeting of the respondent with the Union and from March 3,
1938, until the date of the offer of reinstatement by payment to him of
a sum equal to the amount which he normally would have earned as
wages during said periods, less his net earnings,22 during said period.
Upon the basis of the foregoing findings of fact and upon the en-
tire record in the case, the Board makes the following:
CONCLIISIONS OF LAW
1. International Metal Polishers, Buffers and Platers Union of
North America is a labor Qrganization within the meaning of Section 2
(5) of the Act.
2. By discriminating against Edward Straub and Alfred Tyler
in regard to their hire and tenure of employment and thereby dis-
couraging membership in the International Metal Polishers, Buffers
and Platers Union of North America, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (3) of the Act.
3. By thus 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.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, L. C. Smith & Corona Typewriters, Inc., and its officers,
agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discriminating in regard to the hire and tenure of employment
of any of its employees and thereby discouraging membership in the
International Metal Polishers, Buffers and Platers Union of North
America, or any other labor organization of its employees, by dis-
ra 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 and United Brotherhood of Carpenters and Joiners
of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies
received for work performed upon Federal, State , county, municipal , or other work-
relief projects are not considered as earnings , but, as provided below in the Order, shall
be deducted from the sum due the employee , and the amount thereof shall be paid over
to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work -relief projects.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charging or refusing to reinstate any of its employees, or in any other
manner discriminating in regard to their hire or tenure of employ-
ment 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 policies of the Act :
(a) Offer to Edward Straub and Alfred Tyler immediate and full
reinstatement to their former positions, without prejudice to their
seniority and other rights and privileges;
(b) Make whole Edward Straub and Alfred Tyler for any loss
which they have suffered by reason of their discharges by payment
to each of them of a sum of money equal to that which he normally
would have earned as wages during the period from the date of his
discharge to the date of the last conference in August or September
1936 between the respondent and the Union and from March 3, 1938,
to the date of the offer of reinstatement, less his net earnings 23 dur-
ing said period; deducting, however, from the amount otherwise due
to each of the said employees, monies received by said employee dur-
ing said period for work performed upon Federal, State, county,
municipal, or other work-relief projects, and pay over the amount,
so deducted, to the appropriate fiscal agency of the Federal, State,
county, municipal, or other government or governments which sup-
plied the funds for said work-relief projects;
(c) Post immediately, in conspicuous places throughout its Syra-
cuse plant, notices stating that the respondent will cease and desist
in the manner aforesaid, and maintain such notices for a period of
at least sixty (60) consecutive days from the date of posting;
(d) Notify the Regional Director for the Third Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
28 See footnote 22, supra.