Modern Welding Co.

National Labor Relations Board - Board Decisions

Feb 6, 1943

47 N.L.R.B. 348 (N.L.R.B. 1943)

In the Matter Of/JOHN G. BARNARD, A SOLE OWNERSHIP, DOING BUSINESS.
UNDER THE FIRM AND STYLE NAME OF MODERN WELDING COMPANY and
INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA,,
AFFILIATED ,WITH THE A. F. OF L.
Case No. C-2'/07.Decided February 6,19k3
Jurisdiction : buoy manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements ; threat of closing
plant before permitting a union "to come in" ; threat of discharge because of
union activities; surveillance of union meetings ; interrogation as to union-
membership; requiring applicants for employment to state their, union affilia-
tion on application blank. '
Discrimination: discharge of four employees because of union membership and
activities.
Remedial Orders : cease and desist unfair labor practices; cease engaging in
surveillance ; reinstate with back pay discriminatorily discharged employees.
Mr. Benjamin E. Cook, for the Board.
Mr. Thomas E. Sandidge, of Owensboro, Ky., for the respondent.
Mr. Irvin Ralph, of Owensboro, Ky., for the Union.
Mr. Gerard J. Mamack, of counsel to the Board.
DECISION
AND
ORDER,
STATEMENT OF THE CASE
Upon amended charges duly filed by International Union, United
Automobile Workers of America, affiliated'with the A. F. of L., herein
called the Union, the National- Labor Relations Board, herein called
the Board, by the Regional Director for the Eleventh Region (In-
dianapolis, Indiana), issued its complaint dated October 16, 1942,
against John G. Barnard, a sole ownership, doing business under, the
firm and style name of Modern Welding Company, Owensboro, Ken-
tucky, herein called the respondent, alleging that the respondent had
engaged 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 National Labor Relations Act, 49 Stat. 449, herein called
47 N. L R. B , No. 43.
348
MODERN WELDING COMPANY 349'
the Act. Copies of the complaint accompanied by notice of hearing,
were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged
in substance, that the respondent : (1) on August 11, 1942, discharged
William Felker and Berry Paul Copeland, and on August 13, 1942,
discharged Paul Hurm and Otis Sacra, because of their union mem-
bership and activities; and (2) by the foregoing acts, and by (a)
threatening to, close down the plant, (b) requesting an employee to
break up the Union, (c) seeking detailed information concerning
union membership, (d)-surveillance of a union meeting, (e) threat-
ening to dispose of overtime and bonus if the Union carne into the
plant, and (f) stating that respondent had never seen men benefit
from a union, interfered' with, restrained, and coerced his employees
in the' exercise of the rights guaranteed in Section 7 of the Act. On
or about October 27, 1942, the respondent filed an answer admitting
the allegations of the complaint covering his business, but denying
that he was engaging in or had engaged in the unfair labor practices
alleged.
Pursuant to notice, a hearing was held at Owensboro, Kentucky,
on October 29 and 30, 1942, before Samuel H. Jaffee, the Trial Ex
aminer duly designated, by the Chief Trial Examiner. The Board,
the respondent, and the Union were represented and, participated in
the hearing.' Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties. At the close of the hearing, a motion to
conform the pleadings to the proof was granted without objection.
Rulings were made by the Trial Examiner on various other motions
and on objections to the admission of evidence during the course
of, the hearing. The Board has reviewed the rulings and finds that
no prejudicial errors were committed. The rulings of the Trial
Examiner are hereby affirmed.
On November 7, 1942, the Trial Examiner filed his Intermediate
Report; copies of which were duly sertzed upon the parties, in which he
found that the respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of'the Act, and recommended that the re-
spondent cease and desist therefrom and take certain affirmative
action, including reinstatement with back pay, deemed necessary to
effectuate the policies of the Act. No exceptions were filed and no
request for oral argument was received.
J
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT'
John G. Barnard is, and has been since 1933, engaged in the manu-
facture and sale of buoys, under'the trade name and style of Modern
Welding Company. In connection therewith, the respondent owns
and operates a steel plant, where the main office is located, and a job
repair plant, both at Owensboro, Kentucky.2 During the 12-month
period preceding the date of the hearing, the respondent purchased
ra`'v.,materials valued in excess of $50,000, of which approximately
90 percent was shipped to the respondent from points outside the
State of Kentucky. During this period, the respondent manufactured
finished products valued in excess of $75,000, of which approximately
90 percent, was loaded on railroad cars at the steel plant siding for
the United States Navy, and approximately I. percent was shipped
directly by the respondent to points outside the State of, Kentucky.
The respondent concedes that he is engaged in commerce within the
meaning of the Act.
H. THE ORGANIZATION INVOLVED
International Union, United Automobile Workers of America, is
a•labor organization affiliated with the American Federation of Labor,
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
In the early part of August 1942 some of respondent's employees,3
who had previously been unorganized, consulted with a union,organ-
izer. Thereafter, on August 7, 8, and 11,, meetings were held at the
Union's headquarters in the Rudd Hotel at Owensboro, and several
employees joined the union. The meeting of August 11 was attended
by between 20 and 30 employees. The record indicates that during
this period the employees engaged in considerable discussion in the
plant concerning,the Union.
Employees William F. Felker, Berry Paul Copeland, Paul Hurm,
and Otis Sacra, whose discharges 'are hereinafter discussed, were
among the first ' employees to join the Union ; Felker„ and Copeland
' The findings in this section are based principally upon a stipulation in the record.
' The respondent employs approximately 80 persons , exclusive of supervisory and office
employees, only 4 of whom are employed at the job repair plant.
The record does not reveal the identity of these employees.
MODERN WELDING COMPANY 351
joining on August 8 and Hurm and Sacra on August 11. Undisputed
testimony shows that all four employees, for a week or more prior to
their joining, had prominently engaged in union discussions and had
solicited several employees to join the Union.
Felker testified that on the afternoon of August 11, he had a
15-minute conversation with Foreman Vernon Iglehart'at the plant,
during the course of which he asked Iglehart to join the Uniori. Ac-
cording to Felker, Iglehart answered, "That will get 'on fired." Igle-
hart denied that he had had such a conversation with Felker. In
view of Iglehairt's participation in the anti-union conduct of the re-
spondent and Iglehart's lack of candor as a witness, particularly in
his testimony concerning the discharges of Hurm and Sacra, as set
forth more fully hereinafter, we de not credit his denial.4 We find,
as did the Trial Examiner, that Iglehart threatened to discharge
Felker because of his union activity.
Employee Robert W., Chapman, a member of the Union, gave t,I
following undisputed testimony concerning a conversation he had
with the respondent, John G. Barnard, in the plant, on or about
August 13 or 14:
A. He [Barnard] came up to me and said, "Chapman, how
about this union?" I said, "Pete [Barnard] . . . I don't under-
stand just what you mean by that?"
He said, "I would like to know about how many men belong
to the union." He says, "I have no way of ' knowing, and I
wonder if the majority,of them do . . . I am 100 percent for the
union because it will save me about $2,100 a month if I can get
a contract like they have at the Southern Tank, which is a union
shop. I have secured a copy of the contract from the Southern
Tank, and they are paying their cutters 40 cents an hour and I
am paying -mine, 60, but I don't think it would be better for the
men to take that extra money away from them. We are always
good to our old men and give them the breaks . . . It'does not
make much difference to me whether I go ahead or not. %I have
thought of letting the plant go . . .."
A boy came out when we were talking and he [Barnard] said,
"There is a boy I have just loaned $5 to. I don't know the boy;
he is a new man. If we had a union, I would tell him to go
down to his business agent and get that $5. It is things like that
I don't have to do, but I do it to accommodate the,men."
He [Barnard] said, I have worked hard all my life; I have
worked on jobs that are union and jobs that are not union, and I
went on a strike once." He told me the place, but I forgot... .
I The Trial Examiner found Iglehart to be an "unimpressive" witness, and his testimony
"incredible" particularly as related to the I3urm and Sacra incident.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That they struck for a long time, that he was making 90 cents an
hour when they went on the strike, and went back at 90 cents an
hour, and didn't know whether we would receive any benefits
from the union or not.
Although Barnard was present throughout the hearing, he did not
testify. It is a, conceded fact that it was and is the respondent's cus-
tom to require applicants for employment to state on the respondent's
employment application blanks their union affiliations. It is thus ob-
vious that the attitude of the respondent towards the union activities
.and membership of his employees is not that of indifference. Under
the circumstances herein, we find, as did the Trial Examiner , that this
practice constitutes an unfair labor practice.' We find further, as did
the Trial Examiner, that Barnard made the statements substantially
as testified to by Chapman, and that by such statements the respondent
'interfered in the employees' rights to self-organization.
Logan Alexander was one of the respondent's oldest employees in
point of service. According to Alexander, who was not a member of
the Union, the following incident occurred on August 11. Kenneth
Gillians, plant superintendent, approached Alexander while at work
:and asked him whether he wanted to do the "Company a favor," 6 by
taking employees Paul Hurm and Otis Sacra out and getting them
drunk. According to Alexander, Gillians explained that this was the
only way he could discharge Hurm and Sacra, but Gillians did not
:state his reason for desiring to discharge these employees. Alexander
agreed to undertake the scheme. Accordingly, during the next after-
noon, Gillians gave Alexander $3 7 to buy the liquor and directed him
to leave his work." That night Alexander accompanied Hurm and
Sacra into various drinking places, purchased liquor for them, and,
when they were "pretty well lit," telephoned Gillians to inform him
where they were. Alexander, who admittedly also became intoxicated,
then went home. Alexander was paid regular wages for the time he
was thus off work.
Gillians admitted that he had made the above-described arrange-
ments with Alexander. He testified that upon receiving a telephone
6 See Matter of Dannen Grain & Milling Co. v. N . L. R. B.; 130 F. (2d) 321 (C. C. A. 8),
.enf'g as mod . Matter of Dannen Grain & Milling Company and Flour, Cereal , Feed Mill &
Grain Elevator Workers, Federal Union #21008, affiliated with the American Federation of
Labor, 30 N. L. R . B. 888 ; Matter of N. L. R. B . v. Cities Service Oil Co., 129 F. ( 2d) 933
(C. C. A. 2), enf'g Matter of Cities Serv ice Oil Company and National Maritime Union of
America, 32 N. L. R. B. 1020.
8 Gillians testified that he "didn 't. think" he referred to the company but "may have" ;
that the scheme was his own idea ; and that he selected Alexander to effectuate it because
Alexander was his "personal friend," and not because Alexander was one of the respondent's
oldest employees.
Gillians testified that the $ 3 came from his "own pocket" and that the respondent did
not reimburse him for the expenditure.
8 Alexander was working the 4 p. m. to midnight shift at this time.
MODERN WELDING COMPANY 353
call 9 he went to the plant where he called Foreman Iglehart, who was
then on duty, to go with him as a witness, and that they then proceeded
in Gillians' automobile to a certain place in Owensboro. According to
Gillians, Hurm and Sacra came out of "some little joint, staggering
drunk" and passed within 3 feet of Gillians' automobile. Iglehart
substantially corroborated the above testimony of Gillians. He further
testified, however, that Gillians had not explained.to him why he, with
a witness, desired to observe Hurm and Sacra drunk, or that he had
furnished Alexander with the money to get them drunk. Further-
more, Iglehart testified that he did not question Gillians concerning
the situation 10 Iglehart was absent from work for about 35 minutes.
Gillians testified that he discharged Hurm and Sacra at the plant on
August 13 for "drunkenness." 11 Hurm and Sacra testified that their
discharges on the morning of August 13 were effected in the following
manner : Gillians informed them, in the presence of Barnard, that they
were discharged,for misconduct. Sacra asked Gillians what the mis-
conduct vas. Gillians replied that he wanted no argument and walked
away from them. Sacra then told Barnard that he knew they were
discharged because of their union membership. Barnard denied this
and stated that he was 100 percent for the Union because it would
eliminate double time on Sundays and thereby save him money.12 Gil-
lians did not deny the foregoing testimony of Hurm and Sacra, and, as
stated above, Barnard did not testify. We credit the testimony of
Hurm and Sacra.
Irving Ralph, a union organizer, testified that during the meeting
of August 11 he saw Gillians and two unidentified men in an auto-
mobile across the street from Rudd Hotel, in which the Union has' its
headquarters. The headquarters of the Union consists of rooms below
the street level, with windows above the street, and is plainly marked as
such by a sign of substantial size f-acing the street. There is an entrance
from the street, used exclusively by persons going into the Union's
headquarters. Gillians did not specifically deny that he was outside
the hotel at this time, testifying only that he could not recall ever
9 Although admitting that he had arranged with Alexander to telephone him when Hurm
and Sacra became drunk and that he was expecting the call , Gillians irreconcilably main-
tained at the hearing that he did not recognize the voice of the person who telephoned him,
and that he did not think it was Alexander.
to Iglehart's purported lack of interest in and knowledge of the situation in which he
participated was found by the Trial Examiner to be incredible . We agree with the Trial
Examiner _
ii An instance of the incredible lengths to which Gillians went in his testimony, is his
statement that although he expected Alexander , his "personal friend," to Join Sacra and
IIurm in the dunking party , for the cost of which he ( Gillians ) had furnished the money,
he would have discharged Alexander that night had lie caught him drunk. And when con-
fronted later in the hearing with Alexander 's testimony that he was in fact drunk, which
testimony Gillians said he believed, he testified in substance that he would take up with
Barnard the question of discharging Alexander To say that Gillians, not only here but
in other instances, trifled with the truth is, as the Trial Examiner found, an understatement.
2 Note the-similarity between this statement and Barnard ' s statements to Chapman.
613024-43-vol. 47-23
i
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having parked his automobile at any time in the early part of August
opposite the Rudd Hotel. In view of all the evidence, and particularly
Gillians' conversation with Mr. and Mrs. Lonnie Chamberlain later
the same evening, as hereinafter set forth, we do not credit this denial.
We find, as did the Trial Examiner, that Gillians was in his automobile
parked outside the Rudd Hotel during the union meeting of August 11.
The union meeting of August 11 terminated at about 7 o'clock.
Shortly thereafter, Lonnie Chamberlain, an employee of the respond-
ent, and his wife saw Copeland and Felker sitting on a bench in front
of the court house. The testimony of Chamberlain and his wife as to
what occurred, as set forth below, is undisputed and in substantial' ac-
cord with the testimony of Copeland and Felker. The latter two asked
Chamberlain why he had not attended the union meeting earlier in
the evening. Chamberlain replied that he did not desire to attend the
meeting. Thereupon, Mrs. Chamberlain told Copeland and Felker,
that they should be ashamed of themselves for joining the Union, and.
that they should be discharged.
In the meantime, Gillians, with his wife and children, had parked
his automobile at the nearby curb, and Chamberlain went over to speak
to them. Copeland and Felker then told Mrs. Chamberlain that they
were going to get some whiskey and left her. She joined her husband
at Gillians' automobile, and told Gillians that Copeland and Felker
had requested her husband to join the Union. She asked Gillians
whether there would be a union at the respondent's plant. Gillians
replied that if the men wanted a union they could have it, but that the
respondent did not like the "sneaking" way in which the organizing
was being done behind his back. Gillians further informed the Cham-
berlains that the respondent had had an employee at the union meeting
who reported what went on and who was there, but cautioned the
Chamberlains against revealing this.13
After a lapse of 15 or 20 minutes, and while the Chamberlains and
the Gillians were still engaged in conversation, Copeland and Felker
returned and sat on the bench they had originally occupied. Gillians
called Felker to the automobile and inquired why Felker was out on
the street when he was supposed to be home sick.1-4 Felker told Gil-
li ans that he had gone to a doctor and had obtained some pills which
he had taken. Gillians asked whether the doctor had given him the
whiskey. Felker replied that he had bought the whiskey. Gillians
thereupon told Felker that he knew the respondent' s rules concerning
drinking and that he should come in for his check on the following
"When asked whether he had made such statements to the Chamberlains , Gillians at
first testified, "not that I know of; no, sir." He later testified that he knew nothing of the
union meeting and that he did not have a man there.
14 Felker had reported for work that afternoon on the 4 p. in. to midnight shift, but had
left the plant early with Foreman Iglehart's permission because he had a cold. Iglehart
admitted that he had given Felker permission to leave the plant because of the cold.
MODERN WELDING COMPANY 355
morning. Felker asked whether this applied to Copeland too, and
Gillians replied that if Copeland had been drinking, it did. Copeland
had not come near Gillians during the conversation and had no part
in it. On the following morning Copeland and Felker were dis-
charged. We find, as did the Trial Examiner, that the events leading
to the discharges of Copeland and Felker occurred substantially as
related above.
Frank Ray, who had been employed by the respondent for only a
few weeks, attended the August 11 meeting. He was the only employee
present who'did not join the Union, although he had earlier said that
he intended to do so. After the meeting concluded, according to the
testimony of Chapman, Felker, and Sacra, Ray told the three em-
ployees, in substance, that Mrs. Barnard, wife of the respondent and
bookkeeper at the job plant, had called him "on the carpet" earlier
that day, told him that the respondent did not want a union, that the
respondent would close the plant before he would permit a union to
come in, and asked Ray to "break it [the Union] up." Ray told these
employees that the Barnards had given him much business when he
was selling automobiles, that he did not want to create any friction,
and that he did not think it would be fair to Mrs. Barnard for him
to join under the circumstances. Ray testified, on the other hand, that
while he had gone to Mrs. Barnard,15 Mrs. Barnard had said that she
did not care whether the men joined the Union or not, and that he had
so reported to Sacra, adding that he had received much business from
her in the past and did not want to do anything that would affect the
situation. The incredibility of Ray's testimony is established by the
fact that he failed to join the Union as he intended, although accord-
ing to his testimony Mrs. Barnard had said that the respondent had
no objection to his doing so. Upon the entire record, we find, as did
the Trial Examiner, that Ray made the statements attributed to him
by Chapman, Felker, and Sacra, substantially as the latter three
testified. -
We also find, as did the Trial Examiner, that Mrs. Barnard, in fact,
made the statements attributed to her by Ray, for: (1) Ray would
hardly have refused to join the Union after his early interest in it
unless Mrs. Barnard had made such statements to him; (2) Mrs. Bar-
nard's statements are consonant with statements made by her husband,
the defendant, to Chapman, as previously found, and with the clearly
established anti-union conduct of the respondent; and (3) Mrs. Bar-
nard, like her husband, although present at the hearing, failed to
testify.
"When asked whether he thought it necessary to get Mrs . Bernard's permission to go to
the union meeting, , Ray testified that he did if he iptended to take an active part in organ-
izing it. "I would feel like that under any employer ," he added.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Conclusions as to the unfair labor practices
The respondent contends that Copeland, Felker, Hurm, and Sacra
were discharged because they had violated a company rule against
excessive drinking. Aside from the validity of any such defense as
to the two employees whom the respondent connived to intoxicate,
the evidence is overwhelming that no rule governing the conduct of
employees outside of working hours existed. It was concededly never
posted on the company's bulletin board, and several employees testi-
fied that they had never heard of it. Gillians' testimony that he had
told all the employees dozens of times about it is entirely unsupported,
and is not credited. Two men, according to Gillians, had been dis-
charged earlier iri 1942 for drunkenness, but the evidence establishes
that these men had been drinking on the job. Nor can this theory of
the respondent be sustained by any possible antipathy to the drink-
ing of liquor, since Gillians admitted that he drank, and likewise
admitted that some time before the respondent had given a barbecue
in the plant for the employees at which Barnard furnished a small
amount of liquor. In addition, Alexander was not discharged, al-
though admittedly he too was intoxicated on August 12. Gillians
further admitted that although he had heard of another employee
having been arrested and fined for intoxication,16 he had made no
inquiry and had done nothing about it. Finally, it is not shown,
nor does the respondent contend, that the particular drinking for
which these four employees were allegedly discharged, in any way
affected their work for the respondent.
As to Copeland and Felker, at least, there was not even any show-
ing that they had engaged in "excessive" drinking on the night of
August 11, nor did Gillians contend that they had. Indeed, the con-
trary was shown. Chamberlain testified that they were not intoxi-
cated. The worst that Gillians could say was that he "could smell
liquor on Felker's breath." As to Copeland, Gillians admitted he
was not even close enough to talk to Copeland and that he did not
actually know that Copeland had bPQn drinking. Gillians then at-
tempted to explain Copeland's discharge by asserting that the fact -
that Copeland came in for his check the next morning was an "ad-
mission on his part," presumably of drinking liquor, and that thereby
Copeland "discharged himself." However, the record shows, and
Gillians admitted, that when Copeland and Felker reported for work
at the regular time on the morning of August 12, they found their
time cards out of the time rack and their checks already prepared.
In other words, their discharges had already been consummated.
ie Wilbur Fenwick. After first denying that he had heard of Fenwick 's intoxication and
arrest , Gillians , as is typical of his whole testimony , contradicted himself by admitting that
he had heard of it.
MODERN WELDING COMPANY 357'
We find, as did the Trial Examiner, that the drinking of liquor on
the night of August 11 was not the motivating cause of Copeland's
and Felker's discharges.
As to Hurm and- Sacra, Gillians advanced a number of inconsistent
reasons for resorting to trickery in order to discharge them. At one
point he testified that he wanted to get rid of them because of general
inefficiency, and again contradicted himself by testifying that "they
had done fairly good work on the job when they were there . . .
They were laborers; and there is not much to do in the Tabor line that
could be improper." At another point he testified that they were
irregular in attendance, but this charge was not substantiated by any
other evidence. When asked whether he could not have discharged
them for the above reasons without resorting to getting them drunk
he said, "I hate to come right out and fire a man without some awfully
good excuse," thus naively implying that no "awfully good cause"
had existed for their discharges. We find, as did the Trial Examiner,
that the alleged inefficiency and irregular attendance was not the
motivating cause of Hurm's and Sacra's discharges.
It is quite obvious that the'respondent had an ulterior, reason for
discharging Copeland, Felker, Hurm, and Sacra. The most signifi
cant fact in the entire record is the prominence of these four employees
in the incipient organizational efforts of the Union at the time of their
discharges. That the respondent was well aware of and opposed to
these activities is amply supported by the findings above set forth. It
should be particularly noted that the discharges of Copeland and
Felker occurred shortly after the meeting of August 11, and almost
immediately after Mrs. Chamberlain had told Gillians of their efforts
to induce Chamberlain to join the Union. An incident which occurred
later in August is also revealing. Felker testified that he met Barnard
on the street and told Barnard that he was looking for work. Barn-
ard replied that Felker should see Gillians, and that if Gillians wanted
to give him "another chance" it was all right with Barnard. Subse-
quently, according to Felker, whose testimony is undenie'd on this
point, Felker saw Gillians, who stated, "them guys tried to pull some-
thing over on me. I knew who were joining the -union; That is all
right, but they were trying to pull something over on us, behind our
back." 17 Gillians then told Felker he would give him another chance
in about 20 days, but he never did. We find, as did the Trial Examiner,
that Gillians made the statement attributed to him by Felker, as set
forth above.
In view of the clearly established anti-union attitude of the respond-
ent, Iglehart's threat to discharge Felker; the fact that the discharges
i7 The similarity of this statement to the statement Gillians,made to the Chamberlains,
as above found, should be noted.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were unprecedented and unwarranted, and the significant timing of
the discharges, we find, as did the Trial Examiner, that the respondent
discharged Copeland, Felker, Hurm, and Sacra because of their union
membership and activities.
Under the well-defined pattern of anti-union conduct of the respond-
ent, as set forth above, we ascribe Gillians' presence outside the union
headquarters during the August 11 meeting to more than mere chance,
and find, as did the Trial Examiner, that it was for the purpose of
observing the union activity of the employees. Furthermore, whether
or not the respondent in fact had an observer at the meeting, as Gil-
lians informed the Chamberlains, it is apparent that such a statement
of company action by a person in Gillians' position would act as a
restraining influence on the employees' concerted activity.
We find, as did the Trial Examiner, that the respondent by dis-
charging Copeland, Felker, Hurm, and Sacra discriminated in regard
to their hire and tenure of employment, thereby discouraging member-
ship in the Union, and that by discharging these employees, and by the
threats, warnings, anti-union statements, surveillance, and other acts
as found above, the respondent interfered with, restrained, and co-
erced 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
The activities of the respondent set forth in Section III. above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order him to cease and desist from such practices,
including surveillance of union activities, and to take certain affirmative
action which we deem necessary to effectuate the policies of the Act.
We have found that the respondent has discriminated in regard to
the hire and tenure of employment of William Felker, Berry Paul
Copeland, Paul Hurm, and Otis Sacra. We shall, therefore, order
the respondent to offer Felker, Copeland, Hurm, and Sacra immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges. We shall also order that the respondent make Felker,
Copeland, Hurm, and Sacra whole for any loss of pay they may have
suffered by reason of the respondent's discrimination against them,
MODERN WELDING COMPANY 359
by payment to each of them of a sum of money equal to the amount
that each normally would have earned as wages from August 11, 1942,
as to Felker and Copeland, and from August 13, 1942, as to Hurm
and Sacra, to the date of the offer of reinstatement, less his net earn-
ings 1s during such period 19
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAw
1. International Union, United Automobile Workers of America,
affiliated with the American Federation of Labor, is a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of William Felker, Barry Paul Copeland, Paul Hurm, and
Otis Sacra, thereby discouraging membership in International Union,
United Automobile Workers of America, affiliated with the American.
Federation of Labor, the respondent,has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of the
Act. °
3. By interfering with,' restraining, and coercing his employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent 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 foregoing 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, John G. Barnard, doing business under the firm and style
name of Modern Welding Company, Owensboro, Kentucky, and his
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile Workers of America, affiliated with the American Federa-
'e 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 the discrimina-
tion 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.
19 The fact that Copeland had said to the Chamberlains that he was going to Detroit
when he became 18 years of age in October 1942, does not justify any modification of the
order as to him
0
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
tion of Labor, or in any other labor organization of his employees, by
discriminating in regard to the hire or tenure of employment or any
term or condition of employment'of his employees;
(b) Engaging in surveillance of the union activities of his
employees;
(c) In any other manner interfering with, restraining, or coercing
his 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 purposes of collective bargaining and 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 William Felker, Berry Paul Copeland, Paul Hurm,
and Otis Sacra immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority
or other rights and privileges;
(b) Make whole William Felker, Berry • Paul Copeland, Paul
Hurm, and Otis Sacra, for any loss of pay they have suffered by reason
of the respondent's discrimination against them, by payment to each
of a sum of money equivalent to that which he normally would have
earned as wages from the date of his discharge, as found herein, to
the date of the respondent's offer of reinstatement, less his net earnings
during said period;
(c) Post immediately in conspicuous places in his plants at Owens-
boro, Kentucky, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to his employees stating :
(1) that the respondent will not engage in the conduct from which he
is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this
Order; (2)' that the respondent will take the affirmative' action set
forth in paragraphs 2 (a) and (b) of this Order; and (3) that the
respondent's employees are free to become or remain members of In-
ternational Union, United Automobile Workers of America, affiliated
with the American Federation of Labor, or of any other labor organ-
ization, and that the respondent will "not discriminate against any
employee because of membership in or activity on behalf of that
organization or any other organization;
(d) Notify the Regional Director for the Eleventh Region 'in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.