The Midland Steel Products Co.

National Labor Relations Board - Board Decisions

Mar 18, 1939

11 N.L.R.B. 1214 (N.L.R.B. 1939)

In the Matter of THE MIDLAND STEEL PRODUCTS COMPANY and UNITED
AUTOMOBILE WORKERS OF AMERICA
Case No. C-625.-Decided March 18, 1939
Automobile Parts Manufacturing Industry Interference , Restraint, and
Coercion : distribution to employees of letter purporting to define employees'
rights under the Act, but actually appealing for retention of individual bar-
gaining ; anti-union statement ; surveillance of union president-Discrimina-
txon: discharge , for union membership and activity ; charges of , not sustained
as to one person-Reinstatement Ordered: discharged employee-Back Pay:
awarded to employee discharged for union membership and activities ; monies
received 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-Espionage: charges of; not sustained-Trial Eram,iner:
exception to alleged bias and prejudice ; not sustained.
Mr. Harry L. Lodish, for the Board.
Tolles, Hogsett & Ginn, by Mr. W. T. Kinder, and Mr. T. M. Har-
man, of Cleveland Ohio, for the respondent.
Mr. A. G. Koplow, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges duly filed by International
Union, United Automobile Workers of America,' herein called the
Union, the National Labor Relations Board, herein called the Board,
by James P. Miller, Regional Director'for the Eighth Region (Cleve-
land, Ohio), issued its complaint dated February 12, 1938, against
The Midland Steel Products Company, Cleveland, Ohio, herein called
the respondent, alleging that the respondent had committed 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 com-
plaint and accompanying notice of hearing were duly served upon
the respondent and upon the Union.
I International Union , United Automobile Woi kers of America , was incorrectly desig-
nated as United Automobile Workers of America in the pleadings
11 N. L. It. B., No. 112.
1214
THE MIDLAND STEEL PRODUCTS COMPANY ET AL. 1215
With respect to the unfair labor practices, the complaint alleged
in substance (1) that the respondent discharged and refused to re-
instate Mack Richard Cheek 2 and Leon J. Murray because they
joined and assisted the Union, and (2) that the respondent inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act by ridiculing and ap-
plying derogatory remarks to the Union and its members, by dis-
criminating in the matter of lay-offs, by spying on union members,
by questioning employees and prospective employees regarding union
affiliation and interest, by advising, persuading, and ordering its
employees to refrain from joining the Union, and by various other
acts discouraging the Union and membership therein.
On February 18, 1938, the respondent filed a written motion
to strike the paragraphs of the complaint and of the amended
charge in which are detailed the acts by which the respondent
is alleged to have interfered with, restrained, and coerced its
employees, or, in the alternative, for an order requiring said para-
graphs to be made definite and certain by stating the names of the,
individuals involved therein and the times and places of occurrences
therein referred to. On the same date the respondent filed its answer
to the complaint, in which it admitted certain facts with respect to
the interstate character of its business; denied that it had engaged
in the unfair labor practices alleged in the complaint, while reserv-
ing its rights under the motion above-mentioned; and alleged that,
the said Cheek and Murray were discharged for stated reasons not
constituting unfair labor practices.
Pursuant to the notice, a hearing was held in Cleveland, Ohio, on
February 24, 25, 26, 28, and March 1 and 2, 1938, before H. C.,
McCarthy, the Trial Examiner duly designated by the Board. Tho
Board and the respondent were represented by counsel and partici-,
pated 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 beginning of the hearing,
counsel for the respondent again moved to strike the above-specified
paragraphs of the complaint and amended charge, or, in the alterna-
tive, to have them made definite and certain. The Trial Examiner
denied this motion. Thereafter, counsel for the Board made a state-
ment outlining the Board's case and the Trial Examiner advised
counsel for the respondent that they would be afforded ample op-
portunity during the course of the hearing to make such preparation
as they deemed necessary in meeting the issues defined in the com-
plaint. At the close of the Board's case counsel for the respondent
2 Mack Richard Cheek was incorrectly designated in the pleadings and at the hearing
as Matt Cheek and Mack Cheek.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested and were granted a short continuance to enable them to
prepare their case.
At the close of the Board's case the respondent moved to dismiss
the complaint in so far as it alleged that the respondent had engaged
in unfair labor practices. The Trial Examiner denied the motion.
During the course of the hearing the Trial Examiner made several
other rulings on motions and on objections to the admission of evi-
dence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed. The Trial Examiner did not rule on the motion to
dismiss which the respondent renewed at the conclusion of the hear-
ing. It is hereby denied to the extent that it is inconsistent with
the findings, conclusions, and order set forth below.
On May 16, 1938, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served on all the parties, in which
he found that the respondent had engaged in and was engaging in
the unfair labor practices alleged in the complaint and recommended
that the respondent cease and desist therefrom and take certain affirm-
ative action to remedy the situation brought about by the unfair
labor practices. On May 23, 1938, the respondent filed exceptions to
the Intermediate Report, to various rulings of the Trial Examiner,
and to the Trial Examiner's alleged bias and prejudice against the
respondent. Upon request of the respondent, a hearing was held
before the Board in Washington, D. C., on December 1, 1938, for the
purpose of oral argument. The respondent likewise submitted a
brief which the Board has considered. The Board has also con-
sidered the respondent's above exceptions and, in so far as they are
inconsistent with the findings, conclusions, and order set forth below,
finds them 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
The respondent, The Midland Steel Products Company, is an Ohio
corporation engaged in the manufacture of automobile frames, air
and vacuum brake equipment, axle housings, and heavy stampings at
its plant in Cleveland, Ohio. Approximately 40 per cent of the re-
spondent's total production is fabricated at its Cleveland plant and
the other 60 per cent at another plant located in Detroit, Michigan.
The Detroit plant is not involved in this proceeding. While the
Cleveland plant normally employs between 1,300 and 1,500 persons,
exclusive of salaried office help, at the time of the hearing some 400
employees had been laid off and the balance were working approxi-
mately 65 per cent of the regular workweek.
THE MIDLAND STEEL PRODUCTS COMPANY ET AL. 1217
Of the principal raw materials used by the respondent at its
Cleveland plant, steel is obtained from within Ohio; tubing from
Pennsylvania, Michigan, and Ohio; malleable iron and rivets from
Pennsylvania and Michigan; and welding wire from Ohio and New
York. The sales of finished products from the Cleveland division
are in excess of $1,000,000 annually. Approximately 95 per cent of
the products are manufactured on special order and 90 per cent
of the output is shipped outside the State of Ohio.
II. THE UNION
International Union, United Automobile Workers of America, is
a labor organization affiliated with the Committee for Industrial
Organization. Local No. 486, International Union, United Automo-
bile Workers of America, admits to membership persons employed at
the Cleveland plant of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The respondent's hostility to labor organizations antedates the
enactment of the National Labor Relations Act. Thus in April 1934
the respondent mailed to each of its employees and posted in its plant
a letter which, with a statement that there would be no discrimination
against union members, stated in part that:
No employee is obliged to join any union. This is not required
or requested by the National Industrial Recovery Act, or by any
act or edict of the President of the United States. Your jobs
and wages do not depend upon your membership or non-member-
ship in any organization of any kind.
You do not need to pay dues to anyone to get a square deal
at Midland.
The Company will do everything that it lawfully can do to
see that no employee is coerced, misled or intimidated to make
him join any union or association.
While no claim is made that distribution of this letter was in viola-
tion of the Act, since the Act had not yet been passed, it is indicative
of the respondent's attitude toward self-organization of its employees.
In the year 1936 the respondent retained the firm of Corporations
Auxiliary, which placed a paid agent or agents in the plant to mingle
with the employees and submit periodic reports, allegedly for the
purpose of putting an end to thievery in the plant. While no records
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the respondent nor reports from Corporations Auxiliary are in
evidence to prove that its function in the plant was the apprehension
of thieves, we do not agree with the Trial Examiner's finding that
this company was hired for purposes of labor espionage.
On June 3, 1937, when the organizational campaign of the Union
was at its height, Adrian J. Livingston, the respondent's personnel
manager, acting pursuant to directions from Robert H. Wallace, the
works manager, sent to each of the respondent's employees the follow-
ing letter purporting to set forth their rights under the Act : 3
DEAR FELLOW WORKER : During the past few weeks it has been
my pleasure to have talked to the majority of you. We all
realize the necessity for the closest cooperation in working out
our problems.
It has been the policy of our company and of you to be fair
in all of our associations. A continuation of this policy will
bring Happiness and Prosperity to us all.
Many of our employees have recently requested information
pertaining to their rights under "The Wagner Act."
Under this act you have the right to name anyone you choose
to represent you. You do not have to join any organization.
Our policy is to be fair to each employee in every way.
I would appreciate your dropping in to my office at any time
to discuss our future policies and your suggestions how to make
this a happier and better plant in which to work.
Thanking you for your interest and with best personal wishes,
Sincerely yours,
R. H. WALLACE.
While the letter purports to define employees' rights under the Act,
it emphasizes the fact that relations in the plant have been amicable
in the past when employees have not availed themselves of such rights.
Addressing to the individual employee the hope that the previous
harmonious relationship would continue, together with a request that
he drop into the office and make suggestions, it is an appeal for the
retention of individual bargaining, and it cannot be characterized
as an impartial resume of employees' rights under the Act.
The respondent also utilized other devices in an effort to forestall
and check the organizing activities of the nascent union. In addition
to the close surveillance of Cheek, the president of the Union, which is
described below, the record shows at least one other instance of the
respondent's efforts to discourage its employees from becoming or re-
8 Wallace testified that this w as "a letter to the employees in response to many inquiries
pertaining to what the Wagner Act was and how it would affect them . . The men
in the plant were seeking information. They wanted to know what it was all about."
THE MIDLAND STEEL PRODUCTS COMPANY ET AL. 1219
maining members of the Union . Concar , an active member and finan-
cial secretary of the Union, testified that Riemenschneider , the general
superintendent , told him in November 1937 that the men in the Detroit
branch of the respondent "are disgusted with unionism . . . They
have lost all of their incentive to do good work and-just disgusted
with unionism in general ." Riemenschneider was not called to the
stand to deny the above testimony of Concar.
We find that the respondent , by its publication of the letter of June
3, 1937, and by the statement of its general superintendent , has inter-
fered with, restrained , and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
B. The discharges
Mack Richard Cheek started to work for the respondent in 1927.
He quit sometime in 1934, returning in December of that year. For a
year preceding his discharge he worked as a punch-press operator and
die setter in the pressroom. Robert H. Wallace, the works manager,
and John Stranke, the press superintendent, characterized him as a
very good employee, and it is admitted that he had an excellent work
record. Cheek joined Local No. 486 of the Union on June 13, 1937,
immediately became active in its affairs, and was elected president
about the middle of July 1937. On August 20, 1937, he was dis-
charged.
The Union began an organizational campaign in the respondent's
plant in the late spring or early summer of 1937. Immediately follow-
ing Cheek's affiliation with the Union and the commencement of his
activities on its behalf, the respondent exhibited an unusual interest in
his affairs. Between June 13 and July 7, Wallace and Stranke called
Cheek from his machine and went out in the yard to talk to him.
Wallace and Stranke attempted to place the time of this conference
in May, but since it is not denied that Cheek joined the Union in June,
and the conversation admittedly concerned his union membership, we
find that Cheek's recollection of the date is the more credible and that
the conversation took place at a time when he was most active in the
Union.
Stranke gave as the reason for this conference a recent change in
Cheek's attitude which showed that "he wasn't on the job as well as
he was before." There is some disagreement as to the exact con-
versation that took place. Cheek testified that he was asked whether
or not he was satisfied at the plant, and was told that if he were not
completely satisfied to "get your coat and get the hell out of here."
Wallace and Stranke denied that such statement was made, but both
stated that Cheek's union membership was mentioned. Wallace con-
ceded that he told Cheek he had an excellent future with the
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent and suggested that he go to night school to improve him-
self. Wallace admittedly also suggested the possibility of a fore-
man's job if Cheek maintained the good work record he had built up
with the respondent. It is not necessary for us to resolve the conflict
in the above testimony, since it clearly appears that such a con-
ference was called by the management shortly after Cheek's affilia-
tion with the Union, and that at this conference Cheek' s union mem-
bership and his future prospects with the respondent were discussed.
The same afternoon Stranke called Cheek aside for another con-
ference. - Cheek's testimony is that Stranke told him there were
"stool pigeons" and "Judases" in the Union. Stranke denied making
such statements and averred that this subsequent conversation con-
sisted in his trying to persuade Cheek "what a fine fellow Wallace
was." We cannot credit Stranke's denial that he made the state-
ments ascribed to him by Cheek, in the light of Stranke's earlier and
later actions evincing an inordinate interest in Cheek's union ac-
tivities. We find that the correct version of the incident is that
related by Cheek.
In June 1937 a former employee, one Thomas Kasner, returned
to the plant and Stranke put him to work next to Cheek. When
Stranke saw Kasner and Cheek in conversation, he questioned Kasner
as to whether Cheek had solicited him to join the Union.
Again in July or August, when Cheek spoke to an employee named
Wool at a drinking fountain in the latter's department, where Cheek
had gone because the fountain in his department was broken, Wool's
foreman, Luedke, reported the incident to Stranke. Acting upon
the latter's instructions , Luedke questioned Wool and reported back
to Stranke that Cheek had discussed a union meeting scheduled for
that evening.
Sometime in July, Wallace called Cheek into his office and con-
fronted him with some five officials of the respondent. Wallace there
questioned him concerning a rumor that he had threatened to assault
Personnel Manager Livingston if the Union came into the plant.
When Cheek denied making such threat and challenged Wallace to
verify the rumor, the matter was dropped. According to Cheek, at
this conference Riemenschneider accused him of receiving a substan-
tial income from the Union for his work in organizing the plant.
Riemenschneider was not called as a witness to deny having made this
accusation.
It is apparent from the foregoing that during the summer of 1937,
the respondent was apprehensive of Cheek's union activities. Its ac-
tions were designed to warn Cheek that his union activities would re-
dound to his disadvantage, and to suggest to him that he could bet-
ter his position with the respondent by giving up the Union.
THE MIDLAND STEEL PRODUCTS COMPANY ET AL. 1221
Cheek was discharged on August 20, 1937, by Livingston, acting
under orders from Wallace. The respondent assigns as the reason
for Cheek's discharge the violation of a long-standing rule against
solicitation on company property. The rule dated from November
1934, when Wallace posted notices in the plant stating that "tickets
are being sold to employees on company property for the purpose
of professional gambling on sweepstakes, football and baseball pools,
horse racing, and punch boards," and "in the future the sale of all
chance tickets will be prohibited on the Company's property." In
March 1935 he posted similar notices which stated that "solicitation"
for the above-named purposes must be stopped, and concluded with
the caveat that "solicitation of any kind on company property is pro-
hibited and any employee who disregards this rule will be subject
to dismissal."
On July 7, 1937, Wallace posted another warning against solicita-
tion, consisting of a brief announcement that "solicitation of any kind
is strictly forbidden at any time on company property without ap-
proval of the management. Violation of this rule will result in im-
mediate dismissal." Cheek spoke to Wallace on the same day, receiv-
ing the information that this notice applied to solicitation of union
members. So far as appears, no violations of this last rule were called
to the attention of the management prior to the day of Cheek's dis-
charge.
During the lunch hour on August 20, 1937, on the respondent's
property, Cheek walked up to a group of workmen and called one a
scab. The incident is thus described by Assistant Foreman Sikora,
who was present and overheard the conversation :
Q. Now, will you tell us what Cheek said, or did during that
lunch hour?
A. He say, he buy the lunch and a few of us start to eat and
Mack [Cheek] come around and he called one, two, three, four,
five, scab, he called the man scab.
* * * *
Q. He called Joe Yahnak 4 a scab?
A. Yes.
Q. But before he called him a scab he said, one, two, three,
four and five and scab?
A. And scab, all right.
Q. Was that all that was said?
A. That was all that was said.
Q. Then he walked away?
A. And then he walked away.
Elsewhere correctly designated as Yachnak.
164275-39-vol. xi-78
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles Mihelek,5 who was also present, gave a similar account :
A. We had lunch and Mack Cheek come over and he tells Joe
Yahnak, he called him a scab.
Q. Anything else?
A. No.
Q. Did he try to sign him up then?
A. No.
* * * * * * *
A.... Mack Cheek come over and he say this man good, this
man good, he is scab.
Cheek and the only two other witnesses who testified at the hearing
all corroborated the above version of the occurrence. The colloquy
described above came to the attention of Livingston almost imme-
diately. Livingston testified that Sikora reported it to him, while
Sikora averred that it was Livingston who first questioned him about
it. Livingston called in other employees at once, and in less than 2
hours obtained affidavits from Sikora and Yachnak and reported to
Wallace that he had sworn statements to the effect that Cheek had
violated the respondent's rule against solicitation. On Wallace's in-
structions, Livingston officially discharged Cheek at 2: 15 or 2: 30
the same afternoon.
In support of the respondent's contentions, there were introduced
into evidence the affidavits of Yachnak, Sikora, and Mihelek, all
taken by Livingston. Mihelek's affidavit, dated August 23, was ob-
viously not relied on by Livingston in discharging Cheek.s Living-
ston stated that he wrote the affidavits in the exact words of the
affiants, and that the affiants then signed them. Other evidence,
however, indicates that Livingston himself contributed some of the
language. Mihelek's and Sikora's affidavits contained statements that
Cheek asked Yachnak why he would not join the Union. On the
stand Mihelek's and Sikora's version of the conversation contained
no statements to that effect. Both testified that Cheek merely pointed
to the other men in the group, saying that they were all right, but
that Yachnak was a scab. Neither testified to the use of the word
"union" by Cheek nor to the use of other language contained in the
affidavits which would yield an inference that Cheek had solicited any
of the group to join the Union. Yachnak was not called as a wit-
ness at the hearing. We find that the correct account of the incident
of August 20 was that given by the uncontroverted testimony of the
Elsewhere incorrectly designated as Mihalik and Mihalek.
6 Livingston called in at least three other employees , Mencin, Janco, and Zwolenlk,
shortly after Cheek's discharge and questioned them on the subject of Cheek's alleged
solicitation on behalf of the Union.
THE MIDLAND STEEL PRODUCTS COMPANY ET AL. 1223
five witnesses, and not that contained in the three affidavits above
mentioned.
We have grave doubts that the solicitation of union members on an
employer's property by an employee on his own time is subject to
lawful prohibition by an employer. It is unnecessary, however, to
consider such issue here. It is apparent from the, uncontroverted
testimony of those employees who were present during the August
20 conversation and who took the witness stand that Cheek did
nothing more than call an employee a scab. Funk & Wagnalls New
Standard Dictionary of the English Language, 1937 edition, defines
"solicitation" as :
1. The act of soliciting; an earnest request in order to obtain
something desired; importunity for a favor or right; as con-
tinual solicitation.
2. Alluring or enticing influence; an exciting factor or
cause .. .
Unquestionably the use of a derogatory epithet to an employee can
hardly be characterized as solicitation. That the respondent was
well aware of the insignificance of Cheek's words is shown in Living-
ston's deliberate efforts to amplify and distort the episode through
the use of affidavits. We find that on August 20, 1937, Cheek did
not violate the respondent's rule against solicitation.
At the hearing the respondent further contended that Cheek had
in the past consistently solicited for the Union in violation of the
notices of March 1935 and July 1937, and that it was for this reason
that he was discharged. The evidence indicates that this contention
was an afterthought of the respondent. Livingston himself testified
that Cheek was discharged because of his alleged solicitation on
August 20:
The WITNESS [Livingston]. . . . I explained to him [Cheek]
he was discharged for soliciting on company property, which was
against the rules that had been posted.
Q. . . . And what did you have reference to when you made
that statement?
A. To the rules about soliciting on company property.
Q. . . . In what way had he violated it?
A. Well, soliciting these employees for union membership.
Q: When did he do that?
A. On August 20th.
Q. When, what time?
A. Starting about 11:35 a. m.
Q. When he called this fellow Yachnak a scab, is that the time
you refer tog
A. Yes.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We therefore accord no weight to the respondent's present contention
that Cheek was discharged for soliciting on other occasions in addi-
tion to August 20.
The record amply supports the conclusion that for a period of
almost 3 months the respondent's supervisory employees attempted
to discourage Cheek from continuing his union activities; and that
having been unsuccessful in such attempt, the respondent seized upon
a pretext to accuse him of violating a rule against solicitation and
thus to sever his employment. We find that by discharging Mack
Richard Cheek the respondent has discriminated with respect to his
hire and tenure of employment, thereby discouraging membership in
the Union and interfering with, restraining, and coercing its employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act.
During the slack season Cheek worked.on a day rate, being paid
60 cents per hour; in normal times he worked on a piece-work basis,
averaging approximately 90 cents per hour. At the time of his dis-
charge he was being paid on a piece-work basis, earning approxi-
mately $26 during his last full week of work. From the date of his
discharge to the date of the hearing Cheek had earned $24.80 in a
W. P. A. work-relief job and had worked 3 days and 1 hour at 60
cents per hour in the same type of work, for which he had not yet
been compensated. He had also received three direct relief payments
in the same period.
Leon J. Mwrray started to work for the respondent in its machine
shop in September 1935. He was an experienced machinist and was
not laid off nor was he absent from work at any time until his dis-
charge. Murray applied for membership in the Union in June 1937,
and in the following month was appointed union organizer and shop
steward in the machine shop. Harry O. -Fisher, his foreman, dis-
charged him on August 27, 1937, for insubordination.
On August 27, 1937, Murray was given the job of assembling 100
vacuum cylinders and bushing covers on a hand arbor press. While
the evidence is not clear as to the exact number, there is no doubt
that several pieces were spoiled in the course of the operation per-
formed by Murray. It is agreed that the initial mistake which was
the cause of the damage occurred in the welding department in the
course of an earlier operation on the pieces. There is a sharp con-
flict of testimony, however, as to whether Murray, as an experienced
machinist, should or could have detected the error and thus prevented
much of the damage which later ensued.
Murray or his immediate superior called the spoilage to the atten-
tion of Fisher, who reprimanded Murray, telling him that he could
"go out on the street and get a two-year old to do a job as good as
that." The exact words of the colloquy which followed are not clear,
THE MIDLAND STEEL PRODUCTS COMPANY ET AL. 1225
but we find that Murray lost his temper and used obscene language
to Fisher, who thereupon discharged him. It does not appear that
Murray protested to Fisher or his superiors about his discharge, but
instead he asked for his pay and left the plant. His later request for
reinstatement was refused.
We find no evidence of knowledge by Murray's superiors of his
union membership or activity, and are of the opinion that he was
discharged and refused reinstatement not because of such member-
ship or activity but because of his insubordination described above.
We find that the respondent has not discriminated with respect to the
hire or tenure of employment of Leon J. Murray for the purpose of
discouraging membership in the Union.
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 respondent
described in Section I above, have a close, intimate , and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist from engaging in
such practices and to take certain affirmative action which we deem
necessary to effectuate the purposes of the Act. Since we have found
that Mack Richard Cheek was discriminatorily discharged, we shall
order the respondent to offer him reinstatement without prejudice to
his seniority and other rights and privileges. We shall further order
the respondent to make him whole for any loss of pay he has suffered
by reason of his discharge by payment to him of a sum equal to the
amount which he normally would have earned as wages from the date
of his discharge to the date of the offer of reinstatement, less his net
earnings 7 during said period.
7 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his
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 government
or governments which supplied the funds for said work -relief projects.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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,
is a labor organization, within the meaning of Section 2 (5) of the
Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Mack Richard Cheek, thereby discouraging membership in
the Union, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor: practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (3) of the Act, with respect to Leon J.
Murray.
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 respond-
ent, The Midland Steel Products Company, Cleveland, Ohio, and
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile Workers of America, or any other labor organization
of its employees, by discharging any of its employees, or in any
manner discriminating in regard to hire or tenure of employment
or any term or condition of employment because of their membership
in or activity on behalf of International Union, United Automobile
Workers of America, or any other labor organization;
(b) In any other manner interfering with, restraining, or coerc-
ing 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 purposes of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of the
National Labor Relations Act.
THE MIDLAND STEEL PRODUCTS COMPANY ET AL. 1227
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Mack Richard Cheek immediate and full reinstate-
ment to his former position without prejudice to his seniority or
other rights and privileges;
(b) Make whole Mack Richard Cheek for any loss of pay he has
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 August 20, 1937, the date of his discharge,
to the date of the offer of reinstatement, less his net earnings during
said period, deducting, however, from the amount otherwise due to
said Mack Richard Cheek, monies received by him, during 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, mu-
nicipal, or other government or governments which supplied the
funds for said work-relief projects;
(c) Post immediately in conspicuous places in its plant in Cleve-
land, Ohio, and maintain for a period of at least sixty (60) con-
secutive days, notices to its employees stating that the respondent will
cease and desist in the manner aforesaid;
(d) Notify the Regional Director for the Eighth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT Is FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent has engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act with respect to Leon J.
Murray, be, and it hereby is, dismissed.