Eastern Supply Co.

In the Matter of A. W. SILVER .DOING BUSINESS AS EASTERN SUPPLY COMPANY and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICAS LOCAL #1143, AFFILIATED WITH THE-C. I. 0. and SCRAP IRON, METAL '& RAG WORKERS UNION, LOCAL 20498, AFFILIATED WITH THE A. F. OF L.,tPARTY TO THE CONTRACT Case No'.'CD395.Decided January 08, 1943 Jurisdiction : scrap distributing industry. Unfair Labor Practices Interference, Restraint, and Coercion: attempts to force employees into pre- ferred affiliated organization and to discourage their membership in an organization which *as party to an existing closed-shop contract with em- ployer by : advising employees that they could earn more money under a contract - with the preferred organization ; indicating to employees that it did not intend to deal with the contracting organization ; hiring new em- ployees without requesting contracting union to supply them and refusing to ' permit contracting union's organizer to approach them to secure their membership, in violation of the closed-shop contract ; executing a closed-shop contract with the preferred, assisted organization at a time when it repre- sented no employees, and thereafter executing another, closed-shop contract with that organization which was clearly violative of the Act in that desig- nations which the organization might have had at that time resulted from the employer's unfair labor practices-strike caused by employer's unfair labor practices. Collective Bazgazning: union's majority established by membership under closed- shop contract; not affected by alleged loss of majority subsequent to refusal to, bargain since caused by unfair labor practices-refusal to bargain col- lectively by : advising members and representatives of majority union that it would not deal with that union ; entering into closed-shop contract with union which represented none of the employees and which had been assisted by employer. Remedial Orders : respondent ordered to cease and desist'unfair labor prac- tices ; cease giving effect to contracts with assisted union ; upon request to bargain collectively ; reinstate with back pay unfair labor practice strikers. Unit Appropriate for Collective Bargaining : all employees, excluding clerical and supervisory employees. Mr. T. Lowry Whittaker, for the Board. Mr. Sam J. Levy, of Minneapolis, Minn., for the respondent. Helstein and Hall, of Minneapolis, Minn., by Mr. Ralph L. Hel- stein and Mr. Douglas Hall, for the United. Mr. William F. Wright, of St. Paul, Minn., for Local 20498. Miss Marcia Hertzmark, of counsel to the Board. 47•N. L. R.B , No. 9. 513024--43-,vol. 47-4 , ' 49 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER, STATEMENT., OF; THE .CASE Upon charges and amended charges. duly filed by United Electrical, Radio and Machine Workers of America, Local No. 1143, affiliated with the Congress of Industrial Organizations, herein called the United, the National Labor Relations Board, herein called the Board, by' the Regional Director for the Eighteenth Region (Minneapolis, Minnesota), issued its complaint on September 5, 1942, against A. W. Silver, doing business as Eastern Supply Company, Minneapolis, Minnesota, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8'(1) and (5) and Section 2 (6) and (7) of the National'Labor Relations Act, 49 Stat. 449, herein called. the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent; the United, and Scrap Iron, Metal & Rag Workers Union, Local 20498, affiliated with the American Federation of Labor, party to the contract, herein called Local 20498. , With respect to the unfair labor practices the complaint alleged in substance that the respondent (1) by statements and conversations with his employees, and by other specified acts, interfered with, re- strained, and coerced his employees in the exercise of the rights guar- anteed in Section 7 of the Act; (2) on or about April 15, 1941, and since that time, refused to bargain collectively with the United, al- though the United was at all such times the statutory representative ,of'his employees; and (3') on or about May 1, 1941, and May 1, 1942, entered into collective bargaining, agreements with Local 20498, said Local 20498 not being at such times the statutory representative of his employees. The respondent filed an answer on September 17, 1942, in which he admitted certain allegations of the complaint, but denied that he had engaged in any unfair labor practices. He admitted the appro- priateness of the unit alleged in the complaint, but denied that the United represented a majority of the employees therein. ' Pursuant to notice, a hearing was held on October'19 and'20, 1942, at Minneapolis, Minnesota, before Gustaf B. Erickson, the Trial Ex- aaniner duly designated by the Acting Chief Trial Examiner. The Board, the United, and the respondent were represented by counsel, and Local 20498 by a representative.' Full opportunity to be heard, 1 The respondent's attorney withdrew from the hearing early in the proceeding . Neither ,the respondent nor Local 20498 called any witnesses. ` EASTERN SUPPLY COMPANY 51 to examine and cross -examine witnesses , and to introduce evidence bearing on the issues was afforded all parties . At the close of the hearing, counsel for the Board moved to amend the pleadings to conform 'to the proof with respect to such matters as names, dates, and clerical errors. The motion vas granted without objection. During the course of the hearing the'Trial Examiner made a number of other rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings and finds that no prejudicial errors were committed . The rulings are hereby affirmed. On October 26, 1942, the United and Local 20498 filed briefs with the Trial Examiner. Thereafter, the Trial Examiner isued his Intermediate - Report, dated- October 30, 1942, copies of which were duly served upon all the parties , finding that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act. He recom- mended that the respondent cease and desist from such practices; that he cease recognizing Local 20498 and give no effect to his con-, tracts with 'it; that he bargain` collectively, upon request, with the United; and that he reinstate; with back pay from the date of appli- cation for reinstatement, certain employees who had gone on strike as a result of the respondent's unfair labor practices . No exceptions have been filed by any of the parties. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT , I. THE BUSINESS OF THE COMPANY A. W. Silver, an individual, doing business as Eastern Supply Company, has his principal office and place of business in Minneapo- lis, Minnesota , and is engaged in the purchasing, collecting, sorting, selling, and distribution of scrap metal, rags, and rubber. During the year 1941, the respondent purchased approximately $50,000 worth of such materials, of which about 5 percent originated from points out- side the State of Minnesota; during the first 9 months of 1942, the value of such purchases approximated $25,000, of which about 5 percent originated from points outside the State of Minnesota. During the year 1941 the total, value of materials sold by the respondent was approximately $60,000, of which about 66 percent was sold and trans- ported to points outside the State of Minnesota ; for the first 9 months of 1942 the respondent's sales approximated $20,000, of which about 66 percent was sold and transported to points outside the State of Minnesota. 52 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD II. THE ORGANIZATIONS INVOLVED United- Electrical, Radio and Machine Workers of America, Local ,No. 1143, affiliated witli the Congress of Industrial Organizations,' and Scrap, Iron, Metal & Rag Workers Union, Local 20498, affiliated with the American Federation of' Labor, are labor organizations, admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The sequence of events On. April 19, 1937, as the result of a consent election agreement `between the United, the respondent, and several other employers engaged in similar business in Minneapolis, the employees of the respondent and of those other employers designated the United 2 as their representative for the purposes' of collective bargaining. On April 29, 1937, the respondent, five other employers who had par- ticipated in the consent election, and the United entered into a col- lective bargaining agreement concerning wages, hours, and conditions of employment. Similar agreements were entered into in 1938 and 1939. On June `3, 1940, the parties entered into another agreement to be effective until May 1, 1941, and "thereafter from year to year unless either party thirty (30) days before the expirations [sic] of any yearly period, shall by written notice, signify its desire to ,change or terminate the agreement." In addition to settlement of wages, hours, and conditions of employment, the 1940 contract contained the fol- lowing provisions : Closed Shop The employer agrees to conduct and operate a closed shop and the employers shall be at liberty to hire workers in the open market when the Union is unable to furnish such help. At the end of two work weeks, these workers are to join the Union. All workers hired shall be paid union wages. Preferential hirings: The Union shall set up, and maintain' an unemployed list and in the event the undersigned employers need more men, they shall call the Union office and it shall be the duty of the Officer in charge-to furnish such men if they are available. Commencing early in 1941, according to the uncontradicted and :credible testimony of employees Roy Johnson and Fred Otteson,3 the 2 The United was then known as the S. W. O. C. On January 1, 1938, the United changed its name to United Electrical, Radio and Machine Workers of America, Local No. 1143, affiliated with the Congress of Industrial Organizations. 3 All findings hereinafter made are based upon the uncontradicted testimony of witnesses whom we credit, as did the Trial Examiner. EASTERN SUPPLY COMPANY 53 respondent and his two sons, Meyer and Joe, who assisted their, father in the operation of his business, approached some of the em- ployees during lunch hours. On these occasions, the employees were told by the respondent and his sons that the employees would be better off'if they did not belong to the United, that the respondent could give them more hours of work under a contract providing for a 40-hour week rather than for five 8-hour days as provided in the United's contract; and that "the A. F. of L. was forty hours a week,- and if we were there we could probably make up time." Meyer Silver told the employees on one occasion that the C. I. 0. was a "racket" and that Jack Young, the business agent of the United, was a "racketeer." He told employee Roy Johnson that he was "sick and tired of this union business ..." and that "there has got to be a change, and he would never sign another contract with the C: I. 0." On March 29, 1941, the United notified the respondent and the other signatories to its contract that it' desired to begin negotiations for a new agreement for the ensuing year. On April 5, 1941, four of the respondent's employees, among them Otteson and Johnson, quit their jobs. When Otteson was getting his pay check Joe Silver told him that"there was going to be a change, the C. I. 0. was out," and, about the same time, told Johnson that "one thing is sure, this is going to be an A. F. of L. yard from now on." That afternoon, Jack -Young, the business agent of the United, called upon the respondent at his office' to ascertain why the men had quit. When Young offered to replace the four employees, the respondent stated that he needed no other employees. About April 14, 1941, Young passed the respondent's premises and saw that three or four new men, not members of the United, were working in the yard. He testified that he did not stop at that time because he intended to return in 10 days and ask the men to join the United. Oh April 20 the United met with Harry Isaacs, Sol Rosen, and Morgan Cohen, representatives of, the Dealers' Association ,4 who had negotiated on behalf of the employer signatories to' the contract in previous years. - Isaacs stated, in response to a question by Young, that he represented the respondent. No agreement was reached at the conference. About April 26 Young went to the respondent's yard to sign up the new men but was stopped by the respondent who inquired what Young wanted. When Young told him, the respondent, 'Silver, replied, "Well you can't sign up none of these men. We have-an The Dealers' Association apparently was composed of all scrap iron dealers in , Minne- apolis and St Paul, Minnesota The number of such dealers who were under contract with the United varied fiom 6 to 10 , but did not include all dealers in the Association. 54, DECISIONS' OF NATIONAL LABOR RELATIONS BOARD A. F. of L. contract signed up here ... you haven't got any con- tract here." Silver thereupon ordered Young to leave the premises and pushed' him toward the gate. Meyer Silver also told Young to leave and informed him that the respondent "had a contract signed with the A. F. of L:" On April 30 the United sent a letter to the respondent and to each of the employers who was a party to its contract of June 3, 1940, advising them, in accordance with a requirement of the Minnesota Labor Relations Act, that their employees would strike after 10 days. On the following day, May` 1, the respondent entered into a closed- shop contract with Local 20498. Thereafter, a conciliator and later, a commission attempted to avert the strike but both failed. During the latter part of May *the respondent called' into his office each of his employees separately and advised them that they must join Local 20498 in order to retain their jobs. When employee Frank 'Marshall objected and told Silver that he could not afford the dues, and initiation fees, Silver said, "You don't have to pay anything, just sign it." The respondent paid employee Max Wallach's fees but later deducted the amount from his-pay, check., Wallach. testified,., however, and we find, that only three of the remaining seven employees were required to repay the amounts advanced by the respondent to cover their fees. On June 9, 1941,, the United called a strike, against all parties to the agreement of June 3, 1940, including the respondent, who had been represented by Isaacs at the conference with the conciliator and who had been present in person during the hearings before the commission. On June,12, 1941, all except the respondent and two other employer parties to the contract of June 3, 1940, signed a collective bargaining agreement with the United. On the following morning, June 13, Young and a committee of the United went to the plant of the re- spondent for the purpose of getting his signature to the contract. The respondent refused to sign the contract, unless the United would "get back" the ' contract that he had entered into with Local 20498. The strike was thereafter settled as to all the employers except the respond- ent. On June 16 picketing of the respondent's yard by the United was stopped by an injunction secured by the respondent. However, on October 30 the injunction was dismissed and the United resumed its picketing for a short time until, as Young testified; .'some truck drivers came up there`and told them [the pickets], to move on, or else." Young testified, and we find, that the strike is still in effect as to the respondent. 'On April 19, 1942, the respondent executed another closed-shop con- tract with Local 20498. ' EASTERN SUPPLY COMPANY 55 B. Conclusions as to, the unfair labor practices 1. Interference, restraint, and coercion - The foregoing recital makes it clear that, commencing early in 1941 the respondent discouraged his employees from membership in the United and sought by various means to force them into Local'20498. Thus, the employees were on numerous occasions advised that they could work longer hours and earn more money under a different type of contract than that with the United and were told that the A. F. of L. provided such a contract. They were told that the C. 1. 0. was a racket and that the United's business agent was a racketeer, and were warned that the respondent no longer intended to deal with the United. The four employees who quit were also advised that the "C. I. O. was out," and that "one thing is sure, this is going to be an A. F. of L. yard from now on." Thereafter, the respondent hired new employees without requesting the United to supply them, as he was bound by his contract to do, and refused to permit Young to approach these men for the purpose of securing their membership in the United. On May 1, 1941, the respondent entered into a contract with Local 20498, although, so far as the evidence discloses, none of his 'employees were members of, or had designated, that union. Thereafter he required that his em- ployees become members of Local 20498 in order to keep their jobs; and paid the initiation fees and dues of at least some of them. 'We find that by the above course of conduct, the respondent has unlawfully assisted Local 20498, thereby interfering with the self-organization of his employees. The contracts of May 1, 1941, and April 19, 1942, were clearly pro- scribed by the Act, since Local 20498 was not the freely chosen repre- sentative of the employees of the respondent, and, on May 1, 1941, did not even purport to represent a majority of them. Although on April 19, 1942; the employees may have been members of Local 20498 pursu- ant to the closed-shop provisions of the earlier agreement, there is no evidence that they had ever designated it voluntarily as their collec- tive bargaining representative ; and in view of the method by which they were originally coerced into membership, we,must presume that their supposed continuation of membership was the result of the re- spondent's illegal support of Local 20498. We find that the contracts of May 1, 1941, and April 19,1942, were invalid since they were executed with an organization which did not represent a majority,of the employees and which was assisted by the unfair labor practices of the respondent. We_ find that by the above acts the respondent has interfered, with, restrained, and coerced his employees in the exercise of_ the rights guaranteed in Section 7 of the Act. 56 _ DECISIONS OF NATIONAL LABOR RELATIONS BOARD The refusal to bargain (a) The appropriate unit The complaint alleged that all employees of the respondent except clerical and supervisory employees constitute a unit appropriate for the purposes of collective bargaining. In his answer the respondent admitted, and at the hearing the United and Local 20498 stipulated, that this unit is appropriate. We find that all employees of the respondent, except clerical and supervisory employees, at all times material herein constituted and, now constitute, a unit appropriate for the purposes of collective bar- gaining, and that said unit will insure to the employees of the re- spondent the full benefit of their right to self-organization and to collective bargaining and '.will otherwise effectuate the policies of the Act. (b) The majority On March 29, 1941, when the United notified the respondent of its desire to begin negotiations for a new contract, the 8 employees of 'the respondent were members of the United. Neither then nor thereafter, so, far as the evidence discloses, did the respondent's, employees volun- tarily indicate any desire to change their collective bargaining repre- sentative for the following year. On April 5, 1941,' 4, employees terminated their employment and apparently were not immediately replaced. This situation continued until an undisclosed date prior to April 14, upon which date the respondent hired 3 or 4 employees, 1 of whom was a member of the C. I. 0.5 The record does not disclose how many persons were employed at all times thereafter, but appar- ently the number fluctuated between 6 and 10. It appears that, at the time in May when the. respondent required the employees to, join Local 20498, there were 8 employees ; and that when they United began its strike on June 9 there were 10 employees: Of these, 3 were absent, from work on June 9, and the remaining 7 went out. on strike. One employee, who had not previously been t member of the United, joined it at that time. At the time of the hearing there were appar- ently only 4 employees, none of whom was a' member of the United. Thus; while there is some doubt as to the precise situation after 'the new employees were hired in April, it appears that the United actually represented a,majority of the respondent's employees until the latter part'of May 1941, when,all the employees were forced to'become mem-; 5 The evidence is inconclusive as to whether or not this employee designated the United as his collective bargaining representative . Foi the reasons stated below , we find' it unnecessary to 'determine whether he , should be counted I among the employees who had so designated it. EASTERN SUPPLY COMPANY 57 bers of Local 20498.8 However, any apparent loss of majority which the United suffered subsequent to April 5, 1941, may not be given effect since, as we find below, the respondent unlawfully refused to bargain with the United on April 5 and,, both before and after that date, engaged in unfair labor practices, to which any impairment of the United's majority must be attributed.7 We find that, on March 29; 1941, the United was, and at all times thereafter, has been, the duly designated representative of a majority of the respondent's employees in the appropriate unit, and that by virtue of Section 9 (a) of the Act it was and is the exclusive repre- sentative of all the employees in said unit for the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of employment, and other conditions of employment. (c) The refusal to bargain As stated above, the United, on March 29, 1941, notified the re- spondent that it desired to begin negotiations for a new contract. At that time no other union was claiming to represent employees of the respondent, nor had the employees in any wise manifested a desire to change their representative. However, even prior to March 29 the respondent had unlawfully interfered with his employees', free choice of representatives by attempting to interest them in trans- ferring their affiliation to another union, and by indicating to them his unwillingness to continue dealing with the United. On April 5, when four employees, all of whom were members, of the United, quit their jobs, the respondent flatly told them that he would no longer deal with the United and that he planned to operate an "A. F. of L. yard." That the respondent's statements were not merely idle threats was made clear thereafter, when the respondent violated the terms of his agreement with the United by hiring employees without first request- ing the United to supply them and by refusing to allow Young to sign them up in the United. In addition, the respondent informed Young, in effect, on about April 26, that he would not bargain with the United and that he had entered into a contract with the A. F. of L., although as a matter of fact no such contract then•existed, e Since all employees then working went out on strike with the United on June 9, it may also be assumed that, in spite of their change of affiliation, the employees still desired to be represented by the United at that time. 7 Cf. N. L. R. B. v. Bradford Dyeing Ass'n, 310 U. 'S. 318, rev'g 106 F. (2d) 119 (C. C. A. 1) and enf'g Matter of Bradford Dyeing Association ( U. S. 4A.) (a corporation)' and Textile Workers Organizing Committee of the C. I. 0, 4 N. L R. B. 604; Int'l Assn of Machinists v. N. L R B. 61 S. Ct. 83, aff'g 110 F. (2d) 29 (App. D C.) enf'g Matter of The Seri ick Corporation and Int'l Union, Unitcd Automobile Workers of America, Local' No 459, 8 N. L. R B 621 ; Matter of National Seal Corporation ' and Int'l Ass'sv of Machin, ists, 30 N L R B. 188; Matter of Norristoton Box -Company and International Brother- hood of Fulp, Sulphite and Paper Mill' Workers, Local 422, 32 N'.• L R. B. 895. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 1, 1941, when the respondent entered into a contract with Local 20498, his contract with the United had expired, but the United, as we have found, was still entitled to recognition as the statutory bargaining representative of,his employees since any actual impair- ment of its majority at that time was due to the unfair labor practices of'the respondent. The respondent was not privileged to enter into a closed-shop contract with Local 20498, which on that date- repre- sented none of the respondent's employees, as far as the record shows, and, as we have found, was a labor organization then assisted by the respondent's unfair labor practices." His conduct in executing the contract with Local 20498, under these circumstances, was in itself, it refusal to bargain with the United," as well as an• act of interference with his employees'--freedom of self-organization. We find ` that on April 5, 1941,' and at all times thereafter, the respondent, by the aforesaid conduct, refused to bargain collectively with the United as the exclusive representative of the employees within the appropriate unit and that lie has thereby interfered with, restrained, and coerced'his employees in the exercise of'the rights guaranteed by Section 7 of the Act. 3. The strike We find that the United's action in striking on June 9; 1941, and in continuing its, strike against the respondent on June 13, and October 30, 1941; was caused by the respondent's refusal to bargain and other ,unfair labor practices hereinabove found. - IV. THE EFFECT OF THE UNFAIR LABOR PRACTIOES UPON COMMERCE The activities of the respondent set forth in Section III, above, oc- curring 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 and have led 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 prac- tices, we shall order the respondent to cease and desist therefrom and s The proviso in Section 8 (3) of the Act states, . . nothing in this act ' . . shall preclude an employer from making an agreement with a labor organization (n,ot estab- lished, maintained, or assisted by. any action defined in this Act as an unfair labor prac- tice) to require. as a condition of employment, membership therein, if such labor organization is the representative of the employees as provided in Section 9 (a), in the appropriate baigaining unit covered by such, agreement when made" (Italics supplied ) 9 Cf Matter of National Motor Bearing Company and International Union, United ,Automobble Workers of America, Local No. 76, 5 N. L R B 409, enf'd as mod, N. L R. B. v. National Motor Bearing Company, 105 F. (2d) 652 (C. C A. 9). EASTERN SUPPLY COMPANY 59 to take certain affirmative action designed to effectuate the policies of the,Act. - We have found that the respondent refused to bargain collectively with the United as the exclusive representative of his employees in an appropriate unit. We shall order that the respondent on request bar- gain collectively with the United as such exclusive representative in respect to rates of pay, hours -of employment , and other conditions of employment. We shall also order the respondent to cease and desist from giving effect to the contracts of May 1, 1941 , and April 19, 1942, with Local 20498 as well as to any extension , renewal, modification or supplement thereto and to any superseding contract which may now be in force. Nothing herein shall be taken to require the respondent to vary those wages, hours , seniority and other such substantive features of his rela- tions with the employees themselves which the respondent may have 'established in performance , of these contracts as extended , renewed, modified, supplemented or superseded. - - We have found that the strike which-commenced on June 9, 1941, was caused and prolonged by the unfair labor practices, of the respondent. In order to,iestore the status quo as it existed prior to the time the respondent engaged in such unfair labor practices , we shall order that the respondent : ( 1) offer reinstatement to their former or substan- tially equivalent positions , without prejudice to their seniority - and other rights and privileges , to those employees who went on strike on June '9, 1941, or thereafter , and who have applied for and have not been offered reinstatement ;-and (2 ) upon application offer reinstate- ment to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges , to those em- ployees who went on strike on said date, or thereafter , and who have not previously applied for reinstatement , dismissing if necessary all persons hired on or after June 9, 1941 , the date -of the commencement of the strike, and not in the respondent's employ on said date. If there is then not sufficient employment available for the employees to be offered reinstatement, all available positions shall ' be distributed among such employees without discrimination against any employee because of his union affiliation or activities , following such a -system of seniority or other non-discriminatory-practice to such extent as has heretofore been applied ,in the conduct of the respondent's business. Those employees , if any, remaining after such distribution , for whom no, employment is immediately available , shall be placed upon a pref- erential list and thereafter offered employment in their former or sub- stantially equivalent positions as such employment becomes available and before other persons are hired for such work , in the order deter- mined among them by said system of seniority or other non -discrim- inatory practice. 60 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD We shall also order the respondent to make' whole those employees who went on strike on June 9,1941, or thereafter, and who have applied for and have not been offered reinstatement, for` any loss of pay they may have suffered by 'reason of the respondent's refusal, if any, to, reinstate them, as provided above, by payment to each of them of a sum of money equal to, that which he would normally have earned as wages during the period from 5 days after the date on which he applied for reinstatement to the date of the respondent's offer of rein- statement or placement on a preferential list, less his net earnings,", if any, during such period. We shall order the respondent to make whole those employees who went on strike on June 9,1941, or thereafter, who. have applied for and who have received reinstatement, for any loss of pay they .may' have suffered ^by reason of the respondent's refusal, if any, to reinstate them within 5 days-from the date of such applica- tion, by payment to each of them of a sum of* money equal to that which he would normally have earned as wages during the period from 5 days after the date upon which he applied for reinstatement to the date upon which he was reinstated, less his net earnings, if any, during such-period. 'We shall also order the respondent to make whole'those employees who went on strike on June 9, 1941, or thereafter, and who, have not previously, applied for reinstatement, for any loss of pay, they may suffer by reason of the respondent's refusal, if any, to reinstate them as provided,above,,by payment to each of them of a sum of money- which he would normally have earned as wages during the period from :5 days after the date on which he applies for reinstatement to the date -of the respondent's offer of reinstatement or placement on a preferen- 'tial,list, less his net earnings during such period. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United 'Electrical, Radio and. Machine Workers of America, .Local No. 1143, affiliated with the Congress of Industrial Organiza;- ,tions and Scrap Iron; Metal & Rag Workers Union, Local 20498, affiliated with the American Federal of Labor are labor organizations within ,the meaning of Section 2 (5) of the Act.' - 2. All employees of the respondent, except clerical and supervisory 10 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 unlawful discrimination against him and the consequent necessity of his seeking employment ,elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Car- penters and Joiners of America, Lumber and Saivmnll Workers' Union, Local 2590, 8 N. L R. B 440. -Monies received for, work performed upon Federal, State, county, municipal, or other work-relief projects shall, be considered as earnings. See Republic Steel Corpora- tion v. N. L. R. B. 311 U. S. 7. EASTERN SUPPLY COMPANY 61 employees, have at all times material herein constituted, and they now constitute, a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. United Electrical, Radio and Machine Workers of America Local No. 1143, affiliated with the Congress of Industrial Organizations, on or about March 29, 1941,•was, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes, of collective bargaining within the meaning of Section 9 (c) of the Act. 4. By refusing, to bargain collectively on April 5,, 1941, and at all times thereafter with United Electrical, Radio a.nd Machine Workers of America, Local No. 1143, affiliated with the Congress of Industrial Organizations, as the exclusive representative of his employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. 6. 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 respondent, A. W. Silver doing business as Eastern Supply Company, his agents, successors, and assigns, shall: 1. Cease and desist from : (a). Refusing to bargain collectively with United Electrical, Radio and Machine Workers of America, Local No. 1143, as the exclusive rep- resentative of all his employees, excluding clerical and supervisory employees, in respect to rates of pay; wages, hours of employment and other conditions of employment; (b) Recognizing, or in any manner dealing with, Scrap Iron, Metal Rag Workers Union, Local 20498, as the exclusive representative of - his employees in regard to, grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment, unless and until that labor organization'* shall have been certified as such by the National Labor Relations Board; (c) Giving effect to the contracts of May 1, 1941, and April 19, 1942, executed by and between the respondent and Scrap Iron, Metal & Rag Workers Union, Local 20498, or to -any extension, renewal, modification, 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or supplement thereof, or to any superseding contract with said organ- ization which may now be in force; (d) In any other manner interfering with, restraining.' or coercing his employees in the exercise of their right to self-organization, to form, join or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or pro- tection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Electrical, Radio and Machine Workers of America, Local No. 1143, as the exclusive bargaining representative of all of his employees,'excluding clerical and suppervisory employees; (b) Offer to those employees who went on strike on June 9, 1941, or thereafter, and who have applied for and have not been offered rein- statement,^ immediate and full reinstatement to their former or, sub- stantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner provided in the section entitled "The remedy" above; and place those employees for whom em- ployment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (c) Upon application offer to those employees who went on strike on June 9, 1941, or thereafter, and who have not previously applied for reinstatement, immediate and 'full reinstatement to their former or substantially equivalent positions, without prejudice to their sen- iority and other rights and privileges, in the manner provided in the section entitled "The remedy" 'above; and place those employees for whom employment is not immediately available upon a prefer- ential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (d) Make whole the employees,who went on strike on June 9, 1941, or thereafter, and who have 'applied for reinstatement, for any loss of pay they_ may have suffered by reason of the respondent's refusal, if any, to reinstate them within five (5) days of their respective appli- cations, as provided in the section entitled "The remedy" above, by payment to each, of them a sum of money equal to that which he would normally' liave earned as wages during the period from five (5) days after the date on which he applied for reinstatement to the date of, the 'respondent's offer of reinstatement or placement upon a preferential list, less his net earnings, if any, during said period; (e) Make whole the employees who went on strike on June 9, 1941, or thereafter, and who have applied for and received reinstatement, EASTERN SUPPLY COMPANY 63 for any loss of pay they may have suffered by reason of the respond- ent's refusal, if any, to reinstate them within five (5) days of their respective applications, as provided in the section entitled "The rein- edy" above, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from five (5) days after the date on which he applied for reinstatement to the date of his reinstatement, less his net earn- ings, if any, during such period ; (f) Make whole the employees who went on strike on June 9, 1941, or thereafter, and who have not applied for reinstatement, for any loss of pay they may suffer by reason of the respondent's refusal, if any, to reinstate them, as provided in the section entitled "The remedy" above, by payment to each of them,of a' sum of money equal to that which he. would normally have earned as wages during the period from five (5) days after the date on which he applies for reinstatement to; the date of the respondent's offer of reinstatement or placement upon a preferential list, less his net earnings, if any, during said period ; (g) Withdraw and withhold all recognition from Scrap Iron, Metal & Rag Workers Union, Local 20498,• as the exclusive repre- sentative of the employees for the purposes of dealing with the re- spondent concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment, unless and until that labor organization shall have been certified as such by the National Labor Relations Board; (h)_ Post immediately in conspicuous places at his place of busi- ness in Minneapolis, Minnesota, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to his employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 10(a), (b), (c), and (d) of this Order; and (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), (e), (f), and (g) of this Order; (i) Notify the Regional Director for the Eighteenth Region, in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.