Green Colonial Furnace Co.

In the Matter of GREEN COLONIAL FURN AGE COMPANY and INTERNA- TIONAL UNION OF MINE, MILL AND SMELTER WORKERS Case No. C-2661.-Decided August 25, 1943 DECISION AND ORDER On June 28, 1943, the Trial Examiner issued his Intermediate Re- port in the above-entitled proceeding, finding that the respondent had engaged' in and was engaging in certain unfair labor practices, and recommending that it cease and desist from the unfair labor practices found and take certain affirmative action, as set out in the copy of the Intermediate Report attached hereto. Thereafter the respondent and the Union filed exceptions to the Intermediate Report and supporting briefs. Oral argument was held before the Board in Washington, D. C., on August 3, 1943. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the briefs and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions and qualifications noted below : 1. The Trial Examiner considered two anti-union statements of Plant Superintendent Woodyard, deceased at the time of the hearing, as part of the totality of the respondent's conduct which violated the Act. The respondent contends that Woodyard's statements should not be considered because they are too remote from the events which form the basis of the present proceedings. It appears that these statements were uttered by Woodyard in 1936 and 1939, and are not directly related to any of the conduct set forth in the complaint, which alleges the commission of unfair labor practices only during 1943. Moreover, the record indicates a definite hiatus from 1939 to 1943 in any conduct violative of the Act. Under all the circumstances, we are of the opinion that Woodyard's statements are not properly a part of the unfair labor practices involved in this proceeding, and we therefore reverse the Trial Examiner's findings to that extent. 52 N. L. R. B., No. 26. 161 162 DEcf.S' BONS OF NATIONAL LABOR RELATIONS BOARD The statements, however, are clearly anti-union, and we believe that they are properly cognizable to establish the respondent's background of hostility to unions. 2. The Trial Examiner found, and we agree, that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. He based this find- ing upon the totality of the respondent's conduct as evidenced, among other things, by two speeches of President Percival addressed to the assembled employees in February and March 1943, shortly after the commencement of the Union's organizational campaign. The re- spondent contends that the statements contained in these speeches were not coercive but were mere expressions of opinion protected by the constitutional guarantee of freedom of speech and hence that they -can form no basis for a finding of -a violation of the Act. There is ,no merit to this contention. In both speeches Percival emphasized that it was not necesary for the employees to join a union in order to obtain all possible benefits from the respondent and in effect invited the employees to continue to bargain on an individual basis as in the past; in the course of the February speech Percival stated, "If you think you can get an outside bargaining agency to come in here and do better with me than you can; you don't know me" ; and at the con- clusion of the March, speech he threatened to close the plant if the employees were not satisfied with existing conditions. Obviously, such statements are no mere expressions of opinion but are clear and positive threats to exert economic pressure upon the employees to defeat their efforts at self-organization. In any event, like the Trial Examiner, we do not base our finding of the respondent's violation of Section 8 (1) solely upon the statements-contained in the two speeches but rather upon the respondent's whole course of conduct, as set out in the Intermediate Report, of which the speeches are but a part.' 3. The Trial Examiner found that the respondent, following the shut-down of its plant from March 25 to April 5,1943, discriminatorily denied reinstatement to employee George Thomas until April 7, 1943. We are unable to agree with this finding. There is no basis in the record for inferring that the slight delay in recalling Thomas was due to his union membership and activities. It is not unlikely that, in the process of making the necessary readjustments attendant upon the reopening of the plant, the respondent had no immediate need for Thomas. Under all the circumstances, we do not consider a delay of 2 days unreasonable. Moreover, when viewed in connection with the Trial Examiner's finding, with which we agree, that Thomas was I See N. L. R. B. v. Virgtnia Electric & Power Co., 314 U. S. 469. GREET COLONIAL FURNACE COMPANY 163 not assigned less remunerative employment after his reinstatement 2 we believe that the evidence is insufficient to warrant a finding of discrimination in the delay in his reinstatement. 4. The Trial Examiner found that the respondent violated Section 8 (5) of the Act by refusing to bargain with the Union when such a request was made of President Percival while he was testifying in the hearing before the Trial Examiner. We do not agree. The rec- ord is clear, and we find, that the respondent's refusal was based upon •a genuine doubt as to the Union's majority within the appropriate unit. The respondent was contesting the status of 9 employees, con- tending that they should be included within the unit; on the other hand, the Union urged that the 9 employees should be excluded from the unit. The Trial Examiner reserved his ruling on this issue and found in his Intermediate Report that 2 of the disputed employees should be included in, and 7 excluded 8 from, the unit. Upon the basis of these findings the Trial Examiner concluded, and we agree, that the appropriate unit consisted of 61 employees, 34 of whom were members of the Union at the time of the hearing. Had we or the Trial Examiner sustained the respondent's position as to the other 7 employees, none of whom were union members, the Union would not have had a majority. The record indicates that the respondent was acting in good faith in contending for the inclusion of all 9 employees who, in fact, as the Intermediate Report shows, were border-line cases. Moreover, the respondent stated at the hearing that it would recognize and bargain with the Union if satisfactory proof of majority representation within the appropriate unit were shown. Since the respondent was motivated by a bona fide doubt as to the Union's majority within the appropriate unit, and since such doubt was not resolved during the hearing, it was justified in refusing to bargain at that time. A refusal under these circumstances does not constitute a violation of the Act even if the respondent's conten- tions ultimately prove to be wrong: In view of the foregoing find- ings, we deem it unnecessary to determine whether a request to bar- gain made during the course of a Board hearing is timely and ap- propriate. 2 This finding is made on page 13, lines 13 to 17, of the Intermediate Report . The Trial Examiner's concluding finding of discrimination in assigning Thomas less remunerative work ( Intermediate Report, page 13, lines 31 to 33 ) is apparently an error , and we so find. Five of these were employed as "furnace installers " and were used almost exclusively to install and service furnaces sold by the respondent at retail in Des Moines. Occasionally, however, they were used in the plant to do general laborers ' work and for this reason the respondent contended that they should be included in the plant unit. We have consistently held, however, that this type of employee is properly excluded from an appropriate unit of production and maintenance employees , and we so find herein Matter of Link-Belt Speeder Corp., 48 N. L. R. B. 117; Matter of J. K. Welding Company, Inc, 51 N. L. R. B. 328. See also Matter of Wire i Iron Products Inc., 45 N. L. R. B. 795. 549875-44-vol. 52-12 164. DECrsIONS= OF NATIONAL. LABOR 'RELATIONS BOARD ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Green Colonial Furnace Company, Des Moines, Iowa, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Union of Mine, Mill and Smelter Workers, C. I. 0., or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment ; (b) In any other manner interfering with, restraining, or co- ercing 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 con- certed activities, for the purpose of collective bargaining or other mutual, aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will e ffectuate the policies of the Act: (a) Offer to Charles Beebe, Archie Exline, and V. R. Jones, im- mediate and full reinstatement to their former or substantially equiv- alent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole Charles Beebe,.Archie Exline, and V. R. Jones for any loss of pay they have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period from' April 5, 1943, to the date of the re- spondent's offer of reinstatement, less his net earnings during said period; (c) Make whole Wells Daggett for any loss of pay he has suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages absent such discrimination, in accordance with the procedure set forth in-that section of the Intermediate Report en- titled "The remedy"; (d) Post immediately in conspicuous places throughout its plant at Des-Moines, Iowa, and maintain for a 'period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it has been ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative GREEN, COLONIAL FURNACE COMPAN'Y 165 action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that its employees are free to become and remain members of International Union of Mine, Mill and Smelter Workers, C. I. 0., and that the respondent will not discriminate against any employee be- cause of his membership or activities in that organization ; (e) 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. AND IT IS FURTHER ORDERED that the allegations of the complaint (1) that the respondent on or about March 29, 1943, and at all times there- after, refused to bargain collectively with International Union of Mine, Mill and Smelter Workers, C. I. 0., as the exclusive representa- tive of all the employees in an appropriate unit, (2) that the respond- ent discriminatorily locked out certain employees from March 26 to April 5, 1943,.and (3) that after April 5, 1943, the respondent dis- criminatorily assigned less remunerative work to George Thomas, be, and they hereby are, dismissed. CHAIRMAN MILLIS took no p art in'the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Stephen M. Reynolds, for the Board. Gibson, Stewart and Garrett by Mr. Walter L. Stewart and Mr. John S. How- land, of Des Moines, Iowa, for the respondent. Mr. Floyd Piper, for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on May 22, 1943, by International Union of Mine, Mill and Smelter Workers, C . I.O., herein called the Union , the National Labor Relations Board, herein called , the Board, by the ' Regional Director for the Eighteenth Region ( Minneapolis , Minnesota ), issued its complaint dated May 22, 1943, against Green Colonial Furnace Company, a corporation , herein called the respondent, alleging that the respondent had engaged in and was en- gaging in unfair labor practices within the meaning of Section 8 ( 1), (3), 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 and the Union. With respect to the unfair labor practices , the camplaint alleged in substance that the respondent : ( 1) locked out 33 named employees around March 25, 1943, in order to discourage Union membership and activities ; ( 2) resumed operations on April 5, 1943, and thereafter discriminatorily refused to reinstate Archie Exline, Charles Beebe, Merle Laeffler, and V. R. Jones, because of their Union member- ship and activities ; ( 3) reinstated Wells Daggett on April 5, 1943 , and George Thomas on April 7 , 1943, but thereafter discriminatorily assigned less remunera- tive work to each of them because of their Union membership and activities; (4)- refused on March 29, 1943 and thereafter to bargain collectively with the Union as the exclusive representative of all the production and maintenance employees of the respondent, excluding clerical and supervisory employees; and (5) from 166 DECl ONS OF NATIONAL LABOR RELATIONS BOARD March 24, 1943, to the date of the issuance of the complaint, questioned employees about their Union membership and activities, warned and discouraged employees against engaging in Union activities, and disparaged the Union. The respondent's answer filed June 4, 1943, denied the commission of any unfair labor practices and alleged that the shut-down of the plant on March 25, 1943, was due to excessive manufacturing inventory and the necessity of repairing the elevator and cranes used in its foundry. Pursuant to due notice, a hearing was held at Des Moines, Iowa, on June 7 and 8, 1943, before Will Maslow, the undersigned Trial Examiner, duly desig- nated by the Chief Trial Examiner. The Board and the respondent were rep- resented by counsel and the Union, by a lay representative ; all participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the close of the Board's case, the respondent moved to dismiss that portion of the complaint which alleged that Merle Laeffier, on April 5, 1943 had been illegally denied reinstatement. Counsel for the Board joined in the motion, which the undersigned granted. At the close of the hearing, motions were made by the attorney for the Board and, for the respondent to conform their respective plead- ings to the evidence adduced. These motions were granted. A motion made at the close of the hearing by the respondent to dismiss the entire, complaint for lack of proof was denied. The parties waived oral argument before the Trial Examiner and were given until June 18, 1943, to file briefs. The respondent filed a brief which has been considered. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACTS I. THE BUSINESS OF THE RESPONDENT Green Colonial Furnace Company is an Iowa corporation having its principal office and place of business in Des Moines, Iowa, where it is engaged in the manufacture, sale, and distribution of warm air heating equipment and related products. During the calendar year 1942, the respondent purchased about $200,000 worth of pig iron, sheet steel, scrap, coke, and other' raw materials, of which about 60 percent was shipped to its foundry in Des Moines, Iowa, from points outside that State. During the same period,.the respondent's sales of finished products amounted to about $650,000, of which about 55 percent was shipped from its Des Moines, Iowa, plant, to points outside that State.' During 1943, the respondent employed about 75 persons. II. THE ORGANIZATION INVOLVED International Union of Mine, Mill and Smelter Workers, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to mem- bership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology of events In February 1943, Shirley Percival, president and principal stockholder of the respondent, assembled its employees in the plant during the lunch period and ' The findings in this paragraph are based upon admissions in the respondent 's verified answer. ,GREEN COLONIAL FURNACE COMPANY' 167 addressed them.' After discussing the respondent's inventory and the prospects for future work for the men, Percival stated: "If you think that you can get an outside bargaining agency to come in here and do better with me than you can, you don't know me." 8 On March 13, 1943, employee Merle Laeffier called at the office of Floyd Piper, the International representative of the Union, and solicited his help in organizing the respondent's employees' The next day Laeffier returned to the Union office with employee Charles Beebe and plans were made for a meeting of the employees. On March 17, 1943, a meeting was held at the Union office attended by 14 employees, all of whom signed cards applying for membership in the Union and designating it as their collective bargaining agency. On Saturday, March 20, a second meeting was held and Union buttons were distributed. On Friday, March 19, 1943, Percival approached employee Merit Ogburn (also known as William Ogburn) in the plant and stated: "I understand there is quite a bit of agitation going on here." Ogburn replied that he would rather not answer, whereupon Percival stated : "It is up to you older boys to put a stop to this." 6 On Monday, March 22, 1943, these Union buttons were worn openly in the plant by about 20 employees. They were observed by Lew Pettit, the foundry foreman, who reported the matter to Percival. Shortly thereafter J. H. Willis (hereinafter found to be an assistant foreman and a supervisory employee) told Merit Ogburn: "If you know what is good for you, you will stay out of unions, because if you don't, you will get the same thing as you did before."' On March 24, 1943, Percival again assembled the employees and read a four- page prepared statement to them, in which he discussed wage rates, cost of raw materials, and prices, attempting to justify the wages then being paid by the respondent. In the course of his remarks he stated : The reason for asking you to have this Meeting is to see if some benefit to all might come from doing a little serious thinking out loud. Certainly there can be no doubt but what we all like to work with congenial employees who are happy in their work. Some of you know from experience that for years it has been the aim of this company to provide pleasant work- ing conditions, besides trying to promote more or less of a family feeling among all employees. This has been done by the Management, not at any time meddling in the home life or social life of employees. Each one has 2 Percival had addressed similar gatherings at irregular intervals in the past. Is This finding is based on the testimony of four witnesses. Percival did not mention this sfeech in his testimony. The employees at that time had been discussing among themselves the need for a wage increase * Efforts by labor organizations to organize the employees of the respondent had been made intermittently in the last 10 years without marked success 6 This finding is based upon Merit Ogburn's uncontradicted testimony ; Percival did not mention this incident in his testimony. O This finding is based upon Merit Ogburn's uncontradicted testimony ; Willis did not testify, although working for the respondent at the time of the hearing. Ogburn testified in explanation, and the undersigned finds : that he had joined an A. F. of L. union in 1933 and was subsequently laid off. When be was rehired in 1936, he asked Harry Woodyard, who was then plant superintendent, why he had been laid off. Woodyard replied, according to Ogburn's testimony and the undersigned so finds, "You know what I let you out for, I let you out for union activities. . . . Somebody got up in the meeting and asked for a five-cent raise, and you said, 'Let's make it 25 cents, because we can always come down.' And we are going to see that you get spanked and get a good lesson, and if you don't heed that lesson this time, and if you ever do that trick again, you are done." Woodyard was not alive at the time of the hearing Merit Ogburn did not sign a Union designation card until June 2, 1943. 168 DROYSIONS OF NATIONAL LABOR RELATIONS BOARD been free to become a member of whatever Church, Lodge, or other Organization that he wished. There has been no discrimination against anyone because of the Church, Lodge or Organization he chose to select. It has also been, I hope, clearly understood by all employees that in order to be an employee of the Green Colonial Furnace Company, they did not have to belong to any organization. That has been true for years and it is true today. No employee has to belong to any organization to have the same fair treatment as any other employee. I have heard it said that there were certain individuals on the outside, in fact those individuals have even made the promise that they could, if hired as a bargaining agent, secure higher wages for the employees. Let's look into that situation. Is it not true that for many years increases have been made in rates, and in the foundry particularly, the increases have come without being asked for and sometimes when they were least expected, because it was found by the Management that they could afford to do it. Isn't it true that you have been invited many times by the Management to let them know when there was anything that was not satisfactory? It is not within the power of Management to grant every request, especially at the time it is asked. At the conclusion of his remarks, Percival agreed to answer questions where- upon questions were asked or observations made by employees Archie Exline, V. R. Jones, George Thomas, and Charles Beebe Exline asked whether it was not true that 50 percent of the respondents repair work was then being done on furnaces, which Percival admitted' Jones challenged Percival's comparison of 1943 wage rates with those in 1942, by pointing out that in 1942 the employees were only working part time. When Percival indicated that the employees had been given a 10 percent wage increase, Jones inquired • "When?" Thomas asked whether sand could be "cut," i. e , prepared for a new mold, by persons other than molders, but Percival replied that it was not practical. Beebe then commented that on some jobs a worker could not make $3 a day, whereupon Percival asked whether he was not satisfied with his wages and then stated if the men were not satisfied the plant would have to close down 8 During the afternoon of the next day, March 25, 1943, a notice was posted in the plant by V. E. Bidwell, the plant superintendent, which read: The foundry department will be closed down tonight, Thursday, Mar. 25, untill [sic] further notice. Pay checks for employees not working, will be ready Monday afternoon 2: 00 p m. The foundry and the machine shop ceased operations that day and did not resume production until Monday, April 5, 1943. Almost all the foundry em- ployees and most of the employees engaged in grinding castings in the machine shop were laid off during this period. On March 29, 1943, during the shut-down„ Piper, accompanied by employees Beebe, Exline, Wells Daggett, and Higley, called on Perch al. Piper stated that the Union represented a majority of the respondent's employees and asked Percival to bargain with the Union When Percival asked for evidence that the Union represented a majority of employees, Piper stated they had signed 7 According to Jones' testimony, Exline had taken "issue ' with Pei cival about the repair work s According to Jones' version, Percival stated that if'he was not capable of "running his own business without outside help be would shut the place down." GREEN COLONPAL FURNACE COMPANY 169 cards for the Union. Percival replied, "I don't believe it," and then asked whether Piper could supply an affidavit in support of the Union's claim. Piper replied that he could. No further reference to the affidavit or the Union's proof of majority representation was, however, made in the conference. During the conversation Piper asked when the foundry would reopen. Percival replied, only if the respondent received a substantial order from Montgomery Ward or, if the War Production Board issued a "concentration order" for the industry, naming the respondent as a "nucleus" company. The conference once then broke up.° The Union made no further request for collective bargaining until June 8. 1943, which request is hereinafter discussed. On April •3 and 4; 1943, Foreman Lew Pettit and Superintendent' Bidwell called on the laid-off employees and directed them to report for work on Monday, April 5, 1943 Jones, Exline, and Beebe, however, were not called back at all and Thomas was not asked to return to work until Wednesday, April 7. After the employees returned to work, only one or two Union buttons were thereafter worn. B. Miscellaneous acts of interference, restraint, and coercion George Thomas testified, and the undersigned finds, that when he was hired 4 years ago, Harry Woodyard, who was then plant superintendent, inquired whether he belonged to a union. When Thomas replied that he did, Woodyard stated : "Well, we don't believe in unions around here, and you will get along all right if you don't spread any propaganda." Employee Millard Ogburn testified, and the undersigned finds, that on one occa- sion someone yelled in the plant : "C. I. 0." Willis then told him : "Millard, you know better than to join up with them. You know we have our men in here to let the company know whatever is going or s 10 The undersigned finds that, viewed in their totality, by Woodyard's threats to Merit Ogbnrn in 1936 and by his remarks to Thomas in 1939; by Percival's efforts in his speech of February 1943 and March 24, 1943, to discourage membership in labor organizations generally and in the Union in particular 11 and by his remarks to Merit Ogburn on March 19, 1943; by Willis' threats to Merit Ogburn and his remarks, as hereinafter found, to Joe Milledge, Merit Ogburn and George Thomas ; 1a the respondent interferred with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. C. The alleged lockout Percival testified that the chief reason for the shut-down on March 25, 1943, was a surplus inventory of furnaces He stated that the War Production Board had been contemplating a "concentration order" in the furnace industry which would have concentrated production of furnaces in several large plants, and that in preparation for such an order he had been building tip his inventory. In addi- tion, he claimed that the respondent had each January or February received a large order from Montgomery Ward, its largest customer, but up to the time of the shut-down had received no definite word about this order. On the morning of ° The findings as to this conference are based upon Percival 's testimony, which was not materially different from Piper's. 10 This finding is based on Millard Ogburn's uncontradicted testimony ; Willis did not testify. Although Ogburn did not fix the date of this conversation, it probably occurred after the shut-down. 11 Gamble-Robinson Co. v. N. L. R . B., 129 F. (2d) 588 (C. C. A. 8). 12 See page 174. 170 DES' IONS OF NATIONAL LABOR RELATIONS BOARD March 25, 1943, according to Percival, he telephoned a business associate in Wash- ington, D. C., and being advised that no concentration order would be issued by the War Production Board for at least 30 days, decided to cease at once manu- facturing further furnaces. Percival testified that on that day the respondent had an inventory of 1984 furnaces, 200 more than its total sales in 1942, and unfilled orders on hand for only 10 furnaces. In addition to this "primary reason," Percival contended that an additional reason for the shut-down was the necessity of repairing the freight elevator which hoisted scrap iron to the mouth of the foundry furnace, where the scrap was melted. He testified that on Tuesday, March 23, he had been advised by Superin- tendent Bidwell that the freight elevator was in need of repair and that he told Bidwell that he would decide later whether the elevator should be repaired. Having decided during the morning of March 25 to shut down, he instructed Bidwell that day to proceed with the elevator repairs." Finally Percival contended that he had been contemplating repairs on the over- head cranes for six weeks, but could not begin work on the cranes until neces- sary parts arrived. These parts were finally received about a week before the shut-down. Percival explained that he utilized the work stoppage to repair the cranes, although ordinarily such repairs were done after working hours. The foundry normally ceased operations for about a week around Christmas and July 4 each year in order to make necessary repairs and take inventory. On March 29, two repairmen of the Otis Elevator Company began to overhaul the elevator. They worked each day thereafter and completed the task on Friday afternoon, April 2, 1943. On April 2, Percival received an order from Montgomery Ward for 1000 "Vic- tory" model furnaces and, according to his testimony, decided then to reopen. Gus Schartner, the foundry maintenance man, testified he had called to Bidwell's attention the dangerous condition of the freight elevator more than 6 months prior to the shut-down, but nothing had been done about it until March 29, 1943. Although the swiftness with which Percival acted in shutting down the foundry, the inconsistency in the testimony regarding the elevator repairs, the failure to mention a possible shut-down because of surplus inventory in his prepared speech of March 24, 1943, the threat to shut down, if the employees were dissatisfied with their wages, made after that speech, and the proximity in time of the shutdown to the overt Union activity of the employees are sus- picious, the undersigned is convinced that the evidence is not substantial enough to find that the shut-down was motivated, occasioned, or accelerated by the respondent's determination to discourage Union membership or to interfere with the employees' rights under the Act. D. The refusal to reinstate Beebe, Exline , and Jones On March 25, 1943, there were 23 molders employed in the foundry. Pettit testified that they were divided into three categories : first class molders, of the 'a W. S. Todd, a district representative of the Otis Elevator Company, called as a witness by the respondent, testified that he was called to the respondent's plant on Monday, March 22, 1943, to inspect the freight elevator. He advised the superintendent that it needed extensive overhauling and that continued operation was dangerous. Bidwell asked him to start work the next day, but Todd answered that he could not begin until Monday, March 29. Todd stated that he received an order to do the work before he left the building. This inconsistency was called to Percival's attention on the witness stand, but be was unable to explain Todd's testimony. Bidwell did not testify. GREEa' COLONIAL FURNACE COMPANY 171 greatest skill and experience who worked on the heaviest molds ; second class molders, who worked on smaller molds; and third class molders, who worked on the simplest molds. Generally, according to Pettit, first class molders earned the most, second class molders were next in order of earnings, and third class were last. A third class molder could not do the work of a second class one, nor could a second class molder perform the work of the first class. Each class could, however, do the work of the lower class or classes. There were, just prior to the shut-down, 12 first class molders, all of whom, except Millard Ogburn, were paid on a piece work basis. Millard Ogburn was used as a relief molder, acting as a substitute whenever a molder was absent. He had been invited to work at piece rates, but declined. There were six molders in the second class, four of whom worked on a piece work basis, and two, at an hourly rate. The five molders in the third class all worked on an hourly rate. Pettit explained that the change from an hourly to piece work basis was considered a promotion both by the respondent and the molders, since the molders could generally earn more on a piece work basis. Just prior to the shut-down the respondent had begun the manufacture of a "Victory" model furnace in addition to its regular "Colonial" models, casting 17 Victory and 13 Colonial furnaces every two days. The Victory model was a simpler type requiring lighter molds and less skill. When the plant resumed operations on April 5, 1943, the number of Colonial furnaces cast every other day was reduced to five, and the number of Victory models, increased to 23. Pettit testified that the drop in Colonial models made it unnecessary for the respondent to rehire some molders." Consequently on April 3 and 4, 1943, he did not offer reinstatement to Jones, Exline, and Beebe. In addition Schrader, Laeffler, and Hunt, all third class or apprentice molders, declined reinstatement. Jones and Exline were first class molders, and Beebe a second class molder, and all worked. at piece work rates. Pettit testified further, that he selected Jones and Exline for lay-off because they had the least seniority among the first class molders 11 and that he selected Beebe because he was the least efficient of the second class molders. Although he admitted that Jones and Exline were abler molders than the six men in class two, and that Beebe was abler than the five men in class three, he con- tended that Jones, Exline, and Beebe would not have been satisfied with the allegedly lower earnings of the men in the lower groups. Pettit, however, never asked Jones, Exline, or Beebe whether they wished reinstatement at lower class work. The following chart lists the molders, according to their seniority, their earn- ings from January 1, 1943, to March 25, 1943, (earnings given only for piece molders) and whether or not they had signed a Union designation prior to April 5, 1943: 14 No new molders were thereafter hired, although two employees hired as laborers were assigned to apprentice molding for a few weeks . These two apprentices had left the respondent's employ before the hearing. la The seniority, however, was reckoned from the date of the last hiring. Exline had originally begun to work for the respondent in 1907 ; thereafter his service was interrupted on 'several occasions . Shortly after he was last rehired in September 1942, Superintendent Bidwell gave him a service button indicating 5 years service with the respondent. At the same time Bidwell stated that if Exline continued to work until May 1943, he would receive a 10-year service button. 172 DECIISIONS OF NATIONAL LABOR RELATIONS BOARD FIRST CLASS MOLDERS I Name Earnings (in dollars, cents omitted) Date of last hiring Union designation signed White-------------------------------------------------------------- 725 1922 Yes Saloman ------------------------------------------------------------ 727 1924 No Daggett----------------------------------------------------------- 902 1925 Yes --------------------------- ------- -- Jones; Kenneth 707- 1925 Yes -------------- -- - Ogburn, Millard ---------------------------------------------------- Hourly rate 1930 Yes Murphy--- ------------------------------ ------------------------- 692 1933 No Lord------------------------------------------------------------- 517 1933 No Royalty------------------------------------------------------------ 717 1934 No Smith------------------------------------------------------------ 701 1935 No Ogburn, Merit ---------------------------------------------------- 695 1936 No Exlme ------------------------------------------------------------- 633 9-9-42 Yes Jones, V. R- -------------------------------------------------------- 67,7 9-12-42 Yes SECOND CLASS MOLDERS Mslledge------------------------------------------------------------ 618 1930 Yes Higley-------------------------------------------------------------- 479 11-20-39 Yes Thomas ---------------------------------------------------------- 649 1-23-40 Yes Beebe------------------------------------------------------------ 713 7-12-40 Yes Wllliams------------------------------------------------------------ Hourly rate 5-27-41 Yes Longden-- --------------------------------------------------------- Hourly rate 3-5-43 Yes THIRD CLASS MOLDERS Laefer ----------------------------------------------------------- Hourly rate 8-28-42 Yes Rose------------------------------- -------------------- Hourly rate 9-22-42 Yes Howard ----------------------------------------------------------- Hourly rate 9-22-42 Yes Hunt , Harold ---------------------------- ---------------- Hourly rate 11-19-42 Yes Schrader----- --------------------------------------------- Hourly rate 2-15-43 Yes I Pettit testified that Merit Ogburn did both class one and class two work, while Lord was "right at the division point. It could be one or two." It appears , however, that contrary to Pettit's contention , the earnings of second class piece work molders were not markedly different from those in the first class. Thus, the earnings of Beebe, Thomas, and Milledge, all in the second class, were comparable to those of Jones and Exline. On the other hand, Lord earned less than three piece work molders in the second class. Pettit, therefore, could have reinstated Jones and Egline at second class work or at least have given them the opportunity of deciding whether they would accept second class work. Pettit testified, that he had followed seniority strictly in selecting for lay-off, the two first class molders, Jones and Exline. He testified that he did not, however, use seniority as a guide in laying off a second class molder , but selected Beebe because he was least efficient. The answer of the respondent , however, recites that Beebe, as well as Jones and Exline, was not recalled on April 5, 1943, because of his "position in seniority." Pettit offered no explanation for his use of seniority as the decisive criterion in selecting Jones and Exline for lay-off, while relying solely on ability in choosing Beebe. Pettit contended that Beebe was less efficient than Longden or Williams, two other second class molders, who, however , enjoyed less seniority than Beebe. He admitted , however, that ordinarily the best molders earned the most money. On this basis Beebe was more efficient than Higley, Milledge , Thomas, or Longden Longden was paid 67% cents an hour. Assuming a full 48 hour week, the last 8 hours of which were paid for at time and a half, Longden earned in the 12 weeks from January 1, to March 25, 1943 a total of $421.20, as compared with Beebe's earnings of $713 in the same period.1e Pettit also admitted at another stage in his testimony that Beebe could do Longden's work. Williams had been hired on May 27, 1941 , as a helper and had never worked 16 Pettit contended that Beebe's high earnings of $314 05 in January 1943, was due to respondent 's error in "overpricing" an item. In February, Beebe earned $ 183.41 and up GREEN COLONIAL FURN'ACiE COMPANY 173 before as a molder. Pettit admitted that it required around 3 years to train a molder to do second class molding. Yet, he testified that Williams was abler than Beebe who had worked as a molder for 15 years. The undersigned does not credit Pettit's testimony that Beebe was less efficient or capable than Longden or Williams. Jones, Exline, and Beebe had been among the most active Union members, Esline and Beebe having been on the committee of four -employees who • ac- companied Piper when the Union representative first called on Percival. All three were among the first to sign application cards and wore their Union buttons in the plant on March 22. Finally Jones, Exline, and Beebe were three of the four employees who questioned Percival after his speech on March 24, 1943. The undersigned finds that the respondent discriminatorily denied reinstate- ment to Jones, Exline, and Beebe because of their Union membership and activi- ties and in order to discourage membership in the Union and concerted activities for the purpose of mutual aid or protection, thereby interfering with, restrain- ing, and coercing its employees in the exercise of the rights guaranteed in the Act.34 E. The discrimination against Daggett and Thomas 1. Wells Daggett Wells Daggett was reinstated on April 5, 1943. Prior to the shut-down he had been casting 16 Colonial radiators every 2 days, a type of work he had been doing for 15 years. After the shut-down, however, he was assigned only 4 Colonial radiators, 8 of the remaining 12 being assigned to Fay Smith, a non-Union molder. In place of the Colonial radiators, Daggett was assigned some Victory radiators. Daggett, who had worked on first class work for years, has, since the shut-down, been doing class one and two work, according to Pettit. Because the piece work rate was less on Victory radiators than on Colonials, Daggett's earnings after the shut-down slumped. Pettit explained that he had changed Daggett's assignment because he wished to equalize the work of the molders, and that Daggett was earning more than any of the other first class molders. Daggett, a molder with 20 years service in the respondent's plant, had, however, enjoyed higher earnings than any of the other first class molders even prior to the shut-down, as Pettit admitted, and the following chart demonstrates : 1943 Name January February March April May Daggett ---------- ----------- ------------------------ $314 $304 $283 $241 $306 White ----------- ---------------------------- -------- 256 238 230 221 274 Murphy ------- --------------- - ------------ ---------- 230 240 222 206 238 Saloman ------- -------------- ------------------------ 260 233 233 235 291 Ogburn, Merit______________________________________ 252 216 226 212 202 Smith__________ ----- ---------- --------------------------- 253 236 211 201 246 Jones, Kenneth______________________________________ 248 234 224 223 279 Lord ---------- ------ ______ 184 177 155 158 195 Royalty_____________________________________________ 251. 249 217 246 311 EYhne----------------------------------------------- 234 236 162 Jones, V R----------------------------------------- 238 226 1 212 --------- ---------- 1 Cents omitted. to March 25, $216 Pettit offered no explanation for this overpricing, nor bow long it continued, nor what effect it had on Beebe's earnings In any event, his earnings exceeded those of Higley and Lord for February and March 1943 and in all likelihood those of Longden in the same 2 months 14 The respondent's answer recites that "as soon as employment is available" it will recall Jones, Exline, and Beebe, but such an offer is obviously not equivalent to the full reinstate- ment these employees'were entitled to on April 5, 1943. 174 DECISIONS OF NATIONAL LABOR RELATION'S BOARD Thus, it appears that in January 1943 Daggett earned $54 more than the next highest first class molder, and $73 40 more than the average of the others in the group ; in February 1943, $55 more than the next highest first class molder and $75.50 more than the average of the others in the group ; and in March 1943, $50 more than any other molder and $73.80 more than the average of the others in the group. In April and May, however, Daggett earned less than Royalty and only $28 25 and $51.50 more , respectively , than the average of the others in the group. Pettit's effort to equalize the work was apparently limited to the change in Daggett's assignment, for there continued to be a considerable range of pay among the first class molders. Thus, the difference between the lowest paid and the highest paid first class molder was $88 in April and $116 in May. Daggett was an active Union member and wore his Union button in the plant prior to the shut-down. Merit Ogburn testified , and the undersigned finds, that sometime after the plant re-opened Willis told him that he had heard Daggett say that the Union "had better win this case," or he was "out." Willis then said: "Yes, he [Dag- gett ] is definitely out if you don't win it.,, 18 Joe Milledge testified, and the undersigned finds, that on April 3 , 1943, during the shut-down , he visited Willis at the latter's house and discussed the shut- down with him. Willis remarked that the respondent planned to take away from Daggett all of his Colonial radiators except four and give them to Fay Smith and then said : "He [Daggett] is going to have to earn his money from here on." In the course of the conversation , Willis asked Milledge whether he had "signed up" with the Union, and , upon the latter's reply that he had , then said: "Well, I guess they have got you, but we will get them." 10 The undersigned finds that the respondent after April 5, 1943, discriminatorily assigned Wells Daggett less remunerative work than he normally would have re- ceived, thereby discriminating against him , because of his Union membership and activities, and thereby discouraging membership in the Union and concerted activities for mutual aid or protection. 2. George Thomas Thomas had been originally selected for layoff along with Jones, Exline, and Beebe, according to Pettit, but was recalled on April 7 when Pettit found that he needed Thomas' services. Thomas testified, and the undersigned finds, that on April 10, 1943, after his reinstatement to work, Willis remarked to a group of employees including him, during a discussion about the Union that if they joined the Union, they would be "out on the street." 60 After Thomas returned to work some of the bench molds he previously worked on were no longer assigned to him. He complained further that his earnings before the shut-down were from $8 to $8.50 a day, while after the shut-down they dropped to $7 to $7.50 a day. Thomas was a second class piece work molder. The following chart lists the earnings of the second class piece in (omit- ting cents) : 18 This finding is based on Ogburn 's uncontradicted testimony ; Willis did not testify. 18 This finding is based upon Milledge's uncontradicted testimony. 20 This finding is based on Thomas' uncontradicted testimony. GREEN COLONIAL FURNACE COMPANY 1943 175 Name January February March April May Thomas--------------------------------------------- $237 $216 $195 $164 $221 Higley__ _____________________________________________ 163 161 154 155 189 Milledge------------------------------ -------------- 196 218 203 210 272 Beebe------------------------------------ ----------- 314 183 216 ---------- ---------- Although Thomas' earnings did drop in April, in May they exceeded those of February. (In February there were 24 working days and in May, 26, count- ing all holidays.) The drop in April alone, the undersigned finds, is not suffi- cient to Justify an inference that it was caused by the effort of the respondent to discriminate against him. The respondent offered no explanation, however, for delaying Thomas' re- instatement until April 7, 1943, although Williams and Longden of')consider- ably less seniority were reinstated on April 5. Thomas was a Union member, had worn his Union button in the plant, and was one of the four employees who questioned Percival after the latter's speech on March 25, 1943. The undersigned accordingly finds that Thomas' reinstatement was discrim- inatorily denied until April 7, 1943, because of his Union' membership and activities and in order to discourage membership in the Union and concerted activities for the purpose of mutual aid or protection. The undersigned further finds that Thomas was beginning April 7, 1943, discriminatorily assigned work less remunerative than previously performed by him. F. The refusal to bargain 1. The appropriate unit The complaint alleges, and the answer admits, that "all production and main- tenance employees of Respondent in the plant, excluding clerical and super- visory employees" constitute a unit appropriate for the purpose of collective bargaining. The attorney for the Board sought to exclude from, and the re- spondent to include in, the unit the following employees : ^ J. H. Campbell. according to the contention of the attorney for the Board, is the foreman of the tin shop and a supervisory employee. Gus Schartner tes- tified that Cecil Snyder was foreman of the tin shop until Snyder was trans- ferred to the office. He was then asked whether Campbell took Snyder's place and replied : Well, he [Campbell] was giving orders, and that is all I know. I don't know whether they recognize him as a foreman or not. Percival, on the other hand, testified that Cecil Snyder had supervisory au- thority "up to a short time ago," but that when Snyder was transferred, Bidwell was instructed not to make Campbell a foreman, "because I did not want him to be in the position of qualifying" for certain privileges allowed supervisory employees. These privileges included a profit-sharing trust, the option of buying stock of the respondent, and payment on a monthly basis. Percival contended that the tin shop was "run" by Superintendent Bidwell, who was foreman of that shop before he was promoted to superintendent. Although the mere fact that Percival did not extend the privileges above-described -to Campbell would not be sufficient to deprive him of a supervisory status in the eyes of the em- 2L The description of the duties of the disputed employees is as of the time of the hearing, although the record does not indicate any change in such duties after March 29, 1943. 176 DE J1SIONS OF NATIONAL LABOR RELATIONS BO! IR'D ployees, and although it is difficult to believe that Bidwell, who supervised the work of at least 60 employees, ran the tin shop without the assistance of a supervisor in the shop, the undersigned finds that the record does not establish that Campbell's duties are those of a, supervisory, employee. Gus Schartner is employed as a repair and maintenance man on equipment in the foundry. Whenever he has need of assistants on an extensive repair job, he requests help from the plant superintendent and thereafter supervises the work of these men on these special jobs. Contrary to the contention of the attorney for the Board, the undersigned finds that he is a maintenance employee and not a supervisor and should be included within the appropriate unit. J. H. Willis, the oldest employee in point of service, is in charge of and supervises the work of four "gangway" men and two "cupola" men, who run the furnace. He earns 80 cents an hour. He transmits many orders from Pettit to the foundry force, including the molders, and in addition, according to Pettit, has authority to issue orders to helpers on minor matters without consulting Pettit. In Pettit's absence, Willis acts as foundry foreman in charge of at least 30 men During a 10-day vacation Pettit took 2 years ago, Willis was in charge. Pettit testified that he "was supposed to be in charge [of the gangway men] but I do turn it over to Harve [Willis] to see that these men do their work right. I can't be every place at once Pettit also admitted that "many, many boys thoughtrhe [Willis] was a -strawboss." Four employee witnesses described Willis as a foreman, assistant foreman, or strawboss. Willis has been acting as such a strawboss for many years, even prior to the time Pettit became the foundry foreman. He is now almost 70 years old. The un- dersigned finds that Willis is a supervisory employee whose acts are imputable to the respondent and therefore does not come within the appropriate unit. F. H. Gillaspy, Charles Gustafson. Joe Paulsen, Oren Moon, and A. J. Rank are employed as "furnace installers" and are used almost exclusively to install and service furnaces sold by the respondent at retail in Des Moines. Occasion- ally when they are not so engaged they will assist in doing general laborers' work in the foundry, although Pettit testified he had not seen them in the foundry for more than 8 months. All of their work is done outside of the plant and they are under the supervision of Jerry Francisco, who has an office in the administration building. The undersigned finds that the five furnace installers are not production or maintenance employees and do not come within the appropriate unit. Harry Lett is employed as a maintenance and general handy man in the office and -administration building, which adjoins the foundry. He "looks after" the air conditioning plant in the office building and also does carpentry and plumbing work there. He does not work at all in the foundry, Schartner testifying that he did not even know Lett Lett is listed on the office pay roll for accounting purposes In view of the lack of connection between the work of Lett and the foundry employees, the undersigned finds that Lett does not appropriately come within the production unit described in the complaint.' The undersigned finds that all of the production and maintenance employees of the respondent employed at its Des Moines plant, exclusive of furnace in- stallers, clerical and supervisory employees, and the maintenance men of the office and administration building, have at all times material herein constituted and do now constitute a unit appropriate for the purposes of collective bar- 22 In view of the fact that Lett's status was fully litigated at the hearing and that, without objection, the Board's attorney moved to amend the complaint to conform to the evidence adduced, the undersigned finds that the original description of the appropriate unit in the complaint was not intended to include Lett: N. L R. B. v Mackay Radio & Telegraph Co., 304 U. S. 333, 340. GREEN COLONIAL FURNACE COMPANY 177 gaining, and further finds that such unit will ensure to employees of the re- spondent the full benefit of their rights to self-organization and collective bargaining and otherwise effectuate the purposes of the Act. 2. Representation of a majority in the appropriate unit As of Dlarch 25, 1943, just before the plant shut down, there was a total of 60 employees within the appropriate unit. On that date, according to the desig- nation cards received in evidence, the Union represented 20 employees On March 27, 1943, another employee signed a designation card, so that as of March 29, 1943, when the Union first made its request for recognition, it represented 30 out of 60 employees, or less than a majority of those in the unit 23 As of June 8, 1943, the respondent employed a total of 58 persons within the above-described appropriate unit,22 excluding the following 11 persons : the 5 furnace installers, Harry Lett, J. H. Willis, and 4 foremen who Percival admitted were supervisory employees, Bidwell, Pettit, Kellner, and Richardson.26 Inas- much as it has been found that Beebe, Exline, and Jones were illegally denied reinstatement on April 5, 1943, they likewise must be considered part of the appropriate unit, making a total of 61 within such unit.m There were received in evidence a group, of .49 Union designation, cards, dated from March 17 to June 3,4943, from ,which must be excluded the following 15 persons not employed by the respondent as of June 8, 1943: Laefeer, Woodyard, Noftzger, Blake, Graves, Roach, Schrader, Beerbower, Ross, Hamilton, Harold Humt, Orborne, Lathrop, Perry, and Reynolds .27 Accordingly, as of June 8, 1943, the -date of the Union's second request for collective bargaining it represented 34 employees in a unit consisting of 61, a clear majority. 3. The request of June 8, 1943 Since the Union did not represent a majority of the employees in the appro- priate unit on March 29, 1943, the respondent's refusal to bargain with it on that day is obviously not a violation of the Act. On June 7, 1943, counsel for the Board offered in evidence at the hearing the Union's designation cards. As part of, and simultaneously with, his offer, ' The employees who had been temporarily laid off March 25,'1943, did not thereby 'lose their status as employees, in view of the respondent's practice of reemploying its workers after seasonal lay-offs N L. R. B v J. G. Boswell Company, etc, (C. C. A 9) decided May 24, 1943; North Whittier Heights Citrus Association v N L R B , 109 F. (2d) 76, 82 (C. C. A 9), cert. denied, 310 U S 632 The fact that subsequently on April 3 and 4, 1943, 11 employees were either not rehired or else refused reinstatement does not operate to cancel or impair their status as employees, as of March 29. "This total is derived from a list of the employees as of June 3, 1943, prepared by Board's counsel from information furnished by the respondent, supplemented by two names erroneously omitted from such list namely, J. L. Lanning and William J. Harrelson. Carl M. Noftzger, whose name appears on the roster as of June 3, 1943, is not included within the above unit, since be quit work on June 4, 1943 Although a Union designation for Harry Lathrop, dated May 5, 1943, was received in evidence, the record does not show whether or not he was employed by the respondent as of June 8, considered within the appropriate unit 1943; hence he is not 2L The cards of Beebe, Jones, and Exline as to which ruling was reserved, are hereby received in evidence. The respondent's objection to the admission of all cards dated after March 29, 1943, is hereby overruled and such cards received in evidence. 26 N. L. R B v. J. Greenebaum Tanning 0o, 110 F. (2d) 984, 989 (C. C. A. 7), cert. denied, 311 U. S. 662. s'' The authenticity of all but three of the signatures on the cards was admitted by the respondent ; testimony as to these three was later offered by means of a stipulation of the parties 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board's counsel offered the respondent's counsel "full opportunity to check these cards against any records they wish for genuineness of the signatures." The cards were examined by the respondent's counsel and Percival's son overnight. The next morning at the opening of the hearing the authenticity of most of the cards was admitted and the cards received in evidence. Mr. Piper, the Union representative, then asked : As representative of the Union, I would like to ask the attorney for the respondent at this time, since they have made a check on the cards, for bargaining with the union. Mr. Stewart replied : I think, of course, that is out of order, but I will answer Mr. Piper by saying that our check discloses that they do not have a majority in our plant at the present time, and likewise, they did not have a majority on the 29th of March, 1943. Later that day, while Percival was on the witness stand he was asked whether he would now bargain with the Union in view of the check that had been made. Percival replied that he wished an "election" held and then explained that he took this position ."because of the condition of some of the cards . . . The man- ner some of them were taken in." The respondent's counsel, however, at no point in the proceeding objected to the "condition" of any of the cards or the manner or circumstances in which any had been signed. An employer is required to bargain collectively with a labor organization upon the latter's request, provided at the time of the request it represents a majority of its employees in an appropriate unit. The Act prescribes no formalities of time, place, or language for the making of such a request 28 The respondent is not absolved of its duty under the Act merely because the request was made during a hearing on a complaint of unfair labor practices, for its obligations under the Act are not suspended during such a hearing.29 In any event, the Union's original request for collective bargaining must be deemed to be a continuing request, and when again brought specifically to the respondent's attention, required it,to bargain collectively with the Union. Nor was the respondent justified in its refusal to bargain until an election was conducted and the Union certified as the representative of its employees, once it was established that the Union represented a majority of the employees in an appropriate unit so The undersigned accordingly finds that on June 8, 1943, and thereafter the respondent refused to recognize or negotiate with the Union as the exclusive representative in the unit found above to be appropriate, thereby refusing to bargain collectively with the Union, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in 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 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. 2 N. L. R. B v. McQuay-Norris Mfg. Co., 116 F. (2d) 748, 752 (C. C. A. 7), cert. denied, 313 U. S. 585. 29 The complaint recites that the respondent "does now refuse to bargain collectively with the Union." 30 N. L R. B. v. Dahlstrom Metallic Door Co , 112 F. (2d) 756, 757 (C. C. A. 2). GIIE'EtN COLON LAM FURNACE COMPANY 179 V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirm- ative action which the undersigned finds necessary to effectuate the policies of the Act. Since it has been found that the respondent refused to_ bargain with the Union as the exclusive representative of all of its production and maintenance employees employed at its Des Moines plant, exclusive of clerical and supervisory employees, furnace installers, and the maintenance man of the office and administration building, it will be recommended that upon request it bargain with the Union as the exclusive representative of all the employees within the above-described unit. Since it has been found that the respondent on and after April 5, 1943, dis- criminatorily refused to reinstate Charles Beebe, Archie Exline, and V. R. Jones, it will be recommended that the respondent offer each of them immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. It will further be recommended that the respondent make each of them whole for any loss of pay he may have suffered by reason of the respondent's refusal to reinstate him by payment of a sum of money equal to that which he normally would have earned as wages from April 5, 1943, the date of the first refusal to reinstate, until the date of the offer of reinstatement, less his net earnings during such period.' Since the three employees above-named worked on a piece work basis, it is recom- mended that each be paid a sum equal to the average earnings of the other piece work molders in his respective class during the above-described period in which he was denied reinstatement. It has been found that the respondent has discriminated against Wells Daggett since April 5, 1943, in that he has been assigned work less remunerative and of a lower class than he normally would have received. It will accordingly be recommended that the respondent cease discriminating against Wells Daggett in the assignment of work. Although complete accuracy is impossible because the first class molders worked at varying piece rates, substantial justice will be effectuated if, and it will be recommended, that the respondent make him whole for any loss of pay he may have suffered by such discrimination by payment to him of a sum of money for each working day such discrimination has continued equal to the difference between: (1) the amount he earned daily in excess of the daily average of the other first class piece work molders in the period from January 1, 1943, to March 25, 1943; and (2) the amount he earned daily in excess of the daily average of the other first class piece molders during the period from April 5, 1943, until the respondent ceases its discrimination against him." It has been found that the respondent discriminatorily refused to reinstate George Thomas on April 5 and 6, 1943. It will be recommended that the respond- ent make him whole for any loss of pay he may have suffered by reason of such discrimination. Since Thomas is a piece work molder it will be recommended By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work 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 Biotherhood 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 shall be considered as earnings See Republic Steel Corporation v. N. L. R. B., 311 U. S 7. 12 N. L. R. B. v. Planters Mfg. Co., 105 F. (2d) 750 (C. C A 4) 549875-44-vol. 52-13 180 DLOIJSiIONS OF NATIONAL LABOR RE'LA'TIONS BOAAD that he be paid for those 2 days at a rate equal to his average daily earnings during the month of April 1943. Upon the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS of LAw 1. International Union of Mine, Mill and Smelter Workers, C . I. 0., is a labor organization, within the meaning of Section 2 (5) of the Act. 2. All the production and maintenance employees of the respondent employed at its Des Moines plant (exclusive of clerical and supervisory employees, furnace installers, and the maintenance man of the office and administration building, at all times material herein constituted and do now constitute a unit appropriate for the purposes of collective bargaining , within the meaning of Section 9 (b) of the Act. 3. International Union of Mine, Mill and Smelter Workers, C. I. 0., was on June 8, 1943, and at all times thereafter has been, the exclusive representative of all the employees 'of the above-described appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on June 8, 1943 , and at all times thereafter , to bargain col- lectively with International Union of Mine, Mill and Smelter Workers, C. I. 0., as the exclusive representative of its employees in the above-described appropri- ate 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 discriminating in regard to the hire, tenure, terms, and conditions of employment of Charles Beebe, Wells Daggett, Archie Exlme, V. R. Jones, and George Thomas, thereby discouraging membership in International Union of Mine, Mill and Smelter Workers, C. I. 0., and thereby discouraging its em- ployees' concerted activities for their mutual aid or protection, the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (3) of the Act. 6. 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 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8 The respondent did not engage in unfair labor practices by ceasing foundry operations from March 26 through April 4, 1943, nor did it after April 6, 1943, assign less remunerative work to George Thomas. RECOMMENDATIONS Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, the undersigned recommends that Green Colonial Furnace Company, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Union of Mine, Mill and Smelter Workers, C I. 0., as the exclusive representative of all of its pro- duction and maintenance employees, employed at its Des Moines plant, exclusive of clerical and supervisory employees, furnace installers, and the maintenance man of'its office and administration building; GREEN COLONIAL F'UiR[NIA'CE COMPANY 181 (b) Discouraging membership in International Union of Mine , Mill and Smelter Workers, C. I 0, or any other labor organization of its employees, by discrun- inating in any manner in regard to their hire , tenure, terms, or conditions of employment ; (c) In any other manner interfering with, restraining , or coercing its em- ployees in the exercise of the rights to self-organization ; to form, join, and assist labor organizations ; to bargain collectively through representatives of their own choosing ; and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Sec- tion 7 of the Act. 2. Take the following affirmative action , which the undersigned finds will effectuate the policies of the Act (a) Upon request bargain collectively with International Union of Mine, Mill and Smelter Workers, C. I. 0., as the exclusive representative of all of its production and maintenance employees employed at its Des Moines plant, ex- clusive of clerical and supervisory employees , furnace installers , and the main- tenance man of its office and administration building , in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment ; (b) Offer to Charles Beebe, Archie Exline, and V. R. Jones, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights , and privileges; (c) Make whole Charles Beebe, Archie Exline, and V. R. Jones for any loss of pay they may have suffered by reason of the discrimination against them 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 April 5, 1943, to the date of the respondent's offer of reinstatement, less his net earnings" during said period , in accordance with the procedure set forth in the section entitled "The remedy"; (d) Make whole Wells Daggett and George Thomas for any loss of pay they have suffered by reason of the discrimination against them by payment of a sum of money substantially equal to that which each would normally have earned as wages absent such discrimination, in accordance with the pro- cedures set forth in the section entitled "The remedy" ; (e) Immediately post in conspicuous places throughout its Des Moines plant and maintain for a period of at least sixty (60) consecutive days from the date of posting notices to its employees stating: (1) that the respondent will not engage in the conduct from which it has been recommended that it cease and desist in paragraphs 1 (a), (b), and (c) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a), (b), (c), and (d) of these recommendations; and (3) that the respondent's employees are free to become or remain members of International Union of Mine, Mill and Smelter Workers, C. I. 0., and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization ; (f) Notify the Regional Director for the Eighteenth Region (Minneapolis, Minnesota), in writing within ten (10) days from the receipt of this Inter- mediate Report what steps the respondent has taken to comply herewith It is further recommended that unless on or before ten (10) clays from the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid a See footnote 31, supra. 182 DECISIONS OF NATIONAL LABOR RELATIONS BO'AIR'D It is further recommended that the allegations of 'the complaint that the respondent discriminatorily locked out certain of its employees from March 26 to April 5 , 1943, and that after April 6, 1943, it discriminatorily assigned less remunerative work to George Thomas be dismissed. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended-effective October 28, 1942, any party may within fifteen (15) days from the date of the entry of the order transferring the -case to the Board , pursuant to Section 32 of Article II of said Rules and Regulations, file with t the Board, Rochambeau Building, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding ( including rulings upon all motions or objections) as it relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made is writing to the Board within ten (10 ) days from the date of the order trans- ferring the case to the Board. WILL MASLOW, Tifial Examiner. Dated June 28, 1943. i