The Alexandria Milburn Co.

In the Matter of TIlE ALEXANDER MILBURN COMPANY and UNITED ELEC- TRICAL, RADIO & MACHINE WORKERS OF AMERICA, C. I. O. Case No. 5-C-1564.-Decided June 18, 1945 Mr. Herman Lazarus, for the Board. Messrs. Jacob Blunt, Francis A: Michel and John O'Shea, of Baltimore. M d., for the respondent. Mr. Peter D. Besch, of Baltimore . Md., and Messrs. David Scribner and Frederick R Livingston, of New York City, for the Union. Hiss Grace McEldowney, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by United Electrical, Radio & Machine Work- ers of America, affiliated with the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board , herein called the Board, by its Regional Director for the Fifth Region (Baltimore, Mary- land), issued its complaint dated May 30, 1944, against The Alexander Milburn Company. Baltimore, Maryland, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, 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 , together with Notice of Hearing thereon, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in sub- stance that the respondent : (1) at sundry times between August 10. 1942, and February 1943, discriminated with respect to the hire and tenure of employment of four named employees,' thereby discouraging membership i William Collins , O. E. Bites, Ernest L. Burns, and Albert Kash 62 N L R. B,No.67. 482 THE ALEXANDER \I1LBURN COMPANY 483 in the Union; (2) on or about November 28, 1942, and at all times there- after, refused to bargain collectively with the Union as the exclusive repre- sentative of the respondent's employees in an appropriate unit ; and (3) interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by the activities above described and by (a) urging, persuading, and warning its employees not to join or assist the Union, and threatening them with loss of employment if they joined or assisted the Union; (b) requesting its employees to report who were the active members of the Union: (c) closely scrutinizing the work and behavior of those of its employees who were active on behalf of the Union for the purpose of discharging or otherwise discriminating against them; (d) assigning employees to less desirable or more arduous jobs for the purpose of discouraging union membership and activities; (e) questioning its employees about their union affiliation; (f) isolating active union members from other employees, and (g) procuring resignations from the Union? Thereafter, the respondent filed its answer, in which it admitted certain allegations of the complaint but denied that it had engaged in the alleged unfair labor practices. Pursuant to Notice of Hearing duly served upon the parties, a hearing was held in Baltimore. Maryland, on sundry days between June 19 and 30, 1944, inclusive, before Walter Wilbur, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were repre- ,ented by counsel, and the Union by an international representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the Board's case in chief, counsel for the respondent moved to dismiss the complaint for failure of proof. The motion was denied. At the close of the hearing, the Trial Examiner granted a motion of counsel for the Board that the pleadings be amended to conform to the proof. Dur- ing the course of the hearing, and in his Intermediate Report, the Trial Examiner made rulings on other motions and on objections to the admis- sion of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby' affirmed. At the close of the hearing, counsel for the Board and for the respondent argued orally before the Trial Examiner. Thereafter, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the respondent and the Union. In the Inter- mediate Report, the Trial Examiner found that the respondent had engaged in, and was engaging in. unfair labor practices affecting commerce, within 2 The complaint was amended during the hearing to allege further that the respondent has engaged in unfair labor practices by dealing directly and individually with its employees in We appropriate unit concerning rates of pay , wages, hours of employment , or other conditions of employment , in violation of Section 8 (1) and ( 5) of the Act. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meaning of Section 8 (1), (3), and (5) of the Act, and recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Exceptions to the Inter- mediate Report were thereafter filed by the respondent, the Union, and counsel for the Board. Upon request of the parties and pursuant to notice, a hearing was duly held before the Board in Washington, D. C., on December 14, 1944, for the purpose of oral argument. The respondent and the Union were represented by counsel and participated in the hearing. The Board has considered the exceptions filed by the parties and, insofar as they are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I TIIE BUSINESS OF THE RESPONDENT The respondent is a Maryland corporation, with its office and place of business in Baltimore, Maryland. It is engaged in the manufacture, sale, and distribution of carbide lights, oxy-acetylene welding and cutting equipment, gas regulators and appurtenances, and paint spray equipment. During the year 1943, the respondent purchased raw materials to a value in excess of $100,000, approximately 50 percent of which was shipped to its plant in Baltimore from points outside Maryland. During the same period, the respondent shipped from its plant to points outside Maryland finished products to a value of more than $100,000. The respondent admits that it is engaged in commerce within the meaning of the Act and that it is subject to the jurisdiction of the Board. II. THE ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers of America is a labor organization affiliated with the Congress of Industrial Organizations. Employees of the respondent are admitted to membership. III. THE UNFAIR LABOR PRACTICES A. Sequence of events 1. The Union's organizational campaign ; the consent election; the contract In March or April 1942, the Union-began its campaign to organize the respondent's employees, and on June 2, 1942, filed with the Board's Regional Office at Baltimore a petition for investigation and certification of representatives under Section 9 (c) of the Act. On June 11, the respond- THE ALEXANDER MILBURN COMPANY 485 cut and the Union entered into a consent election agreement which was approved by the Regional Director. The agreement provided, inter alia, that "All production and maintenance employees, excluding all general office employees, foremen and executives ... constitute a unit appropriate for the purposes of collective bargaining.'!' Pursuant to the terms of the agreement, an election was held under the direction of the Regional Director on June 17 among the employees in the agreed unit to determine whether or not they desired to be represented by the Union for the purposes of col- lective bargaining. Thereafter, on June 24, the Regional Director filed his Report on Consent Election, in which he found that the Union had been designated and selected by a majority of the employees in the agreed unit as the exclusive bargaining representative of the employees within the unit.' The respondent thereupon recognized the Union as the bargaining representative of the employees in the unit, and negotiations ensued which culminated in a written agreement signed by the parties on July 9, 1942. 2. Decrease in production during the Union's campaign ; changes in working conditions ; suspension of Burns During the Union's campaign, production at the plant dropped sharply and much that was produced was defective. Although the record shows that this was due, at least in part, to a shortage in the supply of lead-copper amalgam used in the manufacture of tips, Alexander Jenkins, the respond- ent's president,' appears to have felt that the activities of the Union were responsible for the interference with production.' During this time, in accordance with instructions received from the Army and Navy, the respondent began to impose certain safety measures and made certain physical changes in the plant. "No smoking" notices were posted, departments were separated by physical partitions, and inter- departmental passes were required of employees who had occasion to go outside their departments.' Jenkins also began to hold more frequent meet- ings of the respondent's supervisors than had been customary in the past, and at these meetings other plant rules were discussed and formulated. 3 According to this report , there were 88 names on the eligibility list Out of 75 valid votes counted, 49 were for and 26 again st the Union. 4 Jenkins was also the respondent 's principal stockholder and general manager of the plant. Although piesent at the hearing, Jenkins did not testify 5 According to the uncontradicted testimony of James Williams, who was the respondent's plant manager during 1942, Jenkins had shown his opposition to the Union by opposing the consent election, and shortly after the election offered to turn the plant over to the Navy because he felt that he would no longer have a free hand in running it. 6 At all times material to this proceeding, the respondent was principally engaged in war pro- duction and was therefore in some measure subject to the supervision of the Aimy and Navy in matters relating to plant security On January 9, 1942, It received from the Navy Department a copy of a document entitled "Minimum General Secuvty Measurements for the Protection of Private Commercial Plants of Importance to Naval Procurement," and early in Fcbtuary 1942, received from the war Department a document of similar puipolt entitled "Plant Protection for Manufacturers." 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June It, 1942, the respondent lodged with the Plant Production Officer of the Third Service Command information which the respondent had previously received regarding alleged subversive activities of one of its employees, Ernest Burns , an active member of the Union . On order of the Plant Protection Officer, Burns was thereupon suspended from employ- ment pending investigation of the charges.' 3 Activities of William Collins; conference of August 5, 1942, between Jenkins and Collins, About June 15, 1942, William Collins, one of the respondent's most experienced and highly regarded employees, was elected president of the Union. A few days' later, in passing one of the girls in the plant, he struck her lightly with a belt. The act was obviously with playful intent and appar- ently was so accepted by the other employees, but Jenkins, who saw the incident, sent a message to Collins by Plant Manager Williams that he considered Collins' behavior unbecoming the president of the Union. Shortly thereafter, on July 4, another incident occurred in which Collins was involved. This day was a general holiday in the plant, but a few em- ployees, including Collins, had been called in for special work. During the day, the department supervisor furnished the employees with some light refreshments. While these were being consumed, some of the employees, in a holiday mood, engaged in something of a carnival by squirting water tinder air pressure-from torches, and Collins spilled water on one of the girls. This incident was later reported to Jenkins by Williams. On August 5, Jenkins called Collins to his office and censured him for his part in the July 4 incident. During the conference, he characterized Jack Myers, the union organizer, as a disorganizer rather than an organizer and, adverting to the procedure under which employee grievances were being handled, he stated that too much time was being lost by this method, and directed that thereafter any grievances to be adjusted were to be reported to him in writing.' Jenkins also told Collins that he had always thought well of him and that he had had him, as one of the respondent's oldest employees in point of service, tinder consideration for a responsible salaried position. but that his union affiliations made a difference in this respect. Collins asked 7 The circumstances relating to Burns ' suspension and subsequent discharge are heicinaftci more fully discussed in the section entitled "The disci iminatory discharges " s The contract between the respondent and the Union provided that grievances were first to be handled between the shop steward and the foreman of the department involved Any grievance not adjusted on this level was to be next referred to the chief steward and the plant superintendent, and if still unadjusted, was to be submitted to a joint conference between the shop committee acting in conjunction with the union representative and representatives designated by the respondent Collins, who, as president of the local, also acted as chief steward and a member of the shop committee, appears to have varied in practice from the procedure provided for in the contract by handling grievances at the outset between the shop committee and the respondent's grievance committee . Collins testified in this connection - "Well, when they had a giievance , I went to Mr. Williams [the plant manager] and told hint to get his committee together, and N% c met in the office " THE ALEX A NDER N111 .11 U RN CoMMMPANY 487 Jenkins whether he thought he would be better off if he were out of the Union! Jenkins replied to the effect that if Collins should ever resign from the Union, they could discuss the matter further. During the course of the interview, Collins repeatedly asked Jenkins whether he proposed to dis- charge him for the July 4 incident, stating that if so, he wanted to be dis- charged then and not after he returned to his department. Jenkins replied that he had not decided. That evening Collins made a report of the con- ference to Myers, who told him that he would prepare a letter accusing Jenkins of trying to bribe Collins. 4. The Union's letter of August 8, 1942; reprimand of Trenner ; discharge of Collins, Biles, and Burns On August 10, the respondent received from the Union a letter dated August 8, signed by Myers as field organizer, Collins as chief steward, and Margaret Trenner and O. E. Biles as employee members of the shop com- mittee. This letter read as follows: On August 5, 1942, Mr. Jenkins, President of -the Company, called William Collins, Chief Steward of Local 146, United Electrical, Radio & Machine Workers of America, to his office and questioned him at length regarding a very insignificant matter which occurred on July 4, 1942, which had never been mentioned by the company previously, and which had nothing to do with the Union. During the conference, it is alleged that Mr. Jenkins made the following statements: I That the Union was disrupting and interfering with production in the plant. 2 That the organizer of the Union was not an organizer at all but a "labor disorganizer." 3 That he had always had a great regard for Mr. Collins, and had planned a "Future" for him in the company, but that because he was "nixed up" with the Union, this was no longer possible. 4. That if Mr. Collins ever resigned from the Union, the above matter might be reconsidered. 5. That there would be no further grievance meetings with the union because they take up too much time. (The contract which Mr. Jenkins himself signed on July 9, 1942. specifically provides for such meetings.) 6. That in the future the Union would have to send all grievances directly to him, in writing. (The contract does not provide for any such procedure.) 6 As stated in the Intermediate Report, Collins denied having asked this question but Plant Manager Williams and Mary Maguire , the respondent's secretary , both of whom we, c present at the conference, testified to the contrary. We agree with the Trial Examiner's resolution of the conflict in testimony, and find that the conversation was substantially as set forth above 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the same and the following day Mr. Jenkins called other mem- bers of the Union into his office and grilled them concerning the events of July 4 (which was prior to the date the contract became effective). About two weeks ago Mr. Jenkins told Mr. Collins that he could not be hound by a clause in the contract regarding reduction of hours for the purpose of nullifying the raise which the Union won through nego- tiations, and that if he had to live up to the contract he would go out of business. On many occasions Mr Jenkins has walked through the plant interrupting workers at their jobs, criticizing and intimidating them in a very dictatorial manner, countermanding orders which had been given by the foremen, etc. The above acts, and many more which are recorded in the Union's files but which are too numerous to list here, indicate very clearly on whom the responsibility lies for the disruption of production. It is a matter of record that the Union had pledged its all-out cooperation with the company for increasing production so that our armed forces will be supplied with the necessary arms and materials, and has set up a Production Committee to meet with management. This Committee has put forth a concrete program of action to give effect to its pledge, which program has not been carried out by the company. The employees of the company, most of them Union members, have been completely demoralized by Mr. Jenkins' acts, by his all-too- clearly expressed opposition to the Union, and by his contempt for the contract which he signed. Therefore, in the interests of harmony in the shop and to facilitate an early solution to the many production prob- lems with which the company is faced, the Union requests : 1. That responsible officials of the company be given full author- ity to handle grievances with the Union and to see that the terms of the contract are enforced. 2. That all further direct contact between Mr. Jenkins and mem- bers of the Union be discontinued. - 3. That the representatives of the company immediately proceed to meet with the Union's Production Committee and in good faith attempt to utilize the ideas and initiative of its employees to increase the production of materials for our armed forces. Should the Company fail to take the above steps, the Union now states that it cannot be held responsible for the future course of events in this shop. We are ready to meet any time with any officials of the company or of the government to discuss the above matters. When Jenkins received the letter, he read it to Williams with the com- ment that he felt that some of the employees were being more loyal to the Union than to the respondent. He asked Williams to call Trenner's•super,- THE ALEXANDER MILBURN COMPANY 489 visor, Charles Godman, to the office as he wanted to inquire about Tren- ner's work. Godman reported that her work was all right, that she was doing a good job. Nevertheless, while going through the plant that morn- ing, Jenkins stopped at Trenner's work station and criticized her so severely for her lack of loyalty to the respondent that Williams interceded in her behalf." During the same day, Williams called a meeting in his office which was attended by William Graham, the respondent's superintendent of produc- tion, Collins, Biles, and Trenner u At this meeting, Collins was handed a written notice of discharge,'2 effective at once, together with a check for his wages computed to the end of the work week and for his earned vacation period." On August 12, Biles also received a written notice of discharge' " and at about the same time Burns, whose suspension from employment has been noted above, having learned that the Army had ordered him reinstated, applied to the respondent for reinstatement, but was unable to get a definite decision. 5. The respondent's publication of its working rules; the Union's protest At about this time, the respondent distributed among its employees a circular entitled "Preliminary Rules for Employees," containing a code of working rules which had been formulated by the respondent without con- sultation with the Union 16 The general publication of the rules without 10 Although the testimony of Plant Manager Williams, the only witness who testified regarding this incident , was somewhat confused , and he was unable to recall exactly what Jenkins had said to Trenner , he stated that he remembered enough of what was said "to know she was being criticized," and that "what he (Jenkins] was directing toward her was regarding her loyalty to the company " Jenkins , although present at the hearing , did not testify In view of the fact that at about the same time Collins and Biles, the other two members of the shop committee who had signed the letter, were discriminatorily discharged , and upon the record as a whole, we are con- vinced, and we find, that Jenkins reprimanded Trenner because of her participation , as a member of the Union's shop committee , iii signing the letter of August 8. 11 Although not so characterized in the record , the personnel indicates that this was a joint meeting of the grievance committees of the respondent and the Union. 11 Under its contract with the Union , the respondent agreed that , in the event of the discharge of any other than a probationary employee, the employee should be furnished with a written statement of the reasons for the discharge. The circumstances relating to Collins' discharge and the subsequent developments in his case are hereinafter more fully discussed in the section entitled "The discriminatory discharges." ra Under its contract with the Union , the respondent agreed to grant to employees vacations with pay for periods determined by length of service. . 14 The circumstances relating to Biles' discharge are hereinafter more fully discussed in the section entitled "The discriminatory discharges " 15 The contract between the respondent and the Union provided , inter aha The Company agrees to supply each employee with a copy of rules and regulations of the Company concerning management , safety, police and fire protection , etc , but those rules and regulations shall not be so devised as to abridge the rights of the employees guaranteed by this agreement. Violation of any of these rules shall be sufficient cause for discipline or dis- charge, provided that the claims of wrongful or unjust discipline or discharge for such viola- tion shall be subject to the grievance procedure herein provided The rules and regulations shall be mutually agreed upon by the Company and the Union , but shall not be in conflict with any rules, orders or regulations issued by any municipality , state or federal government, or any board , bureau or branch thereof. Although there is some general testimony by Williams that certain plant rules were required by the Army and Navy, there is no showing that all the rules adopted by the respondent were mandatoiy. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other explanation carried the implication that they were,presently effective. A copy of this circular was sent to the Union for approval. Upon its receipt, Myers sent a letter to the respondent which was received on August 11 and which read in part as follows : In connection with your distribution of a copy of the rules and regu- lations to every employee on August 8, 1942, you are, of course, aware that these rules and regulations were not "mutually agreed upon by the Company and the union", as provided in our agreement. In fact, the union was not even notified that the rules and regulations were ready to be distributed. Under those circumstances, we regret to inform you that we cannot consider ourselves or our members bound by these rules and regulations until such time as they have been mutually agreed upon by the company and the union. Our members will be so informed 6. The arbitration proceedings ; proceedings before the National War Labor Board; Collins' reinstatement, induction into and discharge from the Army, reemployment, and termination of employment ; suspension and discharge of Kash The Union proceeded to handle the cases of Collins, Biles, and Burns as grievances under the contract, and the issues were submitted to arbitra- fion. The matter was heard on August 18 before David Ziskind, the arbi- trator designated by the Director of Conciliation 16 The arbitrator thereafter submitted his award, dated September 17, directing full reinstatement of Collins and Burns as of August 10,14 and of Biles as of August 12, with reim- bursement of net losses of pay resulting from the interruption of their employment. The respondent thereupon requested that the matter he reopened before the arbitrator for the submission of evidence to show that the reinstatement of these employees would be detrimental to production. The arbitrator agreed to reopen the hearing to receive evidence on this issue provided that the respondent would give assurances that it would accept and comply with the final award. The respondent declined to make such commitment and refused to comply with the award as rendered. On October 8, the case was certified to the National War Labor Board for final determination of the matters in dispute. On October 21 and 23, the parties met with Mediation Officer James D. Ewing. On October 22, the issues as to Collins were voluntarily settled between the respondent and the Union by his reinstatement and the payment of his net losses of pay during the period that his employment was interrupted. Thereafter, the Mediation Officer filed his report, dated October 30, recommending that 16 The grievance procedure under the contract provided for the ultimate referral of unsettled disputes to "an Arbitrator designated by the Director of Conciliation , United States Depautment of Labor," whose decision was to be final and binding on both parties 17 On August 20, Burns had been formally notified by the respondent that he was disch ,1,g d as of August 10. THE ALEXANDER MILM RN COMPANY 491 the respondent be directed to comply with the terms of the arbitrator's award as to Burns and Biles,18 and on December 31, the National War Labor Board issued its Directive Order in the terms recommended by the Mediation Officer. On November 17, Albert Kash, an employee who had testified on behalf of the Union at the hearing before the Mediation Officer, was suspended from employment ; on November 24 he was discharged ; on November 30 he was reemployed in a different position; and on December 3 he was again discharged." On January 18, -1943, Collins, who had been inducted into the Army on November 4, 1942, and released on January 13, 1943, by reason of physical disability, was refused reinstatement by the respondent. On February 1, he was reemployed in a different position, and on February 22, he was first suspended and then given a final release 7. The respondent's bargaining relations with the Union As set forth above, on July 9, 1942, the respondent and the Union entered into a collective bargaining agreement. Article I of this agreement pro- vided, in part, as follows: Section 3. All present and future employees of the Company who are members, or become members, or are reinstated as members of the Union shall remain members in good standing for the duration of this Agreement. New employees shall be given by the Company, at the conclusion of their probationary period. a statement embodying the language of Section 2 of this article, a statement of the employee's right to join or refrain from joinu2g the Union, and a Union applica- tion card. - Section 4 The Company agrees to deduct dues of members of the Union of $1 00 per month from the wages of such employees who shall have delivered to the Company an assignment in the form annexed to this Contract and to pay all amounts so deducted from the employees wages pursuant to such authorization to the financial secretary of the Union, together with a list of employees for whom deductions were made The "assignment" referred to above was, in form, an individual authoriza- tion to the respondent to deduct each month from wages earned by the sig- natory the sutra of $1 to be remitted to the financial secretary of the Union. The authorization was by its terms revocable upon 30 days' written notice. 19 The report of the Mediation Officer makes no finding on the merits in view of the over-riding factor of public policy involved in enforcing the obligations of the pai ties under the grievance procedure provided for in the contract As appears below, the record indicates that prior to the filing of the report, the respondent had offered Biles reinstatement, which he had refused "The circumstances relating to Kash's suspension and discharges are hereinafter more fully discussed in the section entitled "The discriminatory discharges " 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union's membership application card reads as follows: I hereby request and accept membership in the above-named Union and authorize it to represent me and in my behalf to negotiate and con= elude all agreements as to hours, labor, wages, and all conditions of employment. The full power and authority to act for the undersigned as described herein supersedes and cancels any power or authority heretofore given to any person or organization to represent me and shall remain in full force and effect subject to thirty (30) days written notice of my desire to withdraw such power and authority to act for me in the matters referred to herein. Beginning with the fall of 1942, the respondent received from time to time letters from employees who had signed check-off authorizations, advis- ing the respondent of their resignation from the Union and rescinding the check-off authorization after the required 30 days' notice . At the time of the hearing before the Mediation Officer, the position of the Union in the plant had become seriously impaired by losses of membership 2' and tile Union sought relief by having the National War Labor Board amend the contract by a Directive Order strengthening the provisions of the contract as to union security . The report of the Mediation Officer recommended that the matter be referred back to the parties "for adjustment under the provisions of the grievance machinery." On November 25, the Union wrote to the respondent requesting a conference to discuss , among other matters : 1. Interpretation of Article I, Section 3 of the Agreement relating to maintenance of union membership. 2. Refusal of the Company to make pay roll deductions of the clues of certain employees as specified in Article I , Section 4. It was advised by the respondent that because of the concurrent illness of its president, vice president, and attorney, there was no one of sufficient authority available for conference on these subjects. By its Directive Order of December 31, the National War Labor Board directed that "The interpretation of Section 3 of Article I of the agreement between the parties, is referred to the parties themselves for determination 20 The report of the Mediation Officer recites the following summary of the representations made by the Union in this connection: Total Union Membership, April 1-October 22, 1942 74 Laid Off and Not Rehired 9 Entered Armed Services 3 Quit Voluntarily 19 Discharged 16 Attempted Resignations .. . ....... 10 Remaining Members . . 17 74 THE ALEXANDER MILBURN COMPANY 493 under the grievance machinery provided in their contract." On January 18, 1943, the Union again wrote to the respondent referring to the terms of the Directive Order and requesting a conference. On March 5, the Union renewed its request for a conference to discuss the interpretation of Article I, Section 3, of the contract, together with other matters enumerated in its letter. The respondent replied on March 9 as follows : Official notice is being sent to various authorities of the National War Labor Board and others to the effect that the agreement or con- tract of July 9, 1942, is cancelled, terminated and voided by the acts of Local 146, United Electrical, Radio & Machine Workers of America, C. I. O.n This notice in addition is intended as notice required by the cancella- tion clause to the effect that there will be no renewal of said contract. The Company will not attend any further meetings. On May 17, the respondent reaffirmed the position taken in its letter of March 9. On June 7, the Union wrote to the respondent as follows: Pursuant to Article VII, Section 1, of the agreement signed July 9, 1942, between your company and Local No. 146, United Electrical, Radio & Machine Workers of America, C. I. 0., the Union hereby gives notice that it intends to present certain amendments to the agreement and to negotiate on same. We will be glad to meet at any time or place-convenient to you. Your attention is called to the provision in Article II, Section 1, that 'nego- tiations on such proposed amendments shall begin not later than twenty (20) days prior to the expiration date.' Please notify us when and where you will be ready to meet with us to di,cu,s these-matters. The respondent replied on June 8, enclosing copies of its letters of March 9 and May 17, and stating that they "speak for themselves." B. The discriminatory discharges - 1. Ernest Burns Burns was employed by the respondent on February 21, 1941, and worked as a lathe operator, first in the torch department and later in the machine shop. He joined the Union in May 1942, and was thereafter active in soliciting union memberships.' That his union activities were known to the respondent is clear from his testimony that in May, Charles Graham, the respondent', superintendent of production, questioned him concerning "The record contains no explanation as to what "acts of the [Union]" the respondent was refer- ting to. The respondent 's action plainly amounted to a repudiation of the contract. Cf Nfaticr of Gcoigc E. Carroll, d/h/a Caiiol's T,anvfci Company, 56 N L R B 935 22 There is no showing that Burns solicited union membership during woiking Bouts. 494 DE'C1S1OiNS OF NATIONAL LABOR RELATIONS BOARD union membership cards and asked him for one.. 23 Furthermore, at about that time, Jenkins remarked to George Carlisle, one of the supervisors in the machine shop where Burns was then employed, that Burns was "a sort of agitator," and complained to Carlisle that Burns was "around the shop too much" and that he was "soliciting for membership."21 On the morning of June 11, 1942, Burns had an altercation with Carlisle, who was then his immediate supervisor, over an alleged violation by Burns of the respondent's no-smoking rule, and Carlisle sent him to Plant Man- ager Williams for disciplinary action No action was taken on Carlisle's report at the time, but the respondent, on the same day, furnished to the Plant Protection Officer of the Third Service Command at Baltimore infor- mation which had previously been submitted to the respondent by some of the employees regarding alleged subversive acts of Burns. On the order of the Plant Protection Officer, Burns was thereupon suspended from employ- ment pending investigation of the charges.' On August 10, the respondent received instructions, issued August 8 on behalf of the Quartermaster Gen- eral, that Burns should be reinstated, as upon investigation of the charges, his suspension from employment had been deemed without sufficient cause On the same clay, the respondent wrote to the Quartermaster General set- ting forth its objections to reinstating Burns,24 and on August-17, received a letter from the War Department to the effect that the order for Burns' reinstatement did not operate as a bar to his dismissal for violation of plant rules. In the meanwhile, Burns had learned through the Plant Protection Officer at Baltimore of the War Department's letter of August 8 and had applied to the respondent for reinstatement, but was unable to get a definite 21 Graham denied having questioned Burns about union cards , but admitted that on one occasion, which he believed "was about the first day or so they were distributing cards out front," Burns had shown him a union card and that Burns then remarked , "Look what they are giving us out fi oot Upon the record as a whole, we credit Burns' testimony regarding this matter as against Graham', denial Plant Manager Williams admittedly knew of Burns ' union membership , although lie denied having known that Burns was active in the Union 24 We do not agree with the Trial Examiner that the testimony of Carlisle , upon which the abov, finding is based, should not be credited because of Carlisle's "transparent antagonism against the respondent, his admission that for purposes of revenge he had volunteered to furnish the Union with information prejudicial to the respondent , and his placing the statement attributed to Jenkins at a time which antedated Burns ' membership in the Union ." From Carlisle's testimony as a whole it appears that lie was just as hostile to Burns as he was to the respondent, and although lie originally testified, on cross -examination , that he volunteered to the Union certain information con- cerning the respondent's activities with respect to that organization because he wished "to i evenge him- self" against the respondent, he later retracted this statement and explained that he had furnished the information to the Union in order to assist his fellow employees Moreovei , although his testimony that he had been at the plant only a couple of nights when Jenkins made the ieniarks in question would indicate that the incident took place in April 1942 , which antedated Buins' membership in the Union, we are aware that witnesses are frequently honestly mistaken as to precise dates. Upon the record as a whole and particularly in view of the fact that Jenkins did not take the stand to deny Carlisle's testimony, as well as the fact that the statements attributed to Jenkins by Carlisle appear to be consistent with Jenkins ' whole course of conduct , we credit Carlisle's testimony regarding the aforesaid statement by Jenkins. 2 Williams testified that at this time Jenkins had decided to discharge Burns because of his alleged - violation of the no-snmoking rule, but that But ns was kept on "pending the investig,itton by the U S Army and F B J" 26 The record does not disclose the precise nature of the objections outlined in that letter. THE ALEXANDER MILBURN COMPANY' 495 decision. His case was in this status when submitted to Arbitrator Ziskind at the hearing on August 18. On August 20, before the arbitrator had made his award, the respondent gave Burns written notice that he was being dis- charged "effective as of the date of the notice given to us by the War Department, namely, August 10, 1942, revoking the order of your suspen- sion which had been issued by the War Department." In its letter to Burns, the respondent stated that it was discharging him on the grounds that we felt the suspension should have remained effective and also on the grounds that you broke company rules." Since the War Department, after investigating the charges against Burns, had completely exonerated him, and since the record herein does not establish that Burns had in fact engaged in subversive activities, we do not believe that the respondent sincerely entertained the notion that he was guilty of such activities and that his suspension should therefore have remained effective. The contention that Burns was discharged because of violation of "com- pany rules" is equally unconvincing. There is no clear showing that Burns had actually violated the no-smoking rule,' and even if the respondent believed that lie had done so, and regal (led such a violation as meriting the extreme penalty of discharge, it would seem that it would have discharged him on June 11, when Carlisle accused him of violating the rule Its failure to discharge Burns at that time, together with its action in referring to the War Department on the same day, June 11, statements previously sub- mitted to the respondent by employees, charging Burns with subversive activities, indicates that the respondent believed that it needed more sub- ,tantial justification for Burns' discharge than his alleged violation of the no-smoking rule, and thought that the War Department's findings concern- ing his alleged subversive activities might afford plausible grounds for discharging him. Upon the record as a whole, we are convinced, and we find, contrary to the finding of the Trial Examiner, that the respondent's real reason for discharging Burns was its opposition to his union activities This is indi- cated not only by the inadequacy of the reasons assigned by the respondent for its action, as discussed above, but also by the following circumstances: (a) the respondent's refusal to abide-by the War Department's decision exonerating Burns of the charges of subversive activities , (b) the respond- ent's failure to await the decision of the arbitrator who was considering the evidence of Burns' alleged subversive activities and violation of plant rules, (c) the fact that Burns was active on behalf of the Union. of which the respondent had knowledge, (d) the fact that Jenkins, as found above. had called Carlisle's attention to Burns as "a sort of agitator" and complained 27 Although Burns testified that he was told by the respondent that his discharge was "for entc, ing the stockroom" as well as for smoking, the respondent introduced no evidence to prove that lie ever entered the stockroom without permission , and according to Burns' testimony , which we credit, he had never done so Nor is there any evidence that he had violated any other plant rule. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Burns was "around the shop too much" and that he was "soliciting for membership" ; (e) the fact that Collins and Biles, two other employees who were active on behalf of the Union, were discriminatorily discharged at about the cane time that Burns was dismissed ; and (f) the respondent's antipathy to the Union, as evidenced by its other unfair labor practices found herein. We accordingly find that the respondent, by discharging Burns as of August 10, 1942, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. ° As hereinabove set forth, the arbitrator's award of September 17 directed that Burns be reinstated as of August 10; the report of the Mediation Offi- cer recommended that the respondent be directed to comply with the terms of the award ; and the Directive Order of December 31 gave effect to this recommendation. In the meanwhile, Burns had secured preferable employ- ment elsewhere. He attempted to make a money settlement with the respondent on November 13, but the respondent refused to settle except with the consent of the Union, and the Union refused to consent. On April 10, 1943, the respondent effected a direct settlement with Burns on the basis of Burns' offer of November 13, and Burns gave the respondent a release. Burns testified, at the hearing, that he would not work for the respondent again under any conditions. 2. William Collins Collins was first employed by the respondent on October 13, 1933. After working for about 3 years as a buffer, he was transferred to the tip depart- ment and was given the title of assistant supervisor, although he had no supervisory duties. His principal work was sharpening and grinding drills and tools. He was highly regarded by the respondent as a skilled and com- petent employee. Collins joined the Union in May 1942. He was elected president of the plant local about June 15, and thereafter served as chief steward and as a member of the bargaining and grievance committees. As set forth above, on August 10,, 1942, following the receipt by Jenkins of a letter from the Union, signed by Collins and others, complaining of anti- union conduct on the part of Jenkins, Collins was discharged. The written notice given him by the respondent at that time assigned two reasons for the discharge: ' 1. For misconduct and playful pranks committed from time to time, particularly on July 4, 1942. 2. For solicitation of members on the Company's time. The "misconduct and playful pranks" assigned as the first reason for the discharge consisted of the two incidents hereinabove reviewed, of which THE ALEXANDER MILBURN COMPANY 497 the latest occurred on July 4. The Trial Examiner has found, and we agree, that this reason is incredible in view of the length of time that had elapsed, without disciplinary action having been taken, between the time of the two incidents in question and the-date of Collins' discharge. Further- more, according to Collins' uncontradicted testimony, which we credit, although Jenkins had spoken to him about the belt incident, he was "laugh- ing and joking" at the time; the record shows that other employees who were involved in the Fourth of July incident were not discharged on account of it; and Williams admittedly did not regard either incident as serious. As for the second reason assigned, there is evidence of only one instance in which Collins was accused of soliciting union memberships, and it is not entirely clear that the solicitation took place on company time. Graham testi- fied that on this occasion a complaint was made to him as superintendent of production by one of the women working in the plant that Collins "had asked her to join the Union and said she would lose her job if she didn't," and that he reported it to Williams." Williams testified, however, that he (lid not remember any complaints that Collins, personally, had attempted to solicit membership on company time, although after the contract became effective he had taken tip with Collins and the grievance committee com- plaints as to general solicitation, as a result of which Collins had reported that the Union had ordered its members to desist. On the record as a whole, we are of the opinion, as was the Trial Examiner, that solicitation of union memberships on company time by Collins could not have been the effective cause of his discharge. On the contrary, we are convinced, and we find, as did the Trial Exam- iner, that Collins was discharged on August 10, 1942, because of his union activities, and specifically because he .had participated officially in signing the Union's letter of August 8. In so finding, we rely not only on the inade- quacy of the reasons given by the respondent for the discharge, as discussed above, but also on the combination of the following circumstances : (a) the fact that Collins, as known by the respondent, was president and chief steward of the Union and was a very active union protagonist; (b) the respondent's opposition to Collins' affiliation with the Union, as shown by Jenkins' statement to him, on August 5, 1942, that Jenkins had had him under consideration for a salaried position, but that Collins' union affiliation made a difference in this respect, and by the respondent's other acts of dis- crimination against Collins, found below; (c) the respondent's hostility to the Union, as shown by its other unfair labor practices; and (d) the fact that Collins' discharge took place immediately after the respondent received the Union's letter of August 8, 1942, signed Ty Collins, Biles, and Trenner, Is Graham's testimony as to the time of this occurrence was somewhat indefinite, although he stated that he thought it occurred after the union contract was signed . Collins specifically denied having solicited memberships between July 4 and the date of the discharge. 498 DECISFONTS OF NATIONAL LABOR RELATIONS BOARD coupled with the nature of the respondent 's treatment of the latter two employees immediately after the receipt of the letter , as discussed herein. On October 22, 1942 , Collins was reinstated ," with back pay, as the result of a settlement between the respondent and the Union , after the matter of his discharge had been submitted first to arbitration and then to the National War Labor Board. Thereafter , on November 4, 1942 , he was inducted into the United States Army , from which he was discharged by reason of physi- cal disability on January 13, 1943 On January 18, 1943 , he applied for, but was refused , reemployment by the respondent 1,,,ater , after intervention by the War Department at the request of the Union , he was offered a position at a reduced rate of pay and without accrued seniority , which he refused After further intervention by the War Department , he was finally reem- ployed on February 1, 1943 , with seniority and without a decrease in his wage rate , but in a less desirable position than the one he had held prior to his induction into the Army,' and in a department where the respondent kept him under surveillance." Before his discharge on August 10, Collins worked in the tip department on the second floor Although at the time of his reinstatement on October 22, he was assigned to the torch department on the third floor , the two positions appear to have been substantially the same, and the assignment to the torch department is not alleged to have been discriminatory 30'The record contains no explanation of the respondent's refusal to icrostate Coll,ns when he applied on January 18, or for its subsequent offer to reemploy him at a reduced rate of pay and without seniority The fact that Collins was an outstanding union adliefeut, as well as the respond- ent's prior and subsequent acts of discrimination against Collins and its other unfair labor practices found herein , strongly suggests that the respondent' s afore-mentioned conduct was discriminatorily motivated However, since the complaint does not allege such conduct as an unfair labor practice, and since we are not entirely satisfied that the respondent, at the hearing, had reason to believe that the validity of such conduct was being litigated as an issue in the case, we shall make no findings of unfair labor practices with respect thereto n Collins was assigned on February 1 to a position on the fourth floor His testimony that his work there was "a job that most anyone could do" and "didn't compare" with his previous work in the torch department was corroborated by the testimony of Williams that the position on the fourth floor "was not as important a job [as the one in the toich department] " Although George Tscheulm, the supervisor on the fourth floor, testified that Collins ' work in his department consisted of soldering, and that he had previously seen Collins doing soldering in the tip and torch depart- ments, it is clear from the record that before Collins' induction into the Army, his work consisted principally of sharpening and grinding tools and drills Upon the record as a whole, we find that the work to which Collins was assigned on his reemployment on February 1, 1943, was less desirable than the work done by him prior to his induction into the Army i2 The department to which Collins was assigned at this time was the smallest department in the plant. He testified that while employed there, he was constantly watched by Tscheulm, his m ime- diate supervisor , and was also watched by Charles Kaufman, the supervisor of the tip department on the second floor ; that he was not permitted to leave the room except to go to the washroom and that even on such occasions there was "sure to be someone following " him; that Tscheulin did not permit him to leave the department to get tools which he needed , but had someone else get them for him; and that someone else punched the time clock for him, although he had always done this himself before his original discharge in August 1942 Collins further testified that subsequently Kaufman, on February 19, 1943, "wanted to know how I could possibly get any union members signed up while I was stuck up on the fourth floor having some one watch me all the time " Tscheulin , a witness for the respondent , denied that he had guarded Collins , had refused to permit him to get his own tools, or had ever instructed anyone to punch Collins ' time card for him He further testified that he had not seen Kaufman on the fourth floor more than half a dozen times over a period of 6 to 8 months , and had never seen him watching or guarding Collins. Kaufman did not testify Upon the record as a whole, we credit the testimony of Collins, who impressed its as being a trustworthy witness, against Tscheulin 's denials, and find that the respondent kept Collins under surveillance because of his interest and activities in the Union. THE ALEXANDER MILBURN COMPANY 499 Although the complaint alleges teat Collins' assignment on February 1 to less desirable work than that done by him before his induction into the Army was violative of Section 8 (3) of the Act, the respondent has offered no explanation for its action That its motive was, in fact, discriminatory is indicated not only by this fact, but by the combination of the following circumstances (a) the fact that Jenkins had previously instructed one of the respondent's supervisory employees to assign union members to less desirable positions ." (b) the fact that there were fewer employees on the fourth floor, to nn inch Collins was assigned at the time of his reemployment. than on either the second or third floor where he had previously been employed, viewed in the light of the fact that, as the respondent knew, Col- lis was very active on behalf of the Union, (c) the respondent's surveil- lance of Collins while he was employed on the fourth floor, as set forth above, (cl) Supervisor Kaufman's afore-mentioned remark to Collins, on February 19. 1943, that he "wanted to know how [Collins] could possibly get any union members signed up while [he] was stuck up on the fourth floor and having someone watch [him] all the time", (e) the fact that on November 30, 1942, employee Kash had also been discriminatorily assigned to the fourth floor department, as found below; and (f) the respondent's other acts of discrimination against Collins, as well as its anti-union conduct as a whole."` On the morning of February 19, 1943, Graham, who had becoimie plant manager upon the resignation of Williams, told Collins, as shop steward, that three female4'nipioyecs \\ ere to be discharged that afternoon, and asked u Nether any of them v, ei c member, of the Union Collins replied that they u cre not. Later in the dax, he told Graham that upon looking through the nicniber^lup cards, he had learned that one of the employees was a union member Graham asked Collin, whether the,matter of her clischarge could not be settled between Collin and hini,,elf Collins replied that it could not. 83 Plant Engineei Feeser testified , without contradiction, that he received such instructions from Jenkins after the hearing before the arhitratoi in the Bites case, which was held on August 18, 1942 He further testified that he carried out these instructions in the case of one employee Upon the record as a whole, we credit Feesei's testimony Although the employee in question testified that she preferred the position to which she was transferred, Feeler's action in effecting the transfei was nevertheless unlawfully motivated , and we so find 84 The Trial Examiner's finding that thei e was no disci urination aganist Collins in coinceton with his reemployment on February 1, 1943, appears to be predicated on the erroneous notion "that duiing the peiiod of Collins ' absence from the plant there had been a departmental ieorgani- zation and that there was no position functionally equivalent to this previous position in which he could have been reinstated " The record discloses that the reorganization in question took place during Collins' absence fioni the plant after his discharge on August 10, 1942, and befoie his reinstatement on October 22 1942, and the eviduice relative thereto was offered to explain his ieuistatenient on the latter date in the torch department on the thud floor lather than in the tip dep,utntent on the second floor, where-he had been employed prior to his oirgmal discharge what occurred on Fcbniaiv 1, 1943, was that instead of being reinstated to the position in the toich department on the thud floor which lie occupied when he left for the Arniv, lie was ieemplo}ed in an inferior positron on the fourth floor, as hereinabove found, and no explanation was offered b) the respondent for its action in that regard - 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That afternoon, Charles Kaufman, supervisor in the tip department, went tip to Collins' floor and asked Collins with some heat how it was that he had not known before lunch that Chrisa Lewis, the employee in question, was a union member and yet knew it after lunch. Collins explained that in the meantime he had looked through the membership cards. In the course of the conversation, Collins told Kaufman that there would be trouble with the Union if Lewis were laid off. Collins did not work the next day, which was a Saturday. On Monday, when lie reported for work, he was told by Jones, an employee who punched the arrival time of each employee on the time clock, that he was not to start work until he had seen Jenkins. On reporting to Jenkins, Collins was given a written notice that lie was suspended pending investigation. He refused to accept the suspension and demanded, instead, a final release. This was thereupon prepared and delivered to him.' At the hearing, the respondent offered no explanation for its action in suspending Collins, and the only evidence with respect to any reason given Collins for the suspension is Collins' testimony that Jenkins "read off the reasons.... He understood I made exception to Charles Kaufman." Under these circumstances, and in view of the fact that Collins' afore-mentioned remark to Kaufman was incident to Collins' activities as chief steward of the Union, and in the light of the respondent's previous unfair labor prac- tices, particularly its prior discriminatory conduct with respect to Collins, we are convinced, and we find, that the respondent's action in suspending him was discriminatory." However, we agree with the Trial Examiner that on the facts of the instant case, it cannot be said that Collins' request for a final release was made under such circumstances as to have been tanta- mount to a constructive discharge." x Neither document was introduced in evidence , and the iecord does not clearly indicate then contents Although Collins' testimony regarding his conveisation with Jenkins when he was handed the first notice is susceptible of the interpretation that he was told that he was being discharged, and that he therefore demanded a release which would reflect the true situation , Collins admitted that the fact that he had been suspended was "one of the things on [the original notice ]," and his testi- mony as a whole indicates that he was then given to understand that he was merely being suspended 36 Whether the suspension be regarded as a violation of Section 8 (1) or of Section 8 (3), we find it necessary , in order to effectuate the purposes and policies of the Act, to order Collins rein- stated. We believe this remedy to be appropriate and necessary to cure the effects of the respondent's unlawful conduct in suspending Collins, notwithstanding the fact that Collins, following his suspen. sion, requested and was granted a final release from the respondent 's employ. Among other things, we recognize that it was the respondent's act of suspending him, which we find to have been discriminatory, which led to and was responsible for Collins' request for an absolute release Moreover, under the facts of this case, an order of reinstatement is necessary in order to remedy the effects of the respondent 's unfair labor practice in assigning Collins to an inferior position upon his reemployment on February 1, 1943. In view of the latter circumstance , instead of ordering Collins' reinstatement to the position held by him on February 22, 1943, the date of his suspension, we shall order him reinstated to the position held by him immediately prior to November 4, 1942, when he was inducted into the Army, or to a substantially equivalent position ar Under these circumstances , and since Collins must therefore he viewed as having chosen not to continue in the respondent's employ after February 22, 1943, we shall not award back pay for Collins for the period subsequent to that date, except to the extent indicated below under "The remedy " THE ALEXANDER MILBURN COMPANY 501 We find that the respondent, by discharging Collins on August 10, 1942, by assigning him, at the time of his reemployment on February 1, 1943, to less desirable work than that clone by him prior to his induction into the Army, and by suspending him on February 22, 1943, discriminated in regard to his hire and tenure of employment and the terms and conditions of his employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. O. E. Biles Biles was employed March 1 l , 1941, as a tip tester. Sometime in July 1942, he was transferred to the torch department. He joined the Union in April 1942, was appointed a shop steward in June, and thereafter served on the grievance committee. As hereinabove set forth, he was one of the signers of the letter of August 8 from the Union to the respondent. On August 12, after having failed to perform satisfactorily a welding job which had been assigned to him, lie was discharged. In the letter notifying Biles of his discharge, the respondent gave the following reasons for its action : 1. You have been unable to do a satisfactory job of welding, there- fore, it is the opinion of the Company that you are incapable of assuming any longer the responsibility of testing, cutting and weld- ing equipment. 2. You have also approached employees regarding union membership during working hours which is a breach of the union contract Article I Section 2.° - The record shows, however, that while it is desirable for a tip tester to have a knowledge of welding, such knowledge is not absolutely necessary, that the respondent employed other tip testers who were not welders, and that Biles himself had been employed as a tip tester for over a year before this objection was raised Moreover, although there is evidence indicating that Biles had, on one occasion, approached an employee on company time con- cerning union membership, this incident occurred approximately 3 weeks before Biles' discharge, and during that time the respondent had taken no disciplinary action. At the hearing, the respondent contended, as an additional reason for the discharge, that Biles' work as a tip tester had been unsatisfactory, and that for this reason, and because of his inability to do welding, the respondent 38 This section of the contract read in part as follows "The Union agrees that neither the Union nor any of its members will intimidate or coerce employees into joining the Union or solicit employees for membership or conduct Union business on the Company's time." 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had no work foi him The record indicates, however, that Biles' work as a tester had been considered satisfactory until the spring and summer of 1942. The respondent was then manufacturing for the Army and Navy under more exacting specifications than those for the general commercial trade. At this time, also, the respondent was manufacturing more tips from pure copper and producing a greater proportion of defective tips. Many of the tips which Bites passed as good were later rejected or found upon rein- spection to be too defective to meet Army and Navy standards. On July 2; the respondent sent Bites to an oculist at its own expense The oculist reported, on Julx 7, that the test showed marked impairment of vision for close or small objects, but that the condition could be improved by the use of glasses. Bile, obtained the prescribed glasses, and the record does not show that his subsequent inspection work was faulty. On Augtmst 11, Supervisor Tscheuhn of the torch assembly department, acting under Jenkins' instructions, assigned Bites to a welding job "to see what be could do with it " Al Kash, one of Bites' fellow employees, under- took to assist hum, but was told to stay on his own job. The welding done by Bites on this occasion, according to his own testimony at the hearing, was "rotten " On the following clay, lie was discharged by Williams, acting on instructions from Jenkins In his original application for employment Bites had stated that he had been employed for 10 years by Carnegie Steel as a cutter and welder. He admitted at the hearing that the had never clone any welding at Carnegie Steel, but claimed that he had subsequently studied welding at a vocational school. The respondent contended that it relied on Bites' representations as to his former work experience in trying him-out as a welder after his work as an inspector had proved unsatisfactory. However, we are satisfied, as was the Trial Examiner, that the circumstances under which he was given his test job negative any desire on the part of the respondent to retain hum as a welder. He would, in any case, after being out of practice, have had difficulty with his first attempts at welding, yet he was denied help that Kash proffered and was required to use an oxy-acetylene torch instead of the arc welder that would normally have been used for the work assigned to him. Under the circumstances, we are convinced, and we find, as did the Trial Examiner, that the welding test was only a pretext for Bites' discharge. That the respondent was in fact motivated by its opposition to Bites' activi- ties in behalf of the Union is evidenced not only by the inadequacy of the reasons given by the respondent for the discharge, discussed above, but by the following circumstances : (a) the respondent's opposition to the Union, as shown by its other unfair labor practices, (h) the fact that Bites was a shop steward and served on the Union's grievance committee; (c) the fact that lie was assigned to welding, a type of work with which he was unfa- THE ALEXANDER MILBURN COMPANY 503 nuhar, on the day after the respondent received the Union's letter of August 8, 1942, signed by Biles and others, and was discharged upon his- failure to perform that work, and (d) the fact that, at approximately the same time that Biles was discharged, Collins and Trenner, the other two employees who had signed the Union's letter, were, respectively, dis- charged and reprimanded. We therefore find, as did the Trial Examiner, that the respondent, by discharging Biles on August 12, 1942, discrim- inated in regard to his hire and tenure of employment, thereby discourag- ing membership in the Union and interfering with, restraining, and coerc- ing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Soon after his discharge, Biles obtained other employment which he still had at the time of the hearing. At some time thereafter, the respondent offered him reinstatement" which he declined, and paid him the sum of $18°° 4. Albert Kash Kash was first employed by the respondent on April 24, 1942. He was classified as a tip tester, but did not work exclusively on tip testing. He joined the Union sometime in June 1942, but was not particularly active at that time Although he participated to some extent in the so-called "pranks" of July 4, the respondent took no disciplinary action by reason of these activities. On October 23, 1942, Kash testified on behalf of the Union before Media- tion Officer Ewing. On October 24, when he again reported for work, he was placed under the direct supervision of Charles Godman, supervisor of fine tooling, in whose department the lathe which Kash was using was located, and for the first time was required to secure an interdepartmental pass whenever he had occasion to leave his department. On the same day, he was reprimanded by Personnel Manager Forney for not having pre- viously advised the personnel department that he was a member of the Union 11 On October 26, he was warned by Plant Manager Williams against violating the plant rules. During the period from October 28 to November 15, Kash was absent "The record indicates that this offer was made in September 1942 Near the close of Biles' testimony, the Trial Examiner granted a motion of counsel for the Boaid to limit the allegation of the complaint that the respondent had refused to reinstate Biles to the period from the date of his discharge to the date on which the respondent's offer of reinstatement was made and refused 10 The exact pui pose of this payment is not clear The only evidence regarding it is Biles' testimony that at the time of the respondent's offer of reinstatement nothing was said about back pay, "only the double time I lost on that Sunday," and that he collected "that" (the double time ) in the amount of $18 In view of this testimony , although he also stated that no back pay was due him, we -tic not entirely convinced that he was fully reimbursed for his loss of pay during the period of his unemployment, ai According to Kash 's uncontradicted testimony , which we credit , Kash had previously "signed the check-off," provision for which was made in the contract The record fails to show that the respofident needed information regarding Kash's union status for any other legitimate purpose 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from work on account of illness. On November 16, he returned to the plant, but was told by Williams that before resuming work, he would have to fur- nish a doctor's certificate. On the following day, he broughtan the certifi- cate, but was then told that the respondent, in checking the information furnished on his employment application, had discovered certain dis- crepancies, and that on Jenkins' instructions, he was being suspended pend- ing further investigation." On November 24, the respondent wrote to hint that he was being discharged because he had "falsified his antecedents in employment application." On November 25, the Union wrote to the respondent requesting a meet- ing to discuss, among other matters, the "suspension of Albert Kash." The respondent replied on November 28, making an appointment for the after- noon of November 30 to discuss Kash's case, but stating that it was the only matter that the respondent's grievance committee could deal with at that time. The letter concluded as follows: Only persons authorized by the Alexander Milburn Company will be admitted. Application should be made to the Company in advance. Kash went to the plant at the time appointed, accompanied by Organizer Myers. They were informed by Plant Engineer Feeser, who was acting as chairman of the committee appointed by the respondent, that on Jenkins' instructions Myers would not be permitted to be present at the meeting, Kash was offered reemployment at the rate of pay he had been receiving, but in a less desirable position." After he had been given an opportunity to consult with Myers, Kash agreed to return to work on the basis of the respondent's offer 44 On December 2, Kash reported for work in accordance with the agree- ment reached on November 30. On December 3, he was requested by Feeser to fill out a new application form. He refused, stating that he had already filled out two application forms and could see no reason for mak- 42 Although Kash, upon his return to the plant on November 16, apparently made no objection to the requirement that he obtain a doctor 's certificate, and admitted, at the hearing , that he had said to Williams that "a little rest would do me good until I could get a certificate," we find, in the absence of any clear showing to the contrary , that on November 17, when he presented the certifi- cate, he was prepared to start work. 48 Accordnig to Kash's testimony, which we credit , this position was "more or less . a hclpci's job," and was "inferior work-less essential ." Feeser testified that Jenkins had advised him that "Kash could return, provided he would accept a position in another department . , the light department . . . on the fourth floor." 44 Although Kash, after consulting with Myers , agreed to return to work in the less desirable position offered him by the respondent , there is no showing that the parties regarded this arrange- ment as a settlement of the dispute as to the respondent 's treatment of Kash On the contrary, according to Kash, "Myers and I agreed that it would he advisable for me to work in the plant and then take up the matter of the job dispute as provided for in the contract " In any event, it can hardly be said that the respondents had entered into any settlement with the Union as Kash's exclusive representative, covering that matter ° THE ALEXANDER MILBURN COMPANY 505 ing out a third "unless the Company had an ulterior motive."" Feeser warned hun that the consequence would be that he would be discharged. Upon Kash's continued refusal to make out an application, he was dis- charged. A subsequent attempt by the Union to submit the matter to arbi- tration was unsuccessful due to the respondent's refusal to arbitrate. As stated above, the reason given by the respondent for suspending Kash on November 17 was that it was investigating the information given on his employment application, and the reason given for discharging him on November 24 was'lhat he had "falsified his antecedents in employment application." That there were, in fact, some discrepancies between the information furnished by Kash on his application and that received by the respondent from other sources seems clearly established. Furthermore, Williams' testimony indicates that the respondent, upon instructions received from the Navy in January 1942, had adopted a rule that "any misrepresentation of facts [in an employees' application for-employment] may be cause for dismissal." However, the respondent has offered no satis- factory explanation for its failure to take any action from April, when Kash was first employed, until November," and Kash's testimony, which we credit, indicates that Williams on the whole appeared to have been satis- fied with Kash's explanation of the discrepancies. Under these circum- stances, we are convinced that the reasons given'by the respondent for Kash's suspension and discharge were not the real reasons for its action. That its motive was, on the contrary, discriminatory is indicated by the fact that the respondent's action was taken shortly after Kash testified on behalf of the Union at the hearing before the Mediation Officer of the National War Labor Board, coupled with the fact that on the day follow- ing the hearing Personnel Manager Forney reprimanded him for not hav- ing previously advised the respondent that he was a member of the Union." and by the respondent's other discriminatory conduct found herein. We are also convinced, and we find, that Kash's assignment on Decem- ber 2 to less desirable work than that done by him prior to his suspension 4 At some time during 1942 , the respondent adopted an application form recommended by the Army Kash's reference to a second application evidently refers to this form. 49 The respondent contends that it began its investigation of Kash's record in April, but offered no evidence to support this contention . Williams' testimony that "it was during that period [while Kash was sick] that the letters were written to which reference was made" indicates that the investigation took place after Kash had testified at the National War Labor Board hearing "Although it seems somewhat suspicious that on the same day on which Kash was reprimanded by Forney, Kash was placed under the direct supervision of Godman and wt s for the first time required to obtain an interdepartmental pass when he had occasion to leave the department, and that a day or two later he was warned by Williams against violating plant rules , we agree with the Trial Examiner that the record falls short of establishing that the respondent 's action in this respect was motivated by its anti -union bias 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was discriminatory." This is indicated not only by the respondent's failure to adduce any evidence in explanation of its action, but by the combination of the following circumstances : (a) Kash's activity on behalf of the Union, as set forth above, coupled with the respondent's opposition to the Union, (b) Feeser's testimony that Jenkins advised him that Kash could return provided he would accept a position in the light department on the fourth floor, which department was, as already indicated, the smallest one in the plant and the one to which Collins was later discriminatorily transferred, and (c) the respondent's prior and subsequent acts of discrimination against Kash, as well as its other unfair labor practices, as found herein. We are also convinced, and we find, as did the Trial Examiner, that Kash's final discharge on December 3, 1942, was discriminatory. The rea- son given by the respondent for the discharge was Kash's refusal to sign a new application form on December 3, the day following his reemployment. Plant Engineer Feeser, who asked Kash to fill out the new application, gaye him no reason for the request except that "Jenkins wanted it that way," and no further evidence m explanation of that request has been adduced by the respondent. Under these circumstances, and in view of the respondent's previous discrimination against Kash as well as the record as a whole, we infer that its purpose in demanding a new application was either to deprive Kash of his seniority rights by treating him as a new employee, or to use the new application as a basis for further investigation ii i the hope of entrapping Kash thereby and finding a new pretext for dis- ci-larging him. In either case, the request was discriminatory, and Kash's discharge because of his refusal to comply therewith was violative of Sec- tion 8 (3) of the Act. We accordingly find that the respondent, by suspending Kash on Novem- ber 17, 1942, by discharging him on November 24, 1942, by assigning him, on December 2, 1942, to less desirable work than that done by him prior to his suspension, and by discharging him on December 3, 1942, discrim- inated in regard to his hire and tenure of employment and the terms and conditions of his employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The refusal to bargain 1. The appropriate unit The complaint alleges, and the respondent in its answer admits, that all As Whether Kash's transfer to less desirable work on December 2 be regarded as a violation of Section 8 (1) or of Section 8 (3) of the Act, we find it necessary, in order to effectuate the policies of the Act and remedy the effects of the respondent's unlawful conduct, to order Kash reinstated to the position held by him prior to November 17, 1942, the date of his suspension, or to a substantially equivalent position. Since the rate of pay in his new position was the same as in the one held by him on November 17, we shall not award Kash back pay for the period of December 2, 1942, to December 3, 1942, the date of his discharge THE ALEXANDER MILBURN COMPANY 507 production and maintenance employees, excluding all general office em- ployees, foremen, and executives, constitute a unit appropriate for the pur- poses of collective bargaining. The unit so described is the unit agreed upon by the respondent and the Union in the consent election agreement of June 11, 1942, and no question as to its appropriateness has been raised in the present proceeding. We accordingly find, as did the Trial Examiner, that all the respondent's production and maintenance employees, excluding all general office employees, foremen, and executives, at all times material herein, constituted, and that they now constitute, a unit appropriate for the purposes of collective bargaining and that said unit insures to the re,pond- ent's employees the full benefit of their right to self-organization and to collective bargaining, and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit As hereinabove set forth, following the consent election held on June 17, 1942, the Regional Director, on June 24, 1942, issued his Report on Con- sent Election, in which he found and determined that the Union had been designated and selected by a majority of the employees in the agreed unit as the exclusive bargaining representative of the employees within the unit The respondent admits the correctness of the Regional Director's findings as of the date thereof, but contends that thereafter the Union lost its repre- sentative status by reason of changes in the respondent's pay roll and resig- nations from the Union which dissipated its majority. The record does not establish the actual membership of the Union as of any given date, but fit the consent election on June 17, 49 votes were cast in favor of the Union Shortly thereafter the Union began to lose member- ships, and by October its numerical strength in the plant appears to have been seriously impaired Thus, according to the recital, of the Mediation Officer's report of October 30, 1942, the Union claimed a total membership of only 17 as of October 22, exclusive of 10 "attempted resignations." One additional resignation took place on November 14, 1942, and 6 on Decem- her 22, 1942. Furthermore, during November, 2 employees who had pre- viously authorized the respondent to deduct their union dues from their wages left the respondent's employ." On January 4, 1943, employees Margaret Trenner, Jeanetta Braun, and Carrie Noble, as a self-styled committee, wrote to the Board enclosing a statement purporting to have been signed by 113 of the respondent's employees and reading in part as follows. We the employees of the Alexander Milburn Company hereby issue notice that we are not members of [the Union] and do not wish to he represented by it "The record indicates that between July 1, 1942, and July 1, 1943, there was a Substantial turn- over in the respondent 's personnel , but does not show to what extent the Union may have been able to recruit new members among the new employees 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A duplicate of the letter and statement was filed with the respondent.`'° These circumstances, although knot conclusive, raise a question as to the majority status of the Union at the time of the respondent's refusal to bar- gain, found below. Assuming, however, that the majority of the employees were not then members of the Union or had not designated it as their representative, this fact would not be controlling as to the Union's continu- ing right to represent the employees in the appropriate unit. We have con- sistently held that, in the absence of special circumstances, a certification of representatives, to which the Regional Director's determination of repre- sentatives is equivalent, must be honored for a reasonable period, even though there has been a repudiation of the certified union by a majority of the employees in the appropriate unit.' Furthermore, a union's representa- tive status is not affected by a loss of majority caused by an employer's unfair labor practices.' While the record does not warrant a finding that the respondent directly instigated the withdrawels from the Union, it never- theless shows, as herein found, that within 2 months after the Union had .been designated as the representative of the employees, the respondent had discrnninatorily discharged Collins, the Union's outstanding representative in the plant, Biles, a shop steward, and Burns, an active union member, and had otherwise interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Kash, another union member, was discriminatorily discharged in December. Since this conduct, as well as the respondent's subsequent refusal to bargain with the Union, was calculated to discourage membership in the Union, we are of the opinion, and we find, that the Union's loss of majority was the result of the respondent's unfair labor practices. Under all the circumstances, we do not regard either the resignations from the Union or the statement signed b\ the employees in January 1943 as an effective repudiation of the prior designation of the Union as the exclusive bargaining representative of the employees in the appropriate unit. We accordingly find, as did the Trial Examiner, that at all times mate- rial to this proceeding the Union was and that it now'is the exclusive repre- sentative of all the employees in the appropriate bargaining unit for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain The complaint, as issued, alleged that -on or about November 28, 1942, so According to the letter, the signatures appended to the statement represented 98 5 percent of the respondent's employees it Matter of The Century Os foi d Manufachn tng Ca par at2on, 47 N L R R 835, enf'd 140 F (2d) 541 (C C A 2), ceit den 323 U S 714, Matter of E J Anderson, d/b/a Andc,son 8Ianufact urging Company, 58 N L R R 1511 F=N L R B v Bradford Dycinq Association, 310 U S 318, Mcdo Photo Supply Coip 4. L R B, 321 U S 678 See also, Franks Bros Company v. N. L. R. B, 321 U. S. 702 THE ALEXANDER 'NMILBURN COMPANY 509 and at all times thereafter, the respondent refused to bargain with the Union as the exclusive representative of its employees in the appropriate unit regarding rates of pay, wage,,, hours of employment, and other con- ditions of employment. During the hearing, it was amended to allege further that in and after June 1942, the respondent dealt "directly anll indi- vidually with its employees in the [appropriate] unit ... concerning rates of pay, wages, hours of employment, and other conditions of employment, in violation of Section 8 (1) and (5) of the Act."" As appears above, on July 9, 1942, the respondent and the Union entered into a written agreement. The Union attempted, in Article I of the con- tract, to insure its own security in the plant The terminology adopted was inept, and the difficulty of interpretation was enhanced by the provisions of the membership application and the check-off authorization reserving the rights of withdrawal and cancellation respectively. The Union was early confronted with a critical problem when some of its members resigned and stopped payment of dues under the check-off plan The record does not dis- close what representations, if any, the Union made to the respondent as to the right of employees who resigned from membership to remain employees It appears, however, from recitals in the report of the Mediation Officer, that the desire of the Union to strengthen the provisions of the contract relating to union security was discussed at the hearing before hurl in Octo- her. The Mediation Officer recommended that the parties be relegated for a settlement of the issue to the grievance procedure provided for in the contract. The Directive Order of the National War Labor Board subse- quently gave effect to this recommendation. In the meamahile, acting on the recommendation of the Mediation Officer, the Union, on November 25, 1942, asked that the respondent set a date for discussion of this and other matters. Soiree delay in meeting the request 'of the Union is understandable, in view of the concurrent illness of all the persons who would normally have had authority to make decisions on behalf of the respondent The initiative as to 'reopening the matter was left with the respondent, however, and the Union's request was thereafter ignored The respondent further ignored the Union's repetition of the request on January 18, 1943 In response to a renewal of the request on March 5, the respondent abrogated the contract and repudiated the bargaining relationships' When the Union, on June 7, ra Counsel for the Board stated that this amendment was designed to cover the respondent 's direct dealings with Burns, Biles , and Kash. sk The respondent 's course of dealing with the Union in respect to the lattei 's request for negoti- ations on the matter of union security has been hereinabove particularized both because of the importance of the issue which the Union wished to negotiate and because the respondent's refusal to bargain concerning it is so unambiguously established by documentary evidence The Union was equally entitled to have an opportunity to negotiate the other matters set forth in its letters of November 25, 1942 , and March 5, 1943 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sought to open negotiations for a renewal term of the contract, it again met with a peremptory refusal. Under the circumstances, we agree with the Trial Examiner that the respondent's course of conduct following the Union's letter of November 25 constituted a clear violation of its statutory obligation to bargain with the Union. The respondent contends, however, that by entering into a col- lective bargaining agreement with the Union, it fulfilled its obligation under the Act, and that all subsequent disputes were determinable solely under the law of contracts. We find no merit in this contention. As we have previously stated, it is now well settled that the statutory duty to bargain does not cease with the execution of the collective agreement, and the em- ployer is under tbbe further duty to negotiate with the accredited bargaining agency concerning the modification, interpretation, and administration of the existing contract." This the respondent has failed to do."We therefore find, as did the Trial Examiner, that the respondent's course of conduct following its receipt of the Union's letter of November 25, constituted a clear violation of Section 8 (5) of the Act. We are also of the opinion, and we find, that the respondent's conduct in dealing directly and individually With employees Burns, Biles, and Kash, constituted a refusal to bargain with the Union. As stated above, in Novem- ber 1942, while the dispute between the respondent and the Union con- cerning the termination of Burns' employment was still before the National War Labor Board, Burns attempted to make a money settlement with the respondent. At that time, the respondent refused to settle without the con- sent of the Union, and the Union was unwilling to agree to the settlement. However, on April 10, 1943, the respondent communicated with Burns and effected a direct settlement with him on the basis of his offer in November 1942, and Burns gave the respondent a release. While the details concern- ing the respondent's settlement with Biles are less clearly established, the record discloses that around September 1942, the respondent offered Biles reinstatement, which he refused, and paid him the sum of $18. In both cases, the negotiations took place without the participation of the Union, although the Union was, at the time, the certified bargaining agent of the respond- ent's employees. The respondent's action thus constituted a clear violation of its duty to bargain with the Union.r'° Equally violative of Section 8 (5) was the respondent's conduct on November 30, 1942, in advising the Union, in response to the latter's request for a conference with the respondent to discuss the matter of Kash's suspension on November 17, 1942, that "Only persons authorized by [the respondent] will be admitted [at the confer- 66 Matter of George E. Carroll, d/b/a Carroll's Transfer Company, 56 N. L. R. B. 935, and cases therein cited. Cf. Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678. The fact that both Burns and Biles had obtained other employment at the time did not affect the right of the Union to be consulted with respect to the settlement of their claims to reinstatement and back pay, and we so find. THE ALEXANDER MILBURN COMPANY 511 ence],"" in refusing to permit Jack Myers. the Union's representative, to lie present at the conference, and in dealing directly with Kash concerning the terms of his reinstatement. We accordingly find that the respondent, by dealing directly and indi- vidually with employees Burns, Biles, and Kash, and by, in and after December 1942, ignoring the Union's requests for bargaining conferences to discuss union security and other matters within the scope of collective bargaining, abrogating its contract with the Union and repudiating the bar- gaining relationship, and refusing to negotiate for a renewal of the con- tract, has refused to bargain with the Union as the exclusive representative of its employees in an appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act ' D Interference, restraint, and coercion As found above, the respondent has not only discriminated in regard to the hire and tenure of employment of Ernest Burns, William Collins, O. E. Biles, and Albert Kash, and refused to bargain collectively with the Union as the exclusive representative of employees in an appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, but has engaged in other anti-union conduct, as follows : (1) On August 5. 1942, President Jenkins suggested to Collins that the respondent's failure to give him a responsible salaried position was due to Collins' union affilia- tion, and that the matter of his obtaining such a position could be further chscusscd if Collins resigned from the Union , (2) After Collins' reemploy- ment on February 1, 1943, the respondent kept him under surveillance because of his interest and activities in the Union, (3) Immediately after i eceiving the Union's letter df August 8, 1942, which charged Jenkins with anti-union conduct. Jenkins reprimanded 11argaret Trenner, who, as a member of the Union's shop committee, had signed the letter, for her lack of loyalty to the respondent, (4) Sonietnne after August 18, 1942, Jenkins instructed Plant Engineer Feeser to assign union members to less desirable positions, and Feeler carried out those instructions, (5) On October 24. 1942. the da.\ after IKah testified on behalf of the Union at a hearing before 57The grievance procedure set forth in the contract with the Union was in effect superseded by Jenkins' direction to Collins, on August 5, 1942, that grievances he submitted to Jenkins in writing Following that direction, the Union submitted a written request to the respondent to meet with it to discuss Kash's suspension, and, though Kash himself was a shop steward, lie had a eight to be represented by the Union, the employees' exclusive iiargainiig representative 18 While the respondent engaged in other acts, in addition to those enumerated above, which night be viewed as violative of Section 8 (5) of the Act, we make no findings of unfair labor practices with respect thereto, since Board counsel stated at the hearing that lie considered them merely as background and was not urging them as violations of Section 8 (5) 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a Mediation Officer of the National War Labor Board, Personnel Manager Forney reprimanded him for not having advised the respondent's person- nel department that he was a member of the Union ; and (6) in August 1942, the respondent unilaterally adopted plant rules without first con- sulting the Union, as provided in the contract. The record also shows that in or about July 1942, Francis A. Michel, the respondent's attorney, sug- gested and dictated a letter of resignation from the Union for employee Al Perry, when Perry told him that he did not wish io belong to the Union since he had learned that he would have to "pay some money" in connec- tion with his application." We find that by the above acts and statements, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. It is also clear, and we find, that these statements and acts of the respondent, as well as its discriminatory treatment of Burns, Collins, Biles, and Kash, were integral parts of a course of conduct designed to discourage the employees from joining or remaining members of the Union and to defeat the Union's efforts at collective bargaining, and that this course of conduct, which included economic reprisals for union membership and activities, was plainly coercive and therefore violative of Section 8 (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent 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 bur- dening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirma- tive action which we find will effectuate the policies of the Act. We have found that the respondent discriminated with respect to the hire and tenure of employment of William Collins by discharging him on August 10, 1942, assigning him, on February 1, 1943 , to less desirable work than that done by him before his induction into the Army , and sus- pending him on February 22, 1943. No remedial order is necessary in con- nection with Collins ' discriminatory discharge on August 10, 1942, since the record clearly shows that on October 22. 1942, pursuant to a settle- ment between the respondent and the Union , Collins was reinstated, with back pay , to a position substantially equivalent to the position occupied by him before his discharge . However, in view of the respondent 's subsequent acts of discrimination against Collins , we shall order the respondent to 69 This finding is based on the testimony of Michel, who was called as a witness for the Boai d THE ALEXANDER MILBURN COMPANY 513 offer him immediate and full reinstatement to the position held by hint immediately prior to November 4, 1942, when he was inducted into the Army, or to a substantially equivalent position. We shall also make pro- vision, in our order, for compensation in the event the respondent shall fail or refuse to offer Collins reinstatement in accordance with our order. We have found that the respondent discriminated against Albert Kash by suspending him on November 17, 1942, discharging him on November 24, 1942, reemploying him in an inferior position on December 2, 1942, and discharging him on December 3, 1942. We shall, therefore, order the respondent to reinstate Kash to the position held by him prior to November 17, 1942, or to a substantially equivalent position,80 and to make him whole for any loss of pay he may have suffered by reason of the respondent'e dis- crimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the periods from November 17, 1942, the date of his suspension, to December 2, 1942, the date on which he was reemployed by the respondent, and from Decem- ber 3, 1942, the date of his final discharge, to the date of the, respondent's offer of reinstatement, less his net earnings01 during said periods. We have found that the respondent discriminatorily discharged Ernest Burns and 0. E. Biles on August 10 and 12, 1942, respectively. Since the respondent thereafter offered Biles reinstatement, which he refused, and since both Biles and Burns testified at the hearing that they had obtained other employment and did not desire to return to the respondent's employ, we shall not order the respondent to reinstate them, or to give them back pay for the period subsequent to the date on which they obtained their new employment. The record discloses that no charge was filed with regard to the dis- crimination against Burns or Biles until May 27, 1944, over 21 months after the date of such discrimination. Such an extended period of delay in the filing of a charge is clearly unreasonable and is to be frowned upon, and it is our established policy to deny back pay for any period prior to the filing of charges, where there has been an unreasonable delay in the filing of such 60 As found above , Kash 's discharge on December 3, 1942, was discriminatory But even assuming that it was justified by his refusal to fill out a new application, as contended by the respondent, we should nevertheless find it necessary, in order to effectuate the purposes of the Act and to remedy the effects of the respondent 's other acts of discrimination against Kash, to order him reinstated to the position held by him on November 17, 1942, or a substantially equivalent position Tn this connection , we wish to point out that, we do not regard the refusal to sign an application, which forms the basis for a discharge , as an offense of such a nature as to warrant the denial of rein- statement in order to remedy pi ior unfair labor practices. e1 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent , which would not have been incurred but for his unlawful discharge and the conse- quent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Conmpany, 3 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. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges.' However, we shall not withhold back pay for any period of excus- able delay.' In the instant case, we note that during the period from August 1942, when Burns and Biles were discriminatorily discharged, through December 1942, the Union was attempting to secure their reinstatement, first through arbitration under the grievance procedure provided for by the contract between the respondent and the Union, and later, because the respondent refused to comply with the arbitrator's award, by submitting their cases to the National War Labor Board. We find that, under these circumstances, the failure to file charges with respect to the two employees in question during this period of August 1942 through December 1942 was excusable.' The dates on which Burns and Biles secured the new positions elsewhere, which they held at the time of the hearing herein, following which dates they are not to receive back pay, appear to fall within the period of excus- able delay.' Under these circumstances, we shall order the respondent to make Biles and Burns whole 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 from the date of the respondent's discrimination against him06 to the date on which he obtained the employment held by him at the date of the hearing herein, less his net earnings during said period, and less any amounts already paid him by the respondent as back pay dur- ing the course of the settlements referred to above 67 A question as to whether Biles, Burns, and Kash, following the termi- nation of their employment with the respondent, wilfully incurred losses of earnings for which they should not be reimbursed is raised by the alle- gation in the respondent's answer that they wilfully refused to seek or accept other employment and failed to register with the United States Employment Service, and by the evidence discussed below. Biles testified that after his discharge by the respondent he went on a 62 See Matter of Inland Lime and Stone Company, 8 N L. R. B. 944; Matter of The New Yo, k Times Company, 26 N. L R. B 1094, Matter of The Cleveland Worsted Mills Company, 43 N L. R. B 545 °3 See Matter of Crowe Coal Company, 9 N L R B 1149, enf'd 104 F (2d) 633 (C C A 8), ceit den 308 U S . 548, Matter of L C. Smith and Corona Typewriters, Inc, 11 N L R B 1382 64 Cf Matter of Crowe Coal Company, supra, and Matter of L C Smith and Corona Typewriters, Inc, supra. As stated by the Circuit Court of Appeals in the Crowe Coal Company case: It certainly would not further the object of the Act to coerce the hasty filing of charges against employers by penalizing those employees who, although they may feel aggrieved by some action or inaction of their employer , take reasonable time for discussion, appeal, request, and other peaceable means of reconciliation or redress before they resort to charges 65 It appears from the record that both Biles and Burns obtained their new positions before the issuance of the Directive Order of the National War Labor Board on December 31, 1942. 66 In the case of Burns , this is August 10, 1942, the effective date of the respondent 's discrimina- tion against him. 67 See Matter of Beckerman Shoe Corp of Kutztown, 43 N L R B 435, enf'd 134 F (2d) 3 (C C. A. 3). 1'IIL AI.IEAANNDLI: MlLl URN C01\4 PAN Y 515 vacation because it was his "vacation week,"" that a week later (approxi- mately 3 weeks after his discharge) he obtained employment at the Bethle- hem-Fairfield shipyard, and that he had been employed there ever since. Burns testified that as of the time of the hearing herein (June 1944), he had been employed in the Friez Division, Bendix Aviation Corporation, for about a year and a half. Neither Bites nor Burns was questioned as to whether he had registered with the United States Employment Service, what efforts he had made to seek other employment during his period of unemployment, or whether he had refused any employment offered him. In view of all the foregoing, we are of the opinion, and we find, that the respondent failed to establish that either Bites or Burns was guilty of a wilful incurrence of a loss of earnings following the termination of his employment with the respondent.°° Kash was not employed for a period of about 2 months after his final dis- charge, but during that time, according to his uncontradicted testimony, he registered with the United States Employment Service and visited several defense plants in Baltimore in an effort to obtain employment. With one exception,' the employers to whom Kash was referred by the United States Employment Service refused to hire him because of his draft classification." Ho«;ever, he finally succeeded in obtaining new employment and, prior to the hearing herein, had held several different positions, with short intervals of unemployment, the longest of such intervals being about a week. Upon all the evidence, we are of the opinion, and we find, that the record fails to establish that Kash wilfully incurred a loss of earnings following the termi- nation of his employment with the respondent." We have found that the respondent refused to bargain collectively with the Union as the representative of the employees in the appropriate unit. We shall, therefore, order the respondent, upon request, to bargain col- lectively with the Union. Upon the basis of the foregoing findings of fact and the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. United Electrical, Radio & Machine Workers of America, affiliated °B Bites had been in the respondent's employ since March 1941 . The respondent's contract with the Union provided that employees who had been on the pay roll for 1 year as of July 1 , 1942, should be entitled to 1 week's vacation with pay The record does not show whether Biles received vacation pay at the time of his discharge. °0 Matter of The Ohio Public Service Company, 52 N. L. R. B. 725; Matter of The Laredo Daily Times, 58 N . L. R B 458 70 In this instance , Kash was referred to the Bethlehem -Fairfield shipyard for a position as lielpei his testimony was that he "asked it as a machinist 's rating , and when [he] went to speak to them, they had the position already filled." 71 In June 1943, Kash was called for induction into the armed forces of the United States and was rejected. He did not thereafter return to the United States Employment Set vice office because he had already accepted a position offered him 72 See footnote 69, supra. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Congress of Industrial Organizations, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. All the respondent's production and maintenance employees, exclud- ing all general office employees, foremen, and executives, at all times mate- rial 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 & Machine Workers of America, affiliated with the Congress of Industrial Organizations, was at all times material herein, and it now is, the exclusive representative of-all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial. Organizations, as the exclusive representative of all the employees in the above-stated 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 and tenure of employment of Ernest Burns, William Collins, O. E Biles, and Albert Kash, thereby dis- couraging membership in United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, the i espondent 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 mean- ing 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. 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, The Alexander Milburn Company, Baltimore, Maryland, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Electrical, Radio & Machine workers of America, affiliated with the Congress of Industrial Organiza- tions, or in any other labor organization of its employees, by discharging, suspending, transferring to inferior positions, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to THE ALEXANDER MILBURN COMPANY 517 their hire or tenure of employment, or any term or condition of their employment ; (b) Refusing to bargain collectively, in respect to rates of pay, wages, hours of employment, and other conditions of employment, with United Electrical, Radio & Machine Workers of America, affiliated with the Con- gress of Industrial Organizations, as the exclusive representative of all its production and maintenance employees, excluding all general office em ployees, foremen, and executives ; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Electrical, Radio & Machine Work- ers of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guar- anteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act (a) Offer to William Collins immediate and full reinstatement to the position held by him immediately prior to his induction into the Army on November 4, 1942, or to a substantially equivalent position, without preju- clice to his seniority and other rights and privileges; (b) Make whole William Collins for any loss of pay he may suffer by i cason of a failure of or refusal by the respondent, following the issuance of this Order, to offer him reinstatement in accordance with paragraph 2 (a) above, by payment to him of a sum of money equal to the amount which he normally would have earned as wages, had he been reinstated, during the period from five (5) clays after the date of this Order to the date on which he is offered such reinstatement, less his net earnings during such period; (c) Offer to Albert Kash immediate and full reinstatement to the posi- tion held by him prior to November 17, 1942, the date of his discrimina- tory suspension, or to a substantially equivalent position, without preju- dice to his seniority and other rights and privileges; (d) Make whole Albert Kash for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal io the amount which he normally would have earned as wages during the periods from November 17 to December 2, 1942, and from December 3, 1942, to the date of the respondent's offer of i emstatement, less his net earnings during said periods ; (e) Make whole Ernest Burns and O. E. Biles for any loss of pay they may 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 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which he normally would have earned as wages from the date of the respondent's discrimination against- him to the date on which he obtained the employment held by him at the time of the hearing herein, less his net earnings during said period, and less anx amounts already paid him by the respondent as reimbursement for the loss of pay suffered by him by reason of the respondent's discri ii nation against him, (f) -Upon request, bargain collectively, m respect to rates of pay, wages, hours of employment, and other conditions of employment, with United Electrical, Radio & Machine Workers of America, affiliated with the Con- gress of Industrial Organizations, as the exclusive representative of all its production and maintenance employees, excluding all general office employees, foremen, and executives ; - (g) Post at its plant at Baltimore, _Nlaf}land, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to he fur- nished by the Regional Director for the Fifth Region. shall, after being duly Signed by the respondent's representative, be posted by the respondent nnnned,ately upon receipt thereof, and maintained by it for sixty (60) con- secutive days thereafter, in conspicuous place,,. including all places where notice,, to employees are customarily posted Reasonable steps shall be taken by the respondent to insure that said notice,, are not altered, defaced or covered by any other material, (h) Notify the Regional Director for the Fifth Region in writing. within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR GERARn D. REILLY, concurring specially. I concur with the result, except to the extent that the order with respect to the employees, Collins and Burns, rests upon findings which are at variance with the Trial Examiner's analysis of the testimony. APPENDIX A NOTICE TO ALL EM PLOY E-ES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our ennploV ecs that:' WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Indus- trial Organizations, or any other labor organization, to bargain col- lectively through representatives of their ovv n choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection T H T COMPANY 519 WE WILL OFFER to Albert Kash immediate and full reinstatement to the position held by him prior to November 17, 1942, or to a sub- stantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed by him, and make him whole for any loss of pay suffered as a result of the various acts of discrimination against him WE WILL OFFER to William Collins immediate and full reinstate- ment to the position held by him immediately prior to November 4, 1942, or to a substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed by him. WE WILL MAKE Ernest Burns and O. E. Biles whole for any loss of pay suffered as a result of the discrimination against them. WE WILL BARGAIN collectively upon request with the above- named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment, and if an understand- ing is reached, embody such understanding in a signed agreement. The bargaining unit is: all production and maintenance employees, excluding all general office employees, foremen, and executives. All our employees are free to become or remain members of the above- named union or any other labor organization We will not discriminate in regard to hire or tenure of employment or any term or condition of employ- ment against any employee because of membership in or activity on behalf of any such labor organization. THE ALEXANDER MILBURN COMPANY (Employer) By (Representative) (Title) Dated NOTE: Any of the above-named employees who are to be reinstated , who are presently serving in the armed forces of the United States, will be offered full rein- statement upon application in accordance with the Selective Service Act after dis- charge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.