Hemp & Co. of Illinois

In. the Matter of HEMP & COMPANY OF ILLINOIS, A CORPORATION and FEDERAL LABOR UNION , LOCAL No. 21284, MACOMB, ILLINOIS Case No. C-516.-Decided October 04, 1938 Sheet Metal Products Manufacturing Industry-Interference, Restraint, and Coercion: disparagement of labor organization by officials and foremen- Com-pany-Dominated Union: domination of and interference with formation and ad- ministration ; support ; discrimination in favor of, in recognition as representa- tive of employees ; disestablished, as agency for collective bargaining-Contract: with organization found to be ' company-dominated ; employer ordered to cease giving effect to-Discrimination : lock-out and discharges for union membership and activity-Employee Status : during lock-out-Reinstatement Ordered: em- ployees locked out and discharged , upon application ; preferential list ordered, to be followed in further reinstatement ; employees hired after lock-out to be dis- missed, if necessary-Back Pay: awarded, from date of lock-out to date of hear- ing or date of refusal to accept reinstatement ; ordered , to employees who are not reinstated or placed on preferential list within 5 days after application-Unit Appropriate for Collective Bargaining : hourly and piece-work production em- ployees-Representatives : proof of choice : applications for union membership- Collective Bargaining : refusal to negotiate with union ; employer ordered to bar- gain collectively with union as exclusive representative. Mr. Oscar H. Brinkman, and Mr. Lee Loevinger, for the Board. Downing d Helfrich, by Mr. T. M. Downing, of Macomb, Ill., for the respondent. Mr. Daniel D. Carmell, of Chicago, Ill., for the Union. Mr. Leonard C. Berry and Mr. Edwin L. Harris, of Macomb, Ill., for the Alliance. Mr. Roman Beck, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Charges and amended charges having been filed by Federal Labor Union, Local No. 21284, Macomb, Illinois, herein called the Union, the National Labor Relations Board, herein called the Board, by Leonard C. Barjork, Regional Director for the Thirteenth Region (Chicago, Illinois), issued, and duly served its complaint dated De- cember 2, 1937, against Hemp and Company of Macomb, Illinois, 9N.L. IL B.,No.41. 449 450 NATIONAL LABOR RELATIONS BOARD herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices, the complaint alleged that: the respondent (1) had in- timidated and coerced its employees to discourage their joining and retaining membership in the Union, and had locked out and dis- charged 56 of them because of their Union activities; (2) had dom- inated and interfered with the formation and administration of Macomb Workers' Alliance, herein called the Alliance, a labor or- ganization of its employees; and (3) had refused-to bargain col- lectively with the Union as the representative of the majority of its employees in an appropriate unit. On December 7, 1937, the respondent filed its-answer to the complaint, denying-that it engaged in the unfair labor practices alleged therein; denying that its busi- ness affects commerce within the meaning of the Act; -and denying that the Union represented a majority of its employees in an appro- priate bargaining unit. The respondent's answer also averred that on September 9, 1937, it temporarily laid off a large number of its employees because it lacked sufficient raw materials to continue op- eration of its plant and because its inventory was greater than the orders then on hand. The answer further alleged that on September 24, 1937, the respondent had entered, into a contract granting the Alliance sole bargaining rights for all -of its employees which pre- vented it from thereafter contracting with any other representative of its workers. Certain other averments of the respondent's answer are considered hereafter. - On December 8, 1937, the Regional Director granted the motion of the Alliance to intervene as a party herein. On December 12, 1937, the Alliance filed its answer to the complaint, denying that the respondent had dominated and interfered with its formation and administration and denying the majority status of the Union in the unit alleged in the complaint to be appropriate for the purposes of collective bargaining, and the propriety of such unit therefor. Pursuant to notice, a hearing was held in Macomb, Illinois, from December 9 to 21, 1937, before Paul Kirby Hennessy, the Trial Examiner duly designated by the Board. ' The Board, the respond- ent, and the Alliance were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues.' During the course of the hearing the Trial I Although the Union was not represented by counsel at the hearing, counsel subsequently filed exceptions to the Intermediate Report on its behalf. DECISIONS AND ORDERS 451 Examiner made numerous rulings on motions and on objections to- the admission of evidence. The Board has reviewed the rulings- of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On April 4, 1938, the Trial Examiner filed his Intermediate Re- port in which he found that the respondent: (1) had intimidated and coerced its employees to deter their joining and retaining mem- bership in the Union; (2) had refused to bargain collectively with the Union which represented the majority of its employees in an appropriate unit; and (3) had dominated and interfered with the formation and administration of the Alliance. The Trial Examiner accordingly recommended that the respondent cease and desist from engaging in such unfair labor practices; that it bargain collectively with the Union and withdraw all recognition from the Alliance; and that it reinstate the employees discriminatorily laid off. He further recommended that the charge of a lock-out of these workers, be dismissed. Thereafter, the respondent, the Union, and the Alliance filed ex- ceptions to the Intermediate Report and to certain rulings of the Trial Examiner, but did not apply for oral argument before the Board or for permission to file briefs, although written notice of such opportunity was given them by the Board. The Board has considered these exceptions, and in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is an Illinois corporation engaged in the manu- facture of sheet-metal products. Its annual sales fluctuate between approximately $700,000 and $750,000. About half of its products are shipped by it outside of Illinois, and more than a third in value of the raw materials it uses are delivered to it from other States. Its principal product is vacuum picnic jugs, the sale of which nor- mally constitutes about half of the respondent's business. For the most part the respondent sells these jugs to mail-order and chain-, store organizations having retail distribution in many States. II. THE ORGANIZATIONS INVOLVED Federal Labor Union, Local No. 21284, is a labor organization affiliated with the American Federation of Labor, admitting to mem- bership all hourly and piece-rate production workers of the respond- 134068-39-vol. ix--30 452 NATIONAL LABOR RELATIONS BOARD ent and excluding supervisory employees, draftsmen, timekeepers, time-study men, engineers, watchmen, and the clerical and office staff. Macomb Workers' Alliance is an unaffiliated labor organization in which all employees including supervisory and office employees of the respondent are eligible to membership. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion culminating in the lock-out In August 1937 a small group of the respondent's workers met to organize an American Federation of Labor union. On September 7, 1937, 42 employees agreed to join that organization. On the fol- lowing day another meeting was held at which 56 of the respond- ent's production workers signed applications for union membership. As found below, they represented a substantial majority of all the production employees. In order to interpret the significance of the events described below, it is important to refer to the respondent's production situation at the time of their occurrence. Joseph Hemp, the respondent's presi- dent, admitted that the, respondent had a great many unfinished orders for all of its products in September 1937. In addition to its ordinary business, the respondent had a contract with the State of Illinois to manufacture 1,700,000 pairs of automobile license plates. The respondent's answer states that a reason for the lay-off of three-fourths of the production employees was that it "did not have a sufficient supply of raw materials on hand to continue the opera- tion of the plant * * *." Several of the respondent's witnesses testified that either material or equipment was lacking in every department. This testimony was denied by a host of Union wit- nesses who agreed that there were raw material and unfinished work in every department of the plant when the men were locked out. The testimony of the Union witnesses was specific in nature and its verity was not impugned by the cross- examination. Moreover, it is incredible that a well-established business would permit its reserves of raw material to fall so low in every department as to require a shut-down when there was an abundance of orders for its products. From all the evidence we are convinced that on September 9, 1937, there was no dearth of raw material in every department. Although the manufacture of the license plates may have been delayed for reasons beyond the respondent's control, the delay does not explain or justify the respondent's activities which followed. There can be no doubt that the license-plate contract did not affect the manufac- ture of the regular products. During the morning of September 8, a wage cut affecting certain piece-rate workers in the stoker department caused a plant-wide DECISIONS AND ORDERS 453 protest. Further demonstration was temporarily suppressed by C. R. Wright, the respondent's vice president in charge of produc- tion and of labor relations, who refused to reconsider the cut in rates. When the men returned from lunch, however, there was a concerted refusal to work. After a stoppage of about an hour, Wright suggested that each department select a representative to confer with him. The ensuing conference resulted in a compromise of the controversy and the men returned to work for the remainder of the afternoon. About 5 o'clock of that day, Joseph Hemp, who was then in Chicago, had an extended telephone conversation with Wright, and with his brother, Marly Hemp, the respondent's vice president in charge of purchases. The participants in this conversation testified that they discussed the alleged lack of raw materials; that Joseph Hemp informed them that there would be delay in the delivery of a die required for the manufacture of the automobile license plates. Because of these circumstances they decided to lay off a large number of the men for a week or 10 days. Although Wright admitted at the hearing that he had known of the organization of the Union prior to September 8, 1937, he denied that the Union had been dis- cussed and that any reference had been made to the stoppage of work that day because of the wage controversy. Despite these de- nials, it is difficult to believe that the widespread Union activity among the employees and the acrimonious wage dispute were not discussed. The manner in which the alleged lay-off was effected is inconsistent with the respondent's denials that Union activity was the motivating factor. On the morning of September 9, the gate through which the men customarily entered the plant was locked and Wright refused to admit a large number of the Union men.2 Among the few Union men permitted to work on Thursday, September 9, 1937, was Harold Davidson, the spearhead of the Union drive. John Slagbooni, the respondent's general foreman, asked Davidson that morning whether he had heard of the Union meetings. Davidson admitted that the Union had been organized. Later that day Slagboom told Davidson that it would be well for him if he did not join the Union. Slag- boom did not testify at the hearing and Davidson's testimony re- mained uncontroverted. That afternoon Davidson was discharged. He thus described the incident : I got to the shop to the gate just as the whistle blowed to punch in (when returning from lunch) and the gate was locked. I met the superintendent (Wright) at the door and he told me I would have to go through the office. So I went through the 2 Although the record does not show the exact number of Union men excluded, it does indicate that about 30 were so dealt with. 454 NATIONAL LABOR RELATIONS BOARD office. They told me I would have to call my foreman (James Brown) to get an okay before I went to work. I went to the office and called the foreman and he told nie that they had had a meeting the night before, and it was his orders to lay off any man that was not on his job and working when the whistle blew. Brown, Davidson's foreman, did not testify at the hearing. The record fails to show a single other discharge for breach of this dis- ciplinary innovation, and indicates that strictness in such matters had not been observed in the past. In view of Davidson's previous satisfactory record, we are convinced that the true reason for his discharge was his prominent activity in the Union. During the same day several other Union men were questioned by Wright and by foremen concerning the Union. Monte Gordon, a Union leader, was among those prevented from entering the plant that morning. He asked Wright why he refused to permit many of the Union men to work. Wright answered : Well, Monte, there is nothing for you. You are all finished. You are so damn wise go organize something else. Wright admitted that he had talked with Gordon and did not deny having made the statement. George Magraw, another Union member with whom Wright talked on September 9, 1937, quoted Wright as follows : He told me he understood a Union was coming into the shop, asked me if I knowed it, and I told him "no", and he said, "Are you for the Union or are you for the Company?" Donald Kreider, another active Union member, was likewise ques- tioned by his foreman, 0. T. Mulhatten, that day concerning the Union meeting of the night before. John Slagboom, the general foreman, also interrogated John F. Amerine, a die setter, as to the Union meeting. Slagboom advised Amerine not to join the Union, saying : * * * If I was you, I wouldn't join it, * * * because you are an old hand here employed all year round, never laid off. I don't think it would do you any good to belong to it. That evening James Brown, the foreman, came to Kreider's home and informed him that the respondent had closed down. The state- ment of Brown on this occasion was quoted by Kreider as follows : He said that the Company had gone and done it. I said, "Done what?" He said, "They have closed their doors." Since Brown did not testify at the hearing; Kreider's testimony was not denied. Brown also visited the home of Gerald Moon the same evening and told him that there would be no work for several weeks. DECISIONS AND ORDERS 455 The manner in which these employees were notified of the lay-off was admittedly unusual. Wright testified that the respondent had never before sent its foremen to the homes of employees to notify them of a lay-off. Marvin R. Frakes was working overtime the night of September 9, 1937, repairing ovens, which would be needed when the manufac- ture of the license plates began. His foreman, Harrel Creasey, told the men working that night that they would be laid off for a week or 10 days because a die intended for use in the manufacture of license plates had broken. Before Frake s left work that night, however, ,Creasey told him that the true cause of the lay-off was the trouble had the day before. Ed Solomon also had worked overtime that night. As he was about to leave, Creasey remarked to him : Well, I imagine we will see a lot of new faces around here in a few days. B. The lock-out On September 10, 1937, a Friday, the plant did not open. During the course of the morning, a picket line was formed to protest the shut-down. Wright testified that the respondent did not intend to shut down its plant entirely but that if the picket line had not been formed, the employees who had not been laid off would have continued to work." While the picket line was forming Wright made the following remark, according to Harvey P. Herche, a Union member: He said, in his mind he didn't think any of them fellows out there would get back to work, and he said they couldn't stay out over three days, because they weren't getting enough to live on. Wright admitted having talked with Herche, and did not deny making this statement. Anlerine arrived that morning after the picket line had formed and thus described the situation: Well, the plant was picketed. We went out there, in cars, it was raining, and we parked in the lot there, and we sat in our cars, and Mr. Wright and a special deputy, and a police dog came out there and greeted us, said there wouldn't be no work, and our checks would be ready at 10: 30 * * *. The record shows that the lock-out of the Union men on September 10, 1937, was accompanied by the formal discharge of all but seven of them. Velma Williams, a pay-roll clerk, testified that on Septem- ber 10, 1937, at Wright's direction, she prepared pay checks for 8 Whether the respondent intended to shut down its entire plant or whether it intended to permit some employees to work we need not decide . It is clear from the lay-off of many Union employees on the previous day and from the statements of the respondent's super- visory employees, many of which wweie not denied, that the respondent had decided to lock out Union members that morning. 456 NATIONAL LABOR RELATIONS BOARD all the persons whose names he had marked upon a pay roll. Wright testified that the men sent checks had been laid off, and that a slip was enclosed with each check informing the recipient that he would be notified when his services were again required. It is apparent that notwithstanding the tenor of the dismissal notices, the respondent did not intend to recall the Union men to whom the checks had been sent. At the hearing a list of the employees who had not been discharged on September 10, 1937, was produced. There are 42 names thereon, including the names of office and supervisory employees. Further- more the respondent's intention to discharge the men to whom checks were sent, and not merely to furlough them, was acknowledged by Joseph Hemp in a petition which he verified and which was sub- mitted in support of an application for an injunction to disperse the pickets. In that petition Joseph Hemp stated that on September 10, 1937, the respondent had reduced the number of its employees to 41. Moreover, Joseph Hemp dealt with the Alliance upon the basis that the men who had been sent checks were no longer in the employ of the respondent. The record shows that the respondent employed 79 production workers before the lock-out, of whom 56 were members of the Union. All but seven of these Union men were sent checks accompanied by the notice of dismissal. The persons named in appendix A, at- tached hereto, were the Union workers locked out by the respondent on September 10, 1937. We have listed separately on appendix A the seven men who had not been given notice of dismissal but who nevertheless were directly discriminated against by the lock-out. We find that on September 10, 1937, the respondent discriminated in regard to tenure of employment by locking out all its employees who were members of the Union and by discharging all but seven of such persons, thereby discouraging membership in the Union. We find, further, that the respondent has interfered with, restrained, and coerced said employees in the exercise of the rights guaranteed them by Section 7 of the Act. C. The formation of the Alliance Soon after September 10, 1937, the respondent tried to resume operation of its plant, but with the exception of a few individuals did not recall the Union men to work.4 Until September 29, 1937, when the pickets were dispersed, the plant remained idle. Three union members, Trevlyn Hughes, Homer Wilmot , and Donald Kreider were asked to return to work. On September 15, 1937 , Earl Jackson, a foreman, asked Hughes to return to work, but Hughes was unwilling to do so until the respondent would recognize the Union . Between September 13 and September 29, 1937, Homer Wilmot was also given the opportunity to resume work, but he, too, refused to accept the offer, and for the same reason . On October 2, 1937 , Wright told Kreider that the respondent was having difficulty in the jug department and offered him a foreman 's job if he would persuade his associates on the jug assembly line to return to work. Kreider refused to do this unless the Union was recognized. DECISIONS AND ORDERS 457 During the period of the shut-down the formation of the Alliance began. The record shows that the organization of the Alliance was part of a back-to-work movement fostered by the respondent's super- visory employees. Harrel Creasey, a supervisory draftsman, testified that he conceived the idea and enlisted the aid of Adrian Scott, the head of the shipping department. The details of the development of the Alliance are blurred in the narrative of its formation given by Creasey. Since, however, Adrian Scott did not testify, we are compelled to rely on Creasey's vague testimony. The first step in the organization of the Alliance was the retention of Leonard C. Berry as its attorney. Berry suggested that a list of the respondent's em- ployees as of September 10, 1937, be obtained. Velma Williams pre- pared such a list which consisted of the 42 persons who had not been discharged. Berry then prepared a document entitled "Articles of Agreement" which Creasey and Scott solicited 33 of these 42 employ- ees to sign. Among the 33 signers were most of the respondent's foremen. In substance, the "Articles of Agreement" bound the sub- scribers to become members of a union composed solely of the respondent's employees. While at Berry's office on September 23, 1937, Adrian Scott tele- phoned Joseph Hemp and informed him that he represented a group of employees who were anxious to return to work. Scott arranged to meet with Hemp the next day. On September 24, 1937, Joseph Hemp met Creasey, Scott, and four other employees, two of whom were foremen. Since Hemp testified that this meeting lasted for 4 hours without interruption, it is surprising that both his and Creasey's testimony of what occurred is so completely lacking in detail. In -both versions, the only circumstance that stands out with clarity is that the signed "Articles of Agreement" were exhibited to Hemp, and that he was told by Creasey that the 33 signers were a majority of the respondent's employees as of September 10, 1937. Although Hemp testified that he did not doubt Creasey's latter assertion, he at first denied having agreed to recognize the Alliance at this meeting. On cross-examination, however, Hemp reluctantly admitted that he had agreed to give sole bargaining rights to the Alliance at this first meeting of September 24, 1937. That night (September 24, 1937) the Alliance authorized Harrel Creasey, Adrian Scott, Asa Waymack, O. R. Mulhatten, and George Creasey, a brother of Harrel Creasey, to meet Joseph Hemp the next morning. All were supervisory employees except George Creasey. 5 Wright testified that Asa Waymack, Harrel Creasey, and Adrian Scott "did hire men" with his approval . On the list prepared by Velma Williams of the employees who had not been discharged on September 10, 1937, the 42 names of such employees are so arranged that each occupational group is listed separately , indented, and set opposite the names, re- spectively of Asa Waymack , Adrian Scott, John Slagboom , Earl Jackson, O. R. Mulhatten, and James Brown. When Wright was asked to explain the reason for this schematic arrangement of names, he testified : "I will swear they all have acted as foremen." 458 NATIONAL LABOR RELATIONS BOARD On September 25, 1937, Joseph Hemp met this committee and dic- tated and signed the following letter : We have reached an agreement with Macomb Workers' Alli- ance for the purpose of collective bargaining for the majority of our employees and thereby recognize this Alliance as sole bargaining agency. Signed : HEMP & COMPANY, By: J. L. HEMP, President. 'There is testimony that an informal memorandum of wage rates was attached to this letter. On several occasions employees had attempted to enter the plant, but were dissuaded from doing so by the pickets. In the injunction :suit instituted by the respondent,, without notice to the Union, a ,temporary inj unction was granted which required all but four of the pickets to disperse and in sweeping terms restrained the pickets from interfering with the operation of the plant. On September 29, 1937, after the sheriff had enforced the injunction by dispersing the pickets, operation of the plant was immediately resumed. Within a short ,period the respondent hired a great many new employees in place ,of the locked-out union men. There is no evidence that any of the union men were recalled, except the three individuals to whom we have referred.7 Several weeks after the opening of the plant, an Alliance meeting was held at which officers were elected. Harrel Creasey and Adrian Scott became its president and vice president, respectively. Shortly .thereafter, at another meeting held in the respondent's plant, the Alliance adopted a constitution and bylaws which provided for a complaint board, a safety council, a welfare board, and a business agent. At the time of the hearing none of these agencies had been established. Although the bylaws require the payment of dues and initiation fees, only one member had paid his dues and none had paid an initiation fee until after the hearing had started. Until the mid- ,dle of November 1937, no new members had been acquired. During ,the course of this proceeding, however, virtually all of the respond- ent's employees joined its ranks., Apart from the formalities of organization, nothing was accom- plished by the Alliance in respect to wages, hours, or working con- This suit is still pending in the Circuit Court of McDonough County, Illinois. See footnote 4 above. 8 The only union man invited to join the Alliance was Homer Wilmot. His testimony concerning his talk with Adrian Scott is as follows : "He said that he happened to know that I could go back to work at 45 ¢ an hour and he said be thought they were going to form a Company Union, that he thought would be better than ours and I told him I wouldn't care to go back on those conditions ; and that is about the general line of his conversation * * s." "Q. Did be say whether they were organized and had any funds?-A He didn't say the Union was organized but he said the Company had funds up there to take care of us boys with . He didn't say the Union did." DECISIONS AND ORDERS 459 ditions. There is no evidence that the memorandum of wage rates, attached to the letter which gave the Alliance exclusive bargaining rights, conferred any benefits upon the employees. Its elaborate ma- chinery for collective bargaining remained a thing of paper. In brief, it seems plain to us that the Alliance, which was organized and completely dominated by the respondent's supervisory employees, is a mere creature of the respondent. We find that the respondent has dominated and interfered with the formation and administration of the Alliance and has contributed support to it. D. The refusal to bargain collectively with the Union 1. The appropriate unit The complaint alleges that all the production workers employed by the respondent upon an hourly or piece-work basis, except fore- men and all other supervisory employees, clerical and office employees, watchmen, draftsmen, timekeepers, time-study men, and engineers, constitute a unit appropriate for the purposes of collective bargain- ing. The employees embraced within such unit are eligible to mem- bership in the Union. We find no reason to object to the propriety of such a unit; nor did the Alliance and the respondent adduce any evidence in support of their denial of the appropriateness of such a unit. We find that the hourly and piece-work production employees of the respondent, excluding foremen, and all other supervisory em- ployees, clerical and office employees, watchmen, draftsmen; time- keepers, time-study men, and engineers, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the respondent's employees the full benefit of their right to self- organization and collective bargaining and otherwise effectuate the policies of the Act. 2. Representation by the Union of the majority in the appropriate unit On September 8, 1937, the respondent employed 79 workers in the unit we have found to be appropriate. At a meeting of the Union that day, 56 of these employees signed applications for Union mem- bership. Thus, on September 8, 1937, a majority of the workers in the appropriate unit had designated the Union as their bargaining representative. The Union men locked out by the respondent re- mained its employees within the purview of the Act since the Act provides: "The term `employee' shall include . . . any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice -460 NATIONAL LABOR RELATIONS BOARD .." Within this definition the Union men locked out by the re- spondent remained its employees for the purposes of the Act. We find that on September 8, 1937, and at all times thereafter, the Union was the duly designated representative of the majority -of the respondent's employees in an appropriate unit and, pursuant ,to Section 9 (a) of the Act, was the exclusive representative of all .the employees in such unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain During the period from September 10 to 29, 1937, the plant was ,closed and the picket line was maintained. During this period the Union made numerous attempts to bargain with the respondent. On September 11, 1937, Joseph Masner, a general organizer of the American Federation of Labor, assisted the Union members in the preparation of an agreement to be submitted to the respondent as a basis for discussion. Masner was authorized by the Union to conduct the negotiations. On Tuesday, September 14, 1937, Masner informed Marly Hemp of his authority to represent the Union and requested a conference with Joseph Hemp. Marly Hemp told Mas- her that he could meet with Joseph Hemp if he would return to the plant that afternoon. When Masner returned, however, he was in- formed that Joseph Hemp was not at his office. The next day Masner unsuccessfully tried to reach Joseph Hemp by telephone. -On September 17, 1937, Masner conferred with the respondent's vice president, C. R. Wright, and was for the first time apprised of the respondent's fixed determination to refuse to bargain with the Union. Wright's testimony reveals the position taken by the re- Fpondent that day: Q. Now did you as vice president of the Company attempt to bargain with him collectively? * * * A. Only to the extent that I told Mr. Masner that as far as wages, hours, and working conditions in the plant were con- cerned, I could talk to anyone on any committee he wanted to send -in, and the same information all the men in the plant had at all times, but as far as recognizing a Union, giving the sole bargaining power and etc. in our plant, I would not do it. Q. You had no authority? A. I probably had authority but I told him I would not do it. [Italics ours.] On September 21, 1937, Masner met Joseph Hemp on the picket line and asked to talk with him, but Hemp refused that request. Several days later, at his attorney's suggestion, Joseph Hemp agreed DECISIONS AND ORDERS 461 to confer with a committe of his employees, although he told his attorney that under no consideration would he meet with any repre. sentative of the American Federation of Labor. On September 24, 1937, Joseph Hemp met a committee of six Union members at his home pursuant to that arrangement. Monte Gordon, a member of the Union committee, thus described what occurred : Q. Did he say at that time he was willing to discuss with you the matter of wages, working conditions, and hours of labor? A. He said he didn't feel like talking. As the committee left this conference, Gordon relates : I turned around and told Mr. Hemp that our mission out there was to negotiate a contract for our organization, which was affiliated with the American Federation of Labor. Then he said, "Well, I presumed that," and I said, "Could we meet with you some time later?" I says, "We could meet you tomorrow morning." He said, "Well, if I'm feeling like it," he said, "I will give you a ring in the morning." Joseph Hemp did not disclose to the Union committee that he had agreed that very afternoon to give sole bargaining rights to the Alliance, nor did he later communicate with the Union committee. The next morning, September 25, 1937, Joseph Hemp signed the let- ter confirming his agreement with the Alliance. We find that on September 17, and on September 24, 1937, and at all times thereafter, the respondent refused to bargain collectively with the Union as the representative of its employees in an appro- priate unit in respect to rates of pay, wages, hours of employment, and other conditions of employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY As we have found, the respondent locked out all its employees named in appendix A on September 10, 1937, and in addition discharged all but seven of them on that day to discourage membership in the newly formed Union. The appropriate remedy in such case would be to require the immediate reinstatement of the employees so locked out, with back pay from the date of the lock-out to the date of the offer of 462 NATIONAL LABOR RELATIONS BOARD reinstatements Ordinarily we would not require locked-out or dis- charged employees to apply for reinstatement, but for the reasons im- pelling us to limit the award of back pay as discussed below we shall order the respondent, upon application, to offer reinstatement to their former or substantially equivalent positions to those employees who are listed in appendix A, who have not been fully reinstated. Such reinstatement shall be effected in the following manner : All employ- ees hired after the lock-out shall be dismissed, if necessary to provide employment for those employees listed in appendix A who seasonably apply for reinstatement.10 If thereupon, there is not sufficient em- ployment immediately available for the remaining employees, includ- ing those who seasonably apply for reinstatement, all available positions shall be distributed among such remaining employees in accordance with the respondent's usual method of reducing its force without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's busi- ness. Those employees for whom no employment is immediately available shall be placed upon a preferential list prepared in accord- ance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions as such employ- ment becomes available and before other persons are hired for such work. We shall award to the employees who were locked out back pay from September 10, 1937, the date of the lock-out, to the date of the hearing, and in the event of a refusal of reinstatement after applica- tion therefor, from the date of such refusal to the date of the respond- ent's compliance with this order. At the hearing the union men took the position that they would not accept an offer of reinstatement un- less the respondent would recognize the Union as their bargaining representative. Prior to the hearing Trevlyn Hughes, Homer Wil- mot, and Donald Kreider were afforded the opportunity to return to work, but rejected such offer for the same reason. We have refused to award back pay to employees who voluntarily go on strike, even if in protest against unfair labor practices. The reasons for that policy impel us to suspend the accrual of back pay in this case from the date of the hearing to the date of application for reinstatement as to all the union men except the three who rejected an offer to return to work prior to the hearing. As to those three men, the dates from which the accrual of back pay shall be suspended shall be the dates See Matter of Kuehne Manufacturing Company and Local No. 1791, United Brotherhood of Carpenters and Joiners of America, 7 N. L R B 304. 10 Such dismissal shall not include employees who were working on September 8, or September 9, 1937, when the plant shut down, and who since may have been reinstated. DECISIONS AND ORDERS 463 when they, respectively, refused to accept an offer of reinstatement." In all cases in which back pay is awarded, we will order the deduc- tion of all net sums earned 12 during the period of such award. Inasmuch as we have found that the respondent has dominated and interfered with the formation and administration of the Alliance, and contributed support to it, we shall order the respondent to cease and desist from such conduct and to withdraw all recognition from the Alliance as collective bargaining representative of any of its employees and to disestablish it as such representative. Such withdrawal of recognition will, of course, require the respondent to cease giving effect to any contract which it may have entered into with the Alliance. We shall also order the respondent to cease from intimidating, co- ercing, and restraining its employees in the exercise of the rights guaranteed them by Section 7 of the Act and to bargain collectively with the Union as the representative of all of its employees in the unit we have found to be appropriate. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. Federal Labor Union, Local No. 21284, and Macomb Workers' Alliance are labor organizations, within the meaning of Section 2 (5) of the Act. 2. The hourly and piece-work production employees of the re- spondent, excluding foremen and all other supervisory employees, clerical and office employees, watchmen, draftsmen, timekeepers, time- study men, and engineers, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. . 3. All the employees who are listed in appendix A continued to be employees of the respondent within the meaning of Section 2 (3) of the Act on September 17, and on September 24, 1937. 4. Federal Labor Union, Local No. 21284, was on September 8, 1937, and at all times thereafter has been, the exclusive representative of all the employees in the unit described in paragraph 2 above for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing on September 17, and on September 24, 1937, and at all times thereafter, to bargain collectively with Federal Labor "As to Trevlyn Hughes such date is September 15, 1937 ; as to Homer Wilmot such date is September 13, 1937 ; and as to Donald Kreider such date is October 2, 1937. 12 By "net sums earned" 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 unlaw- ful discharge and the consequent necessity of his seeking employment elsewhere See Mat- ter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R. B 440. 464 NATIONAL LABOR RELATIONS BOARD Union, Local No. 21284, as the exclusive representative of its em- ployees in an appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. The respondent, by discriminating in regard to hire and tenure of employment of its employees who are listed in appendix A and thereby discouraging membership in the Union, a labor organization of its employees, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 7. By dominating and interfering with the formation and admin- istration of Macomb Workers' Alliance, and by contributing support thereto, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 8. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 9. 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 above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Hemp and Company, an Illinois corporation, Macomb, Illi- nois, and its officers , agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Federal Labor Union, Local No. 21284, or any other labor organization of its employees by discrimina- tion in regard to hire or tenure of employment or any term or condi- tion of employment; (b) Dominating or interfering with the administration of Macomb Workers' Alliance or with the formation or administration of any other labor organization of its employees, and from contributing financial or other support to Macomb Workers' Alliance or to any other labor organization of its employees; (c) Refusing to bargain collectively with Federal Labor Union, Local No. 21284, as the exclusive representative of its hourly and piece- work production employees exclusive of foremen and all other super- visory employees, clerical and office employees, watchmen, draftsmen, timekeepers, time-study men, and engineers; (d) In any manner interfering- with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- DECISIONS AND ORDERS 465 resentatives of their own choosing, and to engage in concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act; (e) Giving effect to any contract or agreement it has entered into, with Macomb Workers' Alliano e as the representative of any of its employees in respect to grievances, labor disputes, rates of pay, wages,, hours of employment, or other conditions of employment. 2. Take the following affirmative action, which the Board finds will, effectuate the policies of the Act : (a) Upon application, offer to those employees whose names are listed in appendix A, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their senior- ity and other rights and privileges in the manner set forth in the sec- tion entitled "Remedy" above, placing those employees for whom, employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter in said manner,, offer them employment as it becomes available; (b) Make whole the employees ordered to be offered reinstatement for any loss of pay they have suffered by reason of their having been locked out, by payment to each of them, respectively, of a sum of money equal to that which each would normally have earned as wages during the period from September 10, 1937, to December 9, 1937, less the net amount, if any, which each has earned during that period; except that as to Trevlyn Hughes, Homer Wilmot, and Donald Kreider such period shall be limited to the dates when they, respectively, re- fused an offer of reinstatement as set forth in the section entitled "Remedy" above; (c) Make whole the employees ordered to be offered reinstatement for any loss of pay they will have suffered by reason of the respond- ent's refusal to reinstate them, upon application, following the issuance of this Order, by payment to each of them, respectively, of a sum of money equal to that which each would normally have earned as wages during the period from five (5) days after the date of such applica- tion for reinstatement to the date of the offer of employment or place- ment upon the preferential list required by paragraph (a) above, less the net amount, if any, which each will have earned during that period; (d) Upon request, bargain collectively with Federal Labor Union, Local No. 21284, as the exclusive representative of its hourly and piece-work production employees, excluding foremen and other super- visory employees, clerical and office employees, watchmen, draftsmen, timekeepers, time-study men, and engineers in,respect to rates of pay, wages, hours of employment, and other conditions of employ- ment; 466 NATIONAL LABOR RELATIONS BOARD (e) Withdraw all recognition from Macomb Workers' Alliance as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment, and completely disestablish Macomb Workers' Alliance as such representative ; (f) Immediately post notices in conspicuous places throughout its plant and maintain such notices for a period of thirty (30) consecu- tive days stating (1) that the respondent will cease and desist as aforesaid; (2) that the respondent will bargain collectively with Federal Labor Union, Local No. 21284 as the representative of its hourly and piece-work production employees, excluding foremen and all other supervisory employees, clerical and office employees, watch- men, draftsmen, timekeepers, time-study men, and engineers; and (3) that the respondent withdraws all recognition from Macomb, Workers' Alliance as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and that the respondent will cease giving effect to any contract or agreement with the Macomb Workers' Al- liance relating to such matters, and that the Macomb Workers' Alliance is established as such representative; (g) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. MR. EDWIN S. SMITH took no part in the consideration of the above Decision and Order. DECISIONS AND ORDERS APPENDIX A 467 The persons whose names are set forth in Section I below were locked out and sent dismissal notices by the respondent on September 10, 1937. Section II below lists the seven persons locked out on September 10, 1937, but who were not sent dismissal notices. SECTION I Trevlyn Hughes** 13 Charles M. Clove Mark Joseph Alnerine Monte N. Gordon Frank Lane Harold E. Davidson Alvin Richard Hodges James Franklin Willis Gerald Moon John F. Amerine Vernon O. Bubb Leland Caldwell Gurnie T. Hendrickson ** Royale N. Hendrickson Grover Matthews Carrol Lee Wright George Magraw Robert Burton Miller Kenneth Curtis Cecil Rockwell Fred L. Phillips Donald Kreider Carr E. Mulhatten ** Ralph E. Murphy Elmer K. Fosdyck Edward Solomon Marvin Frakes ** Lawrence E. Terwilliger Homer C. Wilmot Myron Desmon Seeley Phillip Elting Brown James Albert Mason Everett Brown Floyd Francis Bainter' - Henry R. Churchill Dale Mason Herbert Skiles Skelton Augustus E. Bodenhamer** Edwin D. Scott Robert Wilkins Frank Llyle Utley Wright Hough Chalmer Glenn Little Victor Earl Ritter Eva Fosdyck Leland S. Keithley Clarence Eugene Fosdyck** Fred Mark Russell G. Reed SECTION II .Oran G. Wares John A. Murphy Harvey Herche Joseph R. Reed Robert J. Hartley Guy Clyde Mecum Fred W. Taylor nt We have indicated by a double asterisk the persons whose names were misspelled in the complaint. Since a motion to conform the pleadings to the proof was granted, we have set forth the correct names of such persons. 184008-39-vol. a-31