Newark Rivet Works

In the Matter of NEWARK RIVET WORKS and UNITY LODGE No. 420, UNITED ELECTRICAL & RADIO WORKERS OF AMERICA, C. I. O. In the Matter of NEWARK RIVET WORKS and UNITY LODGE No. 420 OF THE UNITED ELECTRICAL & RADIO WORKERS OF AMERICA, C. I. O. , Cases Nos. P-587 and C-497, respectively.Decided October 27,1988 Steel Wire Products Manufacturing Industry-Interference, Restraint, or Coercion: surveillance of union meetings ; interference with union meeting ; persuading employees to refrain from union activity ; questioning employees regarding feeling toward union; requiring employees to sign individual con- tracts as condition of reinstatement-Company-Dominated Union: domination of and interference with formation and administration ; support ; strikebreaking device, initiation and use of, as; dominant role of supervisory employees in ; en- couragement of membership in, by supervisory employees ; disestablished, as agency for collective bargaining-Discrimination: discharge for union activity ; charges of, not sustained as to one person ; strikers, requiring individual con- tracts as condition of reinstatement-Collective Bargaining: refusal to meet with representatives ; refusal to negotiate with representatives ; negotiation in good faith ; dilatory and evasive tactics ; meeting with representatives but with no bona fide intent to reach an agreement; failure to offer counterpro- posals; employer ordered to grant recognition of union-Unit Appropriate for Collective Bargaining: production employees-Representatives: proof of choice : application cards-Strike: result of unfair labor practices-Reinstatement Ordered-Back Pay: awarded-Contracts: individual contracts of employment: employer ordered to cease giving effect to-Investigation of Representatives: petition for, dismissed because of order to respondent to bargain. Mr. Christopher E. Hoey, for the Board. Lambe & Lerch, by Mr. J. G. Lerch, and Mr. David A. Golden of New York City, for the respondent. Mr. Samuel L. Rothbard, of Newark, N. J., for the United. Mr. Benjamin P. DeWitt, and Mr. Sidney Pepper, of New York City, for the Council. Mr. Martin Kurasch, of counsel- to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges 1 duly filed by Unity Lodge No. 420 of the United Electrical, Radio & Machine Workers of America, 3 The original charges were filed by Unity Lodge No. 1560 of the International Associa- tion of Machinists. As explained more fully below, this Lodge subsequently became Unity Lodge No. 420 of the United Electrical, Radio & Machine Workers of America, C. I. O. The organization filed the amended charges under the latter name. The organization will be referred to in the Decision as the Unity Lodge. 9 N. L. R. B., No. 47. 498 DECISIONS A\D ORDERS 499 C. I. 0.,2 herein called the United, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint, dated No- vember 13, 1937, against Newark Rivet Works, Newark, New Jersey, herein called the respondent. The complaint alleged, in substance, that the respondent, on or about April 5, 1937, discharged Edward Oremusz 3 and Russell Serio because they joined and assisted Unity Lodge No. 1560 of the Inter- national Association of Machinists, herein called the I. A. M.; that the respondent, on or about April 25, 1937, and at all times there- after, refused .to bargain collectively with the I. A. M., and with its successor. union, the United, which had been designated as the collective bargaining agent by a majority of the employees in an appropriate unit; that on or about May 13, 1937, the production em- ployees of the respondent struck because of the alleged unfair labor practices, that the strike was ended on or about July 14, 1937, and that the respondent, on or about July 15, 1937, refused to reinstate John Tomkovitch, Andrew Riley, Rose Cieri, Veronica Lucinskas, and Nicholas Dubas; 4 that respondent had dominated and interfered with the formation and administration of the Newark Rivet Works Employees' Council, herein called the Council; e and that by these and further acts, the respondent had engaged in and was engaging in unfair labor practices affecting commerce, 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. On October 29i'1937, the United filed a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On November 10, 1937, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an in- vestigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On the same day, the Board, acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of its Rules and Regulations, ordered a consolidation of the two cases. 'The complaint was amended at the hearing , without objection , so as to substitute the designation United Electrical , Radio & Machine Workers of America, C. I. O. for the designation United Electrical & Radio Workers of America, C. I. O. 3 Designated in the complaint as Edward Oremus. 4 The name of Alfred Watson, alleged to be an employee whom respondent had refused to reinstate, was stricken from the complaint during the hearing. 6 The Comicil had been incorrectly designated in the pleadings as Newark Rivet Workers Employees Council. The designation was corrected by a motion to that effect made during the hearing. 134008-39-vol ix--33 500 NATIONAL LABOR RELATIONS BOARD The complaint, the petition, and notices of hearing thereon were duly served upon the respondent, the Council, and the United. On November 23, 1937, the respondent filed an answer to the complaint, denying that it had engaged in or was engaging in the alleged unfair labor practices and requesting that the complaint be dismissed. On November 24, 1937, the respondent filed a motion to dismiss the com- plaint on the ground that the United did not represent a majority of the respondent's employees and was not in a position to invoke the jurisdiction of the Board. Pursuant to notice, a hearing on the complaint and the petition was held on November 26, 29, and 30, 1937; December 6, 7, 13, 14, and 23, 1937; and January 17 and 18, 1938, before H. R. Korey, the Trial Examiner duly designated by the Board. The Board, the respondent, the Council, and the United were represented by counsel and partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the Board's case, counsel for the respondent made another motion to dismiss the complaint on the ground that no prima facie case had been made. The Trial Examiner denied all motions to dismiss the complaint. On December 23, 1937, during the course of the hearing, counsel for the Board moved to amend the complaint so as to include the name of Edna Winciss among those who had presented themselves on July 15, 1937, and had been refused reinstatement by the respondent, and to amend the complaint by inserting certain paragraphs alleging, in substance, that respondent, on or about November 4, 1937, discharged or laid off Alexander Van Dean because he refused to contribute financial support to the Coun- cil, and that such discharge or lay-off, and the failure to reinstate Van Dean, constituted an unfair labor practice within the meaning of Section 8 (3) of the Act. The Trial Examiner reserved ruling on these motions. The hearing was adjourned from December 23, 1937, to January 17, 1938. During the adjournment, the Trial Examiner informed counsel for the respondent that both motions had been granted. Counsel for the Board stated, and counsel for the respond- ent agreed, that the respondent's answer would be deemed to stand as a denial of the allegations that its failure to reinstate Edna Winciss and its discharge of Alexander Van Dean, constituted unfair labor practices. During the course of the hearing, other rulings were made by the Trial Examiner 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. DECISIONS AND ORDERS 501 On February 18, 1938, counsel for the respondent and counsel for the Council filed briefs with the Board in support of their conten- tions in the case. On March 23, 1938, the Trial Examiner filed his Intermediate Report, finding that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act. He recommended, inter alia, that the respondent cease and desist from engaging in the activities constituting the unfair labor prac- tices; that it reinstate with back pay certain of its employees found to have been discriminatorily discharged by the respondent; that it similarly reinstate with back pay certain other employees found to have been discriminatorily refused reemployment; and that it with- draw all recognition from and disestablish the Council as an agency for collective bargaining with the respondent. Exceptions to the Intermediate Report were thereafter filed by the respondent and the Council. The respondent filed a statement and the Council filed a brief and supplemental brief in support of their respective exceptions. Oral argument on the exceptions to the Inter- mediate Report was held before the Board at Washington, D. C. on May 3, 1938. We have considered the exceptions to the Intermediate Report, but, save for those exceptions which are consistent with the findings, conclusions, and order set forth below, we find 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 Newark Rivet Works, a New Jersey corporation, with its princi- pal office in Newark, New Jersey, is engaged in the manufacture of umbrella frames, metal stampings, bag frame hardware, corset hard- ware, sheet metal goods, rivets, and wire. The raw materials used in the manufacture of the respondent's finished products are wire rods, hoop steel, sheet steel, dowels, and brass. During the period from January 1 to September 1, 1937, the amount of purchases of these raw materials made outside the State of New Jersey was $109,- 305.28. Ninety-five per cent of the purchases of raw materials were made outside the State of New Jersey. Ninety-five per cent of the respondent's finished products are sold in or shipped to States other than New Jersey, principally New York, Ohio, California, Pennsylvania, Massachusetts, Illinois, and Virginia. The gross volume of sales made outside the State of New Jersey dur- ing the period from January 1 to September 1, 1937, was $356,638.31. 502 NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED Unity Lodge No. 1560 of the International Association of Ma- chinists was.a labor organization, affiliated with the' American Fed- eration of Labor, admitting to membership the production employees of the respondent, excluding supervisory employees. Unity Lodge No. 420 of the United Electrical, Radio & Machine Workers of America, is a labor organization affiliated with the Com- mittee for Industrial Organization, admitting to membership the production employees of the respondent, excluding supervisory em- ployees. The Newark Rivet Works Employees' Council is an unaffiliated labor organization admitting to membership the production em- ployees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Chronological summary of events .Prior to 1937, there had been no union organization in the respond- ent's plant.' Sometime in March 1937 Edward Oremusz, William Kozuczko, and about ten other employees working in the hardening department, drew up and signed a petition asking for a 5-cent per hour increase in wages. Kozuczko was told, when he took the peti- tion into the res'pondent's office, that nothing could be done because one of the Trilnpi brothers, who constitute the officers of the respond- ent corporation, was not there. Later the respondent announced a 10-per cent wage increase." Early in March 1937 some employees approached all organizer for the Amalgamated Association of Iron, Steel, and Tin Workers of North America, herein called the Amalgamated, who gave them cards designating the Amalgamated as the employees' bargaining agency. These cards were distributed among the respondent's employees for signature. In the latter part of March 1937 Kozuczko and other ,employees planned a strike, and posted on the respondent's bulletin board a sign announcing the strike. The strike did not occur. On March 27, 1937, Kozuczko and Dubas, another employee, be- lieving that the respondent's employees did not properly fit into a union of steel workers, went to see James J. Matles, then a grand lodge representative of the I. A. M. Pursuant to Matles' suggestion, they brought a committee of 12 to 14 employees to his office on Easter Sunday, March 28. Each member of the committee signed a card applying for membership in the I. A. M. and took with him a large number of additional cards to distribute among the employees. The committee gave Matles the Amalgamated cards and, having obtained 6A 10-per cent increase was smaller than a 5 -cent per hour increase would have been. DECISIONS AND ORDERS 503 the consent of the Amalgamated, he accepted them as cards designat- ing the I. A. M. At meetings of the respondent's employees, held on March 29 and April 1, 1937, many more employees signed the I. A. M. cards. William Kozuczko distributed cards in his department during the week following Easter Sunday. He testified that in the early part of April, immediately after the week in which he obtained the cards from Matles and started to circulate them, he saw Heilmann and the foreman of Kuzuczko's department, Willie Wolf, talking together in the room where Kozuczko worked. At that time, Gertrude Kersting, the forelady in the department, told Kozuczko to watch out, that they were talking about him. Later on, she told Kozuczko that Heilmann thought that Kozuczko was the ringleader, but that Wolf had said it was not true, and was "fighting for" Kozuczko. During the month of April 1937, Schultz, a foreman, several times told Kozuczko while Kozuczko was working that he should have no part in the union organization and that he should drop it. On April 5, 1937, Matles was informed that two of the employees active in union work, Russell Serio and Edward Oremusz, had been discharged that day. On the next day, April 6, 1937, Gertrude Ker- sting, the forelady in the umbrella rod department, went around asking each individual employee whether he or` she wanted to join the union, was for or against the union, was for or against the factory, and whether or not he or she wanted to work there: Willie Wolf, the foreman of that department, then made a second round of the employees in the paint shop and asked each of the employees why they were for the union. On the same day, Matles saw Heilmann at the-plant, asked for all explanation of the discharges, and asked that the men be reinstated. Heilmami said that he would speak with the higher executives of the respondent and would call Matles at 2 o'clock that afternoon. Heil- mann failed to call. Matles called Heilmann, and Heilmann told him that the respondent would not reinstate the discharged employees and did not care to enter into negotiations with his organization. When Matles told Heilmann that the "tally" his foremen had taken that day was forbidden by the Act, Heilmann asked why this was so, but did not discuss the matter further. After this conference Matles called the United States Conciliation Service. Charles Johnson Post, the conciliator assigned to the case, stated to Matles, after negotiations, that he could not persuade the respondent to alter its position. On April 16, 1937, the I. A. M. filed charges with the Board. On April 26,' a conference was arranged at the office of Lerch, the re- spondent's attorney, and the Unity Lodge presented a draft con- tract, providing for a closed shop, wage increases and overtime pay, 504 NATIONAL LABOR RELATIONS BOARD and the recognition of seniority of service in lay-offs or rehiring. Lerch stated that, because of Japanese competition , the respondent could not afford to give any wage increases . Matles suggested that they first discuss matters which would not involve any expenditure on the part of the respondent , such as reinstatement of the discharged employees, recognition of the union , and seniority rights, but the respondent refused to discuss or take a position on any of the points in the agreement . When Matles accused Lerch of dodging the re- instatement question by refusing to discuss matters other than wages, Lerch stated that on the matter of the discharges , he would investi- gate the company records and would call Matles in 6 or 7 days. Lerch also promised another conference . However, Lerch failed to call Matles. Several telephone calls by Matles to Lerch failed to result in an- other conference, and on May 7, 1937, Matles telegraphed Lerch to the effect that unless a bargaining conference was arranged within a few days, the Unity Lodge would be compelled to take a strike vote. On May 11, 1937 , the employees , at a union meeting, authorized the union shop committee and Rubicz , business agent of the Unity Lodge and the man who succeeded Matles in the negotiations , to take any action necessary to force the respondent to talk over the agree- ment. On May 13, a strike was called. The next day, Friday, May 14, Lerch, Heilmann , and Radler, the respondent's paymaster, met with the Unity Lodge committee. Rubicz stated that the strike action had been taken because the re- spondent had not replied to the proposals of the Unity Lodge since April 26. The employees refused to accept a proposal that they go back to work on Monday and that negotiations be continued Mon- day evening. A conference was held on Monday , May 17. Conlin, an accountant called by the respondent, attempted to show that the respondent could not increase wages. The respondent claimed that it had made only $11 ,000 in 1936, that its prospective profits for 1937 were no greater, and that its $850 ,000 of undistributed surplus had been accumulated in 1916 , 1917, and 1918. Lerch again insisted that it would be useless to discuss any other demands of the Unity Lodge until some agreement had been reached on the question of wages. The meeting adjourned until an inventory could be taken by repre- sentatives of the respondent and the Unity Lodge with a view to de- termining whether the respondent had made any profit during the first six months of 1937. The strike was continued and the plant remained shut. On May 19, 1937, however, Heilmann informed the Unity Lodge committee that Lerch had changed his mind and that the inventory DECISIONS AND ORDERS 505 could not be taken. Rubicz tried to get in touch with Lerch, but was told that Lerch was in Washington on business. The strike continued and no new negotiations were had until June 2, 1937, when a conference, arranged by Cromwell, a Board representative, was held at the New York City regional offices of the Board. Lerch and Howard Trimpi, secretary of the respondent, represented the respondent. Lerch was the chief spokesman for the respondent. Lerch indicated that if the wage-increase demands were withdrawn, there would be no trouble between the Unity Lodge and the respondent as to the agreement. The conference was continued in the respondent's offices on June 4, 1937. At this meeting, Lerch presented a "Memorandum of the Position of the Newark Rivet Works" and stated that many of the members of the respondent's Board of Directors were willing to close the plant entirely. The memorandum stated that the respondent could not increase its wages and could "see no future to negotiations which hinge upon an increase in wages." The memorandum stated that the respondent had decided to remain closed at least until July 1, or until such time as the employees were willing to go back to work on their old wage scale, and that if the respondent could not resume operations on the basis of the old wage scale within a reason- able time, it would "liquidate its assets and indefinitely suspend op- eration." Lerch then reiterated his statement that the only difficulty was that the respondent could not grant the wage increase demanded, The Unity Lodge committee at this time agreed to drop its original wage demands and to ask instead for only such wage increases as could be taken care of by the, expected $11,000 profit in 1937. Lerch stated that he would take up the matter with the respondent's Board of Directors and indicated that he would make a favorable recom- mendation. Nothing further occurred until June 7, when Rubicz called Lerch to inform him that the members of the Unity Lodge had ratified the action of the Unity Lodge committee in withdrawing its original wage demands. On June 8, 1937, Lerch called Rothbard, attorney for the Unity Lodge, and informed him that the respondent would not accept this second wage proposal of the Unity Lodge. On June 17, a new contraef was presented to the respondent. This ,contract provided neither for an increase in wages nor for a shorten- ing of hours, nor did it contain the closed-shop provision present in the first contract. It called for- union -recognition, as did the first contract, and contained an article which provided "That a committee shall be appointed by the union which committee shall meet with the. representatives of-the company regularly, for the purpose of adinsting any and all grievances which may arise during the term, 506 NATIONAL LABOR RELATIONS BOA Hi) of this agreement." When Lerch read the contract, he stated that the grievance committee provision was not acceptable to the re- spondent. Lerch said that, although he personally might be in favor of a grievance committee set-up, he knew that the Trimpis "would not put up with a standing Grievance Committee who could represent the workers and come in and bother and argue with the company with respect to grievances." The meeting then broke up. At the suggestion of Rothbard, Cromwell arranged another con- ference at the Board offices in New York City on June 24, 1937, but the respondent again took the same position. Immediately after this conference, Rubicz called a meeting of the strikers so that he could report as to what had happened. Several foremen were present at the meeting. Schultz, the foreman in the machine shop, Gertrude Kersting, a forelady, and Harry, a tool foreman on the-first floor, created a disturbance by calling Rubicz a liar, stating that Rubicz had been "thrown out" by the Labor Board, and that "the company union" had been recognized. Two employees were sent to the Board offices and they reported to the membership that Rubicz had been telling the truth. In the latter part of June 1937, a group consisting of William Kin- ney, Willie Wolf, and William Schultz, all of whom were supervisory employees in the respondent's employ, together with,some-Iion-super- visory employees, held several meetings in a saloon. At:these meet- ings, the group arranged for the printing and distribution of slips of paper which read : I, the undersigned, hereby agree to return to work at my former position under the terms and conditions that existed at the time of the walk-out in the Newark Rivet Works: This is my own voluntary act and signed without coercion of any kind. Kinney had obtained the names and addresses of the respondent's employees from Radler. These slips were brought to the employees at their homes and they were asked to sign and mark one of the two blank squares, marked "Inside Union" and "Outside Union," which appeared on the slip. Subsequently, a post card, signed by "The Committee," was mailed to the respondent's employees, asking them to attend a meeting at Bibbo Centre on July 1, 1937. At the meeting officers were elected. Kinney was elected president. Wolf was elected treasurer, Gertrude Kersting, forelady of the rod room department, was elected secretary, and George Krebs, son of Foreman Tony Krebs, was elected vice president after being either nominated - or seconded by his father. Members of the Unity Lodge who were present at the meeting at- tempted to nominate Kozuczko for the presidency, but his nomination I CISIONS AND otamiS 507 was not accepted and it was stated that there was to be no discussion from the floor. Another meeting was held on July 10, 1937. The prominent com- mitteemen of the Unity Lodge were refused admittance at this meet- ing. When John Tomkovitch, one of these committeemen, presented the post card, which-was a prerequisite to admission, to Kinney, who was stationed at the door, Kinney called Wolf and Wolf advised Kinney not to let Tomkovitch in because Tomkovitch was "too strong" for the Unity Lodge. The organization had, by this time, been named Newark Rivet Works Employees' Council. At this meeting, Kinney read to the em- ployees what he said were the terms of a contract under which they might go back to work. The employees voted to accept the terms. By a letter dated July 10, 1937, the Council, after the meeting held on that day, informed Lerch that it wished to announce that it had en- rolled a majority of the respondent's employees as members, asked for recognition as sole bargaining agent, and requested a conference. Radler testified that Kinney came to him on July 9 or 10 and said that he had talked to a lot of people that wanted to go back to work. Radler called up Lerch, and Lerch "stated that if Mr. Kinney could show him that he had a majority of the people signed up, that are willing to go back on terms of the agreement that -he had drawn up, that we would sit down and bargain with them." On July 12, the Council presented the slips. The names appear- ing on the slips were compared with the names of the employees on the respondent's pay roll, and it was found that a majority of the employees had signed the slips. Radler testified that they found a majority of the employees were "willing to go back with a certain agreement that we had, and we sat down and bargained with them on the strength of that -agreement." The agreement referred to was not one between the respondent and the Council, but was a form of indi- vidual contract of employment. The plant reopened on July 14, 1937. Each employee returning to work was required to sign a card, purporting to be the result of the negotiations between the Council and the respondent, which consti- tuted a contract between the individual employee and the respondent. The card provided that "In consideration of the employees of the Newark Rivet Works of Newark, N. J., resuming work in the said Rivet Works at the same wage rates existing at the time said Works were closed because of a strike, the Newark Rivet Works agree to the following articles : ." It then set forth the hours of work, overtime provisions, and a seniority clause, and provided that the respondent would pay its employees weekly instead of every other week, as was the custom prior to the strike. The agreement was to run until July 1, 1938. 508 NATIONAL LABOR RELATIONS BOARD On July 15, 1937, a group of employees, with Kozuczko acting as spokesman, called on Heilmann and Radler and stated that they wished to go back to work but did not wish to sign the cards. Heil- mann and Radler indicated that they were willing to take each mem- ber of the group back, but that the signing of the card was a neces- sary prerequisite. The group consisted of Veronica Lucinskas, Nicholas Dubas, Rose Cieri, John Tomkovitch, and Kozuczko. . Dur- ing the conference, Radler referred to the agreement as a "company union card" and indicated that signing the card made them members of the "company union." These employees refused to sign, and were not permitted to go back to work. It was decided by the Unity Lodge, however, that Kozuczko, be- cause of his importance as a union leader, would be more useful to, the Unity Lodge inside than outside, and he went back on the next day, July 16. He was told that if he continued to do anything in regard to union activity in the shop, he would be dismissed. He signed the contract and was told by Wolf to report for work on the following Monday. On July 15, Edna Winciss, one of the strikers, also applied for work. Radler told her that the card was a "contract for a company union." She refused to sign and was not permitted to return to work. - On July 16, Andrew Riley applied for work. He refused to sign a card, and was not permitted to return. _- At a meeting of the Council on July 22, 1937, someone suggested that there were too many foremen in office. After the foremen offered to resign, another vote was taken and the foremen were reelected. After the reopening of the plant, Gertrude Kersting collected Coun- cil dues on company time, initialed the Council dues books, and re- turned them either to the employees individually or to the person whose responsibility it was to collect in the particular department. She also spoke in favor of the Council and urged the employees to forget the other union and to work with the Council. Willie Wolf talked about the Council to the individual employees in his depart- ment and told the employees "that if (sic) there was no chance of holding us there if we did' not want to play' ball with them and sign up and that if we did not do that we had a right to leave if we wanted to." B. Domination of and interference with the Newark Rivet Works - Employees' Council The Council, from its inception, was characterized by the dominant role played by the respondent's foremen. About half of the com- mittee which formulated plans for the creation of the Council con- DECISIONS AND ORDERS 509 sisted of foremen. Of the four officers of the Council, three were foremen and one was the son of a foreman; two of these officers had been nominated for the position or had had their nominations sec- onded by foremen. Foremen were members of the committee which went in to bargain with Lerch and Radler. Gertrude Kersting, it forelady, and secretary of the Council, collected dues on company time, and spoke in favor of the Council. Wolf, a foreman, treas- urer of the Council, talked to employees in his department and clearly indicated that their job security depended on their joining the Council. The respondent denied that Kinney, the president of the Council, had any supervisory duties. It contended that John Mount, rather than Kinney, is the supervisor of the shipping department. It ap- pears, however, that Mount is 75 years old, and is away from the shipping department a number of days a week. Kinney is in charge of the shipping department when Mount is away. In testifying on the discharge of Van Dean, Radler stated that Kinney reported on the work of Van Dean, and, in fact, discharged Van Dean. There can be no doubt of Kinney's supervisory capacity. Kinney, the leading spirit of the Council, was not called upon to testify at the hearing. Veronica Lucinskas testified that the only persons she had taken orders from since she started working for the respondent were Wolf and Kersting. The respondent did not challenge the fact that these two of the Council's officers were employed in supervisory capacities. The respondent asserts that the fact that foremen attended meet- ings of the Unity Lodge indicates that no conclusions can be drawn from their participation and leadership in the Council. The situa- tions, however, are hardly comparable. A check of the cards sub- mitted-by the Unity Lodge indicates that none of the foremen were members of the United.7 Rubicz indicated that foremen were per- mitted at meetings because the Unity Lodge feared that attempts to exclude the foremen would result in the creation of a disturbance. There was at least one meeting prior to the strike at which foremen were excluded. When the Unity Lodge was organizing, it was Ger- trude Kersting who questioned the individual employees as to their union affiliation. We cannot credit the respondent's claim that be- cause she attended Unity Lodge meetings, her interests were not allied with those of the respondent. Nor does the course of bargaining between the Council and the ,respondent in any way cast doubt upon the conclusion that the re- spondent did, in fact, dominate and interfere with the Council. The ° There is one card signed by John Jacobs The signer, however, indicated that he worked in Tony's department and that he made 35 cents per hour. This is quite obviously not the John Jacobs who is head foreman. 510 NATIONAL LABOR RELATIONS BOARD slips which were distributed to employees called for return to work at the pre-strike terms and conditions; the Council agreed to have the employees sign individual contracts; the provisions of the agree- ment provided for the return of the employees to work at substan- tially the same terms; the respondent was not approached until the employees had agreed to these terms. We find that the respondent has dominated and interfered with the formation and administration of and contributed support to the New- ark Rivet Works Employees' Council and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. C. The refusal to bargain collectively 1. The appropriate unit Both the Unity Lodge and, at the present time, the Council, admit to membership the production employees of the respondent, excluding supervisory employees, The respondent did not claim that any other unit was the appropriate one. We find that the production employees of the respondent, excluding supervisory employees, constitute an appropriate unit for purposes of collective bargaining, and that such a unit insures to the employees the full benefit of their right to self-organization and to collective bargaining. 2. Representation by the Unity Lodge of a majority in the appropriate unit A list of the respondent's employees as of April 26, 1937, contains 543 names. The cards of employees in the appropriate unit, which the Unity Lodge presented in evidence and which have been checked and have been found to correspond with the names on the list, num- ber 406.8 Although the cards were not dated there is uncontradicted testimony to the effect that 300 of the cards had been signed by April 26. On June 2, 1937, the Executive Board of the Union, which at that time was Unity Lodge No. 1560 of the International Association of Machinists, and which had members from 12 shops, including New- ark Rivet Works, decided to affiliate themselves with the United Electrical, Radio & Machine Workers of America, affiliated with the Committee for Industrial Organization. The employees from the various shops then voted and ratified the action of the executive com- mittee. The employees of the respondent who were members of the union ratified the executive committee's action at a meeting on June 8 Of these, 20 are Amalgamated cards DECISIONS AND ORDERS 511 9, 1937. Witnesses for the Board testified that about 250 or 300 employees attended this meeting. A 'stipulation entered into by coun- sel for the Board, counsel for the respondent, and counsel for the Council, stated that at least 325 of the employees, had they been called, would have testified that they did not attend that meeting. The change in affiliation did not result in the existence of two labor organizations in the respondent's plant. There was but one organization, which continued to function in exactly the same manner throughout the period under consideration. There was no interrup- tion in the strike; there was no break in the continuity of the attempts at bargaining. . The respondent, at no time, either before or after the change in affiliation, challenged the fact that the Unity Lodge represented a majority of its employees. We therefore find little merit in the respondent's contentions that because the action of the executive committee in changing the national affiliation of the union was ratified by a vote of less than a majority of the union members, the respondent was excused from bargaining with the Unity Lodge, a labor organization representing its employees. We find that on April 26, 1937, and thereafter, the Unity Lodge represented a ma- jority of the employees in the appropriate unit. 3. The refusal to bargain The chronological summary of events, set forth above, shows that the respondent refused to bargain with the representatives of its em- ployees in good faith in a genuine attempt to reach an understanding on the proposals advanced. On April 26, 1937, the respondent refused to discuss any of the matters on which the union desired to reach an understanding except the matter of wages. And on the matter of wages, the respondent asserted that it could not consider the possibility of an increase. The respondent has advanced no good reason to justify its refusal to discuss the other proposals until the wage question was settled, or to show why it was necessary to have the discussion of pressing matters such as the union's demand for reinstatement of discharged employees wait upon a determination of the wage problem. It may be that if an agreement had been reached on other points, each party would have been more tractable on the question of wages. The attitude of the respondent was neither reasonable nor in accord with usual bar- gaining practice. As was shown by the course of events, the respond- ent was making the withdrawal of the union wage demands a prereq- uisite to collective bargaining, and, it was the respondent's unwilling- ness to bargain collectively, rather than the wage difficulties, which was the real obstacle in the way of a collective bargaining agreement. Subsequent to April 26, the respondent met the requests of the 512 NATIONAL LABOR RELATIONS BOARD Unity Lodge with a policy of delay. Requests for a further confer- ence always came from the Unity Lodge, never from the respondent. The respondent did not fulfill either its promise to meet with the Unity Lodge in another conference on the agreement or its promise to call the Unity Lodge for further discussion on the discharges when it had examined the company records. Even the telegram of May 7, which clearly indicated that the respondent was forcing the Unity Lodge to take drastic measures in order to get a conference, failed to result in the respondent's agreeing to a conference. Finally, because of this failure of the respondent to meet with the Unity Lodge, the Unity Lodge called the strike on May 13. The day after the strike was called, the respondent's representatives met with the union committee, and a conference was arranged for May 17. At that conference, the respondent again took the position that it would discuss no other union proposal until the wage problem was settled, and insisted that it could not possibly grant any increase in wages. The respondent promised that an inventory could be taken, but two days later it canceled its permission for the taking of the inventory. The respondent thus nullified the only result of the May 17 conference, and, while doing this, took no steps to initiate new conferences or to propose alternative measures. The parties did not meet again until Cromwell, the Board repre- sentative, arranged a conference which took place on June 2. At this conference, the respondent not only remained adamant as to its posi- tion that the union wage demands must be disposed of first, but also indicated clearly that the wage question was the only thing standing in the way of an agreement. The modified wage demands which were proposed by the Unity Lodge as a result of this statement by the respondent were then declared by the respondent to be just as unsatisfactory to it. The Unity Lodge again took the initiative on June 17, when it presented the new contract with no wage demands; the Unity Lodge had completely capitulated on the question of wages. The re- spondent, however, now for the first time, raised objections to the clause providing for recognition of the union. A clause calling for union recognition was present in the first contract; the respondent had been aware for almost 2 months that the Unity Lodge was seek- ing to be recognized. During this period, the respondent at no time expressed to the Unity Lodge its disapproval of that clause and, in fact, indicated on June 2 that the only thing which prevented an agreement from being reached was the wage proposals. Once the respondent had won its point on the wage question, however, it raised this new objection. Clauses which provide for explicit recognition of the Union are usual in collective bargaining agreements, and we have held that DECISIONS AND ORDERS 513 ,uch recognition is an essential prerequisite to genuine collective bargaining and cannot properly be withheld by an employer.,, The respondent contends that it could not agree to the clause because the majority of the workers might choose another collective bargaining representative and the respondent would thus have to refuse to deal with the Unity Lodge. Whether or not the provision in the proposed contract, which provides that "The company hereby and herewith recognizes the Union," means that the respondent would be contracting to recognize the Unity Lodge as bargaining agency for the 6 months' duration of the contract, we need not decide. It is only necessary to note that the respondent at no time suggested an alternative provision; although a clause calling for recognition of the union for as long as it represented a majority of the employees would obviously have met the respondent's objection. Nor did the respondent offer any alternative provisions to the proposal by the Unity Lodge of a grievance committee, which would have provided the machinery for continued collective bargaining during the period of the contract, and to which Lerch stated the respondent objected. The estimate by Lerch that the Trimpis ',would not put up with a standing grievance committee who could represent the workers and come in^ and bother and argue with the company with respect to grievances" is indicative of the respond- ent's attitude. The refusal to meet with representatives of its employees from April 26 until the strike; the refusal to discuss the union proposals other than the wage proposal; the insistence on the withdrawal of the wage demands before it would bargain on the other matters ; the raising of another objection when these demands were withdrawn; the evasive manner of the respondent's negotiating, its failure to sub- mit counterproposals, and its failure to take any initiative whatever in the attempt to achieve a settlement ; and its refusal to accord the Unity Lodge formal recognition; all show clearly that the respondent was not bargaining in good faith or making any effort to attain an understanding with the Unity Lodge through the bargaining process. There is further evidence of this. Trimpi, Radler, and Lerch, each of whom was a responsible representative of the respondent who took leading parts in the negotiations with the Unity Lodge, differed widely in their testimony as to the respondent's objections to the second contract. Lerch stated that the respondent objected to the grievance committee clause and the union recognition clause. This is also stated in the respondent's brief. Radler testified that the re- Cf Matter of The Griswold Manufacturing Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No 1197, 6 N L R B 298; Matter of United States Stamping Company and Enamel Workers Union, No. 18650, 5 N. L. R B. 172. 514 NATIONAL LABOR RELATIONS BOARD spondent also objected to the article dealing with dismissal for cause. There is no other evidence of this. Trimpi testified that on June 24, Cromwell was insisting that the respondent agree to a closed shop. There is. no closed-shop,'-provision in. the second union con- tract; there is no evidence of any demands for a closed shop at'that time. These differences ^ in understanding of • the issues in the bar- gaining can only be explained by the fact'that respondent's repre- sentatives we're giving no serious consideration to the union proposals, and that their bargaining was sham. It is significant also that at the end of June, when meetings between the respondent and the Unity Lodge were taking place, the respondent was beginning its interference with the formation and administration of the Council,10 and it is indicative of the respond- ent's attitude that, even in its dealings with the Council, it insisted upon contracts with its individual employees and-did not enter into any real collective bargaining agreement. We find that on April 26, 1937, and at all times thereafter, the respondent refused to bargain collectively with the' Union as the representative of its employees in the appropriate unit in respect to rates of pay, wages, hours of employment, and other conditions of employment and thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. D. Interference, restraint, and coercion The questioning of the individual employees at the plant by Kersting and Wolf, the statement made to Kozuczko by Schultz urging Kozuczko to stop working in the Unity Lodge, the attend- ance of union meetings by foremen, and the disturbance created by the foremen at the June 24 meeting of, the Unity Lodge,. were all acts which restrained and coerced the employees in their right to self-organization. We have found that the respondent by one unfair labor, practice, had caused its employees to strike, and, by another unfair labor practice, had succeeded in ending the strike and caused a large number of its employees to choose the Council, rather than the Unity Lodge, as their bargaining representative. It then sought to ' insulate itself from the possibility of having to bargain collectively with representatives of its employees' own choosing, and to assure- the dominance of the Council among its employees, by imposing on the employees the individual contracts of employment, negotiated with the company-dominated Council. These individual contracts 10 Cf Matter of Shell Oil Company of California and -International Association of Ott Field, Gas Well and Refinery Workers of America, 2 N. L. R. B. 835; Matter of The Gris- wold Manufacturing Company and Amalgamated Association of Iron, ' Steel and Tin Workers of North America ; Lodge No 1197, 6 N. L. R B 298 DECISIONS AND ORDERS 515 interfered with the Unity Lodge in 'its' efforts to secure a collective agreement and discouraged its use as, a- collective bargaining agency. The requirement of this individual- contract as a condition of em- ployment' was, under these circumstances, an act which interfered with, the employees in their right to self-organization and to, join and assist labor organizations, and to bargain collectively through representatives of their own choosing. % Te find that the respondent has interfered with, restrained, and coerced' its employees in the exercise of their right to self-organi- zation, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining. E. The refusal to reinstate The respondent admittedly refused to reinstate those employee= who did not sign the individual contracts. It has already been noted that the individual contracts were the result of the dealings- between the respondent and the Council, a labor organization whose formation and administration the respondent has dominated. We have found that the respondent has committed an unfair labor practice by refusing to bargain with the Unity Lodge and that the strike was the result of this unfair labor practice. By another unfair labor practice, its domination of the Council, the respondent managed to end the strike and to cause a great number of its employees to authorize the Council; rather than the Unity Lodge, to act as their bargaining representative. Through the device of an agreement with the Council, which it controlled, the respondent then sought to perpetuate its gains -by requiring its employees to sign the individual contracts which bound them to work at the pre-strike wages and hours for one year, and which fixed the overtime rate, the time of payment, and seniority rights. The employees had a right under the Act to have the Unity Lodge, the representative of a majority of the employees in the appropriate unit, bargain collectively, for them on these basic issues. The require- ment, as a condition of reinstatement, that, in disregard of this right., they enter into individual' employment contracts interfered with their right to bargain collectively through the Unity Lodge and was a deterrent to continued membership in that organization. The respondent,has discouraged membership in the Unity Lodge by discriminating with regard to the reinstatement of its employees." The respondent claims that Tomkovitch on July 15, 1937, asserted that he would not go back to work unless he were put in a depart- uMatter of Atlas `Bag and Burlap Conipany, Inc and Milton Rosenberg. Organizer; Burlap z6 Cotton Workers Local Union No. 2469, affiliated with United Textile Workers Union, 1 N L R B 292 ; Matter, of Amnezzcan Manufacturing Company et at. and Textile Workers' Organizing Committee, 0. I. 0., 5 N. L. R. B. 443. 134068-39-vol. ix-34 516 NATIONAL LABOR RELATIONS BOARD ment other than Wolf's, and that this was the reason Tomkovitch did not go back. Tomkovitch denied this and testified that, as the group of employees was leaving on that day, after Heilmann had told them that the signing of the contracts was necessary, he turned and asked Heilmann and Radler whether, if he agreed to sign the card, there was a chance of being placed in another department. Since Tomkovitch went in with a group of employees who were willing to go back to work if they did not have to sign the con- tracts, his statement of the reason appears to be the true one. We find that Tomkovitch was not given work because he refused to sign the individual contract. We find that, by discriminating in regard to the hire and tenure of employment of Veronica Lucinskas, Nicholas Dubas, Rose Cieri, Edna Winciss, Andrew Riley and John Tomkovitch, thereby dis- couraging membership in the Unity Lodge and encouraging mem- bership in the Council, the respondent has engaged in and is engag- ing in an unfair labor practice, within the meaning of Section 8 (3) of the Act. Nicholas Dubas was, at the time of the strike, receiving $14 per week for his work for the respondent. Between July 15, 1937, and the time of the hearing, Dubas had earned $104 at other employment. Rose Cieri was receiving about $16.50 or $17 per week. She had earned no money at other employment between July 15, 1937, and the date of the hearing. Veronica Lucinskas was receiving $17.50 per week at the time of the strike. She had earned between $60 and $65 between July 15, 1937, and the time of the hearing. John Tomkovitch was receiving $4.40 per day at the time of the strike. Between July 15, 1937, and the time of the hearing, he earned $46 at other employment. Edna Winciss received about $12.50 per week prior to the strike. She had not had any employment. Andrew Riley received $14.85 per week at the time of the strike. He made about $57 in the period from July 16, 1937, to the date of the hearing. F. The discharges of April 5 Russell Serio had signed up a majority of the 100 girls on his floor. Serio asked employees to sign the Unity Lodge application cards during the lunch hour and after work. He ate his lunch in- side, and thus his activity in asking employees to sign the cards took place in the plant. Serio, who had worked for the respondent about 7 months,_ was assigned to the rib room. His work consisted of weighing the work of the girls who worked in that room, bringing material to them, DECISIONS AND ORDERS 517 and carting away their work. Serio testified that there were never any complaints about his work, and his forelady and the head fore- man testified that Serio's work was satisfactory. On April 5, 1937, Serio was ill and stayed home. That afternoon, his brother arrived with the pay envelope, and Serio learned that he had been discharged. The next day Serio asked Oscar Theurer, the timekeeper, the reason for the discharge. Theurer did not know and told Serio to see Heilmann. Heilmann told Serio that he should have telephoned the respondent that he would not be in. Serio then said, "You mean agitating, don't you?" and Heilmann answered "Yes." This was not denied. On the morning of April 5, Margaret Schmidt, the forelady in the rib department, told John Jacobs, the head foreman, that Serio was not at work. She testified that if an employee stayed out for a day he would not_,be given work any more, if the replacement was satisfactory, although the employee might be taken back the follow- ing week, if there was room for him. Jacobs testified that, when informed that Serio had not come in, he asked Lobozo, who, he thought, was related to Serio, where Serio was. Lobozo said that he had seen Serio that morning, and that he did -not know why Serio had not come in. Jacobs testified that he then told Lobozo that he would leave the job open until dinner time, and that if Serio did not then come in, a new helper would be put on. He told Lobozo to go and get Serio, but Lobozo refused. Jacobs stated that, at noon, as a result of his conversation with Lobozo, he assumed that Serio had quit. Jacobs denied that it was the custom of the respondent to dis- charge an employee if that employee did not report for 1 day. Jacobs stated that Serio's work was .satisfactory and that this was Serio's first absence from his work. Heilmann testified that "Mr. Jacobs, who was his (Serio's) foreman, came to me and told about him being out, and the change that he has made. After I heard Mr. Jacobs, the reason he was out, and that he had to have another fellow to replace him, I sanctioned a dis- charge, or rather I sanctioned the discharge of Mr. Jacobs discharg- ing Mr. Serio." Heilmann testified that this conversation took place a little before noon. Then, when Board's counsel reminded Heilmann that Jacobs had testified about a message to Serio giving him a chance to return in the afternoon, Heilmann testified that the con- versation took place at about 1: 30 p. m. and then said that Jacobs told him before noon that Serio was not in and told him after lunch that he had discharged Serio. Edward Oremusz was a member of the group that saw Matles on Easter Sunday. - Prior to his discharge, he was considered to be the most successful person in getting the respondent's employees to 518 NATIONAL LABOR RELATIONS- BOARD sign, the, application cards, although he never took any cards with him, to the plant. Oremusz had started working for the respondent on September 24,. 1936. He injured his finger sometime in October, and was trans- ferred to the hardening department, of,which Tony Krebs was fore- man. • Oremusz did not work steadily in that department, but di- vided a good deal of his time be the hardening department and Glaser, the shop carpenter. Because Glaser was considered a slow workman, other foremen frequently came to Oremusz directly to ask him to do some maintenance work. He also worked for the electrician and the plumber. On the morning of April 5, 1937, Oremusz returned to the hard- ening department from the men's room and found Heilman wait- ing for him. Heilmann asked him where he had been, accused him of being out for 20 minutes and then discharged him. Orenlusz testified that he had been out of the room only about' 31/2 or 5 minutes and that there had been no prior complaint to him by Heilmann or anyone else about his being away from his work. Krebs stated that on April 5, Oremusz had been out 20 to 25 minutes. Krebs testified that Oremusz's work had been satisfactory, but that he would go off for 25 or 30-minute periods two or three times a day. Krebs, stated that-on these occasions he did not ask Oremusz where he had been or what he had been doing, but that he warned Oremusz about three or four times and then reported the matter to the superintendent. Glaser also testified that Oremusz used to disappear two or three times a day, and, when asked, did not say where he had gone. Glaser stated that when he had nothing to do he sent Oremusz to Krebs, or Oremusz went to see if he could be used elsewhere. _ Heilmann testified that Krebs told him about November 1936, that be did not want Oremusz in, his department because Oremusz loafed and did not stick to his job, but that he asked Krebs to give Oremusz another chance. Krebs complained once in November 1936, and once about a month prior to Oremusz's discharge. Heilmann stated that by several personal observations, he knew that Oremusz did not stick to his job. On each such occasion; he noticed that Oremusz was away from Krebs' room. Heilmann also testified, however, that he knew Oremusz was not working steadily for Krebs and that Oremusz was being shifted around from one foreman to another and that he did various jobs around the factory. It is significant to note that the day after the discharge of these two active union members took place, the respondent's foremen asked the employees individually- whether or not they were for the union. The sign announcing a strike -had been posted on the respondent's bulletin board in the latter part of March; at about this time -the DECISIONS AND ORDERS 519 respondent's employees were being asked, both inside and outside the plant, to join the union, and Serio and Oremusz were the most sue-* cessful persons in inducing the employees to sign the cards; meetings ,of the respondent's employees had taken place on March 29 and April 1; the discharges occurred on April 5; the questioning of the employees took place on April 6; and at this time, Wolf was con- sidering action against Kozuczko because of the latter's - union ac- tivity. The conclusion that the motivating cause of the discharge of these employees was their union activities would seem justified. The testimony adduced by the respondent, rather than showing other motivation, tends to convince us further of the discriminatory nature of these discharges. Jacobs denied that it was the custom of the respondent to discharge an employee who did not report for one day; yet he gave Serio's place to a man who had not worked in the respondent's plant be- fore. The testimony of Heilmann, which he shifted facilely on cross-examination, cannot be considered trustworthy. We can thus give little credence to the respondent's statements as to the motivating cause of the discharge of Serio. We find that Russell Serio was discharged because of his union activities. Heilmann's account of the reasons for the discharge of Oremusz is again an incredible one. He asserted that Oremusz did not stick to his wvorl; and that he knew that because he noticed that Oremusz was away from Krebs' room; yet Heilmann admitted that he knew Orennusz did not work steadily in Krebs' room. The respondent -claims that Oremusz was away from his work from 25 to 30 minutes at a time two or three times a day. Yet nothing was done about it from November 1936 to April 6, 1937, except that two complaints were made by a foreman to the plant superintendent. In view of these circumstances we believe that the testimony of Oremusz as to the amount of time he had been out of the room, rather than the conflicting testimony, portrays the true fact. His discharge occurred at the beginning of a period of union organiza- tion anct took place on the same day as the discharge of Russell Serio. We fiuid that Edward Oremusz was discharged because of his union activities. Oremusz was receiving $13.50 a week at the time of his discharge. He has eainecl $114 from the date of his discharge to the date of the hearing. Serio was receiving $14.85 a week at the time of his discharge. He has earned $128 from the date of his discharge to the date of the hearing. 520 NATIONAL LABOR RELATIONS BOARD By discriminating in regard to the hire and tenure of employ- ment of Oremusz and Serio, thereby discouraging membership in the Unity Lodge, the respondent has engaged in and is engaging in an unfair labor practice, within the meaning of Section 8 (3) of the Act. G. The discharge of Alexander Van Dean Alexander Van Dean was discharged by the respondent on No- vember 4, 1937. Van Dean's younger brother, Frank, had been discharged by the respondent a few weeks prior to November 4, 1937, because he was under age and did not have working papers. Van Dean was trying to prove to the respondent that his brother was not, in fact, under age. He brought a letter to Heilmann as proof but Heilman did not consider the letter as sufficient to show Frank Van Dean's age. The testimony of the respondent's witnesses is that Van Dean then became angry, did not do his work properly, argued with Kinney, his supervisor, and was discharged. Van Dean testified that he was discharged because he refused to pay the 25 cents dues to the Council. He testified that he asked Kinney to state that he had been discharged because of his brother; Van Dean said that he was afraid of what his wife would do if she learned he had been discharged for not paying a quarter. We find that the discharge of Alexander Van Dean did not consti- tute discrimination with regard to hire or tenure 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 A-F above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY We have found that the responaent dominated and interfered with the formation and administration of the Council. By such domina- tion and interference the respondent has prevented the free exercise of its employees' right to self-organization and collective bargaining. The Council cannot serve the respondent's employees as their genuine representative. Therefore, in order to restore to the em- ployees the full measure of their rights guaranteed under the Act, we shall order the respondent to withdraw all recognition from the Council and to disestablish it as the representative of its employees for the purposes of collective bargaining. DECISIONS AND ORDERS 521 The respondent urges that the Council, rather than the Unity Lodge, is now the collective bargaining agent of the majority of the employees in the appropriate unit. This situation, however, is the result of the respondent's unfair labor practices. We cannot recognize a change from the bargaining representative previously selected by the untrammelled will of the majority, which was brought about by the respondent's unfair labor practices. To give effect to the policies of the Act the Board must disregard such effects of the unfair labor practices and base its order upon the situation existing at the date of the refusal to bargain.12 Since we have found that the respondent discriminatorily dis- charged Russell Serio and Edward Oremusz because of their union activity, we shall order the respondent to make the discharged em- ployees whole for any loss of pay they have suffered by reason of their respective discharges by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from April 6, 1937, to the date of the offer of reinstatement, less his net earnings 13 during said period. We will order the respondent to offer reinstatement to John Tom- kovitch, Veronica Lucinskas, Rose Cieri, Nicholas Dubas, Edna Win- ciss, and Andrew Riley, and to make them whole for any loss of pay they have suffered by reason of the discrimination with regard to the hire or tenure of their employment by payment to each of them of a sum of money equal to the amount which each normally would have earned as wages, in the case of Andrew Riley, from July 16, 1937, to the date of the offer of reinstatement, less his net earnings during that period; in the case of the other five, from July 15, 1937, to the date of the offer of reinstatement, less the net earnings of each, re- spectively, during said period. We have found that the respondent, by having required its em- ployees to sign individual contracts of employment, has restrained its employees in their right to self-organization and to join and assist labor organizations. In restoring the status quo, it will be necessary to require the respondent to give no effect to these contracts or any renewals thereof. 14 i' Cf Matter of Bradford Dyeing Association (U S A) (a Corporation) and Textile Workers Organizing Committee of the C. I. C , 4 N. L. R B. 604. >s By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful dis- charge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B 440. 14 Cf. Matter of National Licorice Company and Bakery and Confectionery Workers International Union of America, Local Union 105, Greater New York and Vicinity, 7 N. L. R. B 537. .522 NATIONAL LABOR RELATIONS BOARD TAE PETITION In view of the findings in Section III above as to the appropriate bargaining unit and the designation of the Unity Lodge by a ma- jority of the respondent's employees in the appropriate bargaining unit as their representative for the purposes of collective bargaining, it is not necessary to consider the petition of the United for certifica- tion of representatives. Consequently the petition will be dismissed. Upon the basis of the foregoing findings of fact, and upon the en- tire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. Unity Lodge No. 1560 of the International Association of Machinists ; Unity Lodge No. 420 of the United Electrical, Radio & Machine Workers of America, C. I. 0., and Newark Rivet Works Employees' Council are all labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of the Council, 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. 3. By discriminating in regard to the hire and tenure of employ- ment of Russell Serio, Edward Oremusz, John Tomkovitch, Nicholas Dubas, Rose Cieri, Veronica Lucinskas, Edna Winciss and Andrew Riley, thereby discouraging membership in the Unity Lodge, the respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (3) of the Act. 4. The production employees of the respondent, excluding super- visory employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. The Unity Lodge, which, until June 2, 1937, was designated Unity Lodge No. 1560 of the International Association of Machinists, and after June 9, 1937, was designated Unity Lodge No. 420 of the United Electrical, Radio & Machine Workers of America, C. I. 0., was on April 26, 1937, and at all times thereafter has been, the exclu- sive representative of all the respondent's employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 6. By refusing, on April 26, 1937, and thereafter continuing to refuse to bargain collectively with the Unity Lodge as the exclusive representative of the employees in the above-stated unit, the respond- ent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. DEIGISIONS AND ORDERS 523 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 9. By discharging Alexander Van Dean the respondent did not engage in an unfair labor practice, within the meaning of Section 8 (3) 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 respond- ent, Newark Rivet Works, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of the Newark Rivet Works Employees' Council , or with the formation and administration of any other labor organization of its employees, and from contributing support to the Newark Rivet Works Employees' Council or any labor organization of its employees; (b) Discouraging membership in Unity Lodge No. 420 of the United Electrical, Radio & Machine Workers of America, C. I. 0., or any other labor organization of its employees , by discriminating in regard to hire or tenure of employment or any term or condition of employment; (c) Giving effect to the individual contracts of employment herein found to have been executed or any renewal thereof ; (d) Refusing to bargain collectively with Unity Lodge No. 420 of the United Electrical, Radio & Machine Workers of America, C. I. 0., as the exclusive representative of its production employees, excluding supervisory employees; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations , to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties, for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the National Labor Rela- tions Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act; 524 NATIONAL LABOR RELATIONS BOARD (a) Withdraw all recognition from the Newark Rivet Works Em- ployees' Council as the representative of any of its employees for the purpose of dealing with this respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and disestablish the Newark Rivet Works Employees' Council as such representative; (b) Offer to Edward Oremusz, Russell Serio, Nicholas Dubas, Ve- ronica Lucinskas, Rose Cieri, John Tomkovitch, Edna Winciss, and Andrew Riley immediate and full reinstatement to their former posi- tions, without prejudice to their seniority and other rights and privileges; (c) Make whole Russell Serio and Edward Oremusz for any loss of pay they have suffered by reason of the respondent's discrimination in regard to hire and tenure of employment by payment to each of them of a sum of money equal to that which each would normally have earned as wages during the period from the date of such discrimina- tion to the date of the offer of reinstatement, less his net earnings during such period; (d) Make whole Nicholas Dubas, Veronica Lucinskas, John Tom- kovitch, Rose Cieri, Edna Winciss, and Andrew Riley for any loss of pay they have suffered by reason of the respondent's discrimination in regard to the hire and tenure of employment by payment to each of them of a sum of money equal to that which each would have earned as wages during the period from the date of such discrimination to the date of the offer of reinstatement, less the net earnings of each, re- spectively, during that period; (e) Upon request bargain collectively with Unity Lodge No. 420 ,of the United Electrical, Radio & Machine Workers of America, C. I. 0., as the exclusive representative of its production employees, excluding supervisory employees, with respect to rates of pay, hours of employment and other conditions of employment; (f) Post immediately notices to its employees in conspicuous places within the plant stating : (1) that the respondent will cease and desist in the manner aforesaid; (2) that the respondent will with- draw all recognition from the Newark Rivet Works Employees' Coun- cil as the representative of any of its employees for the purpose of dealing with this respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment, and that said organization is completely disestablished as such representative; and (3) that the execution of the individual contracts of employment was in violation of the National Labor Rela- tions Act and that such individual contracts or any renewals thereof will no longer be given effect, and maintain such notices for a period of at least thirty (30) consecutive days from the date of posting; DECISIONS AND ORDERS 525 (g) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. It is further ordered that the complaint be, and it hereby is, dis- missed with respect to the discharge of Alexander Van Dean. And it is further ordered that the petition for investigation and certification of representatives filed by the Unity Lodge be, and it hereby is, dismissed. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Order.