Poultrymen's Service Corp.

In the Matter Of POULTRYMEN'S SERVICE CORPORATION and UNITED CANNERY, AGRICULTURAL, PACKING AND ALLIED' WORKERS OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZA- TIONS Case No. C-1997.-Decided-May 29, 1942 Jurisdiction : poultry and dairy feed, milling industry. Unfair Labor Practices: Interference, Restraint, and Coercion: anti-union statements ; urging employees to bargain independently of union. Collective Bargaining: majority established by petition and membership cards- refusal to bargain in good faith : by its outright refusal to meet and negotiate, and its blunt.challenge to strike, although union's majority was not questioned; by bad faith on part of its representative authorized to bargain with the union who self-imposed limitations upon his authority to negotiate ; and by various other activities which showed, an intent to discontinue negotiations with the union and to avoid effective recognition of the union-strike provoked and prolonged by continued refusal to bargain. Discrimination: refusal to reinstate unfair labor practice strikers in a group Remedial Orders: employer ordered to bargain collectively with union; reinstate- ment of strikers upon application with back pay, ordered. Mr. Theodore W. Kheel, for the Board. - Mr. Howard Ewart and Mr. David A. • Veeder, of Toms River, N. J., for the respondent. . 111r. William Robbins, of Camden, N. J., and Mr. Leonard H. Gold- smith, of Newark, N. J., for the Union. • Mr. Raymond J. Compton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Cannery, Agricultural, Packing and Allied Workers of America, affiliated with the Congress of Industrial Organizations,, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its complaint, dated August 26, 1941, against Poultrymen's Service Corporation, Toms River, New Jersey, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, 41 N. L. R. B., No. 96. 444 POULTRYMEN'S SERVICE CORPORATION 445 within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices the complaint, as amended at the hearing, alleged in substance (1) that on September 29, 1940, and at all times thereafter, the Union has been the exclusive representative of the employees of the respondent within a unit appropriate for the purposes of collective bargaining and that in October and November 1940, and at all times thereafter, the respond- ent refused to bargain collectively with the Union as the exclusive representative of all such employees; (2) that from about October 1 to October 21, 1940, the respondent urged, persuaded, and warned its employees to relinquish their union activities, and disparaged the Union as a bargaining agent; (3) that the respondent discouraged membership in the Union by discharging 25 named employees on October 21, 1940, and by thereafter refusing, on request, to reinstate 17 of them, because they had joined and assisted the Union and had gone on strike on October 21, 1940, in protest against the respondent's unfair labor practices; (4) that on and after October 21, 1940, the respondent urged, persuaded, and warned its employees to relinquish membership in the Union and to refrain from union activities, dis- paraged the Union and its effectiveness as a bargaining agent, and attempted to coerce its employees to forego a suit they had jointly instituted under the Fair Labor Standards Act, and (5) that by the foregoing acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.' On September 10, 1941, the respondent filed its,answer, denying the alleged unfair labor practices, and affirmatively averring that it was not engaged in commerce within the meaning of the Act; that on October 19, 1940, the employees of the respondent designated one Edward W. Haines as their representative for collective bargain- ing and thereafter designated one Montfort G. Miller as such repre- sentative, and that in January 1941 the respondent entered into an agreement with such representatives and with the strikers terminating the strike. Pursuant to notice, a hearing was held from September 15 to Sep- tember 18, inclusive, at Toms River, New Jersey, before James C. Paradise, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by coun- sel, and the Union by its representatives. All participated, in the The`complaint further alleged, in substance , that by the acts enurirerated in. (1) and (2), above, the respondent provoked a strike among, its employees, and that by the acts enumerated in (3) and (4) the respondent caused the strike to be prolonged. 446 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD 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 close of the Board's case the re- spondent moved for dismissal of the complaint on jurisdictional grounds. This motion was denied. At the close of-the hearing, the Trial Examiner granted a motion by counsel for the Board to con- form the pleadings to the proof. During the course of the hearing, the Trial Examiner ruled upon other motions and upon 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. At the conclusion of the hearing, the parties were afforded an opportunity to submit briefs and to argue orally before the Trial Examiner. Neither of the parties presented argument. The respondent submitted a brief to the Trial Examiner. The Trial Examiner thereafter filed his Intermediate Report dated October 27, 1941, copies of which were duly served upon the parties, in which he found that the respondent had engaged in 'unfair labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He accordingly recommended that the, respondent cease and desist from engaging in the unfair labor practices and that it take certain affirmative action to effectuate the policies of the Act. The Trial Examiner further recommended that the complaint be dismissed insofar as it alleged that the re- spondent had discharged its striking employees on October 21, 1940. On January 29, 1942, the respondent filed exceptions to the Inter- mediate Report and a brief in support of the exceptions. Pursuant to notice, a hearing was held before the Board on March 12, 1942, at Washington, D. C., for the purpose of oral argument. The re- spondent was represented by counsel and presented argument. The Union did not appear. The Board has considered the brief and the exceptions to the Intermediate Report and, insofar as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Poultrymen's Service Corporation, a New Jersey corporation, has its office and principal place of business at Toms River, New Jersey, where it is engaged in the milling and retaining of poultry and dairy feeds. In the conduct of its business the respondent uses corn, barley, oats, ,,and wheat. During the, year 1940, the 'respondent purchased ' POULTRYMEN'S SERVICE CORPORATION 447. 267,500 'bushels of corn, 14,000 bushels of barley, 128,000 bushels of, oats, and 113,750 bushels of wheat, for which it paid $393,134.50. All .of said grain was purchased and shipped from States other than New. Jersey to, the respondent's plant. Approximately 50 percent of the grain purchased by the respondent is ground into feed, the remainder being resold without further processing. During 1940, the respond- ent sold and distributed all of its products to poultry farmers and others within the State of New Jersey. We find, contrary to the contention of the respondent, that the re- spondent is engaged in commerce within the meaning of the Act.2 H. THE ORGANIZATION INVOLVF,b United Cannery, Agricultural, Packing and Allied Workers of America is a labor organization affiliated with the Congress of In- dustrial Organizations. It admits to membership employees of, the respondent. III. THE UNFAIR LABOR PRACTICES A. The appropriates unit The complaint alleges, and the Trial Examiner found, that all employees of the respondent, excluding salesmen and supervisory em- ployees, constitute a unit appropriate for the purposes of collective bargaining. The respondent excepts to the inclusion within the unit of its four office employees listed on the pay roll, respectively, as sec- retary, bookkeeper, order clerk, and posting clerk, and maintains that they should be excluded because of their access to the respond- ent's records and other confidential information.3 We have held that employees are to be excluded from the bargaining unit on the ground 3 See N. L. R. h . v. Suburban Lumber Company, 121 F. ( 2d) 829 (C C A 3), enf'g as mod. Matter of Suburban Lumber Company and International Brotherhood of Team- sters, Chauffeurs, Stablemen and Helpers of America, Local Union No. 676, 3 N- L. R B. 194, cert. denied 312 U. S. 678 ; N. L. R B. v. Robert S. Green, Inc., 125 F. (2d) 485 (C. C. A. 4) enf'g Matter of Robert S. Green, Incorporated and United Construction Workers Organizing Committee, 33 N L R. B. 1184; Wilson & Co . Inc. v. N. L. R. B, 124 F. (2d) 845 (C. C. A 7), enf'g Matter of Wilson & Co., Inc. and United Packinghouse Workers pf America, Local No 49, C. I 0, 30 N L. R. B. 314 3 In tbis ' regard, the respondent alleged in its brief that following the strike of October 21, the strikers had given the respondent's feed formulas to other feed dealers to enable farmers who refused to cross , the picket, line an opportunity to obtain the proper feed without danger of throwing their flocks into a moult „ and that such formulas could have been obtained only from the private , records of the respondent "through the connivance of the office employees " There is no evidence in the record , however, that the feed fur- nrulas : were obtainable only' from the private records of the respondent , or that such formulas, in fact, were given to . other , feed dealers. The only evidence relating to the above allegations of the respondent appears in a circular distributed by the employees to ,the stockholders prior to the October 21 strike, in ,•which the statement was made that the employees were "investigating the possibility of insuring the full supply of feed of the proper formulas to all farmers should a strike be forced upon us." 448 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD of the confidential nature of their employment only if they have access to confidential information which relates directly to the prob- lem of labor relations, and that the possession of important informa- tion is of itself not sufficient to justify deprivation of the right to collective bargaining.4 Other than is implied in their pay-roll des- ignations, the record contains no specific information as to the duties of the respondent's office employees. While it may be assumed that the bookkeeper, order clerk, and posting clerk have access to impor- tant information, the normal duties of such employees seldom relate directly to the problem of labor relations. We shall include them within the unit. As to the respondent's secretary, however, it is a reasonable inference that her duties would include the handling of correspondence and other confidential information pertaining directly to the respondent's labor relations. Accordingly, we shall exclude her from the unit.' We find that all of the respondent's employees, excluding secre- taries, salesmen, and supervisory employees, at all times material herein constituted, and they now constitute, a unit, appropriate for the purposes of collective bargaining, and that said unit insures to employees of the respondent the full benefit of their right to self- organization and to collective bargaining and otherwise effectuates the policies of the Act. B. Representation by the Union of a majority in the appropriate unit In the latter part of September 1940, 15 of the respondent's em- ployees in the appropriate unit signed a petition in which they ex- pressed a desire to organize a "workers union." Walter Huhn, the employee who circulated the petition, thereafter communicated with Leonard Goldsmith, at that time executive secretary of the New Jersey Industrial Council of the C. I. 0., and obtained union mem- bership cards. By September 28, 1940, 16 of the respondent's em- ployees had signed such membership cards, and by* October 4, 1940,, 8 additional employees had signed cards." , On the afore-mentioned dates, there were 24 employees in the appropriate unit. We find that on September 28, 1940, the Union was, and at all, times thereafter-bas been, the duly designated representative of a majority 4 See Matter of Warner, Bros. Pictures, Inc., et al. and Warner Bros. Associated Office Employees of Greater New, York, 35 N L. R. B. 739; Matter of Creamery Package` Manufacturing, Company (Lake Mills Plant ) and Steel Workers Organizing Committee; C I 0., 34 N. L. R. B. 108. 6 Edna Stewart, Mildred Rosenberg, Edna Goodman , and Frances Miller, are listed as secretary, bookkeeper, order clerk, and posting clerk, respectively, on the respondent's pay roll of October 3 , 1940. O The parties stipulated the authenticity of 'the signatures and dates appearing on the union membership cards. - POULTRYMEN'S SERVICE CORPORATION 449 of, the . employees in the appropriate -unit and that, by virtue of Section 9 (a) of the Act, was and is therefore the exclusive repre- sentative of all the employees in such unit for the purposes of collec- tive bargaining.? C. The refusal to bargain and the strikes 'o f October 3 and October 21, 1940; the alleged discharges on October 21, 19410 On September 30 the Union informed the respondent by letter that it had been designated as bargaining representative by a majority of the employees, and requested a meeting for the purpose of negoti- ating a contract. Harry K. Bisbee, ,president of the respondent, ,testified that upon the receipt of this letter he asked his foreman and one other employee if they knew of "anything in the wind" and whether the employees were dissatisfied. Upon being answered in the negative, he,replied to the Union by letter dated October 2, 1940, stating as follows : Your letter of September 30th received and contents noted. I would like to state for your information that we have a committee representing our employees that meet with the management from time to time and up to this date no request has been made that has not been carefully considered and satisfactory arrange- ments made. Therefore, it would be a waste of your time as well ' as the writers to arrange for an appointment .8 Upon receipt of the above letter on October 3, Goldsmith, the union representative, telephoned Bisbee and again asked for a meeting, calling Bisbee's attention to the requirements of the Act. Bisbee refused to meet with the Union's representatives, whereupon Gold- smith stated that the respondent's attitude left the Union no alter- native but to strike. Bisbee challenged the Union to strike. Within an hour all of the respondent's employees with exception of the 7 We hereinafter find that the employees on several occasions acted independently of the Union, appointing Edward. W. Haines as their representative on October 19, 1940, - to negotiate with Page, a stockholder, and Leet, the respondent's plant' manager, and on January "7, 1941, designated Montfort G. Miller as their nominal agent in negoti- ating an agreement with the respondent. We further find, however, that such action by the employees occurred after the respondent had committed unfair labor practices 'designed to,,discourage membership and activity in the Union. Accordingly, whatever defection from union membership may be indicated by the independent action of the 'employees, it does not affect the above finding that on September 28, 1940, and thereafter, the Union was the duly chosen representative of the respondent's employees. See N. L. R. B v Bradford Dyeing Ass'n., 310 U. S. 318, rev. and rem. 106 F. (2d) 119 (C C. A. 1), vacating in part and failing to enforce Matter of Bradford' Dyeing Asso= cietion (U. S. A.) (a Corporation) and Textile Workers' Organizing Committee of the 0 1. 0 , 4 N L. R B 604; International Association of Machinists v. N. L. R. B., 311 U. S 72; aff'g 110_F. (2d) 629 (App. D 'C ), enf'g Matter of The'Serrick Corp. and Int'l Union, United Automobile Workers of America, etc., 8 N: L. R. B. 621. ' Bisbee's testimony establishes that there had never actually been a representative committee chosen by the employees for the purpose of collective bargaining or the adjust- ment of grievances. 463892-42-vol. 41-29 450 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD office force, were on strike. The office employees joined the strikers the following morning.a On the morning of October 4, Goldsmith and the union shop- com- mittee met with Bisbee, Max Leet, director and manager of the re- spondent's plant, and Chris Miller and David A. Veeder, directors of the respondent. The respondent asked for the Union's demands, and Goldsmith replied that they had not yet been formulated, but that the immediate demand of the Union was for recognition and an agreement by the respondent to negotiate. A temporary agreement 'was finally arrived at for the purpose of settling the strike. It provided for recognition of the union grievance committee, immedi- ate establishment of a seniority list and promotions on the basis of seniority, no discharge or lay-off except for refusal of an employee to perform his duties or for gross insubordination, no discrimina- tion because of union activity, and the commencement of contract negotiations on October 7. This temporary agreement was to expire on October 20, 1940. The respondent's representatives informed the Union that any agreement reached would be subject to ratification by the stockholders. Immediately following the execution of the temporary agreement, the- Union submitted its demands, including a union shop, check-off, 5-day 40-hour week, time and one-half for overtime, 8 holidays with pay, vacations with pay, substantial wage increases, seniority,, griev- ance machinery, and sick leave. Veeder informed Goldsmith that the respondent's earnings and financial structure did not permit the payment of the wages demanded by the Union, to which Goldsmith replied, "We are not unreasonable. We don't expect you to pay more than your earnings and financial structure -would permit." It is clear that the respondent understod that the Union's proposals, formulated hastily on October 4, were intended only as a basis for negotiations. The strikers returned to work on the afternoon of October 4. - At a special meeting of the Board of Directors on the., night of October 4 Veeder was selected as the respondent's representative "to negotiate with the strikers or/and with their representatives." 10 On October 7, the respondent issued a call for a special meeting of stockholders to consider the labor situation at the plant." Veeder prepared the notice of meeting, which read, in part,' as follows : s The above findings are based upon the mutually corroborative and contradicted testi- mony of Goldsmith and Bisbee Veeder, an attorney, also appeared at the 'bearing as of counsel for the respondent. The stockholders are local poultry farmers and'comprise,the principal market for the respondent's grain and feed Prior to its, incorporation, the respondent's business as run as a cooperative, the members of the cooperative being di awn from the same group as now constitute the respondent's stockholders 0 POULTRYMEN'S SERVICE CORPORATION 451, It may be that our period of usefulness is over. War pre- paredness is being taken advantage of by some labor agitators to create unrest. Labor trouble may be a serious factor in the future. If our company is dissolved now, what assets we have will be available for distribution among the stockholders. If we are to have an increasing amount of labor trouble, such assets as we have remaining may soon be dissipated. In any event it is your capital that is directly concerned and your present management feels that the ultimate decision should likewise be yours. We would like your decision upon the follow- ing alternatives that have occurred to us. 1. Shall we recognize the Union and accede to their requests, with such modifications, if any, as the Union may decide to make, prior to our stockholders meeting? 2. Shall we dissolve our corporation, pay our debts, and thereafter distribute such funds as may remain pro rate among our members? 3. Shall we dissolve our present corporation and organize in place thereof a co-operative of such of our members as are still consumers of feed, and operate with our own help on a greatly reduced scale? 4. Shall we refuse to recognize the Union and call upon the law to protect us, and resume business on whatever reduced scale we may find necessary? A pertinent question that confronts us is, can we meet compe- tition and prosper under Union domination. The consumer pays all bills, but will the consumer in the price placed on his bag of feed, pay increased wages to our employees and help support the C. I. O. by such fees, dues, and assessments as may be placed upon our men, and which is likewise eventually paid by the consumer? On October 8, Veeder and other representatives of the respondent met with Goldsmith, John Hess, another, union representative, and the shop committee. At this meeting the Union submitted a formal contract proposal embodying its demands, and asked for a counter- proposal. Veeder stated that he had not yet received complete data from his auditor regarding the respondent's financial status and that he was not yet in a position to submit a counterproposal- On On October 11, Veeder sent Goldsmith a letter setting forth the result of the auditor's report, showing the amount paid for salaries and wages during the preceding 10 years, the respondent's net, profits during that period, and the dividends paid to preferred and common stockholders. The letter also stated that Veeder was having diffi- 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD culty in framing a counterproposal which would meet substantially the Union's demands and yet have a reasonable chance of acceptance by the stockholders; and suggested that the Union recede from its request for shorter hours and increased pay. On October 14, Veeder again met with Goldsmith, Hess, and the shop committee, and submitted a counterproposal. This counterpro- posal provided for no changes in wages, hours, vacations, or overtime, but deferred consideration of such changes until the financial con- dition of the company should permit the payment of a 6 percent dividend on its common stock. It also provided for exclusion of office employees from the appropriate unit. Veeder's proposal did provide, however, for a union shop, 7 holidays with pay, seniority, and union grievance machinery. Though differing from the pro- visions on these matters contained in the Union's proposed contract, Veeder's proposals were not unreasonable. Goldsmith pressed for some concession on the so-called economic demands of the Union, but Veeder stated that the respondent could offer no concession what- ever on wages, hours, or vacations. In submitting the counterpro- posal Veeder informed the union representatives that it was tentative only, and subject to the approval of the stockholders. The meeting of October.14 ended inconclusively and no arrangements were made for a further meeting. On the evening of October 18, the stockholders' meeting was held .2 The stockholders adopted a resolution formulated and sponsored by Veeder, which provided that the demands of the Union for inclusion of the office force in the appropriate unit, the union shop, seniority, and job security, consultation of the Union on discharges, prohibition of the use of employees in classifications other than their own, and the check-off', were "unconditionally rejected."' The resolution fur- ther provided that the officers of the respondent should make every effort to keep the mill in operation, and should said effort fail, that the respondent dissolve forthwith. The Board of Directors was instructed, "to work out a fair and equitable arrangement with such of its men as may return to work by Monday morning next at 8, a. m." 13 Finally, it provided that a study be made of the possi- bility of paying a wage dividend to the employees depending upon the respondent's earnings. The stockholders' resolution made no "The Union shop committee and Hess, the'union representative, were present at the respondent's plant and sought admittance to the meeting, the shop committee having Previously 'been advised that it might attend . Bisbee offered to admit the shop com- mittee, but refused to allow Hess , an 'outsider," to attend. The shop committee refused to attend without Hess. "Prior to the meeting, the stockholders had received circulars distributed by the respondent's employees urging acceptance of the Union's demands and stating that plans were in progress for a strike pending the decision of the stockholders at the meeting. POULTRYMEN'S SERVICE CORPORATION 453 mention whatever of the contract proposals of the Union which.were not unconditionally rejected. On the morning of October 19, Huhn, Collins, and Gatsch, the members of the shop committee, were approached by Jean Hecht, who performed a small amount of trucking for the respondent, and Reginald Page, a stockholder of the respondent, both.of•whom had interested themselves in the settlement of the labor dispute. Ac- cording to Huhn and Collins, Hecht and Page advised the committee members to abandon the Union, to which they stated the townspeople were opposed, and suggested that the employees get together and at- tempt to negotiate the best possible agreement with the respondent, independently of the Union.14 Page offered his own services 'for the purpose of effecting such an agreement. When the committee- men expressed doubt as to Page's authority to bind the respondent to an agreement, Hecht suggested that Page secure the necessary authorization. Page then went to Leet, the plant manager, told him of his conversation with the union committee, and asked if he could be put in . a position to deal with them. Leet replied that "he was willing,"-and Page reported to, the shop committee-that Leet had authorized him-to proceed. The committeemen then told Page and Leet that they would have a meeting of the employees that afternoon to determine their desires with respect to proceeding independently of the Union, and that following such meeting, they would meet with Leet and Page at the plant. Leet said that he would be waiting for them.15 Early that afternoon, Huhn met with Veeder: Veeder presented Huhn with a copy of the resolution-adopted by the stockholders and advised him that he_ could not act outside the scope of the resolution. Huhn then told Veeder that the employees were to meet that after- j noon and that he would inform Veeder the following morning whether the employees would "form a company union or stay with the CIO." Huhn, however, did not tell Veeder of the meeting sched- uled for that evening, with Leet and Page. Later in the afternoon, the employees met at Huhn's home, where they agreed to proceed independently of the Union, in accordance with Page's suggestion. They-then retained a local attorney, Edward W. Haines, to represent them in the negotiations to follow that evening. On the evening'of October 19, the employees gathered in the plant, and' the committeemen and Haines met, with, Leet' and Page. , Haines 14 Hecht denied that the Union was mentioned during his conversation with `the com- mittee. Page, however, admitted that there was some' discussion concerning the Union, and neither he nor Hecht specifically denied making the statements attributed to them. We find, as did the Trial Examiner, that Page and Hecht made the statements substan- tially as attributed to them by Huhn and Collins. In From the first bargaining conference on October 4, Let had consistently advocated union recognition by the respondent , and was regarded by the employees as their friend. 454 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD testified that at the very outset Leet stated that the respondent would not deal with the C. I. O. and that it would go into dissolution and liquidate before it would bargain with the C. I. O. Leet denied having made such statements. We find, as did the Trial Examiner, that Leet made the statements attributed to him by Haines. The parties then proceeded to negotiate concerning wages, hours, and working conditions upon the assumption that the employees were act ing independently of the Union, Leet, as he testified, told`the em- ployees that he would stand by any commitments made that night; and would stake his position upon their acceptance by the respond- ent. Leet agreed among other things to a 15 percent increase in wages, a week's vacation with pay for employees with 2 years or more of service, holidays with pay, a check-off, and the creation'of grievance machinery. The parties were unable to complete their discussions although they conferred until the early hours of the morning of October 20, the- day on which the temporary agreement between the respondent and the Union was to expire. In order to forestall a strike before their negotiations were completed, they ex- ecuted an agreement on the reverse side of the temporary agreement of October 4, extending the term of said agreement until October 26, 1940. This extension agreement purported to be between the re- spondent, represented by "Max Leet, Mgr.," and "Reg. V. Page, Representative," on the one hand, and "Employees of Poultrymen's Service Corporation" by the shop committee, on the other. Accord- ing to Haines, mention of the Union in the extension agreement was deliberately avoided. On the morning of the 20th Huhn informed Veeder of the meeting held the night before and the execution of the extension agreement. Veeder on this occasion did not impugn the authority of Leet and Page to act for the respondent. When the employees came to the plant on October 21 they were met by Hess, the union representative. There had been no representa- tives of the Union in Toms River over the week end. The employees told him what had occurred in the meantime, and he advised them that they would have no protection if they %vent to work under a "company- union." The employees congregated outside the plant, and Haines was summoned by Page. After his arrival, the shop committee; Haines, and Hess conferred with Veeder in the plant.16 Veeder handed Haines a copy of the stockholders' resolution, which Haines had not previously seen. After reading the resolution, Haines stated that it negatived everything which had been agreed to on the preceding Saturday night, and by its terms "forbade even 16 S.gmficantly, Veeder at first objected to Hess ' presence at the conference, but finally permitted him to attend. POULTRYMEN'S SERVICE CORPORATION 455 a company union." 11 Veeder stated that Leet and Page had had no authority to make concessions to the employees, and that he was bound by the terms of the resolution. Haines told Veeder that his attitude made a strike necessary, but Veeder reiterated that he could not act outside the scope of the resolution. Haines, Hess, and the shop committee then left the plant and' reported to the employees what had taken place. The employees voted unanimously to strike. Within a short time, Page came out of the plant and delivered a mes- sage from Veeder to the effect that if the employees did not return: to work in 10 minutes, their places would be filled."' The strikers did not return, and shortly thereafter established a picket line. D. Conclusions regarding the events to October 21, 1940 We find, as did the Trial Examiner, that the entire record reveals a refusal on the part of the respondent to recognize and bargain in good faith with the Union. The respondent's outright refusal to meet with the union representatives preceding the October 3 strike cannot be -justified, as the respondent contends in its brief, by the Failure of the Union to present proof of its majority representation. The respondent, in replying to the Union's request for a conference, indicated no desire. to allay any uncertainty that the Union repre- sented the majority it claimed, but instead it countered with the assertion; admittedly false, that the respondent's employees already had a committee to represent them. The second attempt of the Union to arrange a conference met with a like refusal to negotiate and a blunt challenge to the Union to strike. In order to obtain recognition, the Union had no alternative but to accept the challenge. Accordingly, we find that the strike of October 3 was provoked by the respondent's refusal to bargain. If the respondent had there- after entered into bona fide negotiations with the Union, the good faith of its asserted doubt concerning the representative status of the Union as excusing its prior refusal to bargain would be less open to question. But this it failed to do.19 In submitting counterpro- posal's to the Union which were subject to the stockholders' approval, Veeder deliberately limited his statutory authority as the bargaining representative selected by the respondent's Board, of Directors.'° 11 While the resolution did not specifically forbid recognition of a union of any kind, Haines' observation is not inconsistent with a reasonable interpretation of its general intent is On November 1, 1940, the respondent published a newsparer article in which it stated, inter abba, that "Neither on October 21, nor October 22, nor at any other time, nor at the present time, has the Company discharged any of its former employees " , . i° The respondent states in its brief that if Goldsmith, the union representative, chose the' "costly and inconsiderate method" of calling a strike ' to reveal its majority repre- sentation, it should be understood that thereafter "be and his C. I. 0. affiliate would be viewed with extreme distiust " 20 At the hearing, counsel for the respondent asked the Board to take judicial notice of the corporation law of the State of New Jersey which provides . "The business of every corporation shall be managed by its Board of Directors . . . See footnote 23 mfrs. 456 DECISIONS ' OF', NATIONAL LABOR RELATIONS BOARD Such self-imposed limitation of authority by the bargaining repre- sentative of the respondent in itself evinces an intent to evade bona file negotiations with the Union.21 Veeder's duplicity in offering the counterproposals becomes more apparent, however, when viewed in the light of the prior notice to the stockholders prepared by him. The tone and content of the above notice are obviously anti-union. The reference to "labor trouble," the implication that dissolution might be preferable to such labor trouble,, and the use of the term "Union domination" as synonymous with recognition of the Union, make it evident that the purpose of the notice was to influence the stockholders to choose the fourth alternative suggested therein, to refuse to recognize the Union, and we so find. It is thus obvious that when Veeder was going through what appeared on its face to be a genuine attempt to reach an agreement with the Union, he had already taken steps to render such effort ineffective. That Veeder's notice to the stockholders achieved its purpose is shown in the subsequent adoption by the stockholders of the resolu- tion which Veeder himself formulated and sponsored. We find, as did the Trial Examiner, that the resolution vitiated the counter- proposal of October 14, and was obviously intended,to end all further negotiations with the Union. While not all of the Union's demands were rejected, the resolution's unconditional rejection of the' more substantial portion thereof, and its failure to offer counterproposals on the remainder, left no basis for the resumption of negotiations that would be 'acceptable to the Union. Cognizance of this fact is - evidenced in the resolution itself, by the stockholders' assumption that a strike would ' ensue, an assumption implicit in , the stock- holders' instruction ,to the Board of Directors to workout an "ar- rangement" with the employees who returned to work as usual the following Monday morning. This proposed resort to individual bar- gaining manifests an intention .to evade the duty contemplated by the Act to continue negotiations with the designated bargaining representative at all times, including during the progress of a strike.22 Such instruction, together with the direction to dissolve the corpo- ration if all efforts to keep the mill in operation failed, were clearly 21 See Matter of Webster Manufacturing, Inc. and American Federation of Labor on Behalf of International Association of Machinists, Local No. 1346 (A. F. L.), et at., 27. N. L. R. B. 1338. 22 Matter of Jacob A. Hunkele, Trading as Tri-State Towel Service of the Independent Towel Supply Company and Local No 40 United Laundry Workers Union, 7 N. L. R. B. 1276 ; Matter of Louisville Refining Company and International Association, Oli'Field' Gas Well and Refinery Workers of America, 4 N. L. R. B. 844, enf'd as mod , N L. R. B v. Louisville Refining Co., 102 F. ( 2d) 678 (C. C. A. 6), cert. denied 308 U. S 568; Matter of Hopwood ' Retinning Company, Inc. and Monarch Retinning Company, Inc. and Metal Polishers, Buffers, Platers and Helpers International Union, Local No. 8, and Teamsters Union, Local No. 584,,4 N., L. R. B . 922, enf'd as mod, N. L. R. B. v. Hopwood Retinning Co., 98 F. ( 2d) 97 (C. C. A. 2). POULTRYMEN'S SERVICE CORPORATION 457, indicative of-the respondent's intent to discontinue negotiations with the Union and, in effect, constituted a second challenge to the Union to strike. Further evidence of the respondent's efforts to avoid negotiating 'a contract with the Union is to be found-in the activities of Leet and Page and the statements made by them to the employees on October 19. Veeder's tacit acceptance of the foregoing activities,of Pagee and Leet, his objection to the presence of the union representa- tive on the morning of the strike, and his insistence upon observance of the stockholders' resolution on that occasion '23 likewise are factors which convince us, as they did the Trial Examiner, that the respond- ent was determined to avoid effective recognition of the Union as the bargaining representative of its employees. We find that the respondent, from October 4 to 21, 1940, inclusive, refused to bargain collectively with the Union as the exclusive repre- sentative of its employees in,an appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, thereby caused the strike on October 21, 1940, and interfered with, restrained, and coerced its employees, in the exercise of the rights guaranteed in Section 7 of the Act. We ' further find that the respondent is responsible for the state- ments . made by Leet and Page, on October 19 concerning the respondent's opposition to the C. I. O., and for their activities in influencing the employees to organize and bargain collectively inde- pendently of the Union. Leet, as a director and plant manager, had authorized Page to negotiate for the respondent, and the authority of either Leet or Page to enter into the extension agreement of Oc- tober'19 on its behalf was at no time disclaimed by the respondent. We find, therefore,, that by the aforesaid statements and activities of Leet and Page, the respondent interfered-with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. _ In view of the respondent's published 'statement following the 'strike- that.'at no time had, it discharged its' striking employees, 24 we find, as did the Trial Examiner, that Veeder's message to the strikers 'at the commencement of the' strike to the effect that their places would be filled' if they did not return to' work, "was merely a tactical maneuver designed 'to break the strike. We find that the Counsel for the respondent stated at the hearing, "From my point ofd view, that resolution adopted by the stockholders, has some value perhaps as advisory or expressing the sentiment 'of the ' stockholder^ butI do not think it" was in, any sense binding on the [Board of Directors. They did not need the resolution of 'the stockholders to act nor were they legally 'bound by anything the stockholders might decide because the stock- holders are not the business * managers +.of; the ; corporation That is a responsibility vested by law in the Board of Directors themselves ." See footnote 20, supra._ 24 See footnote 18, supra. 458 DECISIONS OF NATIONAL LABOR_ REILATIONS BOARD respondent 'did not discharge its striking employees on October 21, 1940. E. The events following the commencement of the strike; further refusal to bargain; the refusal to reinstate the strikers; the strike settlement of January 8, 1941. The first conference between the respondent and the Union after the commencement of the strike took place on October 27, 1910, when Veeder met with the shop committee, Haines, and Dahl, an official of the Union. Veeder again maintained that his authority was limited by the terms of the stockholders' resolution. In discussing the reso- lution, the union representatives indicated that the Union might forego its demand, fora check-off, and modify the demands regarding lay-offs for economy and work by employees in classifications other than their regular ones, to conform to the respondent's existing practice, and that an agreement on wages was possible on the basis of the 15 percent increase offered the men by Leet on October 12, provided that an accord was reached on other points. Veeder,`how- ever, refused to agree to the closed shop, the job security demand contained in the Union's contract proposal, and the right of the office employees to be members of the Union. In a letter written to Haines on October 28, the day following the above conference, Veeder requested the Union to modify its demands to the fullest possible extent, so that they might be resubmitted to the stockholders at a meeting to be called "as soon as our bylaws will permit." Veeder further stated that even assuming that an acceptable formula could be worked out for submission to the stock- holders, "the present management will do so only on condition that in the interval the Union will agree to refrain from continuing its boycott, that is, its endeavor to induce our customers to refrain from buying feed from us, and that they will likewise refrain from any threats, show of force, or, any act of intimidation whatever to any of our employees or customers, and with the picket line reduced so that it will ' not interfere with business." Veeder also reiterated the respondent's position regarding the office employees, as follows : Every member, of,the Board of Directors that I have spoken to is adamant on point number 1. They will go out of business, if there be no other alternative, before they will accede to the de- mands that our office employees, who are assistants 'to--our, exec- utives and with full access to -our records and confidential information, be incorporated into the Union. Our Executive force and their assistants must owe allegiance to the management only. I / POULTRYMEN'S SERVICE CORPORATION 459 In reply, Haines advised Veeder on October 28 that "the Shop Com- mittee, after discussing the matter with the men , does not feel that concessions should be made for the authority of the Board of Di- rectors as you stated, is limited by the previous action of the stock- holders." On November 6, 1940, Haines, Dahl; Goldsmith , and the shop com- mittee again met with Veeder to discuss the settlement of the strike and the negotiation of an agreement . The principal subject discussed at this meeting was the reinstatement of the strikers, the Union ask- ing that the respondent reinstate them in a body , discharging, if necessary, new employees hired since the commencement of the strike. The respondent refused to do this , taking the position, as testified by Veeder, that when the new employees were hired they were told that if their work was satisfactory "they would be kept on as long as the company needed them and they desired to work. " However, the respondent offered to reinstate five or six of the strikers and to fill any vacancies which might arise in the future from among such em- ployees. According to the undenied testimony of Haines , Dahl, and Goldsmith, which we credit, the respondent also stated that any strikers who returned to work would return as new employees. Between November 6 and November 29, 1940, additional confer- ences took place for the purpose of effecting the reinstatement of the strikers. The respondent persisted in its refusal to discharge em= ployees hired since the commencement of the strike in order to accom- plish the reinstatement of the strikers , and refused the Union's demands for reinstatement of all the strikers. On November 14, five of the strikers returned to work. On No- vember 15, the respondent offered to reinstate six additional striking employees and to pay those not reinstated the difference between $20 and their unemployment compensation for a period of 6 weeks there- after. This offer was discussed with Haines and the shop committee on November 29. Veeder testified that on this occasion Haines stated that "there had been so much controversy" that some of the strikers had obtained other jobs, and that only five or seven of the strikers desired to be reinstated . It appears from Leet's testimony , however, that the respondent offered to reinstate two designated women office employees, 'and "any five" men that the Union might select. The respondent also repeated its previous offer to pay those not reinstated the difference between their unemployment compensation and $20 or $22 per week for a specified period. The strikers rejected the pro- posed , settlement. While it appears from .the , above testimony of Veeder that Haines , may have made some statement concerning a specified number of the strikers desiring reinstatement , it is apparent from Leet's testimony in this regard, the respondent's offer to make 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain cash payments to those not reinstated, and the strikers' re- jection of the proposed settlement, that neither the respondent nor the strikers had receded from their original positions, i. e., that the respondent would not reinstate all the strikers in a group, and that the Union would not accept the reinstatement of a lesser number.25 Additional but futile attempts to settle the strike were made between November 29, 1940, and January 8, 1941. On January 7, 1941, the strikers designated Montfort G. Miller, a local citizen, as their representative with a view toward terminating the'strike and facilitating the payment of unemployment compensa- tion to the strikers, some of whom were in financial straits.26 On January 8, Miller and the individual striking employees entered into, an_ agreement with the respondent.27 The agreement in substance provided for the termination- of the strike, the withdrawal of the respondent's objections to the payment of unemployment compensa- tion to the strikers, and the preservation of the rights of the em- ployees to maintain a suit which they had instituted in November 1940 against the respondent for compensation allegedly due them under the Fair Labor Standards Act for overtime work.28 15 The respondent's position regarding the reinstatement of the strikers and the negotiation of a contract with the Union is clearly stated in a letter written by Veeder on November 27, 1940, to W. F. Cann, Commissioner of Conciliation for the State of New Jersey, reading in part as follows : I have again discussed the -strike situation vvrth the members of our Board of Directors,' and have briefly told them of the matters discussed at our conference and your thought that the strike might be settled if you could assure Mr. Dahl of the C. 1 O. that there is a possibility of the 16 men now remaining on strike being taken back in a group. It is the feeling of the members of the Board with whom I have talked that a conference on that basis would accomplish nothing, and would merely result in prolonging the stiike. There has been no change in the feeling of any of the members of the Board that they must keep' faith with the new employees, and because of- the vigorous manner in which the strikers have promoted and advanced their boycott, the Company is not left with sufficient business to take care of all of the old and new employees at the present time. . . . The Company has not been able to get.any authoritative ruling as to whether it does or does, not come under the provisions of . . . the National Labor Relations Act. We now feel that we had better get these legal questions determined before we complicate the situation further by entering. into new contracts which may or may not be'subject to the supervision of the National Labor Relations Board. We have been advised by Counsel that in his opinion that Act does not apply to our Company, who make no sales in any amount whatever without the State, of New Jersey. Certainly we should know whether we do or do not come under these laws before we make further contract and commitments which will vitally affect us if we come under the provisions of these statutes . .. When these legal questions are disposed of, and we know where we stand insofar as the law is concerned, I shall be happy to ask for your further assistance as occasion may require. ' The payment of unemployment compensation had been. withheld because of objections filed by the respondent. '7 Pursuant to an understanding between Haines and Veeder, Miller had been selected by the employees to act only nom'inally' as their representative. Haines actually repre- sented the strikers in the preparation of the above agreement. ' This suit was brought by one of the strikers individually and on behalf of other striking employees and was instituted by the attorney for the strikers. In this regard, the agreement mole specifically provided that the respondent "Is not obligated by this POULTRYMEN'S SERVICE CORPORATION 461 Following .the execution of the January 8 agreement, two of the strikers, Delmar Combi and Woodrow Matthews, were given employ- ment by the respondent. According to the undenie i testimony of Combi, which we credit, shortly after his reinstatement on February 14, 1941, he was asked by both Leet and Veeder to drop his suit under the Fair Labor Standards Act, Veeder -telling him that, in the words of Combi, "he didn't think he could keep me on as long as my suit was pending against the company." Similarly, Matthews testified, without contradiction, that about 2 weeks after his rein- statement in February 1941 Bisbee asked him to drop his suit against the respondent and said that he would have to let Matthews go if ,he did not do so. 'F: Conclusions regarding the events subsequent to October 21, 1940 Veeder's continued insistence upon acting as little -more than an intermediary between the Union and the stockholders, despite the fact that he was properly authorized to negotiate for the respondent, placed an insuperable obstacle in the way of collective bargaining. 0 We have already pointed out the evasive strategy patent in Veeder's -initial limitation of his,authority prior to the strike, and it is equally evident that the • same strategy was pursued in the respondent's sub- sequent negotiations with the Union. The falsity of the respondent's position that the Board of Directors was powerless to act is clearly revealed in Veeder's letter to Haines on October 28. The statement therein that the "management" would submit to the stockholders ah "acceptable formula" for settlement of the strike only upon the Union's abandonment. of its boycott and picket line, and the threat of dissolu- tion by the Board of Directors rather than permit representation' ,of the office employees by the Union, constitute an admission and coercive utilization by, Veeder of his true authority as the respond- -ent's;representative. Moreover, the respondent's insistence that its employee refrain from boycotting and effective picketing was tanta- mount to,requiring an abandonment of the strike as a condition precedent to the continuance of negotiations. The fulfillment of the duty to bargain during the progress of a strike permits the im- position of no such prerequisite.29 agreement to employ any of the parties of the first part [ the strikers ] but should any of the parties of the first part be employed or reemployed by the Poultrymen's Service Corporation such employment or reemployment shall be without prejudice to 'the main- tenance of the action or actions referred to in paragraph one above ." It further provided that no striker who might be reinstated should be discriminated against by reason of the maintenance, of said suit , "nor shall it be a condition to their reemployment that they or any of them shall discontinue their suit or suits under the Fair Labor Standards -Act, nor in event of reemployment shall any pressure be exerted upon them^by the party of the second part to discontinue such suit or suits " 29 Matter of Kellogg Switchboard and Supply Co, a corporation and American Federa- ttion of Labor, et at 28 N. L. R. B. 847; and cases cited therein. L Cf. Matter of I- 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The negotiation of an agreement in settlement of the strike was 'further made impossible of attainment by the respondent's persistent refusal to perform its legal duty to reinstate the striking employees. While the respondent did offer to reinstate some of the strikers, it never receded from its position that it would not reinstate all the strikers in a group, as requested by the Union, or discharge employees hired since the commencement of the strike to facilitate such rein- statement. Since the strike was caused and, as we hereinafter find, was prolonged by the respondent's unfair labor practices, the striking ,employees were, in the absence of some valid cause for discharge, entitled to their former positions upon request. We find, as did the Trial Examiner, that by its refusal to reinstate the strikers solely because of its unwillingness to displace employees hired during the strike, the respondent evinced a preference discouraging to union membership 30 Nor do we find merit in the respondent's contention that the settlement agreement entered into between the respondent ,and its employees on January 8, 1941, relieved the respondent of any duty it might have to reinstate the strikers. The Board was not a party to and did not approve the agreement, nor does the agreement purport to'recognize or settle the rights of the respondent's employees under the Act. Furthermore, the respondent breached the terms of the agreement soon after its execution. The suit under the Fair 'Labor Standards Act was recognized as a concerted activity of the strikers by the agreement itself,31 and we find, as did the Trial Exami- -ner, that by threatening Combi and Matthews With discharge after their return to work if they did not drop such activity; the respond- ent not only violated the terms of the agreement but interfered with. Reliance Manufacturing Company and Amalgamated Clothing Workers of America, et at., 28 N L R B 1051, enf'd as mod Reliance Manufacturing Company V. N. L. R. B., December 20, 1941 (C C. A 7), rehearing denied February 12. 1942. (C. C. A. 7). '30 In Matter of Rapid Roller Co. v N. L. R. B, February 3, 1942 (C. C. A. 7), remand- ing to adduce additional evidence upon another issue Matter of Rapid Roller Co., a corpo- ration and Local 120, United Rubber Workers of America, affiliated with the C. I. 0., 33 N. L. R. B 557, the Court stated : The company by its unfair labor practice had caused the strike. The employees by reason of the wrongful act of the company had not lost their status as employees. 'Therefore, when they offered to return to work in a body within two months of the date of the commencenrent of the strike they were entitled to reinstatement to their old positions then held by persons employed to take their place after the strike. When the company refused to take back its striking employees and insisted on keeping in positions persons hired after the strike, it discriminated against the old employees in violation of Sec. 8 (3) of the Act. National Labor Relations Board v. Mackay Radio 304 U. S. 333, 346, 347, 5'9 S. Ct 904, 82 L. Ed. 1381; M If. Ritzwoller Co. v. National Labor Relations Board, 114 Fed. (2d) 432, 437; Black Diamond S. S. Corp. v. National Labor Relations Board, 94 Fed (2d) 875, 879. 31 The agreement contains the following recital : "AND WHEREAS certain actions at law are-pending. to wit, a suit brought by Henry S Salu,solia, individually, and on behalf of certain others of the striking employees of Poultrymen's Service Corporation, against . . said corporation, under the Fair Labor Standards Act - 1 9 3 8 , . . . " POULTRYMEN'S SERVICE CORPORATION 463 restrained, and coerced its employees,in the exercise of the rights guaranteed in Section 7 of the Act.32 We find that at all times following the commencement of the strike on October 21, 1940, the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that thereby, and by refusing to reinstate all the striking employees, the respond- ent prolonged the strike and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that the respondent, by refusing to reinstate all the strikers as a group on November 6, 1940, and thereafter, discrimi- nated in regard to the hire and tenure-of their employment, thereby discouraging membership in the Union and interfering with, restrain- ing, and coercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act. 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 several States, and tend to lead to labor disputes burdening and obstructing .commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent, has engaged in certain unfair labor practices, we shall order it to cease and desist from such prac- tices and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent refused to bargain collectively with the Union as the exclusive representative of its employees within an appropriate unit. Accordingly, we shall order the respondent, upon request, to bargain with the Union as such representative. We have found that the respondent --d'iscriminated against the striking employees in regard to their hire and tenure of employment because they had gone on strike in protest against the' respondent's unfair labor practices. We" shall, therefore, order the respondent to offer those employees who have not already been reinstated im- 12 See Matter of M. F A. Milling Company,. Missouri Farmers Association Inc. and United Grain, Processors Local 20692 (A. F of L.) 26 N. L. R. B 614. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ;mediate and full reinstatement to their - former or substantially equivalent positions without prejudice to their seniority and other rights and privileges. The reinstatement shall be effected in the following manner : All employees hired by the respondent after October 21, 1940, the date of the commencement of the 'strike, shall, if necessary to provide employment for those to be offered reinstate- ment, be dismissed. • If, however, despite such reduction in force there is not sufficient employment available for the employees to be offered reinstatement, all available positions shall be distributed among the remaining employees, including those to be offered rein- statement, without discrimination against any employee because of his union membership or activities, following such system of senior- ity - or other practice as has heretofore been applied in the conduct of the respondent's business. Those employees, if any, remaining after such .distribution, for whom no employment is immediately .available, shall be placed upon a preferential list and offered employ- ment in their former or substantially equivalent positions as such employment becomes available and before other persons are hired for such work, in the order determined among them by such system of seniority or other practice as has heretofore been followed by the respondent. We shall also order that the respondent make whole the striking employees for any loss of pay they may have suffered by reason of the respondent's refusal to reinstate them, by payment to them' of a sum equal to the amount which they normally would have earned as wages from the date of application for reinstatement on November 6, 1940, to the date when they were reinstated by the respondent, or if they have not yet been reinstated, to the date of the respondent's ,offer of reinstatement or placement upon the preferential list-herein- above described, less their 'net earnings 33 during said period., The striking employees who have not yet been reinstated ' by the respondent are listed in Appendix A, while the striking employees who have heretofore been reinstated by the respondent and the re- spective dates on which they were reinstated are listed in Appendix B, attached hereto. Upon the basis of the foregoing findings of fact and upon the entire record-in the case, the Board makes the following : 31 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 discharge 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 2J90, 8 N. L R B 440 Monies received for work performed upon Federal , State, county , municipal, or other work-relief iprojects shall be considered as earnings . "'See 'Republic Steel Corporation ,v. N. L. R. B , 311 U. S. 7. .:. 11 1 ' ) ,. 11 'i POULTRYMEN' S SERVICE CORPORATION - 465 CONCLUSIONS OF LAW 1. United Cannery, Agricultural, Packing, and Allied Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization, within the meaning, of Section -2 (5) of the Act. 2. All the respondent's' employees excluding secretaries, salesmen, and supervisory employees, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. United Cannery, Agricultural, Packing and Allied Workers of America; affiliated with the Congress of Industrial Organizations, is and at all times since September 28, 1940, has been, the exclusive representative of all the employees in the above unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. ' 4. By refusing on or about October 4, 1940, and at all times there- after, to bargain collectively with United Cannery, Agricultural, Packing and Allied Workers of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of its -employees in said unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard-to the hire and tenure of employ- ment of the striking employees listed in Appendices A and B attached hereto, thereby discouraging membership in United Cannery, Agri- cultural, Packing and Allied Workers of America, affiliated with the Congress of Industrial Organizations, the respondent has engaged in and is engaging in unfair labor practices, within the, meaning. of Section 8 (3) of the Act. _ 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging "in unfair labor practices, within the meaning of Section 8 (1) of-the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within, the meaning of Section 2 (6) and (7) of the Act. 8. The respondent did not discharge its striking employees on October 21, 1940, and has not thereby engaged in unfair labor practices, 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 403892-42-vol. 41-30 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, the National Labor Relations Board hereby orders that the respondent, Poultrymen's Service Corporation, Toms River, New Jersey, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Cannery, Agri- cultural, Packing and Allied Workers of America, affiliated with the Congress of Industrial Organizations, as the exclusive repre- sentative of all of its employees, excluding secretaries, salesmen, and supervisory employees; (b) Discouraging membership in United Cannery, Agricultural, Packing and Allied Workers of America, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, by discharging or refusing to reinstate any of its em- ployees or in any other' manner discriminating in regard to their hire and tenure of employment or any terms and conditions of,their employment ; (c) 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 representatives of their own choosing; or to engage in concerted activ- ities for the purpose of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Cannery, Agri- cultural, Packing and Allied Workers of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all of its employees, excluding secretaries, salesmen, and super- visory employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Offer to the striking employees listed in Appendix A, attached hereto, immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights or privileges, in the manner set forth in the, section entitled "The remedy" above; and place 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, offering them employment as it, becomes available; '(c) Make whole the striking employees listed in Appendix A. attached hereto, for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during POULTRYMEN'S SERVICE CORPORATION , '467 the period of the date of application for reinstatement on November 6, 1940, to the date of the respondent's offer of reinstatement or placement on the preferential list' as set forth in the section entitled "The remedy" above, less his net earnings during such period; and make whole the employees listed in Appendix B, attached hereto, by payment to each of them^of a-sum of money equal to that which he would normally have earned as wages during the period from the date of the application foil reinstatement on November 6, 1940, to the date of his reinstatement by the respondent, less his net earnings during such period; (d) Post immediately in conspicuous places throughout its plant and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) hereof; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) hereof; and (3) that the respondent's employees are free to become or remain members of United Cannery, Agricultural, Packing and Allied Workers of America, affiliated with the Congress of Industrial Organizations, and that the_ respondent will not discriminate against any employee because of membership in or activity on behalf of that organization; (e) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent discharged its striking employees on October 21, 1940, be, and it hereby is, dismissed. MR. WM. M. LEISERSON took no part in the consideration of the above Decision and Order. APPENDIX A Edna Stewart Mildred Ros'enberg Edna Goodman Frances Miller Fred Gatsch Rufus Thompson Walter Gaskill Edward McManis John Collins Walter Huhn Herman Goodman Herschel Stout Irving Kilpatrick Woodrow McCall Henry Salussolia Harry Solomon Marshall McCall 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B Date Reinstated Carl Sonnenfeld_______________________________ November 14, 1940 Harold Frederickson___________________________ November 14, 1940 Frank Johnson -------------------------------- November 14, 1940 Carson Cornelius______________________________ November 14, 1940 Melvin Johnson________________________________ November 14, 1940 Eugene Leber_________________________________ December 30, 1940 Delmar Combi_________________________________ February 14, 1941 Woodrow Matthews____________________________ February 17, 1941