J D Brock

In the Matter of JOHN DAVID BROOK, AN INDIVIDUAL, DOING BUSINESS AS J D BROCK, J D. BROCK OPTICAL LABORATORY, SPECIALTY OPTICAL COMPANY, SUPERIOR OPTICAL COMPANY, AND KANSAS CITY WHOLESALE OPTICAL COMPANY and INTERNATIONAL JEWELRY WORKERS, LOCAL No 9, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No C-9,155 -Decided July 15, 1942 Jurisdiction : optical goods manufacturing industry Unfair Labor Practices Interference, Restraint, and Coen cion anti-union statements, declaration of union preference, threatened cessation of operation Company-Dominated Union participation in formation of the union through non- supervisoiy employees, solicitation of membership in the plant during working houis, furmshmg facilities for mimeographing application-for-membership forms, inactivity of organization following its establishment Discrimination discharge of employees because of membership and activities in behalf of an outside union Remedial Orders : discharged employees ordered reinstated and awaided back pay, dormant company-dominated -union ordered disestablished, discharged employee inducted into military service granted back pay, and reinstatement upon application within 40 days after being discharged from aimed forces Mr Paul Nachtman and Mr Eugene R Melson, for the Board. Mr Ruby D Garrett, of Garrett and, Ruark, of Kansas City, Mo., for the respondent Mr George J Had jcno f f, of counsel to the Board DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Jewelry Workers, Local No 9, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouii), issued its complaint, dated March 3, 1942, against John David Brock, Kansas City, Missouri, herein called the respondent, an individual doing business as J D Brock, J. D' Brock Optical Laboratory, Specialty Optical Company, Superior Optical Company, and Kansas City Wholesale Optical Company, alleging that 42NLR B,,No08 457 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent had engaged in and was engaging in unfair labor labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) 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 heaiing were duly served upon the, iespondent, the,Union, and Specialty Optical Employees Union, heieinafter called the S 0 E U, a labor organization alleged to have been formed and dominated by the respondent In respect to the unfair labor practices, the coiYiplamt alleged in substance : (1) that since on or about January 7, 1937, the iespondent has uttered statements prejudicial to the Union, has caused employees to be watched foi the purpose of obtaining information with regard to union activities, has threatened to close his plant if employees affi- liated with the Union, and has threatened to destroy the Union and to,discharge employees affiliating with it, (2) that the iespondent, on or about June 12, 1937, formed the S 0 E U , and, thereafter•domi- nated and interfered with its administration and contributed financial and other support to it; and (3) that the iespondent, on of about May 20, 1940, terminated the employment of Oscar Calhoon and Theo- dore Lashley, and on of about May 24, 1940, terminated the employ- ment of Wylmer Jones, Rex Saunders, Edward Clark, and Clarence Middleton, and has since refused to ieinstate any of them, because of their union membership and activity, and (4) by these acts the respondent had interfered with, restrained, and coeiced his employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed an answer dated March 12, 1942, admitting some of the allegations of the complaint, but denying that he had engaged in any unfair labor practices. Pursuant to notice, a hearing was held on March 16, 17, 18, 19, and 20, 1942, at Kansas City, Missouri, befoie Hoiace A Ruckel, the Trial Examiner duly designated by the Chief Trial Examiner The Board and the respondent weie represented by counsel, and partici- pated in the hearing Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence beai ing upon the issues was afforded all parties At the conclusion of the hearing the Trial Examiner granted, without objection, a motion by counsel for the Board to conform the complaint to the pioof in foimal matters, and a motion by-counsel foi the respondent to conform its answer to the proof. During the course of the hearing,-the Tiial Examiner made rulings on other motions and on objections to the admission of evidence The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed The rulings are hereby affirmed On April 6, 1942, the Trial Examiner issued his Intermediate Re- port, copies of which were duly served upon the parties He found J D BROCK 459 that the respondent had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1), (2), and (3) and Sec- tion 2 (6) and (7) of the Act and recommended that the respondent cease and desist therefrom, disestablish the S 0 E U , and take other,affirmative action deemed- necessary to effectuate the policies of the Act. The respondent filed no exceptions to the Intermediate Report. No briefs were filed and no oral argument before the Board was requested _ Upon the entire record in the case, the Board makes the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The respondent, John David Brock, is an individual who has his principal office and place of business in Kansas City, Missouri, where he is engaged in the manufacture, distribution, and sale of optical goods under the trade names of J D Brock, J D. Brock Optical Laboratory, Specialty Optical Company, Superior Optical Company, and Kansas City Wholesale Optical Company 1 Approximately 75 percent of the raw materials used by the respondent are received at the respondent's plant in Kansas City, Missouri, from points outside the State of Missouri In excess of 60 percent of the respondent's finished products are sold and distributed to purchasers outside the State of Missouri The total gross sales of the respondent are in excess of $100,000 annually The respondent admits that he is engaged in commerce within the meaning of the Act. II THE ORGANIZATIONS INvOL\ ED International Jewelry Workers, Local No 9, affiliated with the American Federation of Labor, rC a labor organization admitting to membership employees of various companies in Kansas City, Missouri, engaged in the jewelry and optical business, including employees of the respondent The Specialty Optical Employees Union is an unaffiliated labor organization, admitting to membership employees of the respondent III THE UNFAIR LABOR PRACTICES A Interference, restraint, and coercion In April 1937, subsequent to a short strike among the respondent's unorganized employees, Wylmer Jones and Willard Bailey, employees in the surface department, joined the C I. 0 The next morning 1 The respondent uses these various trade names interchangeably 460 DECISIONS OF NATIONAL LABpR RELATIONS BOARD Bailey was discharged A few days later Jones had a discussion with Thomas Moody, at that tune foreman of the surf f ace department, concerning membership in the C I 0 Accoi ding to Jones' uncon- tradicted testimony, Jones told Moody that, "he was going to quit on account of him firing Red Bailey" and Moody replied that he would raise Jones' salary by $30 a month if he dropped his union activity After this conversation Jones withdrew from the C I 0 and received the promised increase in salary 2 The record does not indicate any further activity among the em- ployees for an "outside" union 3 until January of February 1940. when Hairy Helgesen, organizer for the Union, and others, distributed union literature among the employees of several optical manufacturing plants in Kansas City, including those of the respondent- About the same time Moody, then foreman of the respondent's lens department, called a meeting of employees in his department and, according to the un- contradicted testimony of Oscar Calhoon, which we credit, as did the Trial Examiner, told the employees that they were "crazy" if they joined a- union and that Brock would not "stand for it" In January 1941 William Schmidt, foremsin of the surface department, asked Wylmer Jones, according to Jones' testimony, to do hun a "favor" and not loin an "outside" union, stating that Brock would not "stand for any union in the plant " Schmidt denied discussing "outside" unions with Jones The Trial Examiner, wino observed the witnesses, did not credit Schmidt's denial We find that Schmidt made the statements attributed to him by Jones In-March 1941 Bit- tick, at that time the respondent's office- manager and foreman of the stockroom, warned Clarence Middleton, an employee in the stockroom, according to Middleton's testimony, that Brock would not allow any "outside" union to come into the plant, and would "lock the door before he would see a union come in " Although Bittick denied making this remark to Middleton, the Trial Examiner found the denial not cred- ible We find that Bittick made substantially the statement attributed to him by Middleton Intensive organization of the respondent's employees began during the early part of May 1941, and about 17 employees joined the Union Wylmer Jones testified that during May he told Foreman Schmidt that many of the respondent's employees were dissatisfied and were going to join the Union, and Schmidt replied that if "trouble" such as that arose, Brock would "take care of the trouble" Although Schmidt denied that he mentioned the Union to Jones on this occasion, we find, as did the Trial Examiner, that Schmidt made the remarks attributed to him by Jones 2 Moody Ras not called as a witness we find Jones' testimony credible ' As appears in Section III, B, infra, a company-dominated orgam7atlon was formed in 1937 and continued in existence until 1940 --J. D. BROCK _,461 Theodore Lashley, Rex Saunders, Edward Clark, Oscar Calhoon, Clarence Middleton, and Wylmer Jones, all of whom are named in the complaint as having been discriminatorily discharged, joined the Union between May 17 and 19. On or about May 19, according to the uncontradicted testimony of Clark,,which we credit, as did the Trial Examiner, =a conversation took place between Clark, Saunders, Fore- man Moody, and Vernis Fieenian, assistant foreman of the lens de- partment, during which Freeman asked Clark whether he had joined the, Union Clark replied that he had Freeman then told Clark that he had "better get out of the union" because Brock would not "stand for" it and Moody stated; "Yes, you'd better forget the union or you will find yourself without a job." Shortly after Saunders Joined the Union, Moody told Saunders, according to the latter's credible and uncontradicted testimony, that the employees were "crazy" to join an "outside" union and that Brock "wouldn't stand for it " The facts found above demonstrate that the respondent was engaged in a course of conduct designed to discourage self-organization. Thus, throughr the statements and activities of supervisory employees, the respondenf made clear to his employees that he was opposed to and would never recognize an outside union We find, as slid the Tiial Examiner, that by the foregoing statements and activities of Foreman Moody, Foreman Schmidt, Foreman and Office Manager Bittick, and Assistant Foreman Freeman, the respondent has interfered with, re- stiained, and coerced his employees in the exercise of the lights guar- anteed in Section 7 of the Act B Domination of and interference with the formation and admznzs- trataon of the 8 0 E. U. A short time after the termination of the strike in March 1937, Roy Bettis, a lens grinder, took steps to form an "inside union." Bettis testified that his purpose in doing so was to promote "cooperation" between the respondent and his employees who, according to Bettis, loafed on the job to such an extent that-Brock could not "do anything" with them 4 One day in May, Bettis installed himself at a desk in the surface depaitment, called the employees to him individually and obtained the signatures of many of them to a paper which stated that it was their desire to form an "inside" union. A M. Bittick, stock- room foreman and advertising manager, who signed the paper, was asked by Bettis to assist in forming the organization. Bittick agreed and thereafter became active in the S 0 E U 5 Subsequently a Subsequently Betti, told Wylines Jones, accoiding to the lattei's uncontiadicted testi- mony, that the S 0 E U was "nothing but just an osganszation to keep outside unions out of the plant " Some time prior to February 2, 1938, BiLtick was elected secretary of the S 0 E U. In 1938 or 1939 these v ere added to his duties as stockroom foreman and advertising manager the duties of office manages 462 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD notice of an organizational meeting was posted on the plant bulletin board At this first meeting or a later meeting temporary officers were elected Permanent officers were elected and a constitution adopted at a meeting on June 12, 1937 Bettis became president of the new organ- ization W E. Schmidt was chosen as a representative of the sur- face department,6 and Joseph Hiller a representative of the mailing department 7 , The first applications for membership in the S 0 E U were signed on June 22, 1937 According to the uncontradicted testimony of Bit- tick the application forms were mimeogi aphed on the respondent's mimeograph machine Thereafter, membership in the S 0 E U was openly solicited in the respondent's plant during working hours On June 9, prior to the adoption of the constitution or the signing of any membership cards, Bettis wrote the respondent asking him to recognize the S O' E U as exclusive representative of his employees for the purpose of collective bargaining On June 17, Brock, the ie- spondent, replied to the letter, "accepting" the S 0 E U as the exclu- sive bargaining agent of the respondent's employees and stating that he would be glad to meet with representatives of the S 0 E U. "to discuss any problems that may come up " 8 It does not appear from the.recoid that any "problems" were ever discussed between the re- spondent and representatives of the S 0 E U nor was any agi cement as to wages, hours, or other working conditions ever sought or ob- tained by the S 0 E U Brock on several occasions told Ray Godsey, "overseer" of the plant,9 accoiding to Godsey's admission, that Brock did not want his em- ployees to join a union affiliated with the A F of L or the C. I 0 but had no objection to the S 0 E U Godsey joined the S 0 E U.- shortly after its formation In 1939, according to the uncontradicted and credible testimony of Wylmer Jones, Godsey asked Jones to join the S 0 E U. during woiking hours, telling him that its purpose 6 Schmidt became foreman of the surface department in March or April 1938 Although he testified that he took no actin e part in the organization after becoming a foreman, he admitted that he continued to attend its meetings a While it does not appear that either Bettis or Hiller occupied supervisory positions at the time the S 0 E U was formed, in -1939 the respondent created an "Employees Committee" or `Board of Directors" composed primarily of department foremen which thereafter exercised general control over the plant in Brock 's absence Bettis and Hiller weie appointed members of the "Board of Directors " In addition, it appears that Bettis exercised considerable influence over the respondent ' s employees at all times Under all the circumstances : the emplo3ees had lust cause to believe that Bettis and Hiller were acting in behalf of the management Cf International Association of Machinists v National Labor Relations Board, 311 U S 72 B Bettis testified that after the election of officers on June 12 , he and other members of the S 0 E U called upon Brock and discussed recognition of that organization Bettis could not recall whether the visit was before or after Brock's letter of June 17, but stated that it `could have been before " On this occasion Bettis showed Brock the paper which had been signed in May by employees inteiested in forming the S 0 _E U 9 Godsey testified that his duties were to open the mail, to report to Brock daily the amount of business done and what orders , if any, were delayed in filing, and "to see that en erything was getting along all right" J D BROCK 463 was to keep an "outside" union out of the plant In the spring of 1939, Godsey also told Ruth Jacobs, the respondent's personal secre- tary and credit manager, according to the latter's undisputed and credible testimony, that one of the reasons Brock hired Godsey was to keep unions out of the plant, and that his duties were "to go and talk to the S 0 E U men and watch to see that no other union ac- tivities were bi ought in " Despite the encouiagement given the S 0 E U by the respondent, interest in that organization waned By January 1940, dues-paying members had declined to five On July 31, 1940, Bettis, who had con- tinued as president of the organization since its inception, called,a special meeting at which he and Hiller resigned as officers and new officers were elected Frank Kovac, assistant foreman of the bench department, was chosen president This was the last meeting of the organization except for a meeting on February 8, 1941, at which the balance in the treasury was divided among the remaining members The S 0 E U thereafter ceased to function, although it has never been formally dissolved - Conclusions as to the S 0 E U The facts found above demonstrate that the respondent was engaged in a coercive course of conduct, designed to assist one labor organiza- tion and to prevent affiliation of his employees with other labor organ- izations to which lie was hostile Thus, the S 0 E U was formed principally by Bettis with the aid of Bittick, one of the respondent's supervisory employees ilembeishrp in the S 0 E U was openly solicited in the respondent's plant during working hours and _on at least one occasion by a supervisory employee Thereafter the iespond- ent, through Bettis, Bittick, Schmidt, and Hiller, all of them officers in the S 0 E U as well as supervisory employees or exercising super- visory functions as members of the "Board of Directors," coil ti hued his interference in and domination of the S 0 E U It was made plain to the employees by the respondent that the purpose of the S 0 E U was to keep "outside" unions out of the plant That such was the case is further shown by the fact that the S 0 E U did not at any time seek an agreement with the respondent with respect to wages, hours, of other conditions of employment, but remained con- tent with the respondent's bare recognition of it as a bargaining agent and his promise to discuss with the S 0 E U any "problems" which might arise We` find, as did 'the Trial Examiner, that by the activities above set forth, the respondent formed, dominated, and interfered with the S 0 E U and contributed support to it, and thereby interfered with, 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restrained, and coerced his employees in the exercise of the r ights guar- anteed in Section 7 of the Act C Dascriminatory_ discha^ ges On May 20, 1940, the activity of some of the respondent's employees in the Union came to Foreman Bittick's attention According to the credible and, unless otheiwise noted, uncontradicted testimony of Jacobs, Brock's personal secietary and a member of the "Board of Directors," the following events occurred on May 20 and 21 During the morning of May 20, Bittick told Jacobs to telephone Brock and tell him that "the boys al. e car r ying Union cards " 10 Jacobs I cached Brock at Alton, Missouri, and advised him as instructed by Bittick, and Brock replied that "You will have an answer very shortly " At 12 45 p in , the same day, Brock wired his office ATTENTION SECY EMPLOYEES COMMITTEE ON ACCOUNT OF SLACK BUSINESS YOU WILL CALL MEETING OF COMMITTEE TODAY COMMITTEE IS AUTHORIZED TO LAY OFF AS MANY AT ONCE AS THEY DEEM ADVISABLE OR TO TAKE ANY OTHER STEP THEY MAY SEE FIT Upon receipt of the telegram the Employees Committee wwas Imme- diately convened 11 Discussion at the meeting was confined eutnely to the action of the respondent's employees in hav ing joined the Union. Foreman Schmidt mfoirned the gi oup that Laslile.N was distl ibutnlg union membership cards and declared "That is the fast one we will have to get I icl of 11 12 Jacobs left to finer Bettis who, however, did not attend the meeting Upon Jacobs' return, one of those present stated "We know who wi e will have to get rid of without Bettis " There- 31 Bittick (lid not deny that he had green these instructions and impliedly admitted it by testifying that "Bill Schmidt, and William Stockley for quite some time, [sic] that eniplo)ees from other depaitments weie coming into their department and bothermg'the men and getting togethei in little gioups and talking , a whispering campaign and keeping them fiom then work and on this psiticular time they had-it was rumored, I didn't see it, but it was rumored they were passing out application blanks for something, I just assumed it was AFL cards However, I don't ].now, that has been biought out in the testnnoni is the wa3 I know that , but I didn 't see it and know nothing of it, so I reported it to Mrs Jacobs, as she was secretai3 of this Board of Directois appointed b3 Dr Brock, and asked her if she didn't thin], it advisable to call Di Brock that the} weie talking in gioups in the back room and some tiouble brewing back these, and I thought it should be called to Di Biock's attention " 11 This committee , also referred to as the "Board of Directors," was composed of Jacobs, 41ood3, Schmidt, Bittick, Virgil Elliott, and Stockley, all heads of various departments, and ILller , Bettis, and another employee , Rhea The committee was foamed during the latter pait of 1919 b3 Biock to have general charge of the plant in his absence It met at regular intervals at a local hotel Jacobs testified that the principal function of this committee was to "fire people," and Brttick could not specifically recall that it had ever (lone an3thmg else than dischaige the employees named in the complaint , and one other cmplovee It is apparent from Jacobs' further testimony, however, that the committee also discussed complaints of customers and other problems of merchandising and roan, gmeut 12 Although Schmidt denied making this statement , in confoimity with the findings of the Tiial Exammei we do not credit the denial J D BROCK 465 upon the committee discussed Lashley, Calhoon, Novasel and "others who were carrying cards' Neither the condition of the respondent's business nor the efficiency of these employees was discussed at any time during this meeting Upon the conclusion of the meeting, Jacobs made out checks for Calhoon, Lashley, and Novasel, and these were given to the three men by Virgil Elliott, the respondent's,"gen- eral manager." 13 Calhoon, Lashley, and Novasel demanded the reason for their discharge and ielused to accept their checks Elliott there- upon got in touch with the respondent's attorney who advised him to tell the men they were being laid off because of a decline in busi- ness Elliott communicated this advice to Jacobs, who typed identical copies of the following notice 14 You are being laid off, temporarily, because of the decrease in business and for no other reason _ On the following morning Calhoon, Lashley, and Novasel called at the plant and were given their pay checks, along with copies of this notice. On May 21 01 22 Middleton, referring to the discha, ges of Calhoon, Lashley, and Novasel, remarked to Bittick, Middleton's foreman, that it was "pretty slick the way they laid those three off . . just because of union activities" Bittick iephed, according to Middleton's uncontradicted and credible testimony that "there would be some more laid off if they didn't change then minds and opinions on the outside union and about the inside union " Bittick's prophecy was not long in being fulfilled On May 21 or 22 Brock appealed at the office Upon his arrival, according to Ja- cobs uneoitiacdicted testimony which we credit, as did the Trial Ex- aminer, Jacobs said, "I am glad to see you are back because we had a lot of trouble here," to which Brock 1 eplled . "Maybe you won't be so glad when you know w hat I am going to do " Later the same day Block` instructed Jacobs to issue lay-off notices' to Clark, Jones„ Saundeis, and Middleton According to Jacobs, the decision to in- clude Middleton among those to be laid off was niade following Bit- tick's report to Jacobs that while the Employee Committee was in ses- ,ion on May 20, Middleton had endeavored to persuade a fellow em- ployee to join the Union and that they "would have to let [Middleton] go too " Lay-off notices signed by then 1 espective for emen were given to Clark, Jones, Saunders, and Middleton on May 24 '13 Flliott was also occasionally relet,ed to as Superintendent Although both of his +nlcs seem to ha\e been sent-confeued, his use of them was ne%ei disputed by Brock and thev we,e generally accepted by Vie employees as descriptne of l+lhott's place in the plant hietar(hy ' It is` cleat that although Elliott's titles were exagge,ated, and their basis somewhit unclear he did excielse super%ison authouty I , 14 Jacobs testified that she tped a supph of notices gieatei than ,mmed,atel3 needed, and kept them in reserve 472814- 42-vol 42-30 - 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On several occasions after the discharges of the employees above named, Brock told Jacobs that he "would go to the penitentiary" be- foie he would take any of them back As did the Trial Examiner, we credit this uncontradicted testimony by Jacobs In support of his contention that the dischaiges occurred because of a decline in business the respondent anti oduced evidence showing that gross sales, of his companies declined from $232,424 09 in 1939 to $200,84140 in 1940 and to $179,856 38 in 1941 'h He also anti oduced evidence showing that the number of employees had declined since 1939 and remained stationary during 12 months following the dis- charges noted above However; the respondent's contention becomes wholly inci edible when viewed in the light of the uncontradicted tes- timony of Jacobs and other credible witnesses The falling off of the i espondent's business and the necessity of laying off a number of em- ployees was not discussed at the Employees Committee meeting on May 20, when the discharges were decided upon, or at any other time Jacobs' telephone call to Brock, and Brock's telegram in reply, taken in conjunction with Elliott's request that the respondent's attorney supply a reason for the discharges, as hell as the statements made by Bittick and Brock relating to the discharges, demonstrate beyond pos- sibility of doubt that the asserted necessity for reduction of personnel because of a business decline is a pure afterthought wholly unrelated to the facts Even assuming, however, that a decline in business warranted or required a reduction in personnel, the respondent adduced no evidence to explain why it selected these, particular employees to be laid of16 Each of the peisons discharged was active in the Union, and no other employees were laid off or discharged at this time Some testimony was adduced at the healing from several non- supervisoiy employees to the effect that some of the employees named ii The compilation of gross sales shows that each month of 1940 shows a small decrease from the corresponding month of the previous year In May 1940, the month in which the discharges , in question occurred, the gross sales were $16 , 601 75 as against gross -ale, of $18,432 38 for M iy 1939, a loss of $1,830 6 l The sales in May 1940, when contrasted with the sales during April 1940, however, show a decline of only $174 73 In July 1940 , the respondent's monthly gross sales increased , and reached a high point for the Sear in August, when then amounted to $20 ,835 26 Tlieti remained at a leiel aboN a $19 ,000 00 per month until November , when they again declined 16 The employment history of the discharged employees is as follows Oscar Calhoon iias employed from 1933 to May 20, 1940 At the time of his discharge on the latter date he was employed in the lens department Theodore Lashley was first employed in December 1934 At the time of his discharge on May 20, 1940, lie was working in the surface department Wilmer Jones was employed from 1934 to May 24, 1940 , when he was discharged At the time of his discharge lie was employed in the surface depart- ment Rex Saunders was last employed in November 1939 At the time of his discharge on May 24, 1940 ,-he was employed-in the lens department Edward Clark was employed from August 1937 to May 24, 1940 , the date of ' his discharge At this time he was employed in the lens department Claience Middleton was last employed from August 1937 to May 24, 1940, when he was discharged On this latter date he was employed in the stockroom Novasel, the other ictiie union member discharged, is not named in the complaint J D BROCK 467 in the complaint solicited membership in the Union during working hours The record does not reveal that the respondent had in force any rule prohibiting such activities, or that any of the employees in question were admonished not to discuss unions dui ing woi king hours Moreover there was no, testimony by supervisory employees that this discussion interfered -with the work of these employees, and the re- spondent has not contended that any such activity constituted a factor in the discharges Indeed, as we have found above, S 0 E U or- ganizers were permitted complete freedom in their union activity on company time and property We find, as did the Trial Examiner, that this evidence is wholly unrelated to the discharge of Calhoon, Lashley, Jones,-ISaunders, Clark, and Middleton We find, as did the Trial Examiner, that the i espondent on May 20, 1940, discharged Oscar Calhoon and Theodore Lashley, and on May 24 discharged Wylmer Jones, Rex Saunders, Edward Clark, and Clarence Middleton, because of their union membership and activity thereby discouraging membership in the Union, and that the respondent thereby interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act ` 'TV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set foith in Section III above. occurring in connection with the operations of the respondent de- scribed in Section I above, have a close,, mtmrate, and substantial re- lation 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 unfair labor practices, we shall order that he cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act We,have found that the respondent formed, dominated, and uiter- fered with the administration of the S 0 E 17 and contributed sup- port to it The effects and consequences of the respondent's formation, domination of, interference with,, and support of the S 0 E U, as well as the recognition of the S 0 E U as a bargaining representative for his employees, have constituted and now constitute an obstacle to the free exercise by his employees of their right to self-organization and to bargain collectively through representatives of their own choos-' ing. Because of the respondent's illegal conduct in regard to the S 0 E U it is incapable of serving the respondent's employees as a genuine collecti\ e bargaining agency Mom eover , the continued recog- 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nltion of the S O. E U as the representative of any of the respond- ent's employees would be obstructive of the free exercise by the em- ployees of the rights guaranteed them by the Act In order to effectu- ate the policies of the Act we shall order the respondent to withdraw all recognition from the S 0 E U as the representative of any of his employees for the purpose of dealing with him concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely to disestablish the S.OEU - We have also found that the respondent discriminated in regard to the hire and tenure of employment of Oscar Calhoon, Theodore Lashley, Wylmer Jones, Rex Saunders, and Clarence Middleton We shall accordingly order the respondent to offer these employees full and immediate reinstatement to their former of substantially equiva- lent positions without prejudice to their seniority and other rights and privileges. We shall further order that the respondent make whole Oscar Calhoon, Theodore Lashley, Wvlmei Jones, Rex Saunders, and Clarence Middleton for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to Oscar Calhoon and Theodore Lashley of a sum of money equal to the amount each would normally have earned as wages dur- ing the period from May 20, 1940, the date of the discharge, to the date of offer of reinstatement, less his net earnings 17 during said period, and by payment to Wylmer Jones, Rex Saunders, and Clarence Middleton of a sum of money equal to the amount which each would normally have earned as wages during the period from May 24, 1940, the date of the discharge, to the date of offer of reinstatement, less his .net earnings during said period. We have also found that the respondent dlscliminated in regard to the hire and tenure of employment of Edward Clark by discharging .him on May 24, 1940 On January 16, 1942, Clark was inducted into the military service of the United States and is accordingly not avail- able for immediate reinstatement We shall older the' respondent, upon application by Clark within forty (40) days after his discharge from the aimed forces of the United States, to offer him reinstate- ment to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges We shall further order the respondent to make Clark whole for any loss of 17 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 haze 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 Amer- •ca, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B 440 Monies received for work performed upon Federal, State, county , municipal , or other work-relief projects shall be considered as earnings See Republic Steel Corporation v National Labor Rela- tions Board, 311 U S 7 J D BROCK 469 earnings he may have suffered by reason of the respondent's discrimi- nation against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages during the periods (1) between the date of his discharge by the respondent, and the date of his induction, January 16, 1942 and (2) between a date five (5) days after Clark's timely application for reinstatement, and the date of offer of reinstatement by the respondent, less his net earnings 1, during those periods. Upon the basis of the foiegoing findings of fact and upon the entire record in the case, the Board makes the following. CONCLUSIONS OF LAW 1. International Jewelry Workers, Local No 9, affiliated with the American Federation of Labor, is a labor organization, within the meaning of Section 2 (5) of the Act 2 By dominating the formation of and interfering with and con- tributing support to Specialty Optical Employees Union, the respond- ent has engaged in and is engaging in ufair 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 Oscar Calhoon, Theodore Lashley, Wylmer Jones, Rex Saunders, Edward Claik, and Claience Middleton, thereby discourag- ing membership in International Jewelry Workers, Local No. 9, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act 4 By interfering with, restraining, and coercing his 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 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, John David Brock, his agents, successors, and assigns, shall 1 Cease and desist from (a) Dominating or interfering with the administration of Specialty Optical Employees Union or with the formation or administration of any other laboi organization of his employees and from contribut- '1 See footnote 17 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing support to Specialty Optical Employees Union or to any other labor organization of his employees, - (b) Discouraging membership in International Jewelry Workers, Local No 9, affiliated-with the American Federation of Labor, or any other labor organization of his employees -by<dischargi ng or refusing to reinstate any of his employees, or in any other manner discriminat- ing in regard to then hire or tenure of employment or any term or condition of employment, (c) In any other manner interfering with, restraining, or coercing his 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 activity for the purpose of collective bargaining or other mutual aid or pro- tection, as guaranteed in Section 7 of the Act 2 Take the following affirmative action which the Board finds will effectuate the,pohcies of the Act. (a) Withdraw all recognition from Specialty Optical Employees Union as the representative of any of his employees for the purpose of dealing with the respondent concerning grievances, labor disputes. iates of pay, wages, hours of employment, or other conditions of employment and completely disestablish Specialty Optical Employees Union as such representative, (b) Offer to Oscar Calhoon, Theodore Lashley, Wylmer Jones, Rex Saunders, and Clarence Middleton immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (c) Make whole Oscar Calhoon and Theodore Lashley for any loss of pay they may have suffered by reason of their discharge by payment to each of a sum of money-equal .46 the amount,each would normally have earned in wages from May 20, 1940, the date of the discriminatory discharge, to the date of the respondent's offer of reinstatement, less his net earnings during said period, make whole Wylmer Jones, Rex Saunders, and Clarence Middleton for any loss of pay they may have suffered by reason of their discharge by payment to each of a sum of money equal to the amount each would normally have earned as wages from May 24,1940, the date of the discriminatory discharge, to the date of the respondent's offer of reinstatement, less his net earnings during said period; (d) Upon application by Edward Clark within forty (40) days after his discharge fi om the armed forces of the United States, offer him immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; J D BROCK 471 (e) Make whole Edwaid Clark for any loss of earnings suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages during the periods (1) between the date of his dis- charge-by gthe,respondents and the, date of- his induction, January 16, 1942, and (2) between a date five (5) days after Claik's timely 19 application foi reinstatement and the date of the offer of reinstatement by the respondent, less his net earnings 20 during those periods; (f) Post immediately in conspicuous places throughout his plant in Kansas City, Missouii, and maintain foi a peiiod of at least sixty (60) consecutive days from the date of posting, notices to his employees stating (1) that the i espondent will not engage in the conduct from which he is ordered to cease and desist in paragraphs 1 (a), (b), and -(c) of this Order; (2) that the respondent will take the affirmative ac- tion set forth in paragraphs 2 (a), (b), (c) (d), and (e) of this Order; and (3) that the,respondent's`employees are free to become or remain members of, Inteinational Jewelry Woikeis, Local No -9, affiliated with the American Fedeiation of Labor, and that the respondent will not disciimmate against any employee because of membership in or activity on behalf of that organization; (g) Notify the Regional Directoi foi the Seventeenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith MR GERARD D REILLY took no part in the consideration of the above Decision and Order 19 As provided in paragraph 2 (d) of this Order 20 See footnote 17