Colorado Milling & Elevator Co.

In the Matter of COLORADO MILLING & ELEVATOR COMPANY and DENVER TRADES AND LABOR ASSEMBLY Case No. C-721.Decided February 9,1939 Flour Milling Industry--Jurisdiction: equitable principle of laches not appli- cable to the government acting in the public interest-Interference, Restraint, and Coercion-Discrimination: discharges ; for union activity-Reinstatement Ordered: discharged employees-Back Pay: awarded to discharged employees; not to include period between date of Intermediate Report and date of Decision as to one employee ; monies received by employees for work performed upon Federal, State, county, municipal, or other work-relief projects to be deducted and paid over to agency which supplied funds for said projects. Mr. Newell N. Fowler, for the Board. Mr. John R. Coen, of Denver, Colo., for the respondent. Mr. Edwin L. Swope, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges, the latter having been filed by Denver Trades and Labor Assembly, affiliated with the American Federation of Labor, herein called the Assembly, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-second Region (Denver, Colorado) issued its com- plaint dated February 16, 1938, against Colorado Milling & Elevator Company, Denver, Colorado, the respondent herein, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, and a notice of hearing thereon, were duly served upon the respondent and upon the Assembly. The complaint alleged, in substance, that the respondent discharged Roy McMichael and Virgil Oestreich, because they joined and assisted a labor organization known as United Flour and Feed Mill Workers Union, Local No. 19362, herein called the United, thereby discrimi- nating in regard to the hire and tenure of employment of these 11 N. L. R. B., No. 16. 66 COLORADO MILLING & ELEVATOR COMPANY ET AL. 67 persons and discouraging membership in the United; that by said dis- charges and by other acts the respondent interfered with, restrained, and coerced its employees in rights guaranteed them under Section 7 of the Act. On February 21, 1938, the respondent filed an answer admitting the allegations of the complaint concerning the nature and scope of its business but denying the material averments relating to the alleged unfair labor practices and alleging affirmatively that the discharges had been for cause. On February 21, 1938, the respondent also filed a motion to dismiss the complaint for lack of jurisdiction upon the grounds that the respondent had neither engaged in commerce nor been a party to a labor dispute affecting commerce within the meaning of the Act; that the proceedings attempted before the Board were unconstitu- tional; and that since the alleged unfair labor practices occurred 2 years and 7 months prior to the issuance of the complaint, the labor organization or person filing the charges upon which the complaint was based was guilty of such laches and delay as to bar and estop the maintenance of the charges. Pursuant to notice, a hearing was held in Denver, Colorado, on February 24, 25, and 26, 1938, before Joseph F. Keirnan, the Trial Ex- aminer duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the commencement of the hearing, the respondent filed a motion to amend its answer by adding additional paragraphs alleging that the labor organization or person filing the charges had been guilty of laches. The Trial Examiner granted this motion. At the conclusion of the hearing the respondent urged the Trial Examiner to grant its Motion to Dismiss, particularly that part of the motion which alleged in substance that the Board was barred by laches from proceeding in this case. The Trial Examiner overruled the motion. During the course of the hearing the Trial Examiner made various rulings on other motions and objections to the admis- sion of evidence. The Board has reviewed all the rulings of Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On June 20, 1938, the Trial Examiner filed an Intermediate Re- port, a copy of which, was duly served on all parties. He found that the respondent had discharged Virgil Oestreich because of his union affiliation and activities; and that by such acts it had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He further found that Roy McMichael had not been 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged for union activity or membership, but had been discharged for cause. He recommended that the respondent cease and desist from its unfair labor practices; that it 'reinstate Oestreich to his former position with back pay ; and that it take certain other action to remedy the situation brought about by the unfair labor practices. On June 30, 1938, the respondent filed Exceptions to the Interme- diate Report, and requested opportunity for oral argument before the Board. On July 5, 1938, Roy E. McMichael also filed Excep- tions to the Intermediate Report. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board on October 12, 1938, in Washington, D. C. The respondent and the Assembly were represented 1 and partici- pated in the oral argument. A brief in support of its case was sub- mitted by the respondent. At the oral argument the respondent contended that the Board is acting solely in behalf of Oestrich and McMichael in this case and is therefore barred by its laches from proceeding, and set forth arguments in support of this contention in- its brief. We find this contention to be without merit. The Board acts in the public inter- est to effectuate an important national policy designed to eliminate the causes of certain obstructions to the free flow of commerce by the mitigation and elimination of unfair labor practices which tend to cause industrial strife and unrest. Such benefits as the Board's remedial orders confer upon individual employees are only incidental to the exercise of its power to effectuate the policies of the Act by remedying conditions created by unfair labor practices. It is well ,ettled that the equitable principle of lathes is not applicable to the government acting in the public interest.2 The Board has considered the other exceptions filed by the respond- ent and the exceptions filed by Roy McMichael and save as they are consistent 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 fol- lowing : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, a corporation organized under the laws of the State of Colorado, manufactures grain products consisting of flour, offal (mill feed), and chop. It maintains and operates mills located in the States of Colorado, Kansas, Idaho, Utah, and Missouri, and 1 The Assembly was represented by Herbert S. Thatcher of Washington, D. C. s See United States v. Nashville, Chattanooga & St Louis Railway Company, 118 U. S. 120, 125; United States v. Beebe, 127 U. S. 338, 344; United States v. Insley, 130 U. S. 263, 266; Federal Trade Commission v. Algoma Lumber Co . et al., 291 U. S 67. COLORADO MILLING & ELEVATOR COMPANY ET AL. 69 grain elevators located in those States and, in addition, in the States of Nebraska and Oregon. This proceeding is concerned only with the Eagle Mill located at Denver, Colorado, where the respondent employs approximately 45 workers. The raw materials used at the Eagle Mill consist of wheat, 25 per cent of which is obtained outside of Colorado; corn, 50 per cent of which is obtained from States other than Colorado; and bags, 100 per cent of which are obtained outside of Colorado. The Eagle Mill has an annual production capacity of 204,418 bbls. of flour and 8,057 tons of offal, valued at $1,258,543.50, and 574,779 lbs. of chop valued at $11,208.19. Approx- imately 662/3 per cent of the manufactured products, valued at $846,000, are shipped to points in States other than the State of Colorado. H. THE ORGANIZATIONS INVOLVED Denver Trades and Labor Assembly is a labor organization affiliated with the American Federation of Labor. United Flour and Feed Mill Workers Union, Local No. 19362, was a labor organization affiliated with the American Federation of Labor admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background of the unfair labor practices In February 1934 an organizing campaign was launched by the American Federation of Labor among the respondent's employees. By March the United had been established and officers elected. Shortly thereafter the respondent's president, Dower, while address- ing the employees at the Eagle Mill, stated, in substance, that although the employees were free to join any union he preferred that they join an unaffiliated union. In April 1934, an unaffiliated union was organized among the respondent's employees and on about May 10, 1934, the respondent entered into a collective bargaining agreement with it. Although the United had attempted to secure an appointment with the respondent for the purpose of negotiating a collective bargaining contract, as early as April 1934, it was not until July 1934 after the United had obtained the assistance of the Colorado Indus- trial Commission that the first conference was held between the United and the respondent. At this conference Dower made it clear that he was opposed to the United and did not intend to bargain with it, stating among other things, that he would not enter into a bargaining contract with the American Federation of Labor, herein referred to as the A. F. of L., unless the Government compelled him to do so. Thereafter, other conferences were had be- 164275-39-vol. xr-6 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tween the United and the respondent, but nothing was accomplished. Finally, the United filed charges under the National Industrial Recovery Act with the first National Labor Board, herein referred to as the old Board, accusing the respondent of refusing to bargain with it and with sponsoring and dominating the unaffiliated union. Hearings were held in January, February, and March, 1935. The record does not show whether or not a decision was rendered by the old Board .s The United made its last attempt to bargain with the respondent on May 27, 1935. The events which occurred prior to the passage of the Act are described herein merely so that the discharges may be considered in the light of all relevant circumstances.4 On or about August 1, 1935, the respondent either discharged or laid off six United members, including four of its officers.5 A few days later a number of the United's members resigned and as a result its membership dropped so low that its charter was forfeited to the A. F. of L. All of the discharged or laid-off United members, except the com- plaining witnesses in this proceeding, Virgil Oestreich and Roy McMichael, were later reinstated by the respondent. B. The discharges of Oestreich and McMichael Virgil Oestreich entered the respondent's employ on June 5, 1933, and was assigned to the warehouse. A short time later he was pro- moted to the packing floor where he became a flour packer. In March 1934, Oestreich, an active organizer of the United, was elected its president. He acted on the grievance committee and participated in most of the conferences held by the United and the respondent for the purpose of negotiating a bargaining contract. Following one of these conferences, Williams, who was then the respondent's general manager, warned Oestreich that he was "playing a losing game" in the United, and suggested that if Oestreich resigned the United would probably expire. Williams promised that Oestreich would be "taken care of" if he resigned, but Oestreich rejected the offer. At the time of the hearing -Williams was in California because of illness and did not testify. As a result of the bargaining contract entered into by the respondent and the unaffiliated union in May 1931, the s The National Industrial Recovery Act was declared unconstitutional by the Supreme Court of the United States on May 27, 1935. 4 See National Labor Relations Board v Pacific Greyhound Ltines, 303 U S. 272 ; Matter of National Casket Company, Inc. and Casket Makers Union 19559, 1 N. L R B 963; Mat- ter of Radsant Mills Company, a Corporation and J. R Scarbrough and George Spisak, 1 N. L. R. B. 274 5 Four of these employees were employed at the respondent's Hungarian Mill located in Denver, Colorado Their discharge or lay-off is not in issue in this proceeding. COLORADO MILLING & ELEVATOR COMPANY ET AL. 71 flour packers received an increase in wages; however, Oestreich was at that time assigned to the "chop room" where he continued to re- ceive the same salary he had received as a flour packer. About July 1934, Oestreich was demoted to the warehouse and at that time "filed a complaint" with the local "N. R. A. office," and through its efforts the respondent reinstated Oestreich to the packing floor where he was assigned to the position of bran packer. Oestreich's principal duties as a bran packer consisted of filling sacks from a packing machine operated in conjunction with a bin; transporting the sacks to the adjoining warehouse; piling those to remain in the warehouse and leaving the trucks of sacks to be immediately shipped for handling by the warehousemen. On July 29, 1935, at' 7:30 a. m., upon taking a truck loaded with sacks of shorts 6 to the warehouse, Oestreich found that someone had scattered a number of sacks of shorts in front of the "short pile" ; and that in order to unload his truck he first had to pile the scattered sacks, which he did hurriedly. A short time later the warehouse foreman, Grebb, approached Oestreich and inquired whether Oestreich was responsible for the pile. When Oestreich replied that he was, Grebb ordered him to repile it. Oestreich refused to repile the sacks and walked away. According to Oestreich, he told Grebb that he did not have time to do so. Grebb claims that Oestreich refused to repile the sacks without giving a reason. That Oestreich was pressed for time is evidenced by the fact that the mill began operations at 7 a. m., while the bran packers did not report for duty until 7:30, at which time there was a 30-minute "run" in the bran bin, which filled in about 48 minutes. It was the packer's duty to empty the bin and prevent it from filling because, if it did, it would "choke the mill down." Oestreich testified that he was also pressed for time because he had received notice to make a "change in the mill run." We do not credit this explanation because the respondent introduced an exhibit showing that-no change was made in the "mill run" on the morning of July 29. In our view of the case, it is unnecessary to decide whether or not Oestreich had an adequate reason for his refusal to pile the sacks or whether he assigned that reason to Grebb for in any event he did refuse to execute Grebb's order. Later, that day, Grebb told Oestreich to instruct other employees where to pile bran, but Oestreich refused to do so, as he subsequently explained in his testimony, because he was not a supervisory em- ployee. Grebb was not Oestreich's immediate superior, but was in charge of the warehouse. Later in the day, when Oestreich took a truck loaded with sacks of shorts to the warehouse for immediate 0 At the hearing the manager of the Eagle Mill defined "shorts" as the germ end of the wheat. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shipment, the warehousemen refused to handle the sacks in accord- ance with the usual rule, but stated that Grebb had issued orders that the bran packers were to pile everything. This meant additional work for Oestreich. Either during the afternoon of the same day or the morning of the next day, Oestreich telephoned the respondent's president, Dower, and asked for an appointment because he felt that things were inten- tionally being put in his way to slow him down and make his work "inconvenient" and because he desired to secure a transfer to one of the respondent's other mills. Grebb testified that it was the first time Oestreich had disobeyed the rules; and that he was "going to pass it up" but that upon learning, through rumor, that Oestreich had reported him, he went to Harris, manager of the mill, and reported that Oestreich had refused to obey orders. After receiving the call from Oestreich,. Dower summoned Harris to his office, where Harris told Dower that Oestreich had refused to obey Grebb's orders. Oestreich and Grebb were then summoned. When Oestreich arrived, he found among those present, besides Dower, the respondent's vice president, its general manager, two members of the board of directors, Harris, and Grebb. Oestreich and Grebb each related his version of what had occurred on the previous day. Grebb stated that on the morning in question he had asked Oestreich to pile the sacks, but that Oestreich had refused to do so. Oestreich replied that Grebb was misrepresenting the situa- tion; that he had piled the sacks in the first place, but had refused to repile them because there was no reason for doing so. Oestreich also told the officials that he did not know that he was under Grebb's supervision and that he had to take orders from him. During the conference Dower stated that the respondent was an old, reliable company which in the past had been able to operate without "out- side" labor organizations and accused Oestreich, because of his union affiliation, of being disloyal to the respondent. Dower also stated that after the National Industrial Recovery Act was declared uncon- stitutional by the Supreme Court of the United States, many em- ployers discharged employees who belonged to "outside" labor organ- izations, but that he had not done so because he thought that the United members might "have a change of heart." Harris and Dower did not remember anything being said during the conference con- cerning "unionism." At the conclusion of the conference Oestreich was told to go home and was informed that he would be called if needed for work. Roy McMichael was employed by the respondent about 5 years. He first worked in the warehouse but was later promoted to the packing floor. About July 1935, McMichael, like Oestreich, was transferred to the chop room, and had joined Oestreich in filing the COLORADO MILLING & ELEVATOR COMPANY ET AL. 73 complaint with the National Industrial Recovery Administration, herein referred to as the N. I. R. A. Thereafter they were reinstated to the packing floor where they both became bran packers. McMichael was active in organizing the United, was elected its reading clerk, named chairman of the grievance committee, and as a member of the United's negotiating committee took an active part in the conferences in which the United attempted to negotiate a collec- tive bargaining contract with the respondent. McMichael testified at the hearings held by the old Board, stating among other things that the respondent had paid its employees a bonus in 1934 to bribe them to join an unaffiliated union instead of the United. The respondent's president deeply resented this testimony. At about midnight on about July 10, 1935, Harris, manager of the Eagle Mill, returned to the mill and discovered McMichael using new instead of used sacks, which was contrary to the respondent's rules. He asked McMichael if he had not received orders from Grebb to use used sacks, and according to Harris McMichael replied, "I am not taking orders from Al (Grebb)." Grebb was not Mc- Michael's immediate superior. Harris then ordered McMichael to use used sacks and the next morning instructed Fowler, superintendent of the mill, to ascertain if McMichael had used new or used sacks during his shift. Fowler reported that McMichael had used new sacks. At the hearing McMichael could not remember the details of this incident. Fowler and Harris then discussed the matter and they decided to give McMichael "another trial" and Fowler "let the matter drop." Noth- ing was said to McMichael about it. On July 31, immediately after Oestreich had been sent home by the respondent's officials, Dower asked if there were other similar cases and Harris then told the officials about the incident concern- ing McMichael. McMichael was summoned to Dower's office where he was asked to give his version of the incident. Harris claims that McMichael offered no excuse at the conference for not following Harris' instructions except that he did not like to pack used sacks. McMichael did not remember anything concerning bran sacks being mentioned at thQ conference. During the conversation Dower asked McMichael to resign because of the trouble his activities in behalf of the United had caused the respondent, but McMichael refused to resign. Dower also asked McMichael if, after his testimony before the old Board to the effect that the respondent paid its employees a bonus in 1934 to bribe them to join the inside union instead of the United, he thought he was entitled to the bonus which was going to be paid the employees that year. Dower also stated that he did not want the A. F. of L. interfering with his business. Dower does not remember saying anything about McMichael's union activities during the conferences, but admits discussing his testimony before 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the old Board regarding the bonus. Finally, McMichael was told to take the day off and advised that if he was needed for work he would be called. After McMichael left the office, the officials decided to discharge Oestreich and McMichael. On August 11, McMichael went to the respondent's office to ascertain why he had not been recalled to work. He testified that he was told by the respondent's general manager, Williams, "that Mr. Dower had decided that he did not want me (McMichael) as an employee of the company, due to the fact that I was in the union, and that I had not been faithful to the company and also that I had testified in this hearing before (the old Board) that this bonus was paid as a bribe." This testimony was not denied. The respondent asserts, however, that it was unable to rebut Mc- Michael's testimony concerning these statements because Williams had left the respondent's employ and was ill in California at the time of the hearing. The respondent further intimates that knowledge of these circumstances led McMichael to impute the statements to Williams. This contention cannot be accorded weight, since the re- spondent did not avail itself of the opportunity afforded to take the testimony of Williams by deposition, even though he was unable to be present at the hearing.' Upon the record, we are of the opinion that Oestreich and Mc- Michael were discharged by the respondent on July 31, because of their union membership and activity. The respondent was opposed to the United from its inception. Both Oestreich and McMichael were active leaders in the United and had held important offices which brought them into direct contact with the management. Moreover, in the past in defense of their rights they had filed charges against the respondent and in subsequent proceedings based on charges filed by the United had given testimony adverse to the respondent. Dower, the respondent's president, admittedly resented bitterly McMichael's testimony. The respondent contends that it discharged Oestreich and Mc- Michael for insubordination. The evidence, however, fails to support this contention. Neither Harris nor Fowler took any punitive action against Oestreich or McMichael when the alleged insubordination occurred, although both men had the power to discharge. Moreover, Grebb did not call it to Harris' attention until after he had learned that Oestreich had telephoned Dower. Further, although Harris claimed that McMichael's insubordination occurred on or about July 10, Harris never called it to McMichael's attention, nor did he report ' A copy of the Board's Rules and Regulations was served upon the respondent with the complaint. Article II, Section 20, of the Rules provides, in part : "Witnesses shall be examined orally under oath , except that for good and exceptional cause the Trial Examiner may permit their testimony to be taken by deposition under oath." COLORADO MILLING & ELEVATOR COMPANY ET AL. 75- it to the respondent's officials until after Dower had asked him during the conference on July 31, if there were any other cases similar to Oestreich's to be considered. That neither incident was regarded by the supervisors immediately involved as serious enough to warrant even a report to the respondent's executives, much less the drastic penalty of discharge, is definitely established by Grebb's testimony that he was "going to pass it [Oestreich's refusal to obey Grebb's orders] up" and Fowler's testimony that he and Harris had decided to give McMichael "another trial." Moreover, the circumstances under which the discharges were effected, particularly the anti-union statements of the respondent's principal officials, convince us that the respondent discharged Oestreich and McMichael because of their union membership and activity and not because of their alleged insubordination. That the discharges had the result intended is attested by the fact that within the next few days so many members resigned from the United that its officers found it necessary to forfeit the charter. We find that the respondent discharged Virgil Oestreich and Roy McMichael on July 31, 1935, because of their union, membership and activities, thereby discouraging membership in the United; that in and by said discharges, and each of them, the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. At the time of the discharges Oestreich and McMichael each earned 66 cents an hour and worked 42 hours a week. Since thenj'Oestreich has earned $2,044.29, and McMichael has earned $1,429.99. 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. THE REMEDY We have found that the respondent discriminatorily discharged Oestreich and McMichael. In order to remedy the unfair labor practice by restoring the status quo as far as possible we shall require the respondent to offer these employees reinstatement with back pay. In its brief, the respondent urges that we depart in this case from our usual practice of ordering back pay from the date of the dis- charges to the date of the offer of reinstatement on the ground "that it would be unfair and inequitable to require the employer to make 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whole the employee for loss of wages sustained by reason of the failure of the Board to act with reasonable dispatch." Under the circumstances of this case, we are of the opinion that such a departure would be unwarranted. The original charges on behalf of these employees were filed on November 11, 1935,8 with the Regional Direc- tor for the Seventeenth Region at Kansas City, Missouri.,, The re- spondent is legally chargeable with knowledge of its commission of the unfair labor practices and could have taken appropriate action at any time thereafter to have remedied the consequences of its illegal conduct. It did not do so and cannot now validly urge that the discriminatorily discharged employees should be denied a full resto- ration of the status quo because of the lapse of time between the commission of the unfair labor practices and the issuance of a complaint. However, in view of the Trial Examiner's failure to find in his Intermediate Report that Roy McMichael was discriminatorily dis- charged, the respondent could not have been expected to reinstate McMichael after it received the Intermediate Report (dated June 20, 1938), and therefore should not be required to pay back pay from that time to the date of this Decision.1° The respondent will be required to make whole McMichael for any loss of pay he may have suffered during the period from July 31, 1935, the date of his discharge, to June 20, 1938, and from the date of this Decision until the date of the offer of reinstatement, by payment to him of a sum equal to the amount which he normally would have earned as wages during said period at the rate he was paid at the time • of his discharge, less his net earnings" during said period. We shall also order the respondent to make Oestreich whole for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum equal to the amount he normally would have earned as wages from the date of his discharge to the date 8 Compare with Matter of Inland Lime and Stone Company and Quarry Workers Inter- national Union of North America, Branch No. 259, 8 N L R B. 944, where the dis- charged employees were allowed back pay from the date of the filing of the charge to the offer of reinstatement fl It may be noted that proceedings in this case and other cases were delayed pending the result of litigation involving the Board 's right to proceed ( See First Annual Report of the National Labor Relations Board-1936 , pp 46-50 ) iu Matter of E It Heffclfinger Company, Inc and United Wall Paper Crafts of North America, Local No . 6, 1 N L R B 700; Matter of Mann Edge Tool Company and Federal Labor Union No 18779, 1 N L R B 977 11 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 Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B 440 . Monies received for work pmformed upon Federal , State, county , municipal , or other work-relief projects are not deductible as "net earnings " but, as provided in the Order below, shall be deducted and paid over to the appropriate fiscal agency of the Federal, State , county, municipal, or other government or governments which supplied the funds for said work -relief projects. COLORADO MILLING & ELEVATOR COMPANY ET AL. 77 of the offer of reinstatement, less his net earnings during said period. We will further order the respondent to cease and desist from its unfair labor practices. Upon the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLusIONs OF LAW 1. Denver Trades and Labor Assembly, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. United Flour and Feed Mill Workers, Local No. 19362, was a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Virgil Oestreich and Roy McMichael, thereby discouraging membership in the United, the respondent has engaged in and is engaging in an unfair labor practice, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of -the rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 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, Colorado Milling & Elevator Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in any labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any manner discriminating in regard to their hire and tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Virgil Oestreich and Roy McMichael immediate and full reinstatement to the positions which they formerly held with the 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent on July 31, 1935, without prejudice to their seniority and other rights and privileges; (b) Make whole Virgil Oestreich for any loss of pay he suffered after July 31, 1935, by reason of the respondent's discrimination in regard to his tenure of employment by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from said July 31, 1935, to the date of the offer of reinstatement, less his net earnings during that period; deducting, however, from the amount otherwise due to Virgil Oestreich, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Make whole Roy McMichael for any loss of pay he suffered from July 31, 1935, until June 20, 1938, and from the date of this Order to the date of the offer of reinstatement, less his net earnings during that period; deducting however, from the amount otherwise due to Roy McMichael, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects ; (d) Post immediately, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees in conspicuous places at its Eagle Mill, stating that the respondent will cease and desist in the manner set forth in paragraph 1 of this Order; (e) Notify the Regional Director for the Twenty-second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.