Berkey and Gay Furniture Co.

In the Matter of BERKEY AND GAY FURNITURE COMPANY and INTER- NATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LocAL 418 Case No. 0-474.-Decided February 15, 1939 Furniture Manufacturing Industry-Discrimination: discharge for union mem- bership and activity-Company-Dominated Union: suggestion by foreman that factory union be formed ; permitting solicitation of members for factory union during working hours after having denied similar privilege to legitimate out- side union; expression by foreman of preference for factory union over outside union ; requirement of membership in factory union as condition of transfer or reinstatement ; disestablished, as agency for collective bargaining, but order not to affect functioning of factory union in administering health and accident fund-Contract: with organization found to be company-dominated ; employer ordered to cease giving effect thereto-Interference, Restraint, and Coercion: discriminatory discharge ; domination of and interference with formation and administration of labor organization-Reinstatement Ordered: unpleasant em- ployer-employee relationship produced by employer following discriminatory discharge no bar to reinstatement as appropriate remedy-Back Pay: awarded. Mr. Charles F. McErlean, for the Board. Warren, Norcross c Judd, by Mr. George S. Norcross, and Mr. John J. Smolenski, of Grand Rapids, Mich., for the respondent. Mr. Julius H. Herscher, of Grand Rapids, Mich., for the Employees Union. Miss Fannie M. Boyle, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Union, United Automobile Workers of America, Local 418,1 herein called the U. A. W. A., the National Labor Relations Board, herein called the Board, by Frank H. Bowen, Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint dated Jan- uary 6, 1938, against Berkey and Gay Furniture Company, Grand 1 The original charges were filed by Local 256 and the amended charges by Local 418. The latter was assigned jurisdiction over the furniture workers in Grand Rapids subse- quent to the filing of the original charges. 11 N. L. R. B., No. 28. 282 BERKEY AND GAY FURNITURE COMPANY ET AL . 283 Rapids, Michigan, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices 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. The complaint and an accompanying notice of hearing were duly served upon the respondent, the U. A. W. A., and The Employees Union of Berkey & Gay Furniture Company, herein called the Em- ployees Union,2 a labor organization claiming to represent employees of the respondent. On January 13, 1938, the respondent filed an answer in which it admitted the allegations in the complaint concern- ing its corporate existence and the relation of its business to com- merce, but denied that it had engaged in the unfair labor practices with which it was charged. Pursuant to the notice a hearing was held from January 17 to 22, inclusive, and from February 9 to 11, inclusive, 1938, at Grand Rapids, Michigan, before Charles W. Whittemore, the Trial Examiner duly designated by the Board. Upon motion made by the Employees Union at the commencement of the hearing, it was permitted to inter- vene. On January 18, 1938, it filed an answer in which it denied that it was or ever had been sponsored, dominated, interfered with, or encouraged by the respondent., The Board, the respondent, and the Employees Union 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. During the course of the hearing the Trial Examiner ruled upon a number of motions and objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the conclusion of the hearing, counsel for the Board moved to conform the complaint to the evidence in enumerated particulars. The motion was granted and counsel for the Board thereupon filed an amended complaint which incorpo- rated the particulars enumerated. Permission was granted counsel for the respondent to file an amended answer and the record was left open to receive it. An amended answer was filed on February 28, 1938. On March 14, 1938, the Trial Examiner filed his Intermediate Report in which he found that the respondent had engaged in and was engaging in the unfair labor practices alleged in the complaint. 2 The Employees Union was designated in the complaint as Employees' Union and Good Will Organization of Berkey and Gay Furniture Company. The complaint was amended at the hearing correctly to designate it as The Employees Union of Berkey and Gay Furniture Company. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 21 and April 4, 1938, respectively, the Employees Union and the respondent filed exceptions to the Intermediate Report. On April 25, 1938, the respondent filed a brief in support of its excep- tions. The Board on March 23, 1938, granted applications of both the respondent and the Employees Union for oral argument and notified each of them and the U. A. W. A. that a hearing would be held on April 26, 1938, for the purpose of oral argument. Prior to April 26 the respondent waived its request for oral argument and neither it, the Employees Union, nor the U. A. W. A. appeared at the hearing. The Board has duly considered all exceptions to the Intermediate Report and the brief of the respondent and finds that, save as con- sistent with the findings, conclusions, and order hereinafter set forth, the exceptions are without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Berkey and Gay Furniture Company was incorporated under the laws of the State of Michigan on October 29, 1935, and is engaged in the manufacture of furniture. 'It is a reorganization of an old corporation bearing the same name which manufactured furniture in Grand Rapids for about 18 years before going into the hands of a Federal receiver in 1931. The original company operated five plants in Grand Rapids. The respondent acquired the plants known as Numbers 2 and 3 in the reorganization and at times used a third plant in Grand Rapids not owned by it. The chief raw materials used by the respondent are lumber and veneers. Other raw materials are sandpaper, glue, finishing ma- terials, upholstering materials, and crating lumber. During 1937 the respondent purchased gum wood and other lumber from Louisi- ana and Mississippi valued at approximately $40,000; walnut from Ohio, Indiana, Kentucky, Arkansas, and Illinois valued at approxi- mately $10,000; mahogany from Honduras valued at approximately $25,000; maple and other hardwood from Michigan and Wisconsin valued at between $8,000 and $10,000; beech from Kentucky and West Virginia valued at approximately $15,000;-and crating lumber from Mississippi, Louisiana, Wisconsin, and Michigan valued at approximately $20,000. During that year the respondent also pur- chased outside the State of Michigan, veneers valued at about $90,000, upholstering materials, including fabrics, valued at about $29,000, and coal valued at about $12,000. BERKEY AND GAY FURNITURE COMPANY ET AL. 285 The factory cost of its furniture manufactured in 1937 was esti- mated by the respondent to be about $1,000,000 or $1,250,000. Its shipments, about 90 per cent of. which were to points outside of Michigan, were valued at $1,088,000 for 1937. II. THE LABOR ORGANIZATIONS INVOLVED International Union, United Automobile Workers of America, Local 418, is a labor organization affiliated with the Committee for Industrial Organization, herein called the C. I. 0., and admits to membership furniture workers in the vicinity of Grand Rapids, Michigan. The Employees Union of Berkey and Gay Furniture Company is an unaffiliated labor organization incorporated under the laws of the State of Michigan on September 17, 1937, and admits to mem- bership only the employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background 1. Early attempts at collective bargaining The first attempt by employees of the respondent to bargain col- lectively occurred in about December 1936 when a petition requesting the respondent to increase rates of pay was circulated in Plant Number 2. This' petition was sent to the respondent through one Steel, its buyer. No reply was received, and in January 1937 the employees circulated a second petition upon which signatures were placed in a circle in order that the respondent could not determine who had signed it first. When the employees heard nothing from the respondent relative to the second petition one of them, Ed Franks, inquired of George Vander Laan, general superintendent, about it and was informed that Vander Laan had given the petition to Dembinsky, the respondent's president, for consideration. Vander Laan testified that he thereafter made no attempt to report what action the respondent took on the petition because signatures were in a circle and he did not know to whom he should report. 2. Advent of the U. A. W. A. Because of the failure of the petitions to obtain results, between 65 and 75 employees, on February 16, 1937 , met with Harry Spencer, an organizer for the U. A. W. A., for the purpose of forming a union. Tony Verbis was elected chairman and Clarence Ary sec- retary of the group. Spencer, who had been organizing the auto- 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mobile parts workers in Grand Rapids, thereafter assisted employees of the respondent and other furniture workers in Grand Rapids in forming Local 418 of the U. A. W. A. By April 1 a large majority of the respondent 's employees had joined the U. A. W. A. and Spencer commenced an attempt to nego- tiate a contract for them. Although no complete agreement was ever reached, the respondent agreed verbally to raise the minimum wage rate from 25 to 30 cents an hour. 3. The discharge of Verbis On the Saturday following Wednesday, February 16, when Verbis was selected as chairman of the embryonic union group, he was dis- charged. Some of the employees believed his discharge was occa- sioned by his union activities and talked of engaging in a sit-down strike. They decided, however, to do nothing until the following Monday. Verbis requested Ary to interview Dembinsky and also the U. A. W. A.'s field representative in an attempt to secure Verbis' reinstate- ment. Ary first spoke to Lewis Hendricks, foreman, about Verbis' discharge. Hendricks informed Ary that it was necessary to dis- charge someone, that Verbis was an agitator and refused to work on a piece-work or bonus basis, and that he was therefore selected for the discharge. Ary next interviewed Dembinsky, who disclaimed any knowledge of the discharge and advised Ary to interview Vander Laan, the superintendent. Dembinsky telephoned Vander Laan at his residence and made an appointment for Ary. Ary saw Vander Laan at the latter's home that afternoon and accused him of discharging Verbis because of the latter's union activ- ities. Ary testified that Vander Laan "admitted that he (Verbis) was an agitator, he was agitating more than anybody else," and that Vander Laan refused to reinstate Verbis. Ary further testified that at the interview he informed Vander Laan of the Wednesday night union meeting and of the fact that Verbis had been elected chairman and himself secretary of the group; that they discussed the C. I. O. and that Vander Laan claimed it was a communistic organization ; and, further, that Vander Laan expressed his disapproval of having to meet with employees in a group because he did not employ them in a group. Vander Laan testified that he told Ary, "The foreman must have a good -reason for laying that man off. It is either shortage of work; or whitever ' it is, but that was entirely up to the foreman." He further testified that Verbis was in fact discharged because he re- fused'to work under a bonus or premium system which was being BERKEY AND GAY FURNITURE COMPANY ET AL. 287 installed at the plant. When asked whether he had any, conversation with Ary "regarding the men and their activities" he replied, "I don't think so. It was a friendly conversation. I don't think there was anything at stake at that time at all." Vander Laan did not recall Ary mentioning that he was secretary of the embryonic U. A. W. A. organization. In view of Vander Laan's hazy recollec- tion and his evasive account of the interview, we accept Ary's account as substantially correct. In expressing his reaction toward Ary's visit with him Vander Laan testified : Q. And if Mr. Dembinsky sent one of the men to talk with you, you feel that the man had a right to come and talk with you? A. Sure . . . if a man comes and talks with me, that is per- fectly all right; they have that right, too, but when one em- ployee asks to take it up for another employee that was laid off for a certain reason, I think it is the most absurd thing for one employee to take authority upon himself. Q. Don't you think that the employees have a right to desig- nate one of their fellow workers to take up their problems with you, or the problem of one of them with you? A. Well, if it has been previously agreed upon, it would be a different matter, but as long as there was no agreement of any kind... Q.... Do you know whether or not the men asked Mr. Ary to come and take the question of Mr. Verbis' discharge up with you? A. It was none of his business, I would say . . . The men could not have asked him that . . . There was no organization what- ever. The men were not organized. They were just individuals. Q... . But even though they had no organization, do you think that the men have a right to, when something happens, to group together and say, "Well, so and so, you go and see what you can do about it." A. Never-I have handled a lot of men in a good many years, but I never had those things happen to me yet. It seems very strange to me that Mr. Ary would take the chestnuts out of the fire for Mr. Verbis. Verbis did not file a charge against the respondent as a result of his discharge and we do not attempt to determine the cause thereof. The incidents above related are cited to throw light upon the re- spondent's attitude toward the U. A. W. A. and, upon subsequent occurrences at the plants. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Discharge of Clarence Ary Clarence Ary was employed by the respondent as a router on March 12, 1936. He was recognized by the respondent and by his fellow workers as one of the best, if not the best, and fastest worker in the machine room. Ary, as secretary of they group interested in forming a union and later as secretary of the U. A. W. A., was the most active union member among the respondent's employees. He was described by Vander Laan as "the leader of the crew." Charlie Centilli, head bor- ing-machine man, testified that other employees were active in the U. A. W. A. but that Ary "showed it too much; he was in the open with it." Ary's foreman, Lewis Hendricks, told Ary that he "was around doing all the dirty work for the men" and "should forget about the Union." On April 7, during the noon hour, as Ary was signing up members for the U. A. W. A. in the basement of Plant Number 2, he was told by one of the employees that the foreman was watching him. On the following day he was called into Vander Laan's office and told that he was being laid off. Concerning the reason assigned to Ary for the proposed lay-off, Vander Laan testified : Well, during the organization of the C. I. 0., there was a lot of talk, the men were heated and it showed very good judgment to keep cool while this organization was going on; some of the men who could not see their way clear to unite with the C. I. 0., they complained about threats being made, and I heard of per- sonal threats against myself, and all things like that. I had listened for weeks to something like that because in a case like that, I let it sink in, and think it over. I thought about April 7 that things had come to such a state that I thought I better call Clarence Ary in the office and talk things over. So I told Mr. Ary the reports I got from several departments, and from sev- eral men, the things that I heard made it necessary for me to lay him off. Ary denied that he had threatened anyone and asked Vander Laan to let him face any man who claimed he had been threatened. Vander Laan refused to reveal to Ary the name of anyone who claimed he had been threatened and did not reveal the nature of threats claimed to have been made by Ary. On cross-examination, when Vander Laan was being pressed for information concerning the nature of the threats made, he stated : Well, that Mr. Ary was down there all the time and trying to per- suade these fellows to affiliate with the C. I. O. and they had, some BERKEY AND GAY FURNITURE COMPANY ET AL . 289 of the men had objections of a religious nature that they would not join any union, as far as that was concerned, and they wished they could be let alone. As Ary started to leave the office, Vander Laan asked where he was going and Ary replied that since he was fired, he "was going to get in touch with Harry Spencer"; whereupon Vander Laan told him, "No, I did not mean I canned you. I just wanted to talk to you." Vander Laan then requested Ary not to solicit any more members during the noon hours and promised to "let by-gones be by-gones." On the afternoon of the following day, April 9, Ary was dis- charged. The immediate reasons assigned by the respondent for this discharge are vague and unconvincing. His foreman, Hendricks, testi- fied that Ary had objected to the rate setter lowering his rate on a job which Ary completed that morning and also that at about 1:30 p. in. Ary came to him and asked where Hendricks had heard a rumor which Hendricks had admittedly repeated to the sanding-room fore- man about Ary being "yellow." Hendricks testified further that he believed Ary was accusing him of starting the rumor and became angry; that he went to Vander Laan, and complained that he "could not stand that fellow down there much longer," and that he thought it was about time to get rid of Ary; that Vander Laan told Hendricks to go ahead. Vander Laan testified that on the morning of April 9 Ary had a dispute with the rate setter, not because the rate setter wanted to reduce his rate, but because Ary wanted a rate increase; and that in the after- noon Hendricks complained to him that Ary was "making trouble all the time." Vander Laan further testified, "Mr. Hendricks told me that someone had called Mr. Ary yellow, and I think it had some bearing upon him being closeted with, me in my office the day before." When asked if that incident was a culmination of difficulties had with Ary over a period of time, which led to his discharge, Vander Laan replied : Why, he came to my house one Saturday afternoon, approximately 4 o'clock, and he wanted to know why a man was discharged. We had to lay a man off, and Mr. Ary took it upon himself to make it his business to find out from me why we had discharged that man. The man referred to was Verbis. It is significant that neither the respondent's original answer nor its answer to the Board's amended complaint listed among other rea- sons assigned for Ary's discharge the incident in which Ary asked Hendricks who had started the accusation that he was "yellow," and' 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that only the answer to the amended complaint mentioned his argu- ment with the rate setter as one of the reasons. The other reasons as- signed in the answers for his discharge were that Ary neglected his work and interfered with and disturbed other workers in the plant. The latter charges are not sustained by the evidence. Both Frede, under whose immediate supervision Ary worked, and Hendricks ad- mitted that Ary did not leave his machine often and that he main- tained his usual high rate of production. Concerning the respondent's charge that Ary had disputes with his rate setter, the evidence is pro- fuse that disputes with the rate setter were common occurrences under the premium or bonus system which had been installed, and there is no evidence that any other employee was ever discharged because of such disputes. We find that Ary was discharged because of his membership in and activities in behalf of the U. A. W. A. We further find that by dis- charging Ary on April 9, 1937, the respondent discriminated in regard to his hire and tenure of employment, thereby discouraging member- ship in the U. A. W. A. and interfering with, restraining, and coerc- ing its employees in the exercise of the rights guaranteed in Section 7 of the Act. After he was discharged and while preparing to leave the plant, Ary became involved in a brawl with Hendricks, who, prior to his employ- ment by the respondent, had been a foreman over convict labor. Ary attempted to use the office telephone and Hendricks took it from him, ushered him from the office, and told him to get his tools. Ary then went to the machine of Van Dam, a committeeman of the U. A. W. A., to recover a screw driver which he had loaned Van Dam and to ask Van Dam what the members would do about his discharge. Hendricks jerked Ary around and told him "to get the hell out of there." Ary then cursed Hendricks and Hendricks struck him in the mouth. Several meetings between the U. A. W. A. and the respondent were thereafter held for the purpose of discussing the reinstatement of Ary. The respondent refused to reinstate him in Plant Number 2 because of the difficulty he had with Hendricks but agreed to employ him in Plant Number 3. However, due to an objection voiced by Bert Hankamp, a foreman at Plant Number 3, that Ary's rate of pay was higher than that of other employees at the plant and that such fact would cause dissatisfaction among his employees, Ary was not given the employment agreed upon. Ary's average weekly wage during the year preceding his discharge was $32.50. Between the date of his discharge and the hearing he had earned about $100, but had obtained no regular employment. BERKEY AND GAY FURNITURE COMPANY ET AL. 291 C. Domination of and interference with formation and administration of the Employees Union 1. The Good Will Association During the fall of 1936 a, picnic was given for all employees of the respondent. At a banquet attended by the picnic committee, which consisted of about 6 representatives of the management and 18 em- ployees, the establishment of athealth and accident fund, similar to one which had been in existence under the old Berkey and Gay Furniture Company, was discussed and decided upon. The Berkey & Gay Good Will Association, herein called the Good Will Association, was there- after formed and its plan of operation became effective on February 15, 1937. Its rules or bylaws provided that the controller of the respondent should act as, trustee for the fund established and that all work of administering the fund should be handled in the office of the respondent without charge. The sum of $300, proceeds from the sale of advertising in a booklet edited by the picnic committee, was do- nated to the Good Will Association fund, and dues of 50 cents a month were deducted from the pay checks of all employees who joined. Superintendent Vander Laan and some of the foremen joined and gave their "moral and financial support" to it. 2. Formation and administration of the Employees Union Shortly before May 10 , 1937, after a large majority of the employees had already joined the U. A. W. A., Foreman Hendricks went to James Van Dam, a miter sawer, and asked him what he thought of a "factory union." Van Dam told him of one in existence at the American Seating Company in Grand Rapids which he, Van Dam, believed "was a pretty good thing," and referred Hendricks to Cleon Martz, one of the respondent's employees who had formerly worked at the American Seating Company, for further information about that union. Van Dam testified that Hendricks "did not say that he had a regular plan that they were going to follow but he would like to get hold of some- thing that would start it." Thereafter Hendricks inquired of Martz about the "set up" of the factory union at the American Seating Company and told Martz that he "thought it would be a good thing at Berkey and Gay." On or about June 7 a meeting was held in the respondent's audi- torium at which the employees were addressed by Dembinsky , Spencer, and others on the subject of the respondent's financial condition and its inability to grant raises in pay at that time . On June 16 Reuben Harvey. a millwright, wrote Dembinsky that after hearing the latter's talk on June 7 he fully understood the situation and suggested for the 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consideration of the respondent a conversion of the Good Will Associ- ation into a union of the employees. Shortly thereafter Vander Laan verbally informed Harvey that Dembinsky could do nothing about the suggestion. Later Harvey and Gerritt Kremers, a glue maker, started the cir- culation of a petition for the signature of employees interested in forming "a union and mutual benefit organization to be known as Berkey and Gay Employees Union of Good Will." After 257 signa- tures had been obtained, Harvey and Kremers employed an attorney to incorporate a union and assist in drawing its bylaws. Harvey, Kremers, and four other employees constituted themselves the officers and trustees of the new union, which was incorporated on September 17 under the name of The Employees Union of Berkey & Gay Furni- ture Company. Immediately after articles of incorporation were filed, membership cards were printed and circulated throughout the respondent's plants. On September 21 the first membership meeting was held and they members voted, 115 to 1, to take over the assets and liabilities of the Good Will Association and make collections and pay benefits for sickness and death according to its rules and regulations, and further voted that the privilege to make payments and receive benefits under the Good Will Association's rules and regulations be restricted to employees of the respondent, but not limited to union members. The temporary officers were instructed to negotiate with the respondent for recognition of the Employees Union as the sole collective bargaining agency of the employees and to report the results of the negotiations to the next meeting, which was scheduled for October 5. On September 24 Reuben Harvey and Howard Woodcock, as trus- tees of the Employees Union, signed an affidavit that not less than 279 of a total of 548 employees were paid-up members of the Employees Union. This affidavit was presented to the respondent, which, on October 7, posted on its bulletin board a notice reading in part as follows : "Following many conferences between the Employees Union ... and the officers of the Berkey and Gay Furniture Company, the following agreement was made and signed this day." The agree- ment provided for recognition of the Employees Union as sole collective bargaining agency for all the employees, an increase of the minimum wage from 30 to 32 cents an hour, and other benefits. From the testimony of numerous witnesses, it is apparent that most of the employees believed that membership in the Employees Union was necessary in order to join or receive benefits from the Good Will Association and that it was such belief that induced many of them to join the Employees Union. Although it was possible for an employee to be a member of the Good Will Association without also being a BERKEY AND GAY FURNITURE COMPANY ET AL. 293 member of the Employees Union, not a single employee joined the Good Will Association who did not also join the Employees Union. One employee, Neil Bremer, joined the Employees Union because he was told by Harvey, and believed, that it would be similar to the union at the American Seating Company, which he thought was all right. Many other employees, however, joined because they believed it necessary in order to retain their jobs. Vander Laan testified that even one of the foremen asked him whether the employees had to join the Employees Union. We shall consider the circumstances which occasioned this belief. During the organizational period of the U. A. W. A. in the spring of 1937 the respondent had not only forbidden the solicitation of members and the transaction of other union business on its property during working hours, but for a while had forbidden the carrying on of such activities during the lunch hour. The right to solicit members during the lunch hour was finally conceded by the respondent at one of the meetings with the U. A. W. A. which had for its purpose the reinstatement of Ary. In sharp contrast to the treatment accorded U. A. W. A. members, employees circulating petitions and soliciting memberships for the Employees Union were permitted to carry on such activities during all hours of the clay without objection by, and in some instances with the express consent and assistance of, the foremen. It is true that Harvey, Kremers, and Vander Laan testified that upon one occasion Vander Laan reprimanded Harvey and Kremers for circulating a peti- tion during working hours. They thereafter continued similar activ- ities, however, and were not further rebuked. Charles Walkons, one of the incorporators of the Employees Union, who was employed to drive a tractor and operate an elevator, testified that while away from his work and soliciting members in the up- holstering room, he saw Arnold Wendt, the foreman, approach and started to leave; that the employees to whom he was talking told him not to leave because Wendt was in favor of the Employees Union; that they all, thereupon, discussed it; that Wendt "thought it was a good thing. He thought at least it was better than the C. I. 0." Walkons testified that he also talked to Stanley Chase, an engineer under whose supervision he worked, about the Employees Union and his success at obtaining members therein; that Chase knew of his visits to various departments of Plant Number 2 during working hours in soliciting members and did not object. Neither Wendt nor Chase testified and we accept Walkons' testimony as true. In September 1937 Bert Hankamp, milling machine room foreman at Plant Number 3, received orders from Frank K. Berquist, superin- tendent in charge of that plant, to permit two employees, Clarence 164275-39-vol xi-20 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wellman and Vincent Richards, to solicit members for the Employees Union during working hours. Wellman and Richards signed up all but 2 of the 45 employees in Hankamp's department. Dennis Noggles, who, prior to the closing of Plant Number 3 about October 1937, had been employed in that plant, was asked by Harvey during working hours to join the Employees Union. Noggles asked the advice of Johnson, his foreman, about joining. Johnson told him that Harvey had been sent over from Plant Number 2 by the re- spondent to organize "the company's union," and advised Noggles to join, as the employees were "all going to reorganize in the company's union." Noggles then went to Superintendent Berquist and asked him by what authority, inasmuch as all the employees in the plant were members of the U. A. W. A., he had sent a man to organize "a company union" there. Berquist replied, "Well, the company is under the im- pression, I guess, that the C. I. O. was going to call a strike ... If they don't do something pretty soon, if they would call a strike they would have to close the plant, which they did not want to do." Berquist assured Noggles that if the latter would join the Employees Union, he, Berquist, would see that Noggles was transferred to Plant Number 2 when Plant Number 3 closed. Noggles therefore joined and, on September 27, was transferred to Plant Number 2. Noggles testified that immediately upon his arrival at Plant Num- ber 2, he was approached by John Nuyen, his new foreman, and three stewards of the Employees Union and asked by them whether he had joined; and that the stewards warned him that he had "better take care" of himself because they had just caused the discharge of "a strong C. I. O. man" who turned in too much work. Nuyen first testified that he did not remember asking Noggles whether he had joined the Employees Union and later positively denied having asked that question. Concerning the remainder of the conversation related by Noggles, Nuyen testified : "There is something in that. Noggles had an argument with the steward, with one of the men when I came there. I told him it had nothing to do with me, and I walked away from them." Mike Rudik, a cabinet maker under Nuyen, testified that he was laid off on October 18 and that when he applied for reinstatement, he was told by Nuyen that he would be reinstated but would have to "join the boys' union"; that he promised to join and was reinstated on the following day, December 17, at which time Nuyen instructed him to see James Harding, a steward, for a membership card. Nuyen denied that he told any man that he was expected to join the Eni- ployees Union, and testified that he referred Rudik to a steward for a membership card only after Rudik had requested one of him. However, from the testimony of Noggles, Rudik, and Nuyen, we are convinced that Nuyen, if he did not expressly make membership BERKEY AND GAY FURNITURE COMPANY ET AL. 295 in the Employees Union a requirement for his employees, knew of and encouraged the belief of Noggles and Rudik that the Employees Union representatives were running his department and that member- ship in the Employees Union was a requirement for all employees of the department. The record is replete with evidence of solicitations for membership in the Employees Union by "head" men or "straw-bosses" and state- ments made by them which might tend to coerce employees into join- ing. These "straw-bosses," however, were admitted to membership in both the U. A. W. A. and the Employees Union, and the respond- ent contends that they do not have such supervisory powers as would make them representatives of the management. The conclusion which we have reached from the other facts set forth herein makes it unnecessary for us to determine whether or not the respondent's contention is correct. We find that the respondent by suggesting to its employees before the formation of the Employees Union that a "factory union" would be a "good thing," by thereafter permitting the solicitation of mem- bers for the Employees Union on its property during working hours. after having denied that privilege to members of the U. A. W. A., by expressing preference for the Employees Union over the U. A. W. A., and by making membership in the Employees Union a con- dition of transfer or reinstatement of one or more of its employees, has dominated and interfered with the formation and administration of the Employees Union and contributed support to it, and that it has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed 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 respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. TIIE REMEDY We have found that the respondent , by discharging Clarence Ary on April 9, 1937, discriminated against him because of his mem- bership in and activities in behalf of the U. A. W. A. The respondent contends, nevertheless , that it was justified in not reinstating him to his regular position because the brawl between him and Hendricks, after Ary's discharge, left each with a feeling of personal animosity toward the other. It is clear that Ary's cursing of Hendricks was 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provoked by the latter's rough treatment of Ary, in grabbing the tele- phone from his hand and ushering him from the office, followed by his physically taking hold of Ary, turning him around, and telling him to "get the hell out of there" as Ary paused at Van Dam's machine. Ary did not strike back but left the plant with a bleeding mouth. Ary, himself, has not objected to being reinstated under Hendricks. The respondent will not be permitted, under the cir- cumstances, to set up the consequences of its own wrongful conduct as an excuse for failing to remedy the unfair labor practice engaged in by it.3 In order to effectuate the policies of the Act, the respondent must offer to reinstate Ary to his former position or to a substan- tially equivalent position at one of its plants in Grand Rapids. It must also make him whole for any loss of pay he has suffered by reason of his discharge by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings : during said period. Since we have found that the respondent has dominated and inter- fered with the formation and administration of the Employees Union and contributed support to it, that organization cannot serve the employees as a true collective bargaining agency. We shall, there- fore, order that the respondent not only cease and desist from domi- nating and interfering with the administration of and contributing support to such labor organization, but also that it withdraw recogni- tion from and completely disestablish the Employees Union as an agency for collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. It follows that the respondent must cease giving effect to its contract of October 7, 1937, with the Employees Union, any renewals or extensions of that contract, and any new contract concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other condi- tions of employment, which it may have made with the Employees Union. $ See Matter of Empire Furniture Corporation and Textile Workers Organizing Com- mittee, 10 N. L R B 1026. 4 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 performed upon Federal , State, county, municipal , or other work-relief projects ale not considered as earnings, but, as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or govern- ments which supplied the funds for said work-relief pioiects BERKEY AND GAY FURNITURE COMPANY ET AL. 297 It is not our intention hereby to affect in any way the functioning of the Employees Union in administering its health and accident fund. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAw 1. International Union, United Automobile Workers of America, Local 418, and The Employees Union of Berkey & Gay Furniture Company are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and ad- ministration of The Employees Union of Berkey & Gay Furniture Company and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Clarence Ary, thereby discouraging membership in Inter- national Union, United Automobile Workers of America, Local 418, 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 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 respondent, Berkey and Gay Furniture Company, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of The Employees Union of Berkey & Gay Furniture Company, or with the formation or administration of any other labor organization of its employees, and from contributing support to The Employees Union of Berkey & Gay Furniture Company or any other labor organization of its employees; 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Recognizing The Employees Union of Berkey & Gay Furni- ture Company as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment; (c) Giving effect to its contract of October 7, 1937, with The Employees Union of Berkey & Gay Furniture Company, any re- newal or extension thereof, or any new contract concerning griev- ances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, which it may have made with The Employees Union of Berkey & Gay Furniture Company subse- quent to October 7, 1937; (d) Discouraging membership in International Union, United Automobile Workers of America, Local 418, or any other labor organi- zation of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment because of membership or activity in International Union, United Automobile Workers of America, Local 418, or any other labor organization of its employees; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or 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) Withdraw all recognition from The Employees Union of Berkey & Gay Furniture Company as a representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, and- completely disestablish The Employees Union of Berkey & Gay Furniture Company as such representative; (b) Offer to Clarence Ary immediate and full reinstatement to his former position or to a regular and substantially equivalent position at one of its plants in Grand Rapids, Michigan, without prejudice to his seniority and other rights and privileges; (c) Make Clarence Ary whole for any loss of " pay he may have suffered by reason of the respondent's discrimination in regard to his hire and tenure of employment by payment to him of a sum of money equal to that which he normally would have earned as wages BERKEY AND GAY FURNITURE COMPANY ET AL. 299 during the period from the date of such discrimination to the date of the offer of reinstatement, less his net earnings during said period; deducting, however, from the amount otherwise due him, monies received by him during said period for work performed upon Fed- eral, 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 gov- ernments which supplied the funds for said work-relief projects; (d) Post immediately in conspicuous places within its plants at Grand Rapids, Michigan, and maintain for a period of at least sixty (60) consecutive days, notices to its employees stating (1) that the respondent will cease and desist as aforesaid; and (2) that the respondent has withdrawn all recognition from The Employees Union of Berkey & Gay Furniture Company as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment and has completely disestablished it as such representative; (e) Notify the Regional Director for the Seventh Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.