Nekoosa-Edwards Paper Co.

In the Matter of NEKOOSA-EDWARDS PAPER COMPANY and INTERNA- TIONAL BROTHERHOOD OF PAPER MAKERS, LOCAL No. 59 In the Matter of NEKOOSA-EDWARDS PAPER COMPANY and INTERNA- TIONAL ASSOCIATION OF MACHINISTS, LOCAL No. 1543 In the Matter of NEKOOSA-EDWARDS PAPER COMPANY and INTERNA- TIONAL BROTHERHOOD OF PULP , SULPHITE, AND PAPER MILL WORKERS, LOCAL No. 52 In the Matter of NEKOOSA-EDWARDS PAPER COMPANY and INTERNA- TIONAL BROTHERHOOD OF PAPER MAKERS , LOCAL No. 59 Cases Nos. C-595, C-596, C-598, and 0-597, respectively.-Decided February 20, 1939 Paper Manufacturing Industry-Interference, Restraint , and Coercion : state- inents of foremen against union-Discrimination : after sickness refusing to reinstate secretary of union to his former position in mill where union was not well organized and offering him position in mill thoroughly organized by union-Reinstatement Ordered-Back Pay : awarded-Company-Dominated Union: successor to employees' representation plan organized with aid of fore- men by persons active in that plan ; disestablished, as agency for collective bargaining-Unit Appropriate for Collective Bargaining : production and main- tenance employees , excluding clerical and supervisory employees but including laboratory and power employees at Nekoosa and Port Edwards plants; in- tegrated management control over labor relations at both plants ; wages the same at both plants ; one unit desired by only bona fide labor organization in the plants-Representatives : proof of choice : check by Regional Director of application cards against pay roll showed union majority ; designation of one of A. F. of L. unions accepted as delegation of the three to bargain jointly- Collective Bargaining : respondent refused to recognize unions as exclusive rep- resentative of employees at both plants because of claim of company-domi- nated union to employees at one plant ; held that respondent , could not utilize claims of company-dominated union to defeat collective bargaining by legiti- mate union ; respondent ordered to bargain collectively jointly with unions. Mr. Morris L. Forer, for the Board. Goggins, Brazeau d Graves, by Mr. R. B. Graves, of Wisconsin Rapids, Wis., for the respondent. Mr. James C. Dutton, of Nekoosa, Wis., for the Independent. Padway, Goldberg & Tarrell, by Mr. Joseph Padway, of Wash- ington, D. C., and Mr. I. E. Goldberg, of Milwaukee, Wis., for the Paper Makers, the I. A. M., and the Paper Mill Workers. Mr. Paul S. Kuelthau, of counsel to the Board. 11 N. L. R. B, No. 42. 446 NEKOOSA-EDWARDS PAPER COMPANY ET AL. DECISION AND ORDER 447 STATEMENT OF THE CASE Upon charges duly filed by International Brotherhood of Paper Makers, Local No. 59, herein called the Paper Makers, by Interna- tional Association of Machinists, Local No. 1593, herein called the I. A. M., and by International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, Local No. 52, herein called the Paper Mill Workers, all of which are collectively referred to herein as the A. F. of L., the National Labor Relations Board, herein called the Board, by the Regional Director for the Twelfth Region (Milwaukee, Wis- consin), issued its complaint dated February 1, 1938, against Nekoosa- Edwards Paper, Co.,' Port Edwards and Nekoosa, Wisconsin, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (5), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint and the notice of hearing thereon were duly served on the respondent, the Paper Makers, the I. A. M., the Paper Mill Workers, and the Nekoosa-Port Edwards Labor Union, herein called the Independent. With respect to the unfair labor practices, the complaint, as amended, alleged, in substance, that on September 10, 1937, the respondent refused to reinstate and at all times since has refused to reinstate Romeo Plenge to his former position in the Nekoosa mill because of his membership and activities in the Paper Makers, thereby discriminating in regard to his hire and tenure of employment to discourage membership in the Paper Makers; that the respondent dominated and interfered with the formation and administration of the Independent and contributed support to it; that the respondent refused and is now refusing to bargain collectively with the A. F. of L., which is the duly designated representative of a majority of its employees ; and that the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. On February 4, 1938, the respondent filed its answer, denying that it had engaged in or was engaging in unfair labor practices as alleged in the complaint. 'Incorrectly called Nekoosa-Edwards Paper Company in the complaint and other formal papers. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing was held at Wisconsin Rapids, Wis- consin, on February 10, 11, 12, 14, 15, 16, and 17, 1938, before Henry J. Kent, the Trial Examiner duly designated by the Board. At the opening of the hearing, the Trial Examiner allowed the motion of the Independent to intervene, which had been filed the same day with the Regional Director and served on the parties, limiting the inter- vention, however, to the allegations relating to Section 8 (2) of the Act. The Board, the respondent, the Independent, and the A. F. of L. 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, Respondent Exhibit Nos. 67, 68, 69, 70, 71, and 72, were marked for identification but were excluded from evidence by the Trial Examiner on the objection of counsel for the A. F. of L. These exhibits are the reports of Dr. George Pomain- ville, who attended Romeo Plenge during his illness, and they were considered by the respondent in deciding on Plenge's reinstatement. Although Dr. George Pomainville did not testify at the hearing and therefore could not be cross-examined on those reports, they were considered by the respondent and are, therefore, material and should have been admitted into evidence at the request of the respondent. The Trial Examiner's ruling is therefore reversed and the reports are hereby admitted in evidence as Respondent Exhibit Nos. 67, 68, 69, 70, 71, and 72. At the close of the hearing, counsel for the Board moved to conform the pleadings to the proof, which motion was granted by the Trial Examiner without objection. During the course of the hearing, the Trial Examiner ruled on other motions and on other objections to the admission of evidence. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. They are hereby affirmed. On May 13, 1938, the Trial Examiner filed an Intermediate Report, copies of which were duly served on all parties, finding that the re- spondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), (3), and (5) of the Act, and recommending that the respondent cease and desist therefrom and take certain affirmative action to effectuate the policies. of the Act. On May 16, 1938, the respondent filed exceptions to the Intermediate Report and requested oral argument before the Board. On May 18, 1938, the Independent filed exceptions to the Intermediate Report. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on October 27, 1938. The respondent and the A. F. of L. were represented and participated in the argument, and the respondent filed a brief. NEKOOSA-EDWARDS PAPER COMPANY ET AL. 449 The Board has considered the exceptions to the Intermediate Re- port and, in so far as they are inconsistent with the findings, conclu- sions and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, Nekoosa-Edwards Paper Co., is a Wisconsin corporation, having its principal executive office at Port Edwards, Wisconsin, and branch offices in Chicago, Illinois, Minneapolis, Min- nesota, and New York City. It owns and operates two paper mills located in Porn Edwards and in Nekoosa, Wisconsin, and manufac- tures wrapping paper, tissue paper, and plain and watermarked writ- ing paper. During 1937, the respondent used raw materials consisting of wood pulp, wood, coal, lime, sulphur, and miscellaneous chemicals worth $2,890,000, approximately 70 per cent of which were received from outside of Wisconsin, and sold products valued at $6,500,000, 90 to 95 per cent of which were sold outside of Wisconsin. On February 10, 1938, the respondent employed 487 persons at the Port Edwards mill, and 462 at the Nekoosa mill. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Paper Makers, Local No. 59, Inter- national Association of Machinists, Local No. 1543, and International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, Local No. 52, are locals of national organizations affiliated with the American Federation of Labor which cooperate with each other in the organiza- tion of employees of paper mills throughout the paper industry. To- gether the three locals admit to membership all production and maintenance employees of the respondent. Nekoosa-Port Edwards Labor Union is an unaffiliated labor organ- ization whose membership is confined to employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Domination of and interference with the Independent 1. The Mill Council Although the activities of the respondent before July 5, 1935, do not constitute unfair labor practices, a knowledge of the events prior to July 5, 1935, is essential to an understanding of those occurring 450 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD thereafter.2 The A. F. of L. began to organize the respondent's plants in the summer of 1933, and arranged a meeting of the re- spondent's employees for that purpose at a hall in Wisconsin Rapids, Wisconsin, on August 6, 1933. Notice of this meeting appeared in the newspapers and all interested employees were invited to attend. The respondent met this attempt to organize by calling meetings of its employees on or about August 4 and 5, 1933, in the high schools at Nekoosa and Port Edwards. At these meetings officials of the re- spondent stated that the respondent would not recognize a nationally ,affiliated union and suggested the formation of a mill council on which both the respondent and the employees would be equally repre- sented. Carl Stellmacher, a Nekoosa employee, spoke at the Nekoosa meeting against the adoption of such a plan at that time, asking for more discussion among the employees themselves without officials of the respondent present; his suggestions were not followed and the employees voted to form a mill council as suggested by the respond- ent. Thereafter, the respondent prepared a Mill Council Plan for the employees, which was formally adopted by the representatives of both the respondent and the employees on August 17, 1933. The Mill Council Plan provided for a council of 16 members, 8 appointed by the respondent to represent it and 4 elected by the em- ployees in each of the respondent's mills. The plan provided for unit voting, each group, the management and the employees, having one vote, which was cast as a unanimous ballot in the way the majority of the representatives of that group determined. In addition to the eight representatives appointed by the respondent, the chairman, Franz H. Rosebush, the respondent's personnel manager, was ap- pointed by the respondent and presided at council meetings. The council had power only to recommend that the respondent take cer- tain action and was primarily a discussion group. On August 6, 1933, the A. F. of L. held its meeting in Wisconsin Rapids. Franz H. Rosebush, the respondent's personnel manager, stood across the street from the hall in which the meeting was held until time for it to start and then attempted to attend. He was de- nied admission by Raymond Richards, of the Paper Mill Workers. At the hearing Rosebush denied that he was seeking to determine who attended the meeting and stated that he was seeking to attend as one of the respondent's employees. His reason is not persuasive since as personnel manager he would obviously not be eligible to join the A. F. of L. or to participate as an employee in the meeting. Upon the successful organization of the Mill Council, the A. F. of L. abandoned its organizational activities for a period of a year. The Mill Council continued to function as originally established until 2 National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., and Grey- hound Management Company, 303 U. S. 261. NEKOOSA-EDWARDS PAPER COMPANY ET AL. 451 August 1934, when the A. F. of L. renewed its drive in the respond- ent's plants. On August 5, 1934, Archie Hayes, then assistant super- intendent of the Nekoosa mill, attended a Paper Makers' meeting in Nekoosa with a large group of supervisors and foremen. They com- pletely disrupted the meeting and Hayes made a speech attacking nationally affiliated unions, dubbing the organizers "reds" and "com- munists," and suggesting that they be run out of town. On August 16, 1934, a conference was held under the auspices of the Chicago Regional Labor Board, created under the National In- dustrial Recovery Act, attended by representatives of the respondent and the A. F. of L. At this conference the respondent signed an agreement with the Chicago Regional Labor Board, recognizing cer- tain named persons as representatives of the members of the A. F. of L. in the respondent's plants. At that time also the respondent ceased to participate in the meetings of the Mill Council. In Feb- ruary 1935, a similar agreement for a period of a year covering the A. F. of L. members in the respondent's plants was signed with the Milwaukee Regional Labor Board also created under the National Industrial Recovery Act. Thereafter, the A. F. of L. became inactive and in May 1935, the re- spondent resumed its monthly meetings with the Mill Council, and the employer representatives resumed their seats on that body. In March 1936 amendments to the Mill Council Plan were adopted by which the employee representatives on the Mill Council became "the bargaining agency of all the employees." They remained the sole bargaining agency for the respondent's employees until the respond- ent notified the employees of the dissolution of the Mill Council in April 1937. The record does not disclose the procedure adopted by the respondent in dissolving the Mill Council. In addition to establishing the Mill Council, the respondent dom- inated its actions thereafter. The Mill Council was a discussion group which made recommendations to the respondent. No recommendation could be made without the concurrence of the respondent's repre- sentatives. The chairman of the Mill Council, who was also the respondent's personnel manager, appointed the Mill Council's com- mittees. The clerical work necessary to the operation of the Mill Council was done by the respondent without charge to the Mill Council. Employees were compensated by the respondent for any time lost by reason of Mill Council meetings. The Mill Council charged no dues and every employee belonged by virtue of being employed by the respondent. The control which the respondent Exercised. over the Mill Council is exemplified by its dissolution at the respondent's order in April 1937, despite a provision in the Mill Council Plan that it could be dissolved only after 3 months' notice given by a majority vote of the employees. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Independent Immediately after the dissolution of the Mill Council in April 1937, Ernest Ross and Matt Randecker, two employees at the Nekoosa mill, consulted James C. Dutton, a Nekoosa attorney, in regard to the organization of an independent union. Both Ross and Randecker had been employee representatives on the Mill Council, the former until the Mill Council disbanded, and the latter until sometime in 1937, and were therefore well acquainted with the respondent's at- titude toward nationally affiliated labor organizations. • They had been members of a group of employees taken to Madison, Wisconsin, in the early part of February 1937 by Franz Rosebush, the re- spondent's personnel manager and chairman of the Mill Council, to discuss with their State senator and assemblyman the proposed Wisconsin Labor Relations Act. Their expenses were paid by Rose- bush and the respondent paid them for their time away from the mill. In the latter part of April 1937, Attorney Dutton drew up "articles of organization" for the contemplated union, and copies of these were circulated by Ross, Randecker, and others in the Nekoosa plant during working hours for signature by the employees. Neither Dutton nor the employees active in the organization at the Nekoosa mill were able to interest the Port Edwards employees in the new union. After obtaining a large number of signatures at Nekoosa, a meeting was held in the high school there on or about May 9, 1937, at which officers were elected. The Independent functioned under the articles of organization until November 1937, when a constitution and bylaws were adopted. The articles of organization perpetuated the previous Mill Council without the employer representatives by establishing a "representative committee" consisting of four representatives from each mill elected by the employees of that mill. According to the articles, the com- mittee was to be "the sole bargaining agent" of the members just as the Mill Council had been. Article III, Section 1, of the articles of organization, which deals with eligibility for membership in the Independent, is almost a verbatim copy of Article 3, Section 2, of the Mill Council Plan, which is concerned with eligibility for election to the Mill Council. The constitution and bylaws, which were adopted in November 1937, apparently retain the representative com- mittee created by the articles of organization under the name of "the executive committee" which is charged with the duty of present- ing grievances to the respondent and with collective ,bargaining on- other matters. The constitution and bylaws make oilier' changes in the articles of organization. Since some provisions of the articles NEKOOSA-EDWARDS PAPER COMPANY ET AL. 453 are apparently continued in force without mention in the constitution and bylaws while others are tacitly abandoned, the complete frame- work of the Independent is not apparent from the record. On May 26 a committee from the Independent, claiming to repre- sent only the Independent's members at the Nekoosa plant, presented demands to the respondent for a 5-cent per hour increase in pay throughout the plant, vacations with pay, and recognition of seniority rights. The respondent informed the committee that it was consider- ing a general raise to all employees and rejected the other demands. On June 23 the Independent wrote the respondent inquiring about the raise and asking for a decision on it by June 28. On June 24 the respondent replied that its decision would be announced in the plant on June 28. On that day a general 2-cent per hour raise was announced. The Independent was aided in its campaign for membership by the assistant superintendent, various foremen and working fore- men, who expressed their hostility toward the A. F. of L. to employees in the plant and in some instances openly urged membership in the Independent. On or about June 24, 1937, Rollo and Richard Plenge went to see Art Sarver, assistant superintendent of the Nekoosa mill, to protest against Rollo's transfer to the night shift. After saying that Rollo belonged to the "wrong bunch," Sarver explained that the machine tender on the other shift had not liked Rollo's work. He went on to say that the respondent did not want an outside union in the mill and to predict the early demise of the A. F. of L. Sarver denied making the above statements, which were attributed to him by Rollo and Richard Plenge, but his denial is not persuasive in the face of the mutually corroborating testimony of Rollo and Richard Plenge and the consonance of the statements attributed to him with the attitude reflected in similar statements by other supervisory officials. Moreover, the Trial Examiner did not find Sarver's tes- timony on other points credible and we are not disposed to credit it here. In May 1937, E. R. Smith, a working foreman in charge of 15 or 16 men, told E. Henry Fitz, an employee at Nekoosa, of the organiza- tion meeting of the Independent in the high school and stated that "they" wanted everyone there. Joseph J. Grode, master mechanic at the Port Edwards mill in charge of machinists, pipe fitters, and millwrights, was also interested in attendance at the Independent's meetings. In September 1937 he asked Simonds, the boss machine tender, ". . . to appoint a loyal man on the Independent 'side to round. up the men for a meeting that night ..." 164275-39-vo1 xr--30 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carl Osberg, president of the Paper Mill Workers and an employee at Port Edwards, testified that the day after his election as president of the local in the summer of 1937, his foreman, Frank Coldwell, re- marked about him to a group of employees, "There goes John L. Lewis, he'll soon be riding around in a Packard, no doubt, when he's in the union racket." Coldwell admitted making the above statement, but sought to explain it by saying he was joking. Another foreman who sought to interpret his anti-A. F. of L. re- marks as jokes was Harry Blount, foreman of the Nekoosa shipping room, who, when asked by John Dukey to cut a stencil, replied, "Well, I'm awful busy this morning. You A. F. of L. guys will have to cut your own stencils." Dukey then discussed the matter with Blount and the latter agreed to cut the stencils. Blount, referring to union organizers, also told Dukey, "Them fellows, they come in here, get their pockets full of money and go out and you fellows have nothing to show for it." Blount did not deny making that statement but testified that he did not remember it. Blount, in seeking to explain his remarks as jokes, also admitted that he had "joked" with Romeo Plenge about the latter's buying a union-made car, and about Raymond Richards, international vice president of the Paper Mill Workers, driving a Lincoln or a Packard. These remarks, while perhaps intended to be facetious, were subject to serious interpreta- tion and conveyed to the employees the supervisor's opinion of the A. F. of L. and the advisability of joining it. In the spring of 1937, Cyril Thibert, a Nekoosa employee and a member of the Paper Mill Workers, was discussing the possibility of a raise with his foreman, J. J. Mlsna. Mlsna called Gleason, the chief engineer, and told him that Thibert was a good man but that he (Mlsna) did not like the people with whom Thibert associated. Thibert asked if that meant the A. F. of L., and Gleason replied that it did. He went on to say, "You get this straight, I have got it that the Company's attitude is that any man can belong to any church he wants, any lodge he wants, or any union, but" [italic ours]. The conversation ended on that note. J. J. Mlsna was intent on keeping the employees from joining the A. F. of L. In addition to the conversation recited above, earlier in the spring of 1937 Mlsna told Thibert, referring to the organiza- tion of the respondent's mills by the A. F. of L., that he had too much involved to "let this thing go without a fight." Furthermore, Mlsna asked Romeo Plenge soon after the dissolution of the Mill Council, "Why in heck don't some of you old Mill Council men get your heads together and get a union of your own, let's keep the communists out cf here." The respondent contends that statements such as are recited above by minor supervisory employees are merely expressions of opinion NEKOOSA-EDWARDS PAPER COMPANY ET AL. 455 on their part which cannot be attributed to the respondent. We can- not agree with that contention. The foremen and working fore- men, although they have no power to hire or discharge, report on the work of the employees under them and give them orders. They can also recommend discharge. As we said in the Tennessee Copper Company case,3 "The foremen are in constant association with em- ployees, who take orders from them and commonly learn from them the Company's policy on other matters. The activity of such super- visory employees must bind the employer unless effectively dis- avowed . . . The form of the utterance is not controlling; the locus of economic power in the proximate relation of employer and em- ployee gives coercive effect to words which in another context might be mere statements of opinion." Nor does the fact that some of the supervisory employees belong to the Independent or are eligible to join the A. F. of L. relieve the respondent of responsibility for their interference with the employees' free choice of representatives. "Membership of supervisory employees in a labor organization in- volved in a controversy over representation cannot confer on such employees a privilege to interfere, nor can the immunity guaranteed employees by the Act be impaired or diminished by the membership rules of any labor organization. The employees' right to a choice free from employer interference is absolute." 4 Furthermore, the respondent's interference with its employees in the exercise of their rights under the Act was not confined to that indulged in by minor supervisory employees. Sarver, the assistant superintendent at Nekoosa, as we have pointed out above, added the weight of his influence to that of the other supervisory employees to secure employee adherence to the Independent by discouraging membership in the A. F. of L. To summarize, the Mill Council was created in 1933 and, except for the interval from August 1934 to May 1935, was dominated and openly supported by the respondent until its dissolution more than a year and one-half after the effective date of the Act. It existed during that period as the representative of the employees and all employees automatically belonged to it irrespective of their own de- sires. Upon the validation of the Act by the Supreme Court of the United States in April 1937, the respondent dissolved the Mill Council under circumstances not disclosed by the record. Immediately there- after the Independent was established by two former members of the Mill Council. It assumed, in part, the structure of the Mill Council, 3 Matter of Tennessee Copper Company and A . F. of L. Federal Union No. 21,164, 9 N. L. R B 117. See also Virginian By. Co. it. System Federation No. 40 et at, 84 Fed. ( 2nd) 641, aff'd 300 U. S. 515. 4 Matter of Tennessee Copper Company and A. F. of L. Federal Union No. 21,164, supra. See also Matter of Ward Baking Company and Committee for Industrial Organization; Matter of Ward Baking Company and Baking and Confectionery Workers International Union of America, 8 N. L R. B. 558. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conducted an active campaign in the plant during working hours to secure signatures to its articles of organization, and received the same support which the Mill Council had obtained from a number of the respondent's supervisory staff, who by coercive statements urged membership in the Independent and discouraged membership in the A. F. of L. Under these circumstances, it is unnecessary to decide whether or not the respondent's years of interference with and domination of its employees' bargaining representative created an affirmative duty on the respondent to free its employees from the restraints in the exercise of their rights under the Act necessarily imposed by the respondent's conduct over a period of years. It suffices to say that, with the advent of the Independent, which bore a marked similarity to the defunct Mill Council and functioned as its successor, the respondent did not satisfy its negative duty under the Act to refrain from inter- ference, but on the contrary, through its supervisors subjected its em- ployees to the same coercive pressures as in the past, which had the necessary effect of interfering with and dominating the formation and administration of the Independent and contributing support to it a We find that the respondent has dominated and interfered with the formation and administration by the Independent and contributed support to it. We further find that by such domination and inter- ference, and by the other acts set forth above, the respondent has, interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act.° 5 Matter of Swift & Company and United Automobile Workers of America, Local No. 265; Matter of Swift & Company and United Packing House Workers L . I Union No. 32& affiliate C. I. 0., 7 N. L R. B. 287; Matter of Beloit Iron Works and Pattern Makers League of North America ; Matter of Beloit Iron Works and International Association of Machinists, 7 N. L. R. B. 216; Matter of The Hoover Company and United Electrical and' Radio Workers of America, Local No 709, 6 N. L. R. B. 688. 6It is noteworthy that by an order dated August 6 , 1937, issued after a hearing held on the Independent's petition , the Wisconsin Labor Relations Board refused to list the Independent as a labor organization under Section 111.06 (2) of the Wisconsin Statutes. That section provides that an organization shall be listed as a labor organization by the Wisconsin Labor Relations Board if it fulfills certain formal requirements and "persuade the board that it is not a company union" as defined in Section 111.02 ( 6) of the Wisconsin Statutes as follows : "The term 'company union' means any committee , agency, organization , employe representation plan or association of employes which exists for the purpose, in whole or in part, of dealing with employers concerning grievances or terms. or conditions of employment, if (a) the employer has formulated or participated in formulating its governing rules or policies , or has initiated or created it, or suggested or participated in its initiation or creation , unless at the time of its formation or after- wards it has been chartered by or become duly affiliated with any labor body, federation, or group with which labor organizations are affiliated or from which they receive charters, or (b) the employer participates in or supervises the conduct of its management, operations or elections , or (c) the employer maintains . finances, controls , dominates, in- fluences it or assists in maintaining or financing it, whether by compensating anyone for services performed in its behalf or by donating services , equipment, materials , office or meeting space, provided that permitting employes to confer with an employer during working hours without loss of time or pay shall not be deemed to constitute financial or other support." NEKOOSA-EDWARDS PAPER COMPANY ET AL. 457 B. The refusal to bargain collectively 1. The appropriate unit The two mills operated by the respondent are in different munici- palities approximately 4 miles apart. Both mills manufacture paper, each producing different grades. The A. F. of L. contends that the production and maintenance employees at the two mills consti- tute one unit; the Independent contends that the production and maintenance employees at the Nekoosa mill alone constitute an ap- propriate unit; while the respondent takes no position in the matter. The labor policies and rates of pay for both mills are determined by the same persons; one mill manager and one personnel manager are in charge of both mills. The Independent as well as the A. F. of L. sought to organize both of the respondent's plants in the same locals; neither separated the Nekoosa from the Port Edwards em- ployees when perfecting its organization. Although the Independent was not successful in obtaining a substantial membership in the Port Edwards mill, it accepted members at that mill and its officers main- tained at the hearing that it was still seeking members there. More- over, what history of collective bargaining there is in the respond- ent's plants points toward a single unit for both plants. The Mill Council was organized on that basis and when the Independent re- quested increases in pay in May 1937, the respondent pointed out that any increase granted would necessarily have to apply to the employees of both mills. The Independent contends that the considerations advanced above are outweighed by the geographical separation of the mills, the dif- ferences in their operations, and the rivalry which has grown up be- tween them in such things as safety contests and ball games. We do not find those considerations persuasive. The geographical separation of the mills is not so great as to im- pede communication between the employees working at each. Many persons work in Port Edwards and live in Nekoosa and vice versa. Nor are there great differences in their operations. Although Port Edwards is a sulphite-process mill and Nekoosa an alkaline-process mill and it is therefore impractical to transfer skilled men in most instances, the work in both mills is substantially the same and un- skilled men are transferred from one to the other. In view of the integrated management control of labor relations at both plants, the respondent's policy of treating both mills as one unit in establishing wages, the history of labor organization and col- lective bargaining on a single-unit basis, and the fact that the only bona fide labor organizations involved desire the single unit, we find that the employees of both mills should be included in one unit. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aside from the question of whether both mills shall be included in one unit, the propriety of including certain groups of employees within a production and maintenance employee unit must be decided. Although both the A. F. of L. and the Independent desire a produc- tion and maintenance unit, neither indicated clearly the exact bound- aries of the unit it desired and whether the Board should include or exclude such groups. One of the groups is the clerical employees. They are engaged in work different from that performed by the production and main- tenance employees and their immediate interests and problems differ from the interests and problems of the production and maintenance workers. We therefore find that they should be excluded from the unit. The supervisory employees also have interests and problems dif- ferent from those of the production and maintenance workers. Al- though they lack the power to hire and discharge, they may recom- mend hiring and discharging and do report on the efficiency of the men under them. As has been pointed out above, they are the rep- resentatives of the management among the production and mainte- nance employees. We shall therefore exclude them from the produc- tion and maintenance unit. The laboratory and power employees, mentioned by J. E. Alex- ander in his testimony, appear to have been included in the unit in August 1937, when the Board's Regional Director checked the mem- bership cards against the pay roll 7 and no objections were advanced to their inclusion. Moreover, their work appears to be much the same as that of the production and maintenance employees. They need no special technical training to perform their work and their interests and problems are those of production and maintenance em- ployees. We therefore shall include both the laboratory and power employees in the appropriate unit.8 We find that the respondent's production and maintenance em- ployees at its Nekoosa and Port Edwards mills, excluding clerical and supervisory employees, but including laboratory and power em- ployees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the employees of the respondent the full benefit of their right to self-organization and to collective bargaining and will otherwise effectuate the policies of the Act. 4 This matter is discussed in detail in the next section. 6 See Matter of The B. F. Goodrich Company and United Rubber Workers o f America, Local No. 43, 3 N. L. R B 420. Cf. Matter of Pennsylvania Salt Manufacturing Company and Local Union No 12055 of District No 50, United Mine Workers of America, 3 N. L. R. B. 741. NEKOOSA-EDWARDS PAPER COMPANY ET AL. 459 2. Representation by the A. F. of L. of a majority in the appropriate unit The I. A. M., the Paper Makers, and the Paper Mill Workers, all affiliated with the American Federation of Labor, cooperated and jointly organized the respondent's plants and sought to bargain with the respondent jointly as the exclusive representative of all employees in the unit defined above. Although the employees joined the indi- vidual organizations, the testimony at the hearing establishes that the employees actually considered membership in any one union as a designation of the three unions to bargain as one with the re- spondent. That was the unions' procedure when asking the re- spondent to bargain and is their general practice throughout the paper industry. We find that in joining the individual organizations the employees designated one agency composed of the three organi- zations, for convenience herein called the A. F. of L., to represent them in collective bargaining with the respondent. On July 29, 1937, representatives of the three unions mentioned above, conferred with the respondent, claiming a majority of its employees in a unit substantially the same as that defined above and asking recognition as the exclusive representative of those employees. The respondent refused to grant such recognition without proof that the A. F. of L. represented a majority. It was then agreed that the A. F. of L. would submit its membership cards to Nathaniel Clark, the Board's Regional Director for the Twelfth Region, to be checked against the respondent's pay roll. Thereafter Clark received the membership cards and went to the respondent's office in Port Ed- wards to obtain the proper pay roll. Franz Rosebush, the respond- ent's personnel manager, was under the impression that he was to participate in Clark's check of the pay roll and so informed Clark. Clark refused to accede to that request and Rosebush then telephoned J. E. Alexander, the respondent's president, for instructions. Alex- ander directed him to submit the pay roll to Clark. Before leaving Clark had Rosebush cross out the clerical and supervisory employees named on the pay roll. Clark's check of the A. F. of L. membership against the pay roll submitted to him revealed that 669 of the 1,012 employees in the unit, which was defined as "all production workers, except super- visory employees," had designated the A. F. of L. as their representa- tive. The respondent was so informed by a letter from Clark, which it received on August 7, 1937, and by a letter from the Twelfth Regional Office dated August 13, 1937.9 9 The letter of August 7 gave the location of the respondent 's plant as Wisconsin Rapids, Wisconsin , a municipality close to both Nekoosa and Port Edwards. This was corrected by the letter of August 13. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An examination of the pay roll used by Clark in checking the mem- bership of the A. F. of L. reveals that it is a copy of the respondent's pay roll for July 31, 1937. Board Exhibit No. 17, which was pre- pared by the respondent from its records, states that on the respond- ent's pay roll as of August 6, 1937, there were 1,035 persons exclusive of "foremen, supervisors, superintendents, or clerical help" as com- pared to 1,024 on the July 31, 1937, pay roll submitted to Clark. The unit soy defined is substantially the same as the unit defined in Section B 1 above, i. e., production and maintenance employees, excluding clerical and supervisory employees, but including labora- tory and power employees. Since Clark found that the A. F. of L. had 669 members in the unit whose names were on the pay roll sub- mitted to him, it is apparent that on July 31, 1937, the A. F. of L. represented a majority of the employees in the appropriate unit10 We find that on July 31, 1937, and at all times thereafter, the A. F. of L. was the duly designated representative of a majority of the employees of the respondent in the appropriate unit. Pursuant to Section 9 (a) of the Act, the A. F. of L. was and is, therefore, the exclusive representative of all employees in such unit for the pur- poses of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain On August 7, 1937, the respondent was informed by Clark that his check of the A. F. of L. authorization cards showed that the A. F. of L. represented a majority of its employees, 669 out of 1,012, and was therefore entitled to be recognized as the exclusive bargaining agency. On or about August 9, 1937, the respondent received a request from the, Independent for recognition as exclusive repre- sentative of the employees at the Nekoosa mill, at which mill the Independent claimed to represent a majority. On August 10 the respondent wrote Clark setting forth the claims of the Independent. On August 13 the respondent conferred with the officers of the A. F. of L. and refused to recognize the A. F. of L. as the exclusive representative of its employees, assertedly because of the claims of the Independent to recognition for a different unit. On August 13 the Board's Regional Office replied to the respondent's letter and in- formed it that the Board had in various cases included more than 10 The A. F. of L. Introduced into evidence lists of its members as of February 9, 1938. A check of those lists against the respondent 's July 31, 1937, pay roll reveals that the A. F. of L. has 439 members in the unit at Port Edwards , 3 of whom also belong to the Independent, and 223 at Nekoosa, 26 of whom also belong to the Independent . A similar check of the Independent's members shows that the Independent has 5 members in the unit at Port Edwards, 3 of whom also belong to the A. F. of L, and 214 at Nekoosa, 26 of whom belong to the A. F. of L. Therefore , excluding duplications, the A. F. of L had on February 9, 1938, 633 out of the 1,024 employees on the July 31, 1937, pay roll. NEKOOSA-EDWARDS PAPER COMPANY ET AL. 461 one plant in a unit and stated that a unit including both the Nekoosa and Port Edwards plants "would most effectively accomplish the purposes of collective bargaining and would insure to the employees of the said unit their rights under the National Labor Relations Act." On August 17 the Independent wrote to the Regional Office setting forth its claims. On August 19 the Regional Office replied stating that the questions raised in the August 17 letter would be considered upon Clark's return to the office. At a conference with the repre- sentatives of the A. F. of L. on August 20, the respondent stated that it could not recognize the A. F. of L. until the matters raised in the Independent's letter of August 17 had been decided by Clark. On August 25 Clark again wrote the respondent, sending a copy to the Independent, that the A. F. of L. was entitled to recognition as exclusive bargaining agent for the respondent's employees. On August 26 the Independent filed a petition for investigation and certification of representatives pursuant to Section 9 (c) of the Act and thereafter the respondent maintained that it could not recognize the A. F. of L. until a hearing had been held on the Independent's petition and the question of representation decided by the Board. The respondent admits that it did not recognize or deal with the A. F. of L. as the exclusive representative of its employees at both mills. We have repeatedly held that to deny such recognition to a union entitled to it without valid reason constitutes a failure to bargain collectively within the meaning of the Act." The respondent, however, contends that it refused to accord the A. F. of L. exclusive recognition because of its uncertainty as to the appropriate bargaining unit and the claim of the Independent to represent a majority of the employees at the Nekoosa mill, which claim was not denied by the A. F. of L. Under the circumstances of this case, this defense is not open to the respondent. We have found above that the respondent dominated and interfered with the formation and administration of the Independent and contributed support to it. There is no question here of the respondent withholding recognition because of the con- flicting claims of rival bona fide organizations with respect to the appropriate bargaining unit and representation within such unit. The company-dominated Independent was not a labor organization capable of functioning as a representative of the employees,12 and u Matter of Bales -Coleman Lumber Company and Puget Sound District Council of Lumber and Sawmill Workers, 4 N. L. R. B. 679, order enforced in National Labor Relations Board v. Bales-Coleman Lumber Company, 96 F (2d) 197 (C. C. A. 9th, 1938) ; Matter of Fedders Manufacturing Co., Inc. and Amalgamated Association of Iron, Steel it Tan Workers of N. A , Lodge 1753, 7 N. L. R. B 817; Matter of Burnside Steel Foundry Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1719, 7 N. L. R. B. 714. National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., and Grey- hound Management Company, 303 U. S. 261; National Labor Relations Board v. Pacific Greyhound Lines, Inc., 303 U. S. 272. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hence was not able validly to assert a claim to bargain collectively for the respondent's employees. To hold otherwise would be to permit the respondent to employ an agency which it controlled to avoid its duty under the Act to recognize and bargain with a bona fide repre- sentative of a majority of its employees within an appropriate unit. We find that on August 13, 1937, and at all times thereafter, the respondent refused to bargain collectively with the A. F. of L. as the exclusive representative of its employees in an appropriate unit in respect to rates of pay, wages, hours of employment, and other con- ditions of employment. We also find that, by its refusals to bargain with the A. F. of L., the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. C. The refusal to reinstate Romeo Plenge Romeo Plenge started working for the respondent in August 1921, at the Nekoosa mill and in June 1937, was the back tender on a paper machine there. Upon joining the Paper Makers in June 1937, he was elected secretary, notice of which appeared in the newspaper. On June 16 Romeo Plenge, with his brothers Rollo and Richard, complained to Charles Reese, the respondent's mill manager in charge of both the Nekoosa and Port Edwards mills, that Archie Hayes, superintendent of the Nekoosa mill, was discriminating against them because of their membership and activities in the A. F. of L. The basis for Rollo Plenge's complaint was that Hayes had reprimanded him unjustly; Romeo, speaking for himself and for Richard, stated that Hayes had come into the mill in an intoxicated condition and that he was very unpopular with the employees. Reese promised to investigate the charges. After leaving Reese, Romeo Plenge called on his brother-in-law, Charles Howland, a member of the Independent, and told him about the charges he and his brothers had made against Hayes. Howland, who was working from 11 p. m. to 7 a. m. at that time, related the story of the Plenges' actions to several employees on his shift that night. The next morning Reese went to the Nekoosa mill, told Hayes about the charges of intemperance and unpopularity, and stated that he would investigate the latter charge but that he knew that the former was without justification. The action of the Plenges oc- casioned discussion among the employees. When John Kirst, later president of the Independent, came to work at 3 o'clock on June 17, Oscar Larson, a member of the Independent working on the 7 to 3 shift, told him that the Plenges had lodged a complaint against Hayes with Reese. Kirst and Larson decided to circulate a petition in support of Hayes. Accordingly, Kirst asked Marion Konash, a NEKOOSA-EDWARDS PAPER COMPANY ET AL. 463 clerk in the office of Joe Wipfli, master mechanic at Nekoosa, to type copies of a petition to be circulated in the plant.13 Kirst gave Konash no instructions in regard to the circulation of the copies of the petition and did not sign one until the next day when he saw one on a desk in the plant. Copies of the petition were, however, circulated among the employees during the 3 to 11 shift on June 17. The assistant superintendent and the foremen, in addition to signing them, circulated them and asked employees to sign. Harry Blount, shipping-room foreman at Nekoosa, was given the petition by Assistant Superintendent Sarver, showed it to each man in his department and asked each to sign, and then sent the petition to Dick Tracy, finishing-room foreman. Alfred Gilbert, subforeman in the Nekoosa beater room, also circulated a copy of the petition among the men in his department. The copies of the petition were signed by 235 employees and were sent to the president of the respondent on June 21, 1937. Among the signers were 15 supervisory employees and 57 members of the A. F. of L. When Romeo Plenge reported for work on the 3 to 11 shift on June 17 the dryer belt on his paper machine was being repaired. Hayes, who that day had heard remarks hostile to Plenge from em- ployees, was at the machine when it was ready to start, and Andy Cibula, the machine tender, informed him that he would not start the machine with Romeo Plenge working. Hayes took no action but returned to his office, instructing Sarver to get the back tender from the previous shift to work temporarily in Plenge's place. He then called Reese at the Port Edwards mill. Meanwhile, Sarver told Plenge to stand aside but not to leave because Reese would adjust the matter. Romeo Plenge then questioned Sarver in an attempt to ascertain the reason for the stoppage of work. After mentioning several things as possible reasons and obtaining a negative reply from Sarver each time, Plenge asked if it was because of the Union. Sarver replied, "If you knew it was the union, why did you join it?" Sarver de- nied making that statement but since Plenge attributed his difficulties to his union affiliations it seems reasonable to us that he propounded the question to Sarver and that the latter replied in the terms Plenge quoted. Furthermore, the Trial Examiner, who observed the de- meanor of the witnesses, credited Plenge's testimony and not Sarver's denial. Reese arrived immediately and Cibula at his request agreed to work with Plenge pending an investigation of Plenge's charges against 13 The petition read : To WHOM IT MAY CONCERN, Romeo Plenge approached the management Wednesday, June 16, 1937, and along with other things, in refering (sic) to Archie Hayes said, "Of course you know how unpopular he is with the men." IF YOU THINS THIS IS AN UNFAIR , UNTRUE STATEMENT PLEASE SIGN BELOW. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hayes. Plenge finished the shift and at 11 o'clock was met by a city policeman sent to the mill by Joe Wipfli, city councilman and master mechanic at Nekoosa, who had heard rumors of an attack on Plenge and desired to protect him. The policeman took Plenge most of the way home in his car. That night Plenge suffered a nervous break- down and was not able to return to work until September 10 when his doctor reported to the respondent, "May got (sic) to work, as he is able to do his regular work if not put on to (sic) much of a nervous strain from outside conditions." On September 10 when Plenge was ready to return to work, a conference was held in Reese's office attended by Reese, Rosebush,. Romeo Plenge, and Richard Plenge. Reese explained that he had investigated Romeo's case, that he had talked to the machine tenders and back tenders on the paper machines at Nekoosa, and that they refused to work with Plenge. Reese also mentioned the doctor's reports on Plenge's condition and said that as a result of his investi- gation in the mill and the doctor's reports, he had decided that Plenge should be transferred to the Port Edwards mill as a back tender on a paper machine. Plenge refused to accept reinstatement on those terms, although the job at Port Edwards was substantially the same as the one which he had had at Nekoosa. At the hearing, Plenge explained that his refusal to accept the Port Edwards job. was due to the fact that his home was in Nekoosa and to his fear that his transfer to Port Edwards would result in the elimination of the A. F. of L. at Nekoosa, where it was not yet well established. The record establishes that a majority of the employees at the Nekoosa plant were not hostile to Plenge before June 1937. It is true that Carl Stellmacher, president of the Independent until Janu- ary 1938, testified that the Nekoosa machine room in which Plenge worked "is very strongly represented in the Independent Union, and naturally Romie was considered just a trouble shooter, a trouble maker," and that this feeling in the machine room against Romeo- Plenge arose long before June 1937. The evidence, however, nega- tives this assertion and indicates, on the contrary, that until June 1937, Plenge was not only a relatively popular employee but also an influential one. He was elected to represent the machine room and the beater room on the Mill Council during 1936; furthermore, he was a member of the County Board of Supervisors for Wood County, Wisconsin, where most of the employees resided. Stellmacher testi- fied further that he and Romeo Plenge had been friends for some time and that he had intended to nominate Plenge for treasurer of the Independent but had been prevented from doing so by his own election as president. NEKOOSA-EDWARDS PAPER COMPANY ET AL. 465 The respondent was hostile to Plenge after he joined and became active in the A. F. of L. in June 1937. This hostility was first evi- denced by the statements of Hayes, the plant superintendent. After Plenge's election as secretary of the Paper Makers, Hayes spoke to him concerning what Hayes claimed was the A. F. of L.'s adverse effect upon industry. When Plenge requested his usual time off to attend meetings of the County Board of Supervisors of which he was a member, Hayes said, "Why don't you ask the American Federation ^of Labor to see if they will let you go." Although Hayes denied making the above statements, his attitude toward the A. F. of L., as indicated by his actions as early as August 1934, which is discussed above, lends credence to Plenge's testimony, which we believe. Such hostility against Plenge as did develop after June 1937, was primarily attributable to the fact that the employees adopted the attitude desired by the respondent as indicated by its outspoken oppo- sition to the A. F. of L. and encouragement of the Independent. We are led to this conclusion by various considerations. In the first place, Plenge, when he was a member of the Mill Council, had com- plained about Hayes at Mill Council meetings. Although this fact was known to the other members of the Mill Council, there was no protest from the employees against Plenge. Moreover, both Rollo and Richard Plenge participated in the protest to Reese against Hayes, and Kirst and Larson, who started the petition against Romeo, knew it. Nevertheless, there was no employee resentment, as far as the record shows, against them for participation in the protest. However, when Hayes and Sarver permitted Cibula with impunity to refuse to work with Plenge on June 17 and Sarver and various foremen actively circulated the petition repudiating Plenge's com- plaint against Hayes in the plant during working hours, the em- ployees knew that their superiors did not regard an antagonistic attitude toward Plenge as detrimental to plant discipline but in fact approved of it. Members of the Independent testified that they would not have worked with Plenge if he had been reinstated in September 1937, and that their attitude was still the same at the time of the hearing because of the complaint which he had made to Reese about Hayes. Counsel for the respondent and counsel for the Board stipulated that approximately 50 additional witnesses whom the respondent offered to call, and all but 3 of whom did not belong to the A. F. of L., would testify to the same effect. While we accord full credit to the stipulation, the testimony of these witnesses that they would not work if Plenge was reinstated is not convincing. We have found that Plenge was not unpopular with the men until the respondent made him the victim of the natural rivalry engendered by the advent 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the company-dominated Independent. We do not believe that the employees actually would have refused to work with Plenge, despite their subsequent assertions to that effect in testimony adduced at the respondent's instance, if the respondent had reinstated him; nor do we believe that the employees' threatened refusal to work with Plenge was a material factor in the respondent's refusal to reinstate him at Nekoosa mill. It is our opinion that the respondent fostered and then seized upon the objection of the Independent members to Romeo Plenge in order to rid the Nekoosa plant of the strongest single influence in favor of the A. F. of L. In September, when Romeo Plenge was able to return to work, the respondent, as has been pointed out above, was refusing to bargain with the A. F. of L. and was encouraging the Independent. The respondent knew that the A. F. of L. represented an overwhelming majority of the Port Edwards employees and that the Independent and the A. F. of L. both claimed a majority at the Nekoosa plant. If Plenge had accepted the transfer, the respondent thus would have removed him from the mill where his activities would benefit the A. F. of L. to the mill where his organizing ability would have been of minor consequence, since the employees there had already adopted the A. F. of L. and rejected the Independent. We find that the respondent refused to reinstate Romeo Plenge to his former position in the Nekoosa mill because he joined and assisted the Paper Makers. 14 By said refusal to reinstate him the respondent has discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Paper Makers, and has interfered with, restrained, apd coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. After the respondent refused to reinstate him, Romeo Plenge earned $470.11 working for Wood County, Wisconsin, on highway maintenance. 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- ,,pondent 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. 14 Matter of Waggoner Refining Company , Inc., and W. T. Waggoner Estate and International Association of Oil Field, Gas Well and Refinery Workers of America ; Matter of Waggoner Refining Company , Inc., and W. T. Waggoner Estate and Waggoner Employees Federation, 6 N. L. R . B. 751. NEKOOSA-EDWARDS PAPER COMPANY ET AL. V. THE REMEDY 467 Following our usual practice, we shall order the respondent to cease and desist from its unfair labor practices and to restore, as far as possible, the situation existing prior to their commission. Since we have found that the respondent refused to bargain with the A. F. of L. as the exclusive representative of its employees in an appropriate unit, We shall order it to do so. We have also found that the respondent has dominated, interfered with, and supported the Independent and thus has rendered it incapable of acting as a bona fide representative of the employees in dealing with the respondent. Accordingly, we shall order the respondent to refrain from recognizing the Independent as the representative of any of its employees for the purpose of dealing with the respondent con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work and to disestablish it com- pletely as such representative. We have found that the respondent by refusing to reinstate Romeo Plenge at the Nekoosa mill on September 10, 1937, has engaged in unfair labor practices. We shall therefore order the respondent to reinstate Plenge to his former position at Nekoosa mill and to make him whole for any loss of pay he has suffered by reason of the re- spondent's refusal to reinstate him by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of the respondent's refusal to reinstate him (September 10, 1937) to the date of the offer of reinstatement, less his net earnings 15 during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the proceedings, the Board makes the following: CONCLUSIONS OF LAW 1. International Brotherhood of Paper Makers, Local No. 59, Inter- national Association of Machinists, Local No. 1543, International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, Local No. 52, and Nekoosa-Port Edwards Labor Union are labor organizations, within the meaning of Section 2 (5) of the Act. is 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 the unlawful refusal to reinstate him and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee and the amount thereof paid over to the appropriate fiscal agency of the Federal , State, county, municipal, or other govern- ment or governments which supplied the funds for said work -relief projects. 11 11 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By dominating and interfering with the formation and adminis- tration of, and contributing support to Nekoosa-Port Edwards Labor Union, 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 Romeo Plenge, thereby discouraging membership in the Paper Makers, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. The production and maintenance employees of the respondent at its Nekoosa and Port Edwards plants, excluding clerical and super- visory employees, but including laboratory and power employees, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. International Brotherhood of Paper Makers, Local No. 59, Inter- national Association of Machinists, Local No. 1543, and International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, Local No. 52, having been designated jointly as their representative by a majority of the employees in the above unit, were jointly on July 31, 1937, and at all times thereafter have been jointly the exclusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 6. By refusing to bargain collectively jointly with International Brotherhood of Paper Makers, Local No. 59, International Associa- tion of Machinists, Local No. 1543, and International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, Local No. 52, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 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, Nekoosa-Edwards Paper Co., and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of Nekoosa- Port Edwards Labor Union or with the formation or administration NEKOOSA-EDWARDS PAPER COMPANY ET AL. 469 of any other labor organization of its employees, or contributing sup- port to Nekoosa-Port Edwards Labor Union or to any other labor organization ; (b) Discouraging membership in International Brotherhood of Paper Makers, Local No. 59, International Association of Machinists, Local No. 1543, International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, Local No. 52, or any other labor organization 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 their employment, because of membership or activity in said labor organi- zations or any other labor organization of its employees; (c) Refusing to bargain collectively jointly with International Brotherhood of Paper Makers, Local No. 59, International Associa- tion of Machinists, Local No. 1543, and International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, Local No. 52, as the ex- clusive representative of the production and maintenance employees at its Nekoosa and Port Edwards plants, excluding clerical and su- pervisory employees, but including laboratory and power employees; (d) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or 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) Offer to Romeo Plenge immediate and full reinstatement to his former position at the Nekoosa mill without prejudice to his seniority and other rights and privileges; (b) Make whole Romeo Plenge for any loss of pay he may have suffered by reason of the respondent's refusal to reinstate him on September 10, 1937, by payment to him of a sum equal to that which he would normally have earned as wages from the date of the refusal to reinstate him to the date of the offer of reinstatement, less his net earnings during that period; deducting, however, from the amount otherwise due him, 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; 164275-39-vol x,-31 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Refrain from all recognition of Nekoosa-Port Edwards Labor Union 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 work, and completely disestablish Nekoosa-Port Edwards Labor Union as such representative; (d) Upon request, bargain collectively jointly with International Brotherhood of Paper Makers, Local No. 59, International Associa- tion of Machinists, Local No. 1543, and International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, Local No. 52, as the exclu- sive representative of the production and maintenance employees at its Nekoosa and Port Edwards plants, excluding clerical and supervisory employees, but including laboratory and power employees, in respect to rates of pay, wages, hours of employment, and other conditions of work; (e) Post immediately in conspicuous places in its Nekoosa and Port Edwards plants, and maintain for a perid of at least sixty (60) consecutive days, notices to its employees stating (1) that the respond- ent will cease and desist as aforesaid, and (2) that the Nekoosa-Port Edwards Labor Union will not be recognized as the representative of any of its employees for the purpose of dealing with the respondent with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work, and (3) that Nekoosa- Port Edwards Labor Union is disestablished as such representative; (f) Notify the Regional Director for the Twelfth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.