Mt. Vernon Car Manufacturing Co.

In the Matter Of MT. VERNON CAR MANUFACTURING COMPANY, A COR- PORATION and LOCAL LODGE No. 1756, AMALGAMATED ASSOCIATION OF IRON, STEEL & TIN WORKERS OF NORTH AMERICA, AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION Case No. C-328.Decided February 21, 1939 Railroad and Mine Car Manufacturing Industry-Interference, Restraint, and Coercion: posting anti-union notices ; certain supervisory cooperation in solicita- tions of membership in one union; recognizing that union and its favored suc- cessor ; urging, persuading, and warning employees to join one union and its favored successor; permitting one labor organization facility in organizing and bargaining, while similar privileges denied to rival labor organization ; executing closed-shop contract with favored labor organization which did not represent free choice of majority of employees; placing obstacles to organization in path of disfavored labor organization-Check-off: for favored labor organizations; employer ordered to reimburse employees for amounts deducted from earnings as dues and initiation fees for favored labor organizations-Contract: employer ordered to cease giving effect to invalid closed-shop contract entered into with favored labor organization-Unfit Appropriate for Collective Bargaining: pro- duction and maintenance employees, excluding salaried employees, foremen, assistant foremen, gang leaders, inspectors, checkers, and timekeepers-Repre- sentatives: proof of choice: application cards; comparison with pay roll-Collec- tive Bargaining: refusal to answer requests to bargain ; rebuffs and evasive tac- tics ; employer ordered to bargain with union having majority in appropriate unit and cease bargaining with favored labor organization-Discrimination: dis- charges ; for union membership and activity ; pursuant to invalid closed-shop contract; after reinstatement; charges of, not sustained as to certain persons- Reinstatement Ordered: discharged employees-Back Pay: awarded ; discharged employees. Mr. Christopher W. Hoey and Mr. David C. Shaw, for the Board. Gilbert & Gilbert, by Mr. J. H. Gilbert and Mr. G. Gale Gilbert, of Mt. Vernon, Ill., and Wham & Wham, by Mr. Charles Wham, of Centralia, Ill., for the respondent. Mr. Joe Frank Allen, of Mt. Vernon, Ill., and Mr..Joseph A. Pad- way, of Milwaukee, Wis., for the Brotherhood. Mr. Abraham J. Harris, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Local Lodge No. 1756, Amalgamated Association of Iron, Steel & Tin Workers of North 11 N. L. R. B., No. 46. 500 MT. VERNON CAR MANUFACTURING COMPANY ET AL. 501 America, affiliated with the Committee for Industrial Organization,,. herein called the Amalgamated, the National Labor Relations Board, herein called the Board, by Dorothea de Schweinitz, Acting Regional Director for the Fourteenth Region (St. Louis, Missouri), issued and duly served its complaint dated October 4, 1937, against The Mt. Vernon Car Manufacturing Company, Mt. Vernon, Illinois, herein called the respondent, and on October 11, 1937, issued and duly served its amended complaint against the respondent, alleging that the re- spondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. In substance, the amended complaint alleged that the respondent intimidated, restrained, coerced, and inter- fered with its employees in the exercise of their right to form and join labor organizations, to remain as members thereof, and to bar- gain collectively through representatives of their own choosing, and had demoted, laid off, and/or discharged certain named employees because of their membership or activity in the Amalgamated, their refusal to join Mt. Vernon Lodge No. 423, Brotherhood Railway Car- men of America, a labor organization, herein called the Brotherhood, or their refusal to join United Car Builders of Mt. Vernon, Illinois, a labor organization, herein called the United; that prior to May 15, 1937, and at all times thereafter, the Amalgamated represented a majority of the respondent's employees in an appropriate unit; and that the respondent had refused and was-refusing to bargain collec- tively with the Amalgamated. On October 9, 1937, the respondent filed an answer to the complaint and on October 15, 1937, an answer to the amended complaint, ad- mitting certain allegations as to the nature of its business, but denying that it had engaged in or was engaging in the unfair labor practices as alleged. On October 11, 1937, the Brotherhood filed a motion to intervene, and having been granted leave to do so, filed an answer to the complaint and amended complaint. Pursuant to a notice of hearing, and a notice of postponement of hearing duly served upon the respondent, the Amalgamated, and the Brotherhood, a hearing was held in Mt. Vernon from October 18 to December 18, 1937, before Charles A. Wood, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Brotherhood, were represented by counsel and all participated in the hearing. Full opportunity to be heard, to examine and cross- 1 On May 21, 1937, charges were filed by Amalgamated Association of Iron, Steel & Tin workers of North America On June 24, 1937, amended charges were filed by Steel Workers Organizing Committee. On October 2, 1937, second amended charges were filed by Local Lodge No. 1756 1 6 4 2 7 5-39-vol xi-33 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examine witnesses, and to introduce evidence bearing upon the issues was afforded to all parties. At the opening of the hearing, the Board was given leave to amend the amended complaint. The amendment effected certain changes in the allegations of the complaint relating to the demotion, lay-off, and/or discharge of the respondent's employees, and also changed, ,from May 15, 1937, to June 15, 1937, the date on which the Amalga- mated represented a majority of the respondent's employees in an appropriate unit and on which the respondent refused to bargain with the Amalgamated as such representative. During the course of the hearing, numerous minor amendments to the amended com- plaint as amended were allowed without objection. On motion of the respondent, its answer was permitted to stand as answer to the com- plaint as so amended. At the close of the hearing, the respondent and the Brotherhood filed a motion for the transfer of the case direct to the Board, and for permission to argue the case orally before the Board. Pursuant to this motion and pursuant to Article II, Section 37, of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Board ordered the proceeding transferred to and continued before it. On February 11, 1938, pursuant to the request therefor and notice to the representatives of the respondent, the Brotherhood, the Amalgamated, and to the United, a hearing was had before the Board in Washington, D. C., for-the purpose of oral argument. Counsel for the respondent and for the Brotherhood participated and filed briefs. The Board has considered the arguments presented at the oral argument, as well as those contained in the briefs. On May 6, 1938, the Board advised counsel for the respondent and for the Brotherhood, and, on May 7, advised a representative of the Amalgamated to indicate to the Board whether they desired, prior to the issuance of the Board's Decision and Order, the submission to them of proposed findings of fact and order and the opportunity to file exceptions thereto and to argue them before the Board. On May 14, counsel for the respondent advised the Board that they did so desire. On May 17, counsel for the Brotherhood advised the Board to the same effect. On September 3, 1938, the Board, pursuant to, Article II, Section 38 (d), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered the issuance of Pro- posed Findings, Proposed Conclusions of Law, and Proposed Order and granted the parties herein the right, within ten (10) days from the receipt of said Proposed Findings, Proposed Conclusions of Law, and Proposed Order, to file exceptions, to request oral argument be- fore the Board, and to request permission to file a brief with the Board. MT. VERNON CAR MANUFACTURING COMPANY ET AL. 503 On October 22, 1937, the respondent sought to file with the Trial Examiner a motion requesting an immediate election for the purpose of determining the collective bargaining agency for the respondent's employees. This was rejected by the Trial Examiner. Article III, Section 1, of National Labor Relations Board Rules and Regula- tions-Series 1, as amended, provides a procedure for initiating the investigation and certification of representatives under the Act. The respondent's motion was foreign to the procedure thus established. Furthermore, this proceeding is a proceeding under Section 10 of the Act for the prevention of unfair labor practices, and not one under Section 9 (c) for the investigation and certification of representatives- The Trial Examiner's ruling is affirmed. The Board has also re- viewed the other rulings of the Trial Examiner on motions and on objections to the admission of evidence. The Board finds that no prejudicial errors were committed and the rulings are hereby affirmed. On November 12, 1938, the Board issued Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order in the case, serv- ing them on the parties. Subsequently, exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order were filed by the respondent and the Brotherhood. Leave was given to all parties to file briefs and to argue the exceptions orally before the Board but was not availed of by them. On December 12, 1938, 10 of those who sought reinstatement to their former positions on the ground that they had been discriminated against in violation of Section 8 (3) of the Act but whom the Board', in the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, found were not entitled to reinstatement, filed motions to reopen the case and to hear more evidence in support of their claims. These motions were accompanied by affidavits setting forth the mat- ters which it was claimed would be proved on such reopening. No new discovery was claimed as to these matters and it is patent that all the facts related must have been known to the affiants prior to the Board's, hearing. Furthermore, the facts stated would not, if proved, mate- rially affect the result reached by the Board as to these 10 men. The motions are hereby denied. The Board has considered the exceptions to the Proposed Findings, Proposed Conclusions of Law, and Proposed Order, and finds no. merit in them. They are hereby overruled. Upon the entire record in the case, the Board makes the following:- FINDINGS OF FACT I. THE RESPONDENT AND ITS BUSINESS The respondent, The Mt. Vernon Car Manufacturing Company, is a, corporation organized under the laws of the State of Illinois, with its; 504 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD principal office and place of business in Mt. Vernon, Illinois. It is en- gaged principally in the manufacture and sale of railroad and mine cars and parts thereof. Its gross sales, in 1936, amounted to in excess of $5,000,000, and con- sisted principally of 1,950 railroad freight cars, 252 mine cars, 20,325 car wheels, 756,000 pounds of castings, and 6,770,000 pounds of car parts and forgings. Of the raw materials used by it in its business in 1936, approximately 75 per cent came from States other than Illi- nois. Of the respondent's products, during the same period, approxi- mately 91 per cent were shipped to places outside the State of Illinois. The respondent's operations are carried on in a plant approximately 80 acres in extent. There are approximately 8 miles of railroad track in the plant directly connected with the tracks of the Louisville and Nashville Railroad Company and the Missouri Pacific Railroad Com- pany and connected by switches with the tracks of the Southern Rail- way Company and the Chicago and Eastern Illinois Railway Com- pany. Nineteen railways and five coal-mining enterprises constituted the respondent's principal customers during 1936. We find that the aforesaid operations of the Company are performed upon instrumentalities which engage in trade, traffic, transportation, and commerce among the several States. i II. THE ORGANIZATIONS INVOLVED Local Lodge No. 1756, Amalgamated Association of Iron, Steel & Tin Workers of North America, affiliated with the Committee for In- dustrial Organization, is a labor organization admitting to its mem- bership the hourly and piece-work paid production and maintenance employees of the respondent. Mt. Vernon Lodge No. 423, Brotherhood Railway Carmen of Amer- ica, is a labor organization affiliated with the American Federation of Labor, admitting to its membership the hourly and piece-work paid production and maintenance employees of the respondent. United Car Builders of Mt. Vernon, Illinois, is an unaffiliated labor organization admitting to its membership all the employees of the respondent, excluding supervisory employees. Since the latter part of June 1937, the United has had but formal existence. III. THE UNFAIR LABOR PRACTICES A. Background of the unfair labor practices The respondent operates what is known as a contract shop. It builds cars only upon order therefor. When construction is started on cars ordered under a particular contract, an oral agreement is en- MT. VERNON CAR MANUFACTURING COMPANY ET AL. ,505 tered into between the respondent and its employees covering the piece-work wages that the employees will receive while working on that particular car order. For the most part the production employees are paid on a so-called piece-work basis. Even the majority of those production workers who are engaged in work which cannot be meas- ured by the piece are paid a certain wage for each car completed. At the time of the hearing, a wage contract was in effect, prescribing minimum hourly rates for the various types of work in the plant. In the event an employee's pay on the piece-work basis was less than the hourly rate so set, he was paid on the hourly basis. Frequently, at the start of a contract, the employees would find that, because of the difficulties involved in building the particular type of car called for by the contract, or for some other reason, insufficient cars could be completed per day to pay them satisfactory wages. On such occasions, the men would stop working and their leaders would meet with representatives of the management with a view to increas- ing the piece-work rates. After such negotiations, adjustments would usually be made. The cessations of work occurring while negotiations were being carried on by the leaders, would last for periods ranging in length from a few hours to several days. Most of the dissatisfaction with regard to rates of pay occurred in a part of the plant known as "The tracks"-the place where the actual construction of the cars takes place. The tracks are a vital spot in the plant's operation ; when a stoppage of work occurs there, it results, within a few days, in a stoppage in the balance of the plant. The respondent's shop, until May 1937, had always been operated on an open-shop, non-union basis. Prior to that time the Committee for Industrial Organization had carried on organization campaigns in other car shops-competitors of the respondent-in St. Louis. In March or April 1937, G. C. Beishline, the respondent's general super- intendent at that time, advised David C. Arthurs, the respondent's president, that such organization was taking place and that it was likely that the Committee for Industrial Organization would attempt to organize the respondent's plant within a few weeks. Beishline testified that thereupon Arthurs told him that "if the C. I. O. came to the plant or to our town he would feel that I was slipping." Ar- thurs admitted this, but testified that when he said that he felt Beish- line would be "slipping," he meant that Beishline would be remiss in his duties toward the men if it were necessary for them to organize in order to secure what they should rightfully have. Arthurs followed this, however, with an expression of his opinion to Beishline, "that C. I. O., K. K. K., A. F. of L., or anything else was unnecessary in our plant." 506 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Chronology of events On May 5, 1937, a stoppage of work such as that hereinabove de- scribed occurred on the tracks and a committee of the men discussed increased wage rates with the management. The negotiations, how- ever, so far as the men were concerned, were unsatisfactory. On May 7, a group of the men sent a telegram to John L. Lewis, in Washing- ton, D. C., asking that an organizer be sent by the Committee for Industrial Organization to Mt. Vernon. In response to this telegram, Chris Meinkoth, an organizer, arrived in Mt. Vernon on May 10, and immediately began enrolling members in the Amalgamated. In the meantime, the wage dispute had been settled and the men had returned to work on May 10. On May 11, application was made and the Amal- gamated Local was chartered. Some of the organizational activity of the Amalgamated took place in a tavern, known as the Green Tree Tavern, located across the street from one of the gates leading to the respondent's plant. On May 11, Arthurs, having heard of some activity with respect to labor organiza- tion at the Green Tree Tavern, addressed to the respondent's then general, superintendent and assistant general superintendent the fol- lowing memorandum : MEMORANDUM MAY 11, 1937. MR. GORHAM PIGG MR. THOS. BERRY IN VIEW OF THE INFORMATION THAT HAS COME TO MY NOTICE FROM VOLUNTARY UNSOLICITED SOURCES THAT SOME BRAND OF LABOR OR- GANIZATION IS SIGNING UP MEMBERS AT THE GREEN TAVERN, ALL FORE- MEN SHOULD BE INSTRUCTED TO MAKE NO ATTEMPT TO INTIMIDATE OR INTERFERE WITH THEIR ACTIVITIES, AS IT IS ENTIRELY OUT OF KEEPING WITH THE SPIRIT OF THE MT VERNON CAR MANUFACTURING COMPANY TO EMPLOY SO-CALLED "LABOR SPIES." IT IS TO BE HOPED THAT YOUR MEN REALIZE TIIE IMPOSSIBILITY OF MT VERNON'S OPERATION AS ANYTHING BUT AN OPEN SHOP IN ITS HIGHLY COMPETITIVE FIELD. I HAVE NO WAY OF KNOWING HOW MANY MEN HAVE SIGNED UP TOR ANY ORGANIZATION AT THIS TIME, OR IF ANY DUES HAVE BEEN PAID BY THEM. HOWEVER, IF ANY OF OUR MEN HAVE BEEN HOOD- WINKED INTO PAYING IRRESPONSIBLE PERSONS MONEY, AND FIND THEM- SELVES IN POOR FINANCIAL CONDITION BECAUSE OF THIS, KINDLY IN- STRUCT THEM THAT THE TOWNSPEOPLE AND I WILL HAVE A FUND OF AT LEAST $ 2,000.00 WITH WHICH TO REIMBURSE THEM. THIS AMOUNTS TO ME PERSONALLY BETTING $2,000.00 THAT OUR CAR BUILDERS WILL BE FAIR AND HONEST ABOUT WHETHER OR NOT THEY ARE IN NEED. MT. VERNON CAR MANUFACTURING COMPANY ET AL. 507 THE EASE WITH WHICH THE MEN ON THE PRODUCTION TRACK WERE ABLE TO ADJUST THEIR TROUBLES IN A RECENT DISAGREEMENT SHOULD BE SUFFICIENT PROOF THAT WE NEED NO ORGANIZATION , WHETHER COMPANY OR NATIONALLY AFFILIATED, AT MT VERNON. IT SHOULD BE POINTED OUT WHEREVER NECESSARY THAT THE ONLY REASON FOR THE EXISTENCE OF AGENCIES FOR COLLECTIVE BARGAIN- ING IS THAT EITHER THE EMPLOYEES OR MANAGEMENT HAVE A MIS- TAKEN IDEA OF BEING FAIR AND SQUARE. I WAS INTERESTED TO NOTE THE HONESTY AND SINCERITY OF THE MEN INVOLVED IN OUR RECENT DISAGREEMENT ON THE TRACK AND I AM QUITE CERTAIN THAT THE MANAGEMENT HERE IS OF AS HIGH A TYPE AS OUR EMPLOYEES. THEREFORE IT FOLLOWS THAT THERE IS NO DISAGREEMENT WHICH WE CANNOT SETTLE WITHOUT THE AID OF DEMAGOGUES AND COSTLY MANOUVERS SUCH AS STRIKES AND PERSONAL VIOLENCE. FINALLY IT IS TO BE NOTED THAT THE MANAGEMENT OF THE MT VERNON CAR MFG COMPANY IS IN POSITION TO DO MORE FOR ITS EMPLOYEES AND ASSUME A' GREATER RESPONSIBILITY THAN ANY AGENCY NOT INCORPORATED UNDER THE LAWS OF THE STATE OF ILLINOIS. IF YOU THINK THIS MEMORANDUM WOULD BE OF INTEREST TO OTHER EMPLOYEES THAN YOURSELVES, YOU HAVE MY PERMISSION TO POST IT ON THE BULLETIN BOARDS. (Signed) DAVID C. ARTHURS, President. On the same day, Artlnurs instructed someone in the office to pub- lish the memorandum, and it was posted in the plant. On the same day, May 11, four employees, Ben H. Miller, Chalem Pittman, Henry Sursa, and Charles Summers, met in the plant dur- ing working hours and discussed what could be done to "offset the C. I. 0." During the noon hour that day, they met again in an inspector's office and formulated a petition addressed to Arthurs. The petition stated that, WE, THE UNDERSIGNED, DO HEREBY PETITION FOR A HOME PLANT ORGANIZATION TO BE CONTROLLED AND OPERATED BY SHOP WORKMEN. THIS ORGANIZATION IS NOT TO BE AFFILIATED WITH C. I. O. OR A. F. OF L., BUT SAME TO BE LOCALLY CONTROLLED BY THE MT. VERNON CAR COMPANY "EMPLOYEES". They then took from an inspector's desk a supply of paper and, with the exception of Pittman, went to the office of Roy Holt, the re- spondent's employment manager. Holt was leaving his office at the time. They asked Holt's permission to use his stenographer for some typing. Holt gave his permission without inquiry. The typ- ing was done in his absence, 12 copies of the petition being made. Miller took all but one of these and distributed them among men in 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the several departments. These men, in turn, passed the petitions among their fellow workmen in their respective departments. Upon Holt's return to his office, his stenographer called his atten- tion to one copy of the petition which had been left in the office. Holt asked Miller what he should do with it, and was told to send it to Cal Glenn, an employee. Holt sent it to Glenn by Henry Jones, a foreman. Glenn circulated the petition among the employees. The petitions were circulated during working hours, the circula- tion being conducted by at least one supervisory employee, the chief watchman. A total of 388 signatures was obtained, some of them being those of gang leaders, timekeepers, and the chief watchman. Ninety-eight of the signatures were obtained on otherwise blank sheets of paper. The employees signing the blank sheets were told either that they were signing for a home union or that they were signing to keep out the Committee for Industrial Organization. The petitions were circulated over a period of 3 days. On May 14, Miller arranged for a meeting with Arthurs. That morning, Miller and approximately 11 others met with Arthurs in his office. Miller and Summers acted as spokesmen. Arthurs stated that he could not talk to them on company time. Miller assured him that they were piece workers and on their own time. Summers presented the peti- tions to Arthurs who glanced at them. In reply Arthurs said, "I am not in favor of an organization of any description in this plant. My father before me would never permit an organization in his shop . . . Personally I am strong against an organization of any kind; but under the Wagner law, if you organize, whether it is A. F. of L., C. I. 0., or K. K. K. or what, there is nothing I can do about it, my hands are tied." After further discussion to the same effect, the meeting ended. The employees who had attended the meeting decided that it was necessary for them to hire an attorney for the purpose of getting their organization started. Accordingly, Pittman, one of the original four sponsors of the May 11 petition for an inside organization, ar- ranged for an appointment with Joe Frank Allen, a Mt. Vernon attorney, for that evening, May 14. Pittman notified Miller and several men from each department of the appointment. That night approximately 40 employees gathered at Allen's office. It was there that the United was formed. The men told Allen what had happened. The printing of member- ship application cards was authorized. Allen suggested incorpora- tion. Incorporators were chosen by acclamation. These, together with a few others, met the following evening, May 15, at Allen's office and the papers necessary for incorporation were signed. It was at first decided to mail incorporation papers to the office of the MT. VERN ON CAR MANUFACTURING COMPANY ET AL. 509 Secretary of State at Springfield, Illinois. However, it was later decided that this would entail too great a delay and that the papers should be taken to Springfield personally. Accordingly, on Monday, May 17, Allen and the incorporators drove to Springfield in Allen's automobile and obtained the United charter. That night, upon their return from Springfield, another meeting was held in Allen's office, attended by approximately 45 men. Membership cards, previously ordered printed by Allen, were re- ceived and distributed among the men. Temporary officers were elected. Clayton Upton, selected as temporary president of the United, drafted, together with Allen, a "recognition," which was described as a document granting recognition to the United and giving to the United "permission to go to and fro in the shops and post bulletins concerning" the United. Sometime between May 19 and 21, Allen telephoned Arthurs and made an immediate appointment for Upton to see him, telling Arthurs that Upton represented the United. Up- ton took the "recognition" to Arthurs, who asked whether Upton thought that the United had a majority. Upton said that he thought it had. Arthurs signed the "recognition." On May 20, two gang leaders, on orders from Gorham Pigg, the general superintendent, closed and nailed up the gateway to the respondent's plant which was located opposite the Green Tree Tavern, which was serving as temporary organization headquarters for the Amalgamated. On the morning of Saturday, May 22, Meinkoth and Brock Adams, another organizer for the Amalgamated, called on Arthurs and sought to make an appointment for a time at which they could con- fer with him. They were accompanied by several of the respond- ent's employees who were prominent in the Amalgamated. Arthurs told them that he could recognize no organization that did not repre- sent a majority. Meinkoth stated that they believed that the Amal- gamated represented a majority. The Amalgamated representatives were unable to obtain from Arthurs a date for a later appointment. An appointment had been made with Arthurs by the secretary of the United for a meeting that afternoon between the United representatives and Arthurs. At that time the secretary of the United displayed to Arthurs a list of 570 United members, the mem- bership cards from which the list was taken, and 130 membership application cards. The list was left with Arthurs for the purpose of having it checked against the respondent's pay roll. About May 25, Meinkoth called Arthurs on the telephone. Arthurs refused to make an appointment, saying he did not have time to meet Meinkoth. Thereafter, Meinkoth left, with the girl at the telephone 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desk in the respondent's office, a draft of a proposed agreement be-, tween the respondent and the Amalgamated, and asked that it be given to Arthurs. On May 25, a notice appeared in the Mt. Vernon Register-News, the local newspaper, advertising a "victory" meeting of the United to be held that night. On that day Arthurs had sent a telegram to either the United, some of its officers, or Allen, its attorney, which contained language suggestive of that in the advertisement which stated, "Your organization and its representatives have been officially recognized by your employer. The plant management has been dele- gated to your organization." On May 26, Arthurs met again with the representatives of the United. At this time they presented to Arthurs the draft of a pro- posed contract. From that date until June 1, negotiations between the United and the respondent took place, culminating on the latter date in the signing of a contract between them. The contract, among other things, contained a provision whereby the respondent recognized the United as the sole collective bargaining agency for its employees. At the time of the signing of the contract, L. G. Sever, the respondent's executive vice president, was shown a list of the United membership and application cards, which contained the names of 665 as members and of 90 applicants for membership. At that time, there were 1,309 employees in the appropriate unit which is hereinafter discussed. In the course of these negotiations, a basic wage scale, which had been proposed by the United, was withdrawn by it. On June 2, in a conference contemplated by the June 1 con- tract, the wage scale was again presented to the respondent. As a result of further negotiations a wages and hours agreement was en- tered into by the respondent and the United on June 3. Further negotiations, beginning June 6, led to the signing of a more com- prehensive wages and hours agreement on June 9. None of these contracts contained any provisions for a check-off. On June 4, however, the respondent paid to the United $250, which represented the June dues of 500 United members which the re- spondent had checked off their wages, and thereafter paid to the United $22.50, similarly checked off the pay of 45 other United members. Prior to the United's agreement with the respondent, the regular working week in the respondent's plant consisted of five 8-hour days, a total of 40 hours. By the June 3 and 9 contracts, however, the working week was lengthened by 5 hours' work on Saturdays. In accordance with this arrangement, the respondent, on June 10, posted a notice stating that thereafter the employees would be paid on Saturdays rather than on Fridays. This resulted in a strike, MT. VERNON CAR MANUFACTURING COMPANY ET AL. 511 on the following day, by a large number of the men. By June 14, the strike had resulted in a stoppage of production' in the entire plant. Either for this reason, or at the instance of the United, the plant was closed on June 14. At this point, the leaders of the Amalgamated decided to claim the strike as their own and to remain on strike until the respondent granted recognition to their organi- zation. Picketing was thereupon started on June 15, and continued until the strike was settled. Between June 1 and 15, the Amalgamated representatives at- tempted to communicate with Arthurs on several occasions, but did not succeed. On June 15, the Amalgamated represented a majority of the respondent's employees in an appropriate unit.2 On that day Adams, an Amalgamated organizer, sent a telegram to Arthurs asking for an appointment, "for the purpose of discussing matters pertaining to signing a tenetative (sic) agreement." Arthurs' secretary replied to this, by return telegram, that she was unable to locate Arthurs but that the telegram would be brought to his attention ' as soon as he could be located. After being elected president of the United, Upton spent the greater portion of his time on United business, to such an extent that the assistant foreman, John Richardson, complained to Edward C. Hetler, his foreman, about Upton's "not being a man to produce." Hetler told Richardson to discharge Upton. Richardson did, but Upton was immediately afterward rehired upon Holt's telling Hetler that Upton "was associated with the Company Union and they wanted him to work." Thereafter, Hetler noticed that Upton ap- peared to attend to his work at will, and worked irregularly. After this had continued for 2 weeks, Hetler, on June 15, discharged Upton. At this point, Gorham Pigg, the general superintendent, informed Hetler that the respondent wanted Upton to continue to work there. Hetler stated that Upton "couldn't get the work out." Pigg thereupon discharged Hetler. On the morning of June 16, a number of the respondent's em- ployees, not at work because of the strike and consequent closing of the plant, were gathered downtown discussing the American Fed- eration of Labor. In Allen's office were gathered some of the United officers, also discussing the American Federation of Labor and the advisability of calling in an American Federation of Labor organ- izer. Allen was instructed to get one for them. Allen thereupon located E. P. Theiss, an American Federation of Labor general rep- resentative, who arrived in Mt. Vernon that evening. At Allen's office, Theiss met the officers of the United and discussed the situa- 2 Discussed infra, Section D 2. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lion with them briefly . He then went to and addressed a meeting of the United attended by approximately 550 people . After his address, most of those present signed applications for membership in the American Federation of Labor. The following day, a Fed- eral Labor Union charter was applied for. Theirs appointed those who had been officers of the United as temporary officers of the Fed- eral Labor Union, herein called the Federal. On June 17, someone connected with the Committee for Indus- trial Organization requested the United States Department of Labor to send a Conciliation Commissioner to Mt. Vernon for the purpose of settling the strike at the respondent 's plant. In response to that request, Commissioner Robert E. Mythen arrived in Mt. Vernon that same day. He conferred with representatives of the Federal, the Amalgamated , and the respondent. As a result of these confer- ences, the strike was settled on the following day. Memoranda addressed to Mythen recording the terms of the strike settlement were signed as follows : (1) By representatives of the Federal , by which it was agreed that the men would return to work, and would abide by the decision of the Board as to the question of representation of the respondent's employees. (2) By representatives of the Amalgamated to the same effect, and, in addition , agreeing to withdraw charges at that time on file with the Board. (3) By Arthurs, stating that all employees on the pay roll as of June 4, would be returned to work without discrimination or prejudice. On June 21 , the plant was reopened and work resumed . Adams, the Amalgamated organizer, called on Sever, the respondent's vice president, that day with respect to four discharged employees who were not reinstated . Adams stated that he understood that under the terms of the strike settlement these discharged employees were to be reinstated. Sever stated that that was not his understanding. The conference came to no satisfactory conclusion. That night a Federal meeting was held, at which it was decided that the Federal would assume the debts of the United. That night, also, George L. O'Brien , an International representative of Brotherhood Railway Carmen of America, discussed with Theiss the jurisdictional question of the transferring of the membership of the Federal to the Brotherhood . As a result of a telephone conference which followed between Theiss and William Green, president of the American Feder- ation of Labor, the membership of the Federal was so transferred at a Federal meeting on June 25. At that meeting Theiss explained the transfer and those at the meeting indicated their accord , but so far as the record shows no applications for membership in the Brotherhood MT. VERNON CAR MANUFACTURING COMPANY ET AL. 513 were signed by them. A Brotherhood charter was obtained on June 28, and officers were elected. On June 28, also, the United and the respondent entered into a contract canceling the contracts they had previously entered into. At the same time the Brotherhood and the respondent entered into (1) an agreement in the same terms as the June 1 United contract, and (2) an agreement assuming the United wages and hours contracts of June 3 and June 9. These agreements were tentative, to be superseded by permanent agreements within 60 days. Arthurs testified that at the time of signing these contracts, he ascertained that the Brotherhood represented a majority of the re- spondent's employees by either counting the names on the list pre- sented to him, estimating the number of cards shown to him, or taking "a responsible person's word for it." On July 10, representatives of the Brotherhood called upon Sever and submitted to him a proposed permanent contract. On July 20, the Brotherhood representatives met with Arthurs, who stated that he had examined the proposed contract. August 2, was set as the date upon which the proposal would be discussed. On August 2, the negotiating of a permanent contract between the Brotherhood and the respondent was started. A contract containing closed-shop and check-off provisions was completed on August 3. The contract was effective immediately and was to remain so until either party gave notice to the other of a desire to change the contract. The closed-shop clause required membership in the Brotherhood as a prerequisite to employment by the respondent. The then present rates of pay were to remain in effect. ' The check-off provision was given immediate effect. Between the date of the contract and November 11, 1937, the respondent checked off the wages of its employees and paid to the Brotherhood $4,302. Of this amount, only $1,720 represented the payment of dues in the Brotherhood. The balance represented the payment of initiation fees. The deduction from wages of dues only was authorized by the check-off provision in the contract. On August 10, the Brotherhood voted to enforce the closed-shop clause of the contract. On the 11th the respondent was so notified, and posted a notice stating that beginning August 12 the respondent would require membership in the Brotherhood or other American Federation of Labor affiliates as a condition of employment. Arthurs instructed the Brotherhood's committee to make arrangements with Holt. Such arrangements were made. They provided, among other things, that, any non-member of the Brotherhood would be admitted to work on August 12 upon signing, at Holt's office, a direction authorizing the respondent to check off a $5 initiation fee from his wages. 514 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 12,, the closed-shop provision was put into effect. On that day a large number of employees sought but were refused admit- tance to the plant because they had not complied with the provision of the closed-shop, contract requiring Brotherhood membership of the respondent's employees. Some of the excluded employees thereupon took steps to become Brotherhood members by applying for member- ship or signing check-off authorizations. Upon doing so, many of them were admitted to work. Of these, some were thereafter dis- charged because of their rejection as members of the Brotherhood. These discharges are more fully considered in section E, below. Throughout the period from May 11 to August 12, and thereafter, employees were directly warned by agents of the respondent against membership or activities in the Amalgamated and urged to join the United or the Brotherhood. No attempt appears to have been made at covertness or secrecy. Gorham Pigg testified that he was opposed to any union.. At first Arthurs stated this emphatically both in his letter to Gorham Pigg and Berry of May 11, and in his conference -with the organizers of the United on May 14. Thereafter, however, -when organization of its employees became imminent, the respondent directed its hostility against the Amalgamated alone and brought its influence to bear in behalf of the United, the Federal, and the Brotherhood in successive stages. Foremen and gang leaders also declared the respondent's attitude. Examples of undenied statements made to employees by those in supervisory capacities interfering with, restraining, and coercing such employees in the exercise of their rights under the Act are numerous. A few follow: Charles E. King, a former employee of the respondent, appeared at the hearing pursuant to subpena. In May 1937, his gang leader asked him to join the United. Also, some time between June 21 and July 30 (the date on which he left the respondent's employ), Robert Beal, a gang leader, told him that he would have to join the Ameri- can Federation of Labor or lose his job. The following conversation between King and Beal took place : King testified, "Well, he asked me, he said, `You belong to the C. I. 0., you have got a button on.' I said, 'I do,' He said, `Well, you better get on the right side of the fence.' . . . He said, `All you C. I. O. will be sitting out after this becomes a union,' and I told him I thought it was a union. And then I joined the American Federation of Labor." Beal "fetched me two pieces of paper and a card for the American Federation of Labor." This was at a time when King was at work. About July 1, two other gang leaders also asked King to join the American Federation of Labor. Ray Capps, a gang leader,, told Artie Lowry, an Amalgamated member, during the latter part of June, that "what we wanted in MT. VERNON CAR MANUFACTURING COMPANY ET AL. 515 -there was the A . F. of L. He said the C. I. O. was nothing but a bunch of communists and a bunch of reds." In a conversation in which unions were discussed , Gorham Pigg told Walter Voelker, a gang leader, 11 '1 am going to make it plenty tough on your friend Steve up there' . . . After he told me that he caught himself and he got mad at himself then, and he said, `Well, I guess I talked too much."' (Steve Knezevich was a car inspector who had been "a C. I. O. man before the C. I. O. organizers came to Mount Vernon" and had addressed an Amalgamated meeting on or about May 22.) One employee , Bailey, a timekeeper and checker , told some other ,employees that if they belonged "to the C. I. O. and it does win out here, Arthurs will shut the plant down and you won't have no jobs, because he said he won't recognize the C. I. 0." Arthurs' testimony as to this is illuminating : Q. Did you at any time ever tell any of your employees or any of your foremen or assistant foremen or gang leaders that you would close the plant rather than recognize the C. I. 0.? A. No, sir. Q. Tell anyone connected with the Company that, or that in substance? A. I doubt if I said that to anyone connected with the plant, but if I did mention the subject of closing the plant in the event of C. I . O.'s organization thereof, it certainly was not for pub- lication. Arthurs later testified : "To Sever I said that if the C. I. O. or- ganized the plant, the plant would probably close. I didn't say I would close it." Gorham Pigg, on August 20 , told Forest Hays, an employee of the respondent who had been discharged on August 12, "The union we got down there won't hurt this company." In May or June, Hayes, a gang leader, told William Channess, an Amalgamated member, that he "better get on the right side." Ray Capps told Al Grasley , an Amalgamated member, and three or four others that "the next time we talked union in the shop, especially C. I. 0., we was going to be fired, because they was already organized." Toward the end of May, Grasley 's gang leader laid him off because "he said I didn't belong to the right union." Nolan Pigg, a foreman , on June 17, asked James Hayes, an Amal- gamated member, "to join the A. F. of L.... and I refused, and then he said , if I didn't join the A. F. of L. that I would never get inside the shop again." On or about May 18, Leroy Ragan's foreman said "that all of us boys would have to get in or get out in regards to the Company Union 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Mt. Vernon Car Builders. He said we could have time to go out- side and decide whether we' would go in or get out." This statement was made during working time and "all the boys that had not signed the Car Builders" held a meeting during working time. The fore- man "said we would have to sign the United Car Builders if we worked and to go out and hold a meeting and, decide whether we was going to join or get out." Q. (By Trial Examiner Wood.) What do you mean "get out?" A. Well, get fired or lose our job, anyway. At the meeting the men held, they decided to join the United. The "machinists boss" distributed application cards to them. The previous day, Ragan's foreman had told him that "if I was ever caught loafing a minute I would be out, because I was too radical about the Union." On June 21, just before Ragan and his fellow employees started work, their foreman "stated that he wanted all of us boys to know that he had never had any use for any of us, that he was working for the Company and the very first damn one that he caught saying one word about the union or killing time, he had orders to give them their money." Q. To whom did he address these remarks? A. All the C. I. O. boys, the men that were in the picket line. Notices regarding the Amalgamated posted on the respondent's bulletin boards were torn down. However, United and Brotherhood notices were not disturbed. Hazel Sutton wrote an Amalgamated notice in chalk on the side of a car and was reprimanded therefor by Berry. Berry said, "I would like to know who in the Bell is putting C. I. O. up on these cars ... I suppose it is that little Hazel Sutton ... If he keeps on ... We will get rid of him." This was during the latter part of June. There was nothing unusual about signs being written on the sides of cars. Roy Fahringer, a foreman, stated to John Compton, an Amalga- mated member, "I had some work to do for you, but I understand you are on the wrong side of the fence ... I have got to go to the repair shed and get another bucker." Bob Beal told Frank W. Claybourn, an Amalgamated member, that he wanted him "to join the Company union and line up." Beal said that "the C. I. O. wouldn't amount to anything and we wanted a home -union." The last part of July, Beal also stopped Claybourn in his work to talk to him about the Brotherhood. At about the same time, Pigg and Bill Badgett, another gang leader, also spoke to Claybourn about the Brotherhood. About July 1, Luther E. Shehorn, an Amalgamated member who had been laid off, asked Holt, the respondent's employment manager, MT. VERNON CAR MANUFACTURING COMPANY ET AL. 517 why "I can't get back in the shop to, work." Holt replied, "Luther, if you will go see the A. F. of L. committee, probably you can go to work." Foreman Charles Klein said, at the time of discharging five Amalga- mated members, "I haven't got no use for no C. I. O. men." Klein denied this. The veracity of his testimony, however, is subject to serious doubt. His testimony is discussed in greater detail below in connection with a discussion of the discharges in question. That he made the statement in question was testified to by six employees. Gorham Pigg refused to reinstate Fred Thomason on the ground that "I drove around this fence and seen you carrying that banner. I don't aim to let none of them men go back to work that carried that C. I. O. banner." Pigg told another employee, Harry Pierce, that "You boys are awful God damn brave wearing those C. I. O. badges around here." Pigg denied these statements but they are con- sonant with other of his anti-Amalgamated activities as well as the respondent's. C. Interference, restraint, and coercion From the foregoing, it is clear that from the time that Arthurs became aware that the Committee for Industrial Organization would probably send organizers into the respondent's plant he undertook to prevent the organization by it of the respondent's employees. Arthurs' letter, written to Pigg and Berry on May 11, was certainly intended to influence and would naturally have the effect of influenc- ing the employees of the respondent in the exercise of their rights under the Act. Otherwise Arthurs would not have suggested the posting of the letter on the bulletin board. Arthurs' views were well stated in that letter. He said "that we need no organization, whether company or nationally affiliated, at Mt Vernon," and that "it is to be noted that the management of The Mt Vernon Car Mfg Company is in position to do more for its employees and assume a greater responsibility than any agency not incorporated under the laws of the State of Illinois." This gave impetus to the organization of the United. Arthurs testified that he wrote the letter because 2 or 3 weeks previously he had been called on by some "labor racketeers" who claimed to represent the St. Louis Union Labor Advocate and solic- ited an advertisement from him for which they wanted him to pay $500. Arthurs had refused. Later, hearing of some labor-union activity at the Green Tree Tavern, Arthurs testified that he thought that the "racketeers" who had solicited the advertisement from him were trying to "stir up enough trouble to cause me to come through." The explanation is specious. It does not explain the reason for writing the letter. So far as the record shows, the only "trouble" 164275-39-vol xi-14 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which concerned Arthurs at the time was the organization of the respondent's employees. The coincidence in time of the publishing of the letter and the circulation of the petitions which led to the formation of the United could scarcely have been accidental. The petitions were drawn for the purposes of forming an inside union and keeping out of the plant the Committee for Industrial Organization. The elimination of the Committee for Industrial Organization was in line with what Arthurs had expressed in the letter. It was testified that it was customary for employees to have typing done at Holt's office. Such typing had frequently been done in connection with soliciting donations or subscriptions from the em- ployees. In such cases, where the donations were to be obtained by means of a check-off, it was necessary to notify the respondent's office of the nature of the typing to be done. In connection with the typing of the petitions for an inside union, Holt made no inquiry as to the nature thereof, but the work was done on company time by a coin- pany stenographer. After the typing was done, Holt saw the peti- tion which was left in his office and gave it to Jones, a foreman, to be delivered to Glenn, who circulated it among the employees. Both Holt and Jones, therefore, knew the contents of the petition. So knowing, they facilitated its circulation through the plant by acting as messengers for the originators of the petition. The petitions ap- pear to have been openly circulated during working hours. The record is clear that at least some of the foremen knew that the petition was being circulated in their departments. Similarly, solici- tations of memberships in the United were openly made in the plant. The encouragement thus given to the formation of the United by the silence and cooperation of Holt, Jones, and the other foremen, is obvious. The treatment accorded the United is significant in contrast with the respondent's actions in relation to the Amalga- mated. The object of the employees' meeting with Arthurs on May 14, was to obtain Arthurs' permission to form an inside union. Pittman, one of the originators of the idea, testified : Q. You knew if the union didn't have the permission of the management, it didn't have a chance to last in your plant, didn't you? A. We were under that impression. Q. You got that impression because of years of anti-union feeling on the part of the company, didn't you? A. Yes, sir. At the meeting held in Allen's office on the night of May 14, an important decision was made : that dues of the United were to be MT. VERNON CAR MANUFACTURING COMPANY ET AL. 519 obtained through a check-off. The United did not deliver to the respondent any authorizations authorizing the check-off of dues from the wages of the individual employees involved. No provision for a check-off existed in either the June 1 or June 3 contract. Neverthe- less, the respondent paid to the United a check-off amounting to $272.50, which represented the dues of 545 United members. A check for $250 of this amount was paid by the respondent to the United on June 4. The practice of the respondent at that time was to with- hold 2 weeks' wages from its employees; for example, wages earned from May 30 to June 12 were paid on June 25. It is apparent, therefore, that the dues checked off by the respondent for the United -were paid to the United 3 weeks in advance of the day on which the balance of the members' wages were paid to them. It does not appear why the respondent, in the absence of a contractual check- off arrangement, should have granted the check-off privilege to the United so as to pay the United its share of its members' wages 3 -weeks before the respondent, in the usual course of business, paid the balance of those wages to the employees themselves. It is com- mon knowledge that labor organizations which have had contractual relations with employers for long periods have frequently been unable to obtain, from the employers with whom they deal, the privilege of a check-off. The system of check-off has been tradi- tionally one of the last concessions which employers have been will- ing to make in their dealings with labor organizations. Yet, the check-off was granted by the respondent and obtained by the United without any difficulty. The apparent willingness to make this con- cession is a particularly strong indication of the respondent's desire to support the United, in view of Arthurs' expressed general op- position to labor organizations. We have noted above that on May 20, two gang leaders closed and nailed up the gateway to the respondent's plant which was located opposite the Green Tree Tavern. Gorham Pigg testified that this action was taken to prevent "the men from running back and forth and getting drinks and drinking it on the works." There is nothing to support the assertion that such drinking had occurred. The tavern was used for a time as a headquarters by the Amalgamated organizers. The reference to the tavern in Arthurs' letter to Pigg and Berry of May 11, and a statement made by Ray Capps, a gang leader, when he nailed up the gate, that "that will be all of the C. I. 0.," indi- cates the reason for the action. On Saturday, May 22, following Adams and Meinkoth's meeting with Arthurs, it became apparent to Arthurs and to the United that swift action was necessary if the Amalgamated was to be de- feated. At a meeting that afternoon, a list of members of the 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United, containing 570 names, was left with Arthurs. Arthurs' recollection as to this was hazy. He was not certain whether mem- bership or application cards were presented to him at the same time. He was certain, however, that he "didn't count any cards any time." The list left with Arthurs did not contain the names of a majority of the respondent's employees. Nevertheless, it was the only thing which the respondent could have used, for the purpose of ascertaining the membership of the United, in checking against its pay roll. On the basis of Upton's being "pretty sure" that the United rep- resented a majority, Arthurs, some time between May 19 and 21, signed a "recognition" of the United. With no further proof of majority representation than a list of 570 names at a time when the respondent employed 1,276 employees, Arthurs sent a telegram offi- cially recognizing the United. The respondent's ready accord of recognition to the United is in marked contrast to the respondent's reluctance to deal with the Amalgamated. When the Amalgamated representatives called on Arthurs on May 22, three of the respondent's stenographers were present recording the conversation. None were present during Arthurs' meeting with the United representatives. Arthurs sought to explain this in his testi- mony by saying that he was acquainted with the United representa- tives, but not with the Amalgamated representatives. Yet Adams and Meinkotb, the Amalgamated representatives, were accompanied to Arthurs' office and were introduced to him by several of the respond- ent's employees, at least one of whom Arthurs knew because, as a repre- sentative of the employees, he had settled with Arthurs the May 5 wage dispute. On June 21, when Adams called on Sever, the respond- ent's vice president, seeking reinstatement of certain discharged em- ployees, Sever also had present a stenographer who made a transcript of the conversation. After Meinkoth had left at Arthurs' office a draft of a proposed contract between the Amalgamated and the respondent, Arthurs glanced at and delivered it to his attorney, asking him "what kind of an outfit did it look like it was." Arthurs must have known from the fact that the draft was left at his office that the Amalgamated was claiming the right to be the exclusive representative of the respond- ent's employees for the purposes of collective bargaining. The draft's first page plainly disclosed this. Yet, on June 1, the respond- ent entered into an agreement with the United without hesitation. The facility with which the United thus obtained a contract from the respondent at a time when Arthurs knew that the Amalgamated also was claiming the right of representation of the respondent's employees indicates the respondent's desire to deal with the United. MT. VERNON CAR MANUFACTURING COMPANY ET AL. 521 Having entered into an agreement with the United, Arthurs adopted the attitude that it was no longer necessary for the respondent to pay any attention to the claims of the Amalgamated, though it, and not the United, represented a majority of the respondent's employees.3 Arthurs admitted in his testimony that after June 1, he was certain that "we had a majority" and, therefore, evaded the Amalgamated representa- tives. The respondent sought to justify the discharge of Hetler because ,of his discharge of Upton on the ground that if the respondent per- mitted Hetler to discharge Upton, it would be violating the Act, since in effect Hetler was discharging Upton for union activities. Gorham Pigg testified that foremen had the right to discharge employees and that this was the first time that he had prevented an employee's being discharged because of a fear that he would be discharged because of union activities. In the light of the respondent's attitude toward the United generally and in the light of its general disregard of its em- ployees' rights under the Act, we find this explanation to be specious, and indicative of the lengths to which the respondent went to protect the United. When Theiss formed the Federal, he appointed those who had been officers of the United to continue temporarily as officers of the Federal. Beginning with the first meetings of the United, there were several employees of the respondent who became prominent in United affairs and who continued in prominence through the days of the Federal and the formative period of the Brotherhood. Thus, for example, two of the four officials of the Brotherhood local who signed the August 3 contract with the respondent were among those who signed the June 1 contract on behalf of the United. The testimony of the Brotherhood's own witnesses indicates that the direction of the affairs of the three organizations, the United, the Federal, and the Brotherhood, were, generally speaking, in the hands of the same people. The Federal and the Brotherhood not only succeeded to the assets, liabilities, and mem- bership of their predecessor organizations, but also to the same general direction. That the Federal succeeded to the membership of the United cannot be doubted. The largest enrollment of members in the Federal oc- curred on the night of June 16, at a meeting of the United, presided over by its president, and immediately afterward. When the Brother- hood succeeded to the Federal, the members of the Federal were taken over by the Brotherhood with no apparent formal action on their part. In connection with the August 3 contract between the Brotherhood and the respondent a draft of the Brotherhood's proposals, contain- 8 Discussed infra, Section D 2. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing among others, provisions for a closed shop and check-off, had been left with Sever on July 10. Between then and August 2, despite an intervening meeting with reference to the proposed contract, be- tween Arthurs and the Brotherhood's representatives on July 20, the respondent sent to the Brotherhood no counterproposal or other communication with reference to the proposals. Yet it was testi- fied that at the conference beginning August 2 and ending August 3, the closed-shop provision was the greatest stumbling block in the course of the negotiations. Arthurs and Albert A. Vail, the then president of the Brotherhood, testified that veiled strike threats were necessary in order to get the respondent to agree to a closed shop. Vail also testified, however, that a strike was not threatened. On the other hand, McCreery, the Brotherhood representative, testified that had an impasse been reached in negotiations over the contract, the closed-shop clause was not one of those which the Brotherhood would have refused to withdraw from its proposals. This was supported by the testimony of O'Brien, another Brotherhood representative. On the evidence, we find that, while some form of strike threat may have been made, in the light of the testimony of McCreery and O'Brien it is clear that it was not of such a nature as to have induced the inclusion of the closed-shop provision in the contract. Indeed, it appears that the respondent actually made no great objection to the inclusion in the contract of the closed-shop and check-off pro- visions. The inference is inescapable that the respondent all but en- couraged the Brotherhood's negotiators in their demands for a closed shop and a check-off to the same extent that the respondent had actively assisted the United in obtaining its check-off when no pro- vision for such check-off existed in any contract between the respondent and the United. Gang leaders at the respondent's plant are clearly supervisory employees and are so regarded by those working under their direc- tion. A gang leader does no work other than to supervise others and has as many as 30 employees working under his direction. Gang leaders are eligible for membership in both the Brotherhood and the Amalgamated. Some were found in each of those organiza- tions, the majority being in the Brotherhood. Whether or not su- pervisory employees are members of a labor organization, they are, in the interest of a free choice of representatives, required to abstain from actively influencing other employees in their choice of repre- sentatives. This, the respondent's gang leaders did not do. While it is not clear from the record whether gang leaders can officially hire and discharge men, it is clear that they either recommend such action to their foremen or take it unofficially themselves. This being so, they are clearly part of the management, and their actions in in- MT. VERNON CAR MANUFACTURING COMPANY ET AL. 523 flueiicing other employees in their choice of representatives are those of the respondent.4 The respondent's hostility to labor unions in general and to the Committee for Industrial Organization in particular; the respond- ent's constant indication of such hostility to its employees, through the outspoken threats and warnings of its supervisory officials; the respondent's refusal to accord the Amalgamated the rights and priv- ileges to which it was entitled as a representative of employees of the respondent; the respondent's patent aid and support of first the United and then the Brotherhood, revealed especially in the facility with which those organizations obtained contracts and check-offs after but sketchy and hasty determination of their alleged majority representation; the vigilance with which the respondent guarded the rights 'of the United, as exemplified by Pigg's discharge of Hetler because of his interference with Upton's United activities; the re- spondent's initial and continued distrust of the Amalgamated, re- vealed by Arthurs' and Sever's use of stenographers during confer- ences with the Amalgamated representatives but not during confer- ences with representatives of other labor organizations; the constant placing by the respondent of obstacles in the path of the Amalgam- ated-for example, the closing of the gate to the respondent's plant which was located opposite Amalgamated organization headquar- ters-all these and more are clear from the foregoing. We find that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. In view of the acts of the respondent, we find that neither they United nor its successor, 'the Brotherhood, was freely designated by a majority of the respondent's employees as their bargaining agent. Each of them was a labor organization which had been assisted by the respondent's unfair labor practices. We find that the contract of August 3 was entered into with the Brotherhood as the culmination 4 See Matter of The A S Abell Company, a corporation and 'International Printing and Pressmen's Union, Baltimore Branch, Baltimore Web Pressmen's Union, No. 31, 5 N. L R . B 644, affirmed , as modified ( modification did not affect this portion of the- Board's decision ), in National Labor Relations Board v. A S Abell Co , 97 Fed. (2d) 951 (C. C. A 4, 1938 ) ; Virginia Ferry Corporation v National Labor Relations Board, 101 Fed (2d) 103 (C. C. A. 4, Jan 9, 1939) ; Matte of Montgomery Ward and Company, Incorporated, a Corporation and United Mail Order and Retail Workers of America, 4 N. L. R B . 1151; Matter of American Manufacturing Company et al. and Textile Workers, Organizing Committee, C. 1 0., 5 N L R B 443; Matter of M. Lowenstein it Sons, Inc.- and Bookkeepers', Stenographers' and Accountants' Union, Local No. 16, United Office and Professional Workers of America, C. I. O. and Textile Workers' Organizing Committee- Local No. 65, C. I. O. and United Wholesale Employees of N. Y., 6 N. L R . B. 216; Matter of T. W. Hepler and International Ladies' Garment Workers Union, 7 N L. R. B. 255; Matter of Ward Baking Company and Committee for Industrial Organization and Bakery and Confectionery Workers International Union of America, 8 N. L. R. B. 558; Matter of Tennessee Copper Company and A. F. of L Federal Union No 21164, 8 N. L. R. B. 575; 9 N. L. R B. 117 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a plan by the respondent to deal with the Brotherhood alone, to the exclusion of the Amalgamated. A proviso to Section 8 (3) of the Act provides that: ... nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representa- tive of the employees as provided in section 9 (a), in the appro- priate collective bargaining unit covered by such agreement when made. Since the contract of August 3 was entered into with a labor organi- zation which had been assisted by the respondent's unfair labor practices, it is not within the proviso of Section 8 (3) of the Act and is, therefore, clearly invalid.5 D. The refusal to bargain collectively 1. The appropriate unit The amended complaint alleged that the unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act, consists of the respondent's production and main- tenance employees, excluding foremen and office and salaried em- ployees. This was denied by the respondent in its answer. At the hearing, it was not disputed that the exclusion from the unit of the office and salaried employees was proper, and that all the production and maintenance employees in the plant constituted but one unit. Stoppage of work in one part of the plant results in a stoppage in the remainder of the plant either immediately or within a few days. The strike of June 10, though at first it affected only some of the departments in the plant, necessitated the closing of the rest of the plant on June 14. There is no doubt that the work of the pro- duction and maintenance employees of the respondent is interrelated and interdependent. The only real issue regarding the appropriate unit raised at the ,hearing was whether certain classes of employees other than the office and salaried employees were supervisory or otherwise related e See Matter of National Electric Products Corporation and United Electrical and Radio Workers of America, Local No. 609, 3 N. L. R B. 475 ; Matter of Lenox Shoe Company, Inc and United Shoe Workers of AmtErica, affiliated with the Committee for Industrial Organization, 4 N. L. R . B 372 ; Matter of Missouri-Arkansas Coach Lines, Inc and The Brotherhood of Railroad Trainmen, 7 N. L. R B 186 , Matter of Jefferson Electric Company and United Electrical and Radio Workers of America, 8 N L R. B. 284. MT. VERNON CAR MANUFACTURING COMPANY ET AL. 525 to the management in such a way as to be properly excluded from the unit. The salaried employees include the office force, draftsmen, foremen, some assistant foremen, the chief checker, and the watchmen. In addition to the regular production and maintenance employees, others paid on an hourly or piece-work basis are gang leaders, inspectors, checkers, and timekeepers, and the remaining assistant foremen. Assistant foremen. These employees are closely related to the management. Their work is strictly supervisory in nature and closely allied to that of the foremen. Some assistant foremen are paid on a salaried and some on an hourly or piece-work basis. All, however, are carried by the respondent on a pay roll together with the foremen and apart from other production and maintenance employees. We find that the assistant foremen should be excluded from the unit. Gang leaders. These employees perform supervisory work under the direction of the foremen and assistant foremen. Each is in charge of a gang of men ranging in number from 6 to 30. Although they do not have authority to hire and to discharge employees, they do recommend such action to their foremen or take it unofficially themselves. They do no work other than to supervise others. The gang leaders, however, are paid on the same basis as other employees, and are carried on the regular production and maintenance pay roll. They are also eligible for membership in both the Brotherhood and the Amalgamated and some were found in each of those organizatio.is. The majority were Brotherhood members. The boundaries of eligi- bility for membership in a labor organization need not coincide with the unit for which the organization bargains. In the light of their close relationship to the management, we find that the gang leaders should be excluded from the unit. Inspectors. These employees are engaged in inspecting the work of other employees at various stages of production and in pointing out and correcting errors. Holt testified that "they have practically the same jurisdiction as a gang leader." We exclude them from the unit, therefore, for the same reasons for which we have excluded the gang leaders. Checkers and timekeepers. These employees, with the exception of the chief checker, who is paid on a salary basis, are paid on an hourly or piece-work basis. Their work is not supervisory but re- lates to keeping time and production records. To this extent, they are not production and maintenance employees. Although not con- sidered by the respondent as part of its office force, these employees have offices or desks in the departments in which they work and the work they do is of a clerical nature. The immediate interests and 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD problems of these employees are not those of actual production and maintenance employees.6 We find that, the checkers and,timekeep- ers should be excluded from the unit. We find that the production and maintenance employees of the respondent, excluding salaried employees, foremen, assistant fore- men, gang leaders, inspectors, checkers, and timekeepers, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. 2. Representation by the Amalgamated of the majority in the appropriate unit In the complaint as amended at the hearing, it was alleged that on June 15 the Amalgamated represented a majority of the employees in the appropriate unit. The membership application cards of the Amalgamated members were put into evidence.? There is no ques- tion as to the authenticity of the cards. The signing of such cards was sufficient to designate the Amalgamated as the collective bargain- ing agent of the signers. Of these cards, 728 were signed on or before June 15; of these, 667 were unchallenged as to authenticity by the respondent and were therefore admittedly cards signed by members of the Amalgamated who were employees of the respondent on June 15. Nine of these were gang leaders and, therefore, not in the appropriate unit. There was also put into evidence a photostatic copy of the respond- ent's production and maintenance pay roll for the period from May 30 to June 12, the pay-roll period closest to June 15 and immediately preceding the strike. On this pay roll there appear 1,439 names. Sixteen of these were watchmen and, therefore, not within the ap- propriate unit. Of the remaining 1,423, 54 were gang leaders, 3 were inspectors, and 10 were checkers and timekeepers. They, also, not being in the appropriate unit, must be excluded from our computa- tions. The names of 2 of the 61 Amalgamated members who were chal- lenged by the respondent do not appear on the pay roll. Although the remaining 59 do so appear, the respondent challenged them, pre- sumably on the ground that although they appear on the May 30- 6 See Matter of R. C. A. Manufacturing Company, Inc. and United Electrical & Radio Workers of America, 2 N. L R. B. 159; Matter of Simplex Wire and Cable Company and Wire & Cable Workers Federal Local Union 21020, Affiliated with the A. F. of L and Wire .E Cable Workers Federal Local Union 21020, Affiliated with the American Federation of Labor and Simplex Employees Association, 6 N L. R B 231 ° Later, a list containing the names of the members , together with the dates of their .applications, was substituted for the cards without objection MT. VERNON CAR MANUFACTURING COMPANY ET AL. 527 June 12 pay roll, their employee relationship with the respondent was terminated prior to June 15. Accordingly, to use the respond- ent's method of computing whether the Amalgamated represented a majority of the employees in the appropriate unit on June 15, these .59 names must be stricken not only from the list of Amalgamated members, but also from the respondent's pay roll. When this is done there remain 1,297 employees who were in the appropriate unit on June 15, of which the 658 unchallenged Amalgamated members in the appropriate unit were a majority. While we consider this method of computation valid and reliable, we have also examined the record concerning the 61 Amalgamated members whom the respondent has challenged, seeking, in vain, the justification for the challenges. The examination indicates that 55 of the 61 appear on the May 30-June 12 pay roll as having worked for the respondent during that period and as having been paid for their services either on June 25, the regular pay day for that period, or thereafter. The respondent, in challenging these 61 Amalgamated members, proceeded apparently on the ground that, on June 15, they were no longer employees of the respondent. The only reliable evidence in the record as to the employee status of these Amalgamated members is furnished by the May 30-June 12 pay roll. It does not support the respondent's contention. There is no continuity of work in the respondent's plant. The several departments operate spasmodically, whenever there is work for them. This results in the common practice of laying off em- ployees for varying periods of time. It appears to be the respond- ent's theory that an Amalgamated member who was laid off before June 15 cannot be counted in determining whether the Amalgamated represented a majority of the respondent's employees on June 15, even though the member in question continued to be carried on the respondent's pay roll at least until June 25. It was the respondent's practice to pay those employees whom it discharged or who volun- tarily quit their jobs for their services at the time their employment was so terminated. The fact that the respondent continued to carry the 55 above-mentioned Amalgamated members on its pay roll until June 25, in the absence of any showing of any definitive action on the part of either the respondent or the employees to terminate their employment, indicates that even the respondent considered those 55 as its employees during that period. We find that each of these 55 was an employee of the respondent on June 15, 1937. The cases of 2 of the 6 challenged Amalgamated members who are not included within the 55, require special consideration. Thomas Abraham Harshberger does not appear on the pay roll, having been ill during the period in question. When he recovered, 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however, he returned to work for the respondent and worked for it until August 12. There is no showing whatsoever of any change in Harshberger's employee status during the period of his illness. Ac- cordingly, we find that Harshberger was an employee of the respond- ent on June 15. Hans Hansen worked 611/2 hours between May 30 and June 12 and was paid for his services on June 15. Apparently his employment was terminated on that day. There is nothing to show that it was terminated before June 15. Accordingly, we find that Hansen was an employee of the respondent on June 15. We thus find that 57 of the 61 challenged Amalgamated members were employees of the respondent on June 15, 1937. These, together with the 667 uncha4lenged members, aggregate 724 Amalgamated members who were employees of the respondent on June 15. Accurately to picture the situation, there must be deducted from the respondent's May 30-June 12 pay roll three names of challenged Amalgamated members who appear on the pay roll but whom, for these purposes, we have not considered as employees. We must also add one name (that of Harshberger) to the pay roll. Also, there must be deducted (83 from the pay roll and 9 from the list of Amal- gamated members) those whom we have found not to be within the appropriate unit. The result of these computations shows that on June 15, 1937, the Amalgamated represented 715 of the respondent's 1,354 employees in the appropriate unit. In connection with the problem of proof of majority representa- tion, the respondent affirmatively sought to prove that at no time between May 10 and June 15 did the Amalgamated represent a majority of the employees in the appropriate unit. Holt, the re- spondent's employment manager, introduced an exhibit 8 into evi- dence purporting to show (1) the date on which each Amalgamated member became such, and (2) each date between May 10 and June 15 when each Amalgamated member was at work in the respondent's plant. The latter data were shown in the exhibit on the theory, appar- ently, that a man not actually working on a particular day could not be counted in determining whether the Amalgamated represented a majority on that day, as, not actually working, he was not an em- ployee. This position is obviously untenable in the light of the re- spondent's usual practice of regarding an employee laid off as an employee until he either is paid his wages in full or turns in his identification check. It does not appear from Holt's testimony that either of these conditions applied in the case of those listed in Re- spondent Exhibit No. 13 as not working on certain days between May 10 and June 15. s Respondent Exhibit No. 13. I MT. VERNON CAR MANUFACTURING COMPANY ET AL. 529 Furthermore, on cross-examination, Holt admitted that a number of errors existed in Respondent Exhibit No. 13. We have sample- checked the exhibit and found other similar errors. We, accordingly, have been unable to rely on Respondent Exhibit No. 13. There was no proof offered by the respondent or the Brotherhood to show that any of the Amalgamated members had, after joining the Amalgamated and before June 15, renounced their membership. A list of Brotherhood members was introduced showing on its face that none had joined the Brotherhood ° prior to June 16. At the hearing there was a list of United members 10 containing the names ind addresses of the members as of May 22. There was some evidence introduced tending to show that a few em- ployees, after joining the Amalgamated, joined the United, under coercion from their foremen. This, of course, could not affect such memberships, since it was not the exercise of their free wills and choices.h1 There is nothing, therefore, to cast doubt on the validity and accuracy of the list of Amalgamated members used in determining whether the Amalgamated represented a majority of the employees in the appropriate unit on June 15. The loss of majority representation by the Amalgamated after June 15 must be disregarded since it was a result of the respondent's interference with, restraint, and coercion of its employees.12 We, therefore, find that on, June 15, 1937, and thereafter, the Amalgamated was the duly designated representative of the majority of the employees in an appropriate unit. Pursuant to Section 9 (a) of the Act, it was, therefore, the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other condi- tions of employment. 3. The refusal to bargain collectively Beginning on May 22, as discussed above in sections B and C, repre- sentatives of the Amalgamated sought to bargain collectively with the respondent. They were rebuffed, however, by the respondent. About May 25, Meinkoth left for Arthurs, at his office, a draft of a proposed agreement between the Amalgamated and the respondent, which disclosed on its first page the Amalgamated's desire to be recog- ° Used here to designate either the Brotherhood or its predecessor, the Federal. 10 Board Exhibit No. 65, for identification 11 See Matter of Art Crayon Company, Inc. and its affiliated company, American Artists Color Works, Inc. and United Artists Supply Workers, 7 N. L. R. B 102. 12 See Matter of Bradford Dyeing Association ( U. S. A.) (a Corporation ) and Textile Workers' Organizing Committee of the C. 1. 0 , 4 N. L. R. B. 604; Matter of Cating Rope Works, Inc. and Textile Workers Organizing Committee, C. 1. 0., 4 N. L. R. B. 1100; Matter of American Manufacturing Company et at and Textile Workers' Organizing Com- mittee, C 1 0 , 5 N L R B 443; Matter of Somerset Shoe Company and United Shoe Workers of America, 5 N L R B 486. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nized as the sole collective bargaining agency of the respondent's employees. Arthurs paid no attention to this except to turn it over to his attorney, who used it as a model in drawing up the contract between the respondent and the United. This contract was executed on June 1. Thereafter, Arthurs ad- mittedly evaded the Amalgamated representatives. Entering into a contract with the United, an organization formed, administered, and encouraged by the respondent's interference with, restraint, and coer- cion of its employees in the exercise of their rights under the Act, did not justify such evasion. We can interpret such evasion only in the light of the respondent's antecedent as well as subsequent acts which indicated its anti-Amalgamated attitude. On June 15, Adams sent a telegram to Arthurs seeking an appoint- ment "for the purpose of discussing matters pertaining to signing a tenetative (sic) agreement." This telegram, in the light of the pre- vious delivery to Arthurs of the proposed agreement, constituted a demand for recognition. To this telegram a reply was sent saying that Arthurs could not be located. No further reply was ever sent. On the same day, in support of their demand for recognition, the Amal- gamated assumed the strike then taking place. In the light of the respondent's manifested attitude toward the Amalgamated, and in the light of Arthurs' admitted evasion of the Amalgamated representatives, we find that the respondent's failure to respond to the telegram of Adams on June 15 denied the Amalgamated the recognition to which it was entitled under the Act as the represent- ative of a majority of the respondent's employees in an appropriate bargaining unit. This denial of recognition, coupled with the respond- ent's recognition of and contractual relations with the United and then the Brotherhood, into which its employees had been propelled under the pressure of the respondent's unfair labor practices, con- stituted a refusal to bargain collectively with the representatives of its employees. We find that on June 15, 1937, and at all times there- after, the respondent refused to bargain collectively with the Amal- gamated as the representative of its employees in an appropriate unit in respect to rates of pay, wages, hours of employment, and other conditions of employment. E. The discharges The complaint, as amended from time to time, alleged the demotion, lay-off, and/or discharge of a number of named individuals because of their Amalgamated membership, activities, or sympathies, their refusal to join the United or the Brotherhood, or a combination of these. In its answer, the respondent denied that there were any MT. VERNON CAR MANUFACTURING COMPANY ET AL. 531 demotions, lay-offs, or discharges for these reasons. In the light of the events set forth above, we shall discuss the circumstances surround- ing the termination of employment of the various employees. Forest Hays, John Dowdell, Joseph Bailey, Joseph Callas, Hobart Hayes, Arthur Hoffer, Virgil Hullinger, Angus Coekruma, Arthur F. Cook, Glenn G. Francis, Al Grasley, James F. Hayes, Ishmael Hous- ton, Riley Johnson, Artie Lowry, James Padfield, Marvin Pigg, Richard Pigg, Leroy Ragan, Harry Smith, Hazel Sutton, Gus Whit- son, and Francis Willmore. These employees were unable to obtain admittance to the respondent's plant on August 12, 1937, because of their non-compliance with the requirement of the closed-shop agree- ment-membership in the Brotherhood. That numbers of employees were for this reason excluded from work on August 12 was not denied by the respondent and in its brief the respondent admitted that the enforcement of the closed-shop agreement caused the exclusion of these named employees on August 12. These employees were not thereafter reinstated. Some of them, however, were offered reinstate- ment, but the condition of membership in the Brotherhood was at- tached to said offer. Arch Mandrell, although not a Brotherhood member, was admitted to the plant on August 12 on the basis of a receipt evidencing his membership in the International Association of Machinists, herein called the I. A. M. While not in accordance with the terms of the closed-shop contract which required that the respondent's employees be members of the Brotherhood, this was in accordance with the notice of the closed-shop contract, which the respondent had posted on August 11, which stated that members of the Brotherhood or of "other American Federation of Labor affiliates" would be admitted to work. The I. A. M. is so affiliated. However, on the night of August 12, Mandrell was expelled from his I. A. M. local because the Brother- hood had "put the pressure on them and they had to vote me out." On the following day, Mandrell was not admitted to the respondent's plant and he was not thereafter reinstated. It appears that Mandrell was later offered reinstatement but the condition of membership in the Brotherhood was attached to said offer. This was the same condition as that imposed on Mandrell's employment on August 13. Ray Morgan, Luther Atwood, Harold Albert Krohe, Harry Lawson, Charlie Masters, Henry Thomas, Richard Mayberry, and Richard Rose. These employees were unable to obtain admittance to the re- spondent's plant on August 12, 1937, because of their non-compliance with the condition imposed by the closed-shop agreement, of member- ship in the Brotherhood. Later, upon joining the Brotherhood, these employees were reinstated. Morgan, Atwood, Krohe, and Lawson 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were reinstated on August 19, Rose on August 20, Mayberry on Au- gust 26, and Masters and Thomas on October 1. Archie Lane, a member of the Amalgamated, was unable to obtain admittance to the respondent's plant on August 12, 1937, because of his non-compliance with the condition, imposed by the closed-shop agreement, of membership in the Brotherhood. On August 17, Lane joined the Brotherhood and returned to work. However, he was im- mediately displaced by the employee who had taken his place between August 12 and 17, on the ground that Lane was junior, in point of service, to that employee. Lane was not thereafter reinstated until October 5. Lane's displacement on August 17 resulted from a seniority rule promulgated by the Brotherhood which provided, in effect, that non- members of the Brotherhood who were not admitted to work on August 12, when later reinstated, became junior, in point of service, to those who had been Brotherhood members on August 12. The re- spondent thus put into effect a rule which resulted in discrimination against all those who had not been Brotherhood members on August 12. Albert R. McCollwrn was a member of the Centralia, Illinois, lodge of Brotherhood Railway Carmen of America, having joined it in 1934 at a time when he worked for the Illinois Central Railroad at that place. He started working, for the respondent on June 11, 1936. On August 12, 1937, he was refused admittance to the respondent's plant, although he identified himself as a member of the Centralia local. The closed-shop contract required of employees membership in the Brotherhood (Mt. Vernon lodge). On August 19, however, he was admitted to the plant, and was thereafter employed by the respondent. Later, he applied for the transfer of his membership from the Cen- tralia to the Mt. Vernon lodge. The refusal to admit McCollum to work on August 12 was based on his non-compliance with the condition of the closed-shop contract, membership in the Brotherhood (Mt. Vernon lodge). The respondent did not deny that McCollum was refused admit- tance to work between August 12 and 19. Ernie Harper had worked for the respondent "off and on" since 1924. He joined the Amalgamated on May 14, 1937, although not working at the time, his first employment by the respondent in 1937 having started on May 17. He was laid off, because of lack of work, between May 18 and June 1. He was then employed irregularly until about August 7. He reported for duty daily thereafter until August 12, when he was refused admittance to the plant because he was not a Brotherhood member. When hired on May 17, Harper was immediately told by his gang leader to join the United. When Harper was reinstated on June MT. VERNON CAR MANUFACTURING COMPANY ET AL. 533 1, he claims that he was put on a job paying a lower wage than he had previously earned and that, later, he succeeded in getting work but part of the time. The respondent admitted that after June 1 Harper's employment was irregular and that, on August 12, the termination of Harper's employment resulted from the enforcement of the closed-shop con- tract. We find that the demotion of Harper alleged to have occurred prior to August 12 was not caused by his membership or activities in the Amalgamated. On August 12, however, the imposition of the condition of membership in the Brotherhood upon the employ- ment of Harper, terminated his employment on that date. Lawrence Batey, an Amalgamated member and one of the picket- ers during the strike, had been injured in May and thereafter could do only light work, which was not steady. August 9 was the last day on which Batey worked. He testified that on August 10 and 11 he was not given work and that on August 12 he was not ad- mitted to the plant because he was not a Brotherhood member. He was not thereafter reinstated. His superintendent testified that Batey said "that he thought he could do better elsewhere and asked for his money"-the equivalent of quitting his job. The respondent claimed that this was on August 9. If Batey was paid on August 9, documentary proof thereof must have been in the respondent's pos- session. No such proof was introduced. The superintendent fur- ther testified that he did not know whether or not Batey was refused admittance to the plant on August 12. Batey's testimony that he was so refused is unrefuted. The respondent failed to show that his employment was terminated prior thereto. John Compton had worked for the respondent for a short while in 1919, for a short while in 1923 or 1924, and not again until June 5, 1937. He had joined the Amalgamated, however, on May 19, 1937. Between June 5 and 25, he was promised a steady job. He testified, "I got in only a couple of days during that time; I was promised a steady job. They told me if I worked a couple of days I would get on steady, but I never got on steady." During the strike, Compton was in charge of the kitchen which was set up at strike headquarters. On June 25, Compton asked Roy Fahringer, a foreman, for work. Fahringer said that he would see whether he needed anyone. A short while later, Fahringer told Compton, "I had some work to do for you, but I understand you are on the wrong side of the fence ... I have got to go to the repair shed and get another bucker." A short while later, Nolan Pigg, another fore- man, instructed the timekeeper to "give this man his time," and Pigg "pulled my card out of the bog"-the equivalent of discharging a man. 164275-39-vol. x!-35 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent contended that Compton was only an extra man for whom there was no further need. The amended complaint alleged that Compton was excluded from work on August 12 because of his refusal to join the Brotherhood. This, however, is not borne out by the record. The complaint, as amended, further alleged that in June the respondent discharged Compton. It is clear from the record that on June 25, the respond- ent, if it did not discharge Compton, at least refused to hire him. In the light of the statement made to Compton by Fahringer, there can be no doubt but that the discharge or refusal to hire was caused by Compton's membership and activities in the Amalgamated. We find that, on June 25, the respondent discharged Compton or refused to hire him because of his membership and activities in the Amal- gamated. James W. Francis was the oldest electric welder, in point of serv- ice, in the respondent's employ. He joined the Amalgamated on May 14, 1937, and wore his Amalgamated membership button while at work. He picketed during the strike. Francis did not report for work between July 30 and August 9. In the meantime, he had seen his foreman and told him "that he had gotten too much liquor and he got in a jam." His foreman told him that he could not employ a man who used liquor but that he should return to work on August 9. From August 9 to 11 Francis was put at work which paid him a lower wage than he had previously earned. Francis claimed that on August 9 he was demoted and that on August 12 he was discharged, since he was refused admittance to the plant on that day, for the reason that he was not a Brotherhood member. The respondent sought to justify the demotion on the grounds that Francis' foreman intended to reinstate him to his old job as soon as he proved himself to be a sober worker. Francis testified that he, did no drinking and was not under the influence of liquor while at work. He did not deny, however, the conversation with his foreman in which he told the foreman that he had been drinking. Under these circumstances, it would appear that a temporary demotion was within the proper use of the foreman's discretion. We, accordingly, find that the demotion was not caused by Francis' membership or activities in the Amalgamated. The respondent denied the discharge of August 12. According to the testimony adduced on behalf of the respondent, Francis asked for his money on August 11 and thus quit his job. ' Francis testified that at noon on August 11 his foreman told him, "That is all for today," and laid him off. Francis also denied having quit his job and having MT. VERNON CAR MANUFACTURING COMPANY ET AL. 535 asked for his money on August 11. He testified that he did not re- ceive his money on August 11 and not thereafter, until after the regular pay day. In the meantime, on August 12, he was refused admittance to the plant because he was not a Brotherhood member. On cross-examination, Francis' foreman testified that he was not "positive" that Francis was paid on August 11. Had he been paid on that day, the records of the respondent would have substantiated its claim. The failure to produce those records, in the light of Francis' testimony, indicates to us the falsity of the respondent's claim. Curtis Flanagan had worked for the respondent for a short while in 1928,- and then not until about June 1, 1937. He joined the Amal- gamated on May 19, 1937, and wore his membership badge while at work. He did not join the Brotherhood. About July 29, Flanagan claims, he was demoted by being transferred to a job yielding less pay. On August 12 he was refused admittance to the plant because he was not a member of the Brotherhood. There is nothing to show that the alleged demotion of July 29 bore any relationship to any union membership or activity of Flan- agan. The respondent, however, did not deny the refusal to admit Flanagan to the plant on August 12. Clarence York had worked for the respondent "off and on" for 15 years. He joined the Amalgamated on May 17, 1937, and picketed during the strike. On August 3 he was laid off, but he continued to go to the plant daily from August 3 to August 12, at which time he was refused admittance to the plant because he was not a mem- ber of the Brotherhood. On August 20, he joined the Brotherhood, but was not reinstated until September 11, on which day he was given some work as an extra man. York testified that he worked 10 hours on that day. 4 The respondent claimed that York was laid off because of a reduc- tion in force, and that the reinstatement occurred about October 1. The respondent claimed that on that date, York, after working for approximately 20 minutes, said that "he didn't have to work that hard" and quit. The complaint as amended at the hearing alleged that York had been laid off on August 3 because of his membership and activities in the Amalgamated. We find that this charge was not sustained by the evidence. Clyde Fickle joined the Amalgamated on May 20, 1937. He picketed during the strike. On July 19, he was laid off at the con- clusion of a contract. Fewer men were to be used on the following contract. On July 27 he was reinstated, but on the night shift and at a, lower wage. He did not report for work on the night of August 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 12. On the way to work that night, Fickle met one of the night fore- men who told him that, since he was not a Brotherhood member, he would not be permitted to work. Evidence adduced on behalf of the respondent was to the effect that on July 19, when it became necessary to reduce the force, Fickle chose to be laid off rather than have his brother, who worked in the same department, laid off. This was not denied by Fickle. In any event, we find no connection between Fickle's membership or activi- ties in the Amalgamated and his lay-off and demotion. The respondent claimed lack of knowledge as to whether Fickle applied for work on August 12. In view of the admitted refusal of the respondent to admit to its plant all non-members of the Brotherhood on that day (with the exception of Mandrell, whose case is discussed hereinabove), we feel that it was unnecessary to show conclusively in each individual case that the employee applied for and was refused admittance. Know- ing that such application would be futile, it was not necessary for each employee who was not a Brotherhood member to apply. This was particularly true in Fickle's case, where a foreman told him that his application for work on August 12 would be futile. Frank W. Claybourn had worked for the respondent since 1912. He joined the Amalgamated on May 12, 1937, and was elected vice president of the local in July. He picketed during the strike. He testified, and it was not denied, that Robert Beal had asked him to join, first, the United and, then, the Brotherhood. On the latter occa- sion, at least, Beal was a gang leader. Claybourn also testified that Badgett, another gang leader, had also spoken to him about the Broth- erhood. This, also, was not denied. Claybourn did not join the Broth- erhood. Claybourn testified that on August 5 he left work at noon because he was ill. The following day he returned to work and was told by his gang leader, "You are laid off; let the new man work." According to the respondent, Claybourn left work on August 5 contrary to his foreman's explicit instructions. His foreman testified that Claybourn had left work once or twice previously without per- mission but admitted that Claybourn had not previously been warned regarding this. The foreman testified that Claybourn was discharged on August 6 for cause. On examination by the Trial Examiner, the foreman testified that he had not discharged Claybourn, but merely laid him off for disciplinary purposes. Claybourn testified that on August 6 his foreman offered him his pay, which he refused, and that his foreman said to him, "You would be surprised, Claybourn, who said to lay you off." Claybourn reported for work on August 9 and 10, but was not put to work. On August 10, his gang leader told him that it would be MT. VERNON CAR MANUFACTURING COMPANY ET AL. 537 useless for him to return on the following day. Accordingly, Clay- bourn did not report for work again until August 12, when, although not a Brotherhood member, he gained admittance to the plant. Shortly thereafter, he was ejected by Roy Holt. For the respondent, without so much as a previous warning, to have discharged or even disciplined Claybourn on August 6 for his leaving work the previous day without permission appears to us more than necessary. Even if the punishment was excessive, if, in fact, the pun- ishment was the actual reason for his discharge, it would, of course, be without the purview of the Act. But we are satisfied that it was not the actual cause of Claybourn's discharge. In the light of the respondent's attitude generally toward the Amalgamated, the promi- nent position which Claybourn held in the Amalgamated, the constant solicitation of Claybourn by gang leaders regarding the Brotherhood, and his foreman's uncertainty as to whether he discharged Claybourn for cause or merely laid him off, we find that Claybourn was discharged or laid off on August 6 because of his membership and activities in the Amalgamated. Evan Hungate joined the Amalgamated on May 19, 1937. He wore his membership button while working and picketed during the strike. He claimed that after the strike he was not given as much work as before, that on August 9 he was transferred to a helper's job, that on August 10 he was given no work, and that on August 11 he was given work stacking steel, which lie considered a demotion. On August 12, lie was refused admittance to the plant because he was not a Brother- hood member. The respondent denied any discrimination against Hungate in con- nection with either the amount or type of work to which he was assigned. It did not deny, however, the refusal to admit Hungate to the plant on August 12. The evidence tending to show that the amount and-type of work to which Hungate was assigned bore any relationship to his union mem- bership or activity was inconclusive. The refusal to admit him tO the plant on August 12, however, was clearly due to his failure to meet the condition of membership in the Brotherhood imposed by the respondent upon his employment. William Channess had worked for the respondent for approxi- mately 15 years. He joined the Amalgamated on May 12, 1937. On August 12, he was refused admittance to the plant because he was not a member of the Brotherhood, and so discharged. On October 1, he signed a Brotherhood check-off authorization. On October 6, he was reinstated, but immediately laid off. He claimed to have been told- at that time that he had lost his seniority. The respondent denied this. The respondent claimed that when Channess signed the 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD check-off authorization there was no work available for him, that he was told there would be work for him in several weeks, and that he did not come back thereafter. There is no dispute that after the closed-shop agreement went into effect a seniority rule was estab- lished whereby seniority dated from August 12, the effect, of course, being that non-members of the Brotherhood who were not admitted to work on August 12, when later reinstated, became junior, in point of service, to those who had been Brotherhood members on August 12. In any event, it is apparent that Channess was discharged on August 12 and was not thereafter reinstated although he signed the check-off authorization. The failure to reinstate him was the result merely of the continuance by the respondent of its requirement of membership in the Brotherhood of its employees on August 12. Burrell Davis had worked for respondent "off and on" for ap- proximately 20 years. He joined the Amalgamated on May 14, 1937. He did not participate in the strike and continued to work until the plant was closed on June 15. He did not picket. Davis claimed to have talked about the union while at work and to have distributed some Amalgamated cards. The work which Davis was doing on June 23 was finished on that day. The next day Davis was not given work. He spoke to several foremen who, he claimed, had always found work for him previously, but to no avail. The respondent claimed that Davis was laid off on June 23 because of a reduction in force. Under all the circumstances, we find that Davis' lay-off was not so related to his membership or activity in the Amalgamated as to have been caused thereby. Erie Wells had, worked for the respondent since July 1936. He joined the Amalgamated on May 16, 1937. On August 12, 1937, he was refused admittance to the plant because he was not a member of the Brotherhood and so discharged. On August 19, he signed a Brotherhood check-off authorization in Holt's office and was rein- stated to his former position, replacing the employee who had replaced him in the interim. After Wells had worked for approxi- mately 30 minutes, the man whom Wells had so replaced raised some objection, whereupon Wells was taken off the job and the other em- ployee put back on. On August 31, Wells was assigned to a new job, yielding less pay, and thereafter was shifted from one job to another. It is evident that the lay-off and demotion of Wells sub- sequent to his reinstatement on August 19 resulted from the fact that Wells was not, on August 12, a member of the Brotherhood and therefore, according to the seniority rule which appears then to have been in effect, was junior, in point of service, to the employee who had replaced him on that day. MT. VERNON CAR MANUFACTURING COMPANY ET AL. 539 Victor Britton had worked for the respondent "off and on" for 14 years. He was one of those who, on May 7, 1937, sent the telegram to John L. Lewis asking for an organizer to be sent to Mt. Vernon. He joined the Amalgamated on May 10, was elected an officer thereof, and wore his membership button while at work. On August 12, Britton, because he was not a member of the Brotherhood, was re- fused admittance to the plant, and so discharged. On August 20, he signed a Brotherhood check-off authorization and was reinstated to his job. He claimed to have been demoted on August 23. He volun- tarily left the respondent's employ on September 7. There is no evidence to support the claim of demotion on August 23. Herbert Daniel Mendenhall and Wayne Mendenhall had worked for the respondent for approximately 30 and 13 years, respectively. They joined the Amalgamated on June 11 and May 15, 1937, re- spectively. During the strike, Herbert cooked for the picketers and Wayne picketed. The wage agreement under which the Mendenhalls were working on June 22 called for their working on 16 cars per day. However, on that day, they were told that there would be a 17th car to build. The Mendenhalls, although on a piece-work basis, refused to work on the 17th car and left at the completion of the 16th. They also refused to build a 17th car on June 23 and 24. On June 25, the contract on which they were working was completed, and the Men- denhalls were laid off. From 5 to 10 others also refused to work on the 17th car. The respondent claimed that 35 others were laid off with the Mendenhalls upon the completion of the contract, that there had been no occasion to rehire them "until right here lately," that some of the 35 had probably been rehired, and that the Mendenhalls' refusal to work on the 17th car on the days in question did not cause their lay-off. Under the circumstances, we do not find that the lay-off of the Mendenhalls on June 25 bore any relation to their membership or activities in the Amalgamated. Willnie Lane had worked for the respondent "pretty steady" since 1916. He joined the Amalgamated on May 13, 1937, wore his mem- bership button while at work, and picketed during the strike. On August 12, Lane was refused admittance to the plant because he was not a member of the Brotherhood, and so discharged. On August 17, he joined the Brotherhood and, on August 19, was reinstated to a job which yielded less pay than' his former job had. His foreman told him that the Brotherhood committee had had him transferred to this job. However, one of the committeemen denied that he had had anything to do with it. Another member of the committee said that Lane's "trouble" was that "you were a C. I. O. man," and that 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his seniority was to be computed from the time that he had joined the Brotherhood. On September 7, a reduction in force took place. Lane was laid off, according to his "boss" because "According to the way this committee decided you are a new man, you are at the bot- tom of the list now." On October 5, Lane was reinstated, but at a job yielding less pay than his former one. The respondent did not deny Lane's discharge on August 12 and admitted that after his reinstatement Lane earned less than formerly because the employee who had replaced him during the period from August 12 to 19 was considered by the Brotherhood committee as having seniority over Lane by reason thereof. Louis Harshberger joined the Amalgamated on May 21, 1937. He testified that a gang leader asked him to sign a United member- ship application card. Harshberger refused and the gang leader said that "we will have to sign these if we intend to work here." This was not denied. Harshberger claimed that he was laid off on May 17. He signed a United membership application card early in June and claimed to have been reinstated on June 8, on the night shift, however. The respondent claimed that five or six others were laid off with Harshberger and that the lay-off was occasioned by the necessity of shifting the work to the night shift so as to take advantage of crane service. The respondent further claimed that during that period the work was irregular but that Harshberger had worked whenever the rest of his gang worked. Records introduced by thQ respondent indicated that Harshberger was actually absent from work because of the lay-off for only 4 days. The record is clear that Harshberger's lay-off was not caused by his membership in the Amalgamated or his refusal to join the United. Russell Lyons joined the Amalgamated on May 11, 1937. After the strike a gang leader told him that "if I didn't sign up on the right side, I would lose my job." Another gang leader asked him to remove his Amalgamated membership button, which he refused to do. On August 12 Lyons, not being a Brotherhood member, was refused work by the respondent. On August 19 he signed a Brother- hood check-off authorization and was reinstated. On August 21 he was discharged on the ground that his application for membership in the Brotherhood had not been accepted. He was later reimbursed for the $5 initiation fee which had been checked off his pay. The respondent did not deny the discharge of August 12, nor did it deny that on August 21 Lyons was discharged at the instance of the Brotherhood. Henry W. Dillow was hired by Beishline sometime prior to Beish- line's discharge and was put by Beishline in the locomotive repair MT. VERNON CAR MANUFACTURING COMPANY ET AL. 541 department. W. R. Rogers, the locomotive foreman, did not need an additional man at the time, but Beishline told Rogers to "keep him until June 1st, and then I will shift him on the shot blast." Dillow joined the Amalgamated on May, 14. He claimed to have been discharged on May 15. Dillow claimed that, sometime after being discharged, another foreman told him that he had talked "a little about the Union" and that "you had a job, you ought to kept your mouth shut." The respondent claimed that Dillow, -who was from 55 to 60 years old, was hired by Beishline although he 'was not needed; that when Gorham Pigg replaced Beishline, it was necessary to reduce the force; that while Dillow was supposed to have been a first-class mechanic, he actually was incompetent to do anything but common labor ; that, therefore, Dillow was the logical man to discharge; and that Dillow had not been replaced. The respondent further introduced time records showing that May 7 was the last day on which Dillow had worked, 3 days before the start of organization of the Amalgamated in Mt. Vernon. Under all the circumstances, we find that the discharge of Dillow was not caused by his membership or activities in the Amalgamated. A. E. Baird, P. F. Baird, and Clarence Shane. These employees were members of the same riveting gang in the respondent's steel plant. They were members of the Amalgamated, having joined on May 20, May 18, and May 12, respectively. P. F. Baird and Shane wore their Amalgamated membership buttons while at work, and picketed dur- ing the strike. The three men were refused admittance to the plant on August 12 because they were not members of the Brotherhood, and so discharged. Thereafter, they applied for memberships in the Brotherhood or signed check-off authorizations. They were reinstated to their jobs on August 20. After working for approximately 20 minutes on August 20, they were removed from their jobs, their, fore- man stating that "he would have to work those men that stayed in there and worked." The employees who had replaced the Bairds and Shane between August 12 and 20 were again put in their places. Shane asked Berry why he could not work. Berry replied, "Well, Shane, you waited until the last damned minute to sign up, and we can't use you." The discharges of the Bairds and Shane on August 12 were not denied by the respondent. The respondent also did not deny that on August 20 these employees were removed from their jobs within a short while after having been reinstated. It appears that the action of the respondent resulted from the fact that the Bairds and Shane were not, on August 12, members of the Brotherhood, and were, there- fore, according to the respondent's seniority rule, junior, in point of service to those employees who had replaced them on that day. In 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this respect the cases of the Bairds and Shane are similar to that of Russell Lyons, discussed above. In the cases of the Bairds and Shane, however, the respondent claimed that on August 20, after the Bairds and Shane were removed from their jobs, their foreman, Berry, and a Brotherhood committeeman were "talking, figuring on a place to put them if we could later, you know, in a day or so, or 'something, and Shane got loud, demanded his money. He said, `If I can't work, I guess I can get my money, can't I?" Shane appears to have acted as spokesman for the three men. He demanded his money, but did not get it, and he and the Bairds left without finishing the conversa- tion. It was the respondent's claim that all three men thus quit their jobs on August 20. The discharge of the Bairds and Shane on August 12 was caused by the condition of membership in the Brotherhood being imposed upon their employment by the respondent. Their removal from their jobs on August 20 was, in effect, a refusal to reinstate them and was caused by a continuance of that same condition. What occurred there- after is immaterial. In any event, having been wrongfully denied work by the respondent on two occasions, it is not surprising that Shane became incensed and "got loud, demanded his money." Cer- tainly, having been discriminated against twice, it was but reasonable to expect that Shane and the Bairds would feel entitled to their pay, as, indeed, they were. Their action in demanding it subsequent to the occurrence of tha discriminations did not constitute voluntary termi- nations of employment on their part. Samuel Howard had worked for the respondent since 1906. He picketed during the strike. Not being a member of the Brotherhood, he was refused admittance to the plant on August 12, and so dis- charged. On August 19 Howard signed a Brotherhood check-off authorization and was reinstated to his job. On September 27 he was "laid off" because his Brotherhood membership application was "rejected by the Union." After September 27, however, the Brother- hood reconsidered Howard's application and accepted it. On October 5 Howard was reinstated by the respondent and was still employed by it at the time of the hearing. Max Garrison joined the Amalgamated on May 19, 1937, and picketed during the strike. On August 12, not being a member of the Brotherhood, he was refused admittance to the plant, and so discharged. On August 19 he "signed up" with the Brotherhood but, on August 20, was refused reinstatement. He testified that his foreman told him that his place had been taken, he had lost his seniority, and he could not get back his old job. The respondent did not deny the discharge of August 12. Garri- son's foreman, however, testified that he did not recall the reported MT. VERNON CAR MANUFACTURING COMPANY ET AL. 543 conversation of August 20. He testified that Garrison asked him for a job during the latter part of October, and that he told Garri- son that there was no opening for him at that time. Garrison's testimony was in accord with the indisputable fact that after August 12 a seniority rule was promulgated by the Brother- hood and effectuated by the respondent whereby employees of the respondent who were Brotherhood members on August 12 were considered senior, in point of service, to those who joined the Brotherhood thereafter. It is evident that Garrison was ref used reinstatement on August 20 on the basis of this seniority rule. Walter Voelleer had worked for the respondent since 1923. At the time in question, he was a gang leader in the wood-erection department, with 26 men working under his direction. Ray Capps, another gang leader, solicited Voelker's membership in the United. Voelker refused to join. On June 1 it was discovered that Voelker's gang had incorrectly put on the roofs of 16 freight cars which they were building. When Gorham Pigg heard of the mistake, he went to see Voelker, who said to him, "I guess you are going to give me what I got coming," referring to being discharged. Voelker claimed that Pigg then discharged him. - The respondent claimed that Voelker "asked for his money" before Pigg had an opportunity to discharge him. While Voelker claimed to have been sympathetic with the Amal- gamated, there is nothing of a tangible nature in the record to show this. It is not clear from the record whether Voelker was discharged on June 1 or whether he quit. It is clear that had he not quit, he would probably have been discharged. However, under all the circumstances, we find that his discharge, if such it was, had no relationship to his refusal to join the United or to his sympathies with the Amalgamated. Earl Kelley had worked for the respondent since July 1936. He had joined the Amalgamated on May 24, 1937. Not being a member of the Brotherhood, he was refused admittance to the plant on August 12, and so discharged. On August 19 he "signed up" at Holt's office, but was refused reinstatement. This was not denied by the respondent. Kelley's case is closely similar to that of Max Garrison. It is evident that Kelley was refused reinstatement on the basis of the seniority rule promulgated by the Brotherhood and effectuated by the respondent whereby employees of the respondent who were Brotherhood members on August 12 were considered senior, in point of service, to those who joined the Brotherhood thereafter. Walter Lisenby had worked for the respondent since 1924. He joined the Amalgamated on May 20, 1937. On August 12, not being a member of the Brotherhood, he was refused admittance to the plant, 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and so discharged. On August 19 he joined the Brotherhood, but was refused reinstatement until August 24. This was not denied by the respondent. With the exception that Lisenby was reinstated by the respondent on August 24, his case is closely similar to those of Max Garrison and Earl Kelley. It is evident that Lisenby failed to obtain reinstatement prior to August 24 on the basis of the seniority rule whereby Brotherhood members on August-12 were considered senior, in point of service, to those who joined the Brotherhood thereafter. Clyde Tennyson had worked for the respondent since May 1936. He joined the United on May 16, 1937, and the Amalgamated on May 20. He wore his Amalgamated membership button while at work. On August 12, not being a member of the Brotherhood, he was refused admittance to the plant, and so discharged. On August 18 Tennyson joined the Brotherhood but was not reinstated to his position for the reason that he had "waited too late." The respondent claimed that the failure to reinstate Tennyson re- sulted from the fact that the employee who had replaced him in the period between August 12 and 19 had thereby acquired seniority over Tennyson, according to the seniority rule promulgated by the Broth- erhood. The respondent further claimed that, on August 19, Tenny- son "resigned" and said that he had "two goods jobs to go to," thereby voluntarily terminating his employment. With the exception of this latter defense raised by the respondent, Tennyson's case is closely similar to those of Garrison and Kelley. It is highly questionable whether the statement by Tennyson, when reinstatement was refused him, that he had "two good jobs to go to," was equivalent to "resigning." In any event, as in the case of the Bairds and Shane, discussed hereinabove, we feel that what occurred after the refusal to reinstate Tennyson is immaterial. Thomas Abraham Harshberger joined the Amalgamated on May 14, 1937. On May 15 his foreman said, "I don't want to hear no talk of the C. I. O. in here." About May 17 or 18, his foreman asked him whether he was going to join the United, and, upon Harshberger's answering in the negative, told him, "'You will get in or get out.' He says, `Now, if you fellows want to consider joining a company union, we will allow you time to go out and talk it over, hold a conference.."' That same day, Harshberger joined the United. On August 12, be- cause he was not a member of the Brotherhood, Harshberger was re- fused admittance to the plant, and so discharged. On August 20 he signed a Brotherhood check-off authorization. He was not reinstated, however, but was told that a man had been hired in his place. Harshberger's case is closely similar to those of Garrison, Kelley, and Tennyson. It is evident that Harshberger was refused reinstate- MT. VERNO N CAR MANUFACTURING COMPANY ET AL . 545 ment on the basis of the seniority rule whereby employees of the re- spondent who were Brotherhood members on August 12 were con- sidered senior, in point of service, to those who joined the Brotherhood thereafter. Delbert Franklin Cowan joined the Amalgamated on May 12, 1937. He picketed during the strike. On August 12, because he was not a member of the Brotherhood, he was refused admittance to the plant, and so discharged. On August 19 he signed a Brotherhood check-off authorization and was reinstated on August 20. On September 10 he obtained a leave of absence, at the end of which -he did not return to work for the reason, as he testified, that some of his friends had told him that he had been rejected by the Brotherliodd. However, on October 3, he consulted his foreman, who "told me they had received a statement meaning that they shouldn't hire me when I returned to work; that the A. F. of L. committee had refused to accept me in the A. F. of L. union." Cowan was not reinstated, and, on October 17, saw Gorham Pigg with reference to employment. Pigg "told me that unless the A. F. of L. accepted me I had no job at the Car Company." Accordingly, Cowan was not reinstated. The respondent explained the refusal to reinstate Cowan on October 3 on the ground that he was not needed at the time. It is evident, however, that Cowan was refused reinstatement on October 3 and thereafter as the result of the respond- ent's imposition of the requirement of membership in the Brotherhood upon its employees. Such refusal to reinstate was equivalent to discharge. Roy Atkinson, Ernest Lowrey, and LeRoy Pemberton. These em- ployees had worked for the respondent for periods ranging from 17 to 22 years. They joined the Amalgamated in May 1937, and picketed during the strike. On August 12, not being members of the Brother- hood, they were refused admittance to the plant, and so discharged. Thereafter, they applied for membership in the Brotherhood or signed check-off authorizations. They were reinstated on August 19. After working for periods ranging from 2 to 41/2 hours, they were removed from their jobs on the ground that the Brotherhood would not accept them as members. The discharges of these employees on August 12 were not denied by the respondent. The respondent also did not deny that on August 19 these employees were removed from their jobs, within a short while after having been reinstated, at the request of the Brotherhood. Marshall Russell had worked for the respondent since 1912. He joined the Amalgamated on June 8, 1937. On August 12, not being a member of the Brotherhood, lie was refused admittance to the plant, and so discharged. On August 19 he "signed up" with the Brother- hood. Ile went into the plant, but before he started to, the foreman told him that the Brotherhood would not let him work. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The discharge of Russell on August 12 and the refusal to reinstate him on August 19 were not denied by the respondent. Harry Pierce had worked for the respondent "off and on" for 8 or 10 years. He joined the Amalgamated on May 12, 1937, wore his membership badge while at work, and picketed during the strike. On August 12, not being a member of the Brotherhood, he was refused admittance to the plant, and so discharged. On August 18 he "signed up" with the Brotherhood and was reinstated on August 19. On August 21 he was discharged by his foreman, on request of the Brother- hood. The discharges of Pierce on August 12 and 21 were not denied by the respondent. Sam Houle was employed by the respondent as a rivet bucker. He was a member of the informal committee of employees which settled with the respondent the wage dispute of May 5 to 10, 1937. On May 5 Berry told him, "We don't want you on this committee . . . We would rather have someone that we know ... You go out and tell the boys you don't want to serve on this committee." Berry claimed that, in so instructing Houk, he was carrying out Beishline's orders. Houk refused to carry out Berry's instructions as to this. On Satur- day, May 8, Holt notified Houk by telephone, "You don't need to report to work Monday morning . . . Your time is ready for you clown at the big office." Houk, however, went to the plant on the morning of May 10 and was admitted to work, but not before Holt had taken him aside and asked him if he "had ever been in any trouble before of this nature." Houk joined the Amalgamated on May 11 and picketed during the strike. On July 20 another wage dispute occurred, as a result of which the men working on the tracks went on strike. Houk was one of these, and was a member of a group of approximately 25 employees who conferred with Arthurs regarding the strike. Arthurs stated that he would give them his decision within 48 hours. On July 22 Houk returned to the plant. There were a number of men gathered around the gates and Gorham Pigg announced to them that the respondent had not changed its position, saying, "Your job is down there for you, all that want to go to work, go in, and those that got their money, that is all for them." No one went in. Later in the morning, Houk went into the plant and met Gorham Pigg. Houk testified that Pigg asked him whether he was going to go to work. Houk replied that he was striking. Pigg offered Houk his money, which Houk refused. Pigg then said, "If you don't aim to go to work, you better get your money and get out of here," whereupon Houk left. Early that afternoon Houk went into the plant again. He testified that a similar conversation with Gorham Pigg occurred, as a result of which Pigg ordered the timekeeper to "Give these men MT. VERNON CAR MANUFACTURING COMPANY ET AL. 547 [Houk and Thomason] their money and let them get out of here." This was done. As to this, Gorham Pigg testified that he did not discharge Houk, but that Houk volunteered to "take my money" and thus voluntarily quit. We do not feel that Pigg's testimony satisfactorily refutes that of Houk. Houk's recital of what occurred indicates that Pigg's version is but the respondent's interpretation of what took place. There is no denying that Houk was on strike on July 22 and his statements that he was striking and not quitting were clear and unequivocal. Houk's testimony in this regard was substantiated by that of Fred Thomason. Since Houk had already ceased work, and since such cessation was not induced by the unfair labor practices in which the respondent engaged, there is no question of discriminatory discharge ; the ques- tion arises only as to whether there was a discriminatory refusal to reinstate him to his former employment."' On the record, we cannot find such a refusal. Under the circumstances; we do not find that Houk was discharged or refused reinstatement because of his membership or activities in the Amalgamated. Fred Thomason had worked for the respondent since 1915. Early in May 1937, Robert Beal solicited his membership in the United. Thomason refused to join. Instead, he joined the Amalgamated on May 11, 1937, and picketed during the strike. During the wage dispute of July 20, Thomason was on strike. On July 22 he met Gorham Pigg in the plant. As to this, Thomason's testimony as to what occurred was substantially the same as Houk's. The defense as to the discharge of Thomason was the same as to that of Houk. Pigg testified that Thomason asked for his money and said that he was "tired of this, in an uproar all the time. I am going some place where I can get work." Thomason testified that about the end of September he asked Gorham Pigg for reinstatement and that Pigg stated to him, "'You haven't anything out of this shop now, you have been fired once and we are going to get rid of you for a long time, since, you haven't got a job.' I said, `Is that so?' I said, `How was my work? Was there anything wrong with my work?' He said, `No, there wasn't.' I said, `What is the matter?' He said, `You know what is the trouble, I drove around this fence and seen you carrying that banner. I don't aim to let none of them men go back to work that carried that C. I. O. banner.' " Pigg denied the statement but not the application for reinstatement. 18 See Matter of American Manufacturing Concern and Local No. 6, Organized Furni- ture Workers, 7 N. L. R. B. 753, and cases there cited. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomason's case is, therefore, similar to Houk's except that Thomason later applied for and was refused reinstatement. The reasons for such refusal are patent. It was clear to the respondent that Thomason was not only an Amalgamated member, but also a loyal one who had refused to join the United, had picketed during the strike, and had participated in the wage dispute of July 20. Also, at the time of Thomason's application for reinstatement, the respondent was refusing to hire any but Brotherhood members. Such refusal to reinstate Thomason was equivalent to discharging him. We find, accordingly, that Thomason was discharged because of his, membership and activities in the Amalgamated and because of his refusal to join the Brotherhood. George Henry Woodrome had worked for the respondent "off and on" for 15 years. He joined the Amalgamated on May 17, 1937.. He "helped to feed the boys" during the strike. On July 20, upon, completion of the contract on which lie was working, Woodrome• was laid off. He spoke to Gorham Pigg in connection with this, and Pigg told him to come back on the following day and "I will try to give you a job somewhere here in the plant." Woodrome did not return because "I figured . . . they were undoubtedly through with me." Woodrome claimed that an employee junior to him, in point of service, was retained in the respondent's employ. The respondent claimed that Woodrome was laid off because of a reduction in force and that he was later replaced by an employee senior to him, in point of service. It appears clear that the lay-off of Woodrome on July 20 was due to a temporary reduction in force. Furthermore, the respondent cannot be held responsible for Woodrome's conclusion that the re- spondent was "through" with him. Under these circumstances, we find that Woodrome's lay-off was not caused by his membership or activities in the Amalgamated. Robert Whitson had worked for the respondent "off and on" for 16 years. He joined the Amalgamated on May 29, 1937, and wore his membership badge while at work. About July 2, Robert Beal, his gang leader, asked him to join the Brotherhood and to remove his Amalgamated badge. Beal told him he would be "weeded out" and that he could hold his job by joining the Brotherhood. Accord- ingly, Whitson joined the Brotherhood while at work. He paid no, dues to it, however, and continued to wear his Amalgamated badge "for awhile." On July 23 the contract on which Whitson was work- ing was finished, and there was no work for him until July 30. At that time, Beal told him that he did not have a job, and that another man had been hired in his place. Whitson inquired of Gorham Pigg regarding this, to no avail. Whitson's foreman said that Whitson had "been done dirty" but that he could do nothing about it. MT. VERNON CAR MANUFACTURING COMPANY ET AL. 549, The respondent claimed that Whitson was laid off because of a reduction in force. That he was laid off on July 23 because of lack of work, there is no denying. The evidence introduced by the re- spondent as to this is interesting, though bewildering. Gorham Pigg testified that Whitson quit his job, and that he was not laid off or discharged. Whitson's foreman testified that Whitson was laid off because of a. reduction in force, and that he never came back and asked for re- employment: The foreman admitted, however, that "a man doesn't always recollect just who comes and who does not." On cross-exam- ination, the foreman further admitted that he knew nothing about Whitson's case, and that Beal was the only one who could testify about it. The respondent did not call Beal to the stand. Under these circumstances, it is clear that Beal had carried out his threat of "weeding out." Although Whitson had joined the Brother- hood, his continued wearing of his Amalgamated membership badge, in addition to his failure to pay Brotherhood dues, clearly indicated that he was not a loyal Brotherhood member, but rather , that his loyalties were with the Amalgamated . This apparently was sufficient reason to the respondent to refuse to reinstate Whitson at the end of his lay-off period on July 30. Such refusal to reinstate was equivalent to discharge. We find that the respondent discharged Whitson on July 30 because of his membership and activities in the Amalgamated. Leo Harlow had worked for the respondent for l1/2 years. He joined the Amalgamated on May 24, 1937, and wore his membership button while at work. During the strike , he worked in the kitchen which served those on the picket line and served on a rations com- mittee. Prior to joining the Amalgamated, Harlow's membership In the United was solicited by a gang leader. A watchman also solicited his membership in the United . Beal, Harlow's gang leader, told him that he would have to remove his Amalgamated button while working for the respondent. When he had no work bucking, which was his regular job, Harlcwv worked as a fitter. On July 19 Harlow was working as an extra fitter. The extra men were laid off on that day. Harlow asked to be returned to his regular job and was told that he would be on July 22. Harlow returned on that day, but Beal had another man in his place and said that he could not use Harlow. The following day Harlow drew his last pay ; he was required to turn in his identification check before he could receive it. The respondent claimed that Harlow was laid off because of a reduction in force, which was not denied by Harlow, but offered na defense to Harlow's charge of its refusal to reinstate him. The testi- mony of Foreman James Kelly, adduced on behalf of the respondent, 164-'75-39-vol x[-36 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was to the effect that Harlow had worked in his department and was laid off when the force was reduced, and that there was "no reason why he should not come to back (sic) if there was work to justify it." On cross-examination, Kelly admitted that Harlow had not been under his jurisdiction, that he did not know whether Harlow had quit, been discharged, or been laid off, and that he knew nothing about Harlow's case. Harlow testified that his good work had been commented upon. The respondent did not deny this. Nor did it explain its requiring Harlow to turn in his identification check before paying him.. Beal's nephew took Harlow's place as a bucker. Under the fore- going circumstances, it appears that Beal, in seeking to find a position for his nephew, intentionally discriminated against a member of the Amalgamated. Such discrimination against Harlow was to be ex- pected, since Harlow had refused to remove his Amalgamated button when Beal told him to. Harlow, also, was not only a member of the Amalgamated, but also, a rather active member thereof. We find that Harlow was discharged by the respondent on July 22 because of his membership and activity in the Amalgamated. Doris Allen Easley had worked for the respondent since July 1936. He joined the Amalgamated on May 21, 1937, and solicited others to join. On May 14 Easley was laid off for lack of work. The department in which he worked was closed from that time until May 28, at which time Easley returned to work. However, before he did any work on that day, his gang leader told him that "he had been requested from the office to fire me, . . . on account of my union activities, and I could get my money." This was not denied. Easley's foreman signed his pay order. The respondent claimed that Easley was laid off due to lack of work. Easley was a chainer and claimed to have been second in seniority among the chainers. This, also, was not denied. Easley's foreman testified that Easley had been replaced by a "machine man" since the foreman always tried "to hold my machine men." The respondent claimed that it had no chaining work for him since May 14. No documentary or other substantiating proof was introduced by the respondent to support this claim. Of necessity, such proof, had the claim stated been true, must have been in the respondent's possession. Refusal to reinstate, under the circumstances, was equivalent to dis- charge. Under these circumstances, we find that Easley was dis- charged by the respondent on May 28 because of his membership and activities in the Amalgamated. Charles D. Claybourn, had worked for the respondent "off and on" since 1929. He joined the Amalgamated on May 12, 1937, and wore his membership button while at work. He solicited employees to MT. VERNON CAR MANUFACTURING COMPANY ET AL. 551 join the Amalgamated and secured from 30 to 35 employees as members. He picketed during the strike. On July 19 Claybourn's gang leader told him that he had to lay him off; that he could not help it; and that he liked Claybourn's work better than some of the others; but that he had his orders. There appears to have been some necessity for a reduction in force at that time. On July 20 Clay- bourn returned to the plant and asked Nolan Pigg, his foreman, "if he was going to work me. He said he didn't know. And I waited possibly two hours and a half-an hour and a half. I went back and told him, I said, `If you are not going to work me, you better pay me so I can get another job.' He paid me." The respondent claimed that Claybourn was laid off because of a reduction in force, and that Claybourn voluntarily quit on July 20. Nolan Pigg testified that he did not want Claybourn to quit when he did because "he was a good man" and that Pigg "could have used him if he stayed." The testimony of Claybourn indicates clearly that the reason he asked to be paid was that he had been laid off and desired to seek work elsewhere. If Pigg "could have used him," Claybourn cer- tainly would not have looked for work elsewhere. Nor, if Claybourn was a "good man," would there have been occasion for laying him off while others were retained. In any event, we find nothing incon- sistent between Claybourn's asking to be paid on July 20 and his claim that on July 19 he was discriminatorily laid off. It is not surprising that upon being laid off, Claybourn would seek work elsewhere and that, prior to so doing, would ask for the wages due him from the respondent. Action taken by Claybourn after being laid off, with respect to obtaining the wages due him, could not affect the respondent's prior act. In view of the respondent's attitude toward the Amalgamated, the circumstances under which Claybourn was laid off, and Nolan Pigg's failure satisfactorily to explain them, we find that Claybourn was laid off on July 19 because of his membership and acivities in the Amalgamated. Wylie Bond joined the Amalgamated on May 14, 1937. Previously, his foreman had asked him whether he was going to join "the Com- pany Union or the other Union." Bond replied that he did not know. Bond also refused to sign, at the timekeeper's request, one of the peti- tions for an inside union. On May 17 Bond received a hand injury and was not released for work by the respondent's physician until June 21. He received workmen's compensation for the injury. During the period that Bond was unable to work, he helped to organize the Amalgamated at the Green Tree Tavern and enlisted a great many members. During the strike, he served as a captain of the picket line 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and continued to solicit memberships. Bond testified that during the picketing a watchman "came out one day when I was talking to some of the boys asking them to sign this C. I. O. card and showed me a picture of John L. Lewis, laughed and made remarks about the picture, . . ." On June 21, at the end of the strike, Bond returned to the plant. Bond testified that Gorham Pigg and Berry appeared to be unfriendly to him on that day and that his foreman stated that he had no work for him. It was admitted by the respondent that Bond was a capable man, that he had previously been kept at work when others were laid off, and that the respondent usually tried "to take care of" injured em- ployees. The respondent claimed that Bond did not return to the plant until 2 weeks after June 21, at which time there was no work for him. It introduced no documentary or other proof, however, to substantiate this claim. Bond claimed that on June 21 he was released by the respondent's physician. Records to show whether this was so must have been in the respondent's possession or in that of its physi- cian's. It is only reasonable to expect that Bond would, immediately upon release, apply for work, for two reasons : (1) because Bond's workmen's compensation for the time lost by him from work termi- nated with his being released; and (2) because June 21 was the date on which there was a general return to work following the settlement of the strike. Under the circumstances, the refusal to reinstate Bond was equiva- lent to discharging him. We, accordingly, find that the respondent discharged Bond on June 21 because of his membership and activities in the Amalgamated. William Riley Sinks had worked for the respondent since 1919. At the time of his discharge on May 24, 1937, he was night watchman at the gate of the plant leading to the foundry. Previously he had been a gang leader and a switchman. Sinks was discharged on May 24, 2 hours after having joined the Amalgamated. Sinks had "talked about" the Amalgamated at the plant and claimed that he was dis- charged because of his membership and activities in the Amalgamated. The respondent claimed that it had discharged him "for refusing to permit men to enter the gate to go to work without having any author- ity so to do." On the morning of May 24, when the day watchman reported for duty, Sinks told him, as well as some others reporting for the day shift, that there would be no heat that day since the cupola men had not come to work. The day watchman passed this information on to other employees as they came to work. As a result, some of them returned to their homes, resulting in a delay of production in the foundry that day of approximately 2 hours. Shortly after he returned NIT. VERNON CAR MANUFACTURING COMPANY ET AL. 553 to his home that morning, Sinks was discharged by William Browder, the chief watchman. Browder had, about May 1, asked Sinks whether he was in favor of joining the "Company Union." Sinks replied, "It doesn't do a watchman any good." The rest of the watchmen, how- ever, joined the United. Sinks did likewise. When Browder dis- charged Sinks, he asked for the reason. Browder finally "admitted that they thought I was a sympathizer with the C. I. 0." Sinks then went to see Holt, who referred him to Norris, the foundry superin- tendent. Norris accused Sinks of having picketed the foundry. Sinks stated that one of the men he had spoken to was a Mr. Coleman, and offered to "'go to Mr. Coleman and I will let him tell you what I said.' So we went and found Mr. Coleman and Mr. Coleman repeated the words which he and me had, and Mr. Norris says, `If that is all there was to it, I am wrong, and as far as I am concerned, you can return back to work."' Norris told Sinks to report to Holt who said that he would "look after it." Neither Browder nor Norris was called to testify by the respondent. The statements attributed to them by Sinks were undenied. Gabe Miller, the day watchman, testified that when he came to work at 6 o'clock a. in. on May 24, Sinks told him "that the car shop was closed up, there would be no cars built there until it was-until the car company straightened out this labor trouble . . . He said that the Company would have to recognize the C. I. 0., and when there was any C. I. O.-when there was any cars built, it will be built by the C. I. O.s . . . He asked me if I knew how long it would be closed, and I told him I did not. He said just sixty days. If the Company didn't get it settled up in sixty days, the Government would take charge. Q. What did he say, if anything, about whether or not the foundry would work that day? A. He said there would be no heat that day." On cross-examination, Miller testified that he was not supposed to take orders from Sinks, that Sinks did not tell him that he was to tell the employees that there was going to be no work, and that Sinks said nothing to Miller about a strike and did not indicate by his manner that there was a strike. On examination by the Trial Examiner, Miller testified that the conversation with Sinks began with Sinks' remark that the cupola men had not reported for work. Their work was essential to be- ginning operation of the foundry. Other employees in the respond- ent's foundry testified that when they came to work that morning, Sinks told them only that there would be no heat that day and that the cupola men had not yet arrived. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Holt, under whose supervision the watchmen work, testified that on that morning Norris told him that Sinks had kept the men from coming to work and that he thereupon had Sinks discharged. Holt did not know the reason for Sinks' action and did not speak to any of the employees about it until after he had discharged Sinks. It thus appears that Sinks told those who reported for work on the morning of May 24 that the cupola men had not yet reported and that there would be no heat. The latter was a necessary result of the former. No connection was shown between the failure of the cupola men to report for work that morning and Sinks. It was only Miller who testified as to Sinks' remarks about any labor troubles, and even he admitted that the conversation started with Sinks' remark about the cupola men and that a strike was not mentioned. It was Miller who, unauthorized, kept most of the men out of the plant. Holt, by his testimony, virtually claimed that his discharge of Sinks and refusal to reinstate him were arbitrary acts. We cannot believe that the respondent would thus arbitrarily discharge a man who had been employed by it for 1S years, most of the time in posi- tions of responsibility. It is clear from the record that Sinks was discharged for being "a sympathizer with the C. I. 0." and for allegedly picketing the foundry. We, therefore, find that Sinks was discharged on May 24 because of his sympathies with and membership and activities in the Amalgamated. Luther E. Shehorn had worked for the respondent for approxi- mately 40 years, during which time he had been a gang leader, strawboss, and foreman. During the period here in question, he was but an ordinary employee. Shehorn joined the Amalgamated on May 24, 1937. On June 1 and 2 he was asked by fellow employees to join the United. At first, Shehorn refused on the ground that he had already joined the Amalgamated. He was told by a fellow employee, "We don't want you out of here, we would like for you to stay here." Therefore, "in order to hold my job," Shehorn signed a United membership application card but said that he would not pay dues to the United. He frequently spoke of his Amalgamated membership. On June 3 Shehorn was laid off. His foreman told him that it was because of a reduction in force. His "assistant boss," in response to Shehorn's question as to whether he was being laid off for union activities, said, "I think it is to get shed of men that we won't want later on after awhile." This was not denied. With the exception of one time when everyone was laid off, he had never before been laid off in the middle of the day. Shehorn picketed during the strike and attempted to obtain reinstatement thereafter, but was MT. VERNON CAR MANUFACTURING COMPANY ET AL. 555 refused. About July 1 Holt told him that if he went to see the Brotherhood committee, he could probably return to work. This, of course, was before the closed-shop contract had even been proposed. Shehorn did not go to see the committee. The respondent claimed that on June 3 Shehorn was "laid off be- cause of reduction in force and incompetency, and could not pass physical examination."' It also claimed that when Shehorn was in- formed, on the morning of June 3, that he would be laid off at noon, he quit. Shehorn worked on the machines in the wood mill. His fore- man testified that Shehorn "is not what you would consider a really good machine man." Yet, he also testified that if he had an open- ing he would put Shehorn back to work. He also admitted that Shehorn had worked on practically every machine in the depart- ment. He also admitted hiring two men since June 3. As to the claimed failure of Shehorn to pass a physical examina- tion in 1937, as a general rule when a man does not pass, he does not go to work. Holt usually notifies men who do not pass, but he did not recall notifying Shehorn. He called Arthurs about Shehorn's not passing the examination and Arthurs said, "That is pretty tough, if he is what you say, he is a good fellow up there," and told Holt to use his own judgment. Holt put Shehorn to work. The respondent's defenses appear to be fabrications. It is not clear that on June 3 there was a reduction in force in the wood mill, other than that caused by Shehorn's lay-off. Even if there was such a reduction in force, however, no good reason appears for having laid off an experienced man who could work on any machine in the department while retaining in service employees junior to Shehorn and hiring new employees. There was no evidence to support the contention that Shehorn quit on June 3. - The defense of Shehorn's failure to pass a physical examination is unconvincing because, although he may have failed, he was re- instated after that failure. It is inconceivable that he would later be discharged for this same failure unless his condition had become aggravated in the interim, which was not shown. As to Shehorn's alleged incompetence, the record does not support the claim. Shehorn had worked for the respondent for 40 years, had held supervisory positions, and was able to operate any machine in the department. He was put to work by the respondent, although, according to the respondent, he failed to pass a physical examina- tion. It is unlikely that the respondent would have made this ex- ception to its asserted rule regarding physical examinations if She- horn had been an incompetent. There appears to be but one reason for Shehorn's lay-off : that given by his "assistant boss." Shehorn, a member of the Amalgam- 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ated, had expressed his, antipathy for -the United. Although he signed a United membership application card, he said that he would not pay dues. That the respondent had picked Shehorn as one of those aligned on the wrong side of the organizational activity taking place in the plant is exemplified by the statement that Holt made to Shehorn, about July 1, which implied that if Shehorn would join the Brotherhood, he would probably be rehired. We find, therefore, that Shehorn was laid off on July 3 because of his membership and activities in the Amalgamated. Orlan C. Britton had worked for the respondent "off and on" for approximately 16 years. He joined the Amalgamated on May 10, 1937. He was a captain on the picket line during the strike and succeeded in enlisting more than 30 men to membership in the Amal- gamated. On June 25 Britton was injured while working and was not released for work by the respondent's physician until August 3, at which time Britton was refused reinstatement. While picketing, he had tried to keep an assistant foreman and another supervisory employee from entering the plant. The respondent claimed that when Britton returned to the plant, his foreman asked him when he was returning to work. Britton re- plied, "when his finger got well." Later, Britton returned and said he was ready to return to work. His foreman "said that was all right with me, as far as I was concerned." Britton, however, did not have his work clothes that day. He did not come back there- after. His foreman also testified that the reason Britton did not work after his injury was that "they just wouldn't give him a num- ber," referring evidently to the refusal of Holt's office to issue an identification number to Britton. While Britton appears to have been an active Amalgamated mem- ber, the connection between such membership and his failure to secure reinstatement appears slight. In the absence of more con- vincing evidence, we find that the respondent's failure to reinstate Britton on August 3 was not caused by his membership or activities in the Amalgamated. Charles Cates had worked for the respondent since about 1914. He joined the Amalgamated on May 11, 1937, and, on August 12, joined the Brotherhood. August and September Brotherhood dues were checked off Cates' wages by the respondent. On September 27 Cates was laid off because he was "rejected in the Union." Cates then discussed the lay-off with officials of the Brotherhood, as a result of which the Brotherhood held another meeting, resulting in the reinstatement of Cates as a member. Accordingly, on October 4, Cates was reinstated by the respondent. MT. VERNON CAR MANUFACTURING COMPANY ET AL. 557 Loren Edwards had worked for the respondent for approximately 6 years. He joined the Amalgamated on June 1, 1937, and claimed to have been the only Amalgamated member in his department. Edwards' gang leader told him that he "was going to lose out in there," and that if he "didn't get in with the others," he "wouldn't have no job." On June 9 Edwards' eye was injured . He was released by the respondent's physician on June 11, the release , however, con- taining the provision that Edwards was to work away from heat. At the time of receiving his injury Edwards was working on a steam hammer, and because of the proviso in his release, he was not able to return to that work. Edwards applied for work on June 11, but was refused reinstatement . He continued to apply for work until June 24, at which time, not being employed, he asked for his pay. Edwards did not participate in the strike. The respondent claimed that Edwards never returned to the plant able to return to his job on the hammer, and that the last time Edwards came to the plant he was still unable to work in the heat. Edwards had previously worked on the upset machine, which was not as hot a place to work as on the steam hammer . When he was transferred to the steam hammer, he was replaced on the upset machine. When he returned to work after his injury , there was no place for him at work that he was able to do. While the respondent might have been arbitrary in refusing to find a place for Edwards to work upon his return to the plant after being injured , we find that the respondent's refusal to reinstate Edwards was not caused by his membership or activities in the Amalgamated. Leslie Harvey had worked for the respondent since 1930. He signed one of the petitions which led to the formation of the United. He later joined the United and, thereafter, on May 27, the Amalga- mated. He picketed during the strike and wore his membership button in the Amalgamated until July 10, at which time he joined the Brotherhood. Thereafter, however, he attended a few meetings of the Amalgamated . Harvey testified that on September 24 or 25 he spoke to a timekeeper about the Amalgamated and said that he had gone to an Amalgamated meeting. He claimed that the time- keeper was a "pretty fair snitch." On September 28 Harvey was laid off. He testified that the force was not otherwise being reduced at that time. He was not thereafter reinstated. The respondent claimed that Harvey was laid off because of a reduction in force, and that others were laid off at the same time, two of whom had been reemployed. It also claimed that Harvey was one of the younger men in the department. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under the circumstances, we feel that the evidence of discrimina- tion in connection with the lay-off of Harvey is unconvincing. While Harvey had joined the Amalgamated, he had previously joined the United. He joined the Brotherhood long before the closed-shop con- tract was signed. There is no supporting evidence to show that the .timekeeper, referred to by Harvey, was actually a "snitch," and it was to the conversation with the timekeeper that Harvey ascribed his discharge. We, accordingly, find that the lay-off of Harvey on September 28 was not due to his membership or activities in the Amalgamated. Gale Allen, James Gregory, Richard Gregory, William Gregory, and Foster Smith. These five employees were members of the same gang in the respondent's lumber yard. They were members of the Amalgamated. On the morning of June 28, 1937, there were four such gangs working in the lumber yard, each composed of six men. That morning, the sixth member of the Allen-Gregory-Smith gang, Bert Gregory, a Brotherhood and not an Amalgamated member, was withdrawn from the gang and . placed with one of the other . gangs, resulting in having seven members in one of the other gangs and ,leaving but five members in the Allen-Gregory-Smith gang. That noon, the time cards of these five were "pulled," this, in the respond- ent's plant, being equivalent to a discharge. The respondent claimed that Allen, the three Gregorys, and Smith were laid off on June 28 because of a reduction in force. Allen testified that he and the others inquired of Charles Klein, their foreman, as to the reason for the discharge and were told by him, "I don't need no C. I. O. men." Richard, James, and William Gregory and Smith testified to the same effect. Smith further testi- fied that he had been laid off previously, but his time card had never before been "pulled." Warren Boswell, an employee of the respond- ent on June 28 and at the time of hearing, testified that on or about June 28, he heard Klein "say it was sooner or later for them, .. . after he found out the boys were C. I. 0.," and that Klein mentioned that the Gregorys had picketed during the strike. In his direct examination, Klein denied having spoken to anyone about "C. I. O.'s." He stated that the force was reduced for economy purposes, that in selecting the men to discharge, he chose those who were handling the least amount of lumber, that only three gangs were employed in the lumber yard at the time of the hearing, and that Allen, the three Gregoryys, and Smith had not been replaced. • On cross-examination, however, Klein testified that since June 28 he had hired two men for work in the lumber yard; that "I would have called them [Allen, the three Gregorys, and Smith] back if I needed them," and that "If they had been around, though, they would MT. VERNON CAR MANUFACTURING COMPANY ET AL. 559 have got back to work"; that he laid off the gang in question because the other gangs were busy and the Allen-Gregory-Smith gang had completed its job; that on several occasions he had criticized these five men for doing their work badly, but that all the gangs had been subjected to the same criticism; that he had "picked out the best men and kept them," but that any one of the five men that he discharged was as competent as Bert Gregory, whom he retained in service; that the only thing he did not like about the Allen-Gregory-Smith gang was that they would "holler" concerning their work, but that most of the employees "hollered" from time to time; and that the Allen- Gregory-Smith gang had been handling rough lumber, which was difficult to handle. The "pulling" of the time cards of Allen, the three Gregorys, and Smith indicates to us that they were discharged rather than laid off. Klein's constant shifting of position as to the reasons for the dis- charges, the inconsistency of the reasons stated, and their untrust- worthiness in the light of Klein's own testimony, are patent. While a reduction of force in the lumber yard on June 28 may have been necessary, no reason appears for having selected Allen, the three Gregorys, and Smith, other than their membership and activities in the Amalgamated. The single member of the gang who was not dis- charged was not an Amalgamated member. The conflict in the evi- dence as to whether Klein stated that "he couldn't use no C. I. O. men" or that it "was sooner or later for them" because of their Amal- gamated affiliation and activities must be resolved in favor of Allen, the three Gregorys, and Smith. Their testimony in this regard was substantiated and amplified by that of Boswell, who was still em- ployed by the respondent and appears to have had no bias against it. On the other hand, Klein's denial of the statements is but part of a long line of obvious self-contradictions. We find, accordingly, that Allen, the three Gregorys, and Smith were discharged by the respondent on June 28 because of their mem- bership and activities in the Amalgamated. By ford Manley testified that he had worked for the respondent for over 15 years. He joined the Amalgamated on May 19, 1937, and was a captain of the picket line during the strike. On August 12, because he was not a member of the Brotherhood, he was refused admittance to the respondent's plant. On August 18 Manley joined the Brother- hood, and, on August 19, was reinstated. He worked for 3 hours on that day, at the end of which time his gang leader told him that he was "on the pan" and was "going to get cut off." Manley asked his foreman whether he was discharged. The foreman replied, "I don't know what you would call it ... I am sorry, you have made an awful good man up there." His foreman gave him a discharge slip. The 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood committee claimed that they had nothing to do with Manley's discharge on August 19 and that his membership application in the Brotherhood had not yet been voted on. At the end of Manley's testimony his name was stricken from the complaint on motion of the respondent's counsel over the objection of the Board's counsel. No evidence in defense was put into the record. On the basis of Manley's testimony alone, it appears that Manley was discharged on August 12 because of the illegal imposition, by the respondent upon its employees of the requirement of membership in the Brotherhood. It further appears that the occurrence of August 19 was either a continuation of the imposition by the respondent of the same illegal condition or a discrimination against Manley because of his Amalgamated membership and activities. H. A. Kroat was named in the amended complaint as amended as having been discharged on August 12, 1937, because of his refusal to join the Brotherhood. No proof as to this was offered, however. F. Conclusions with respect to the discharges The closed-shop agreement of August 3 was, as we have already found, invalid. The same is necessarily true of the conditions im- posed thereby on employment in the respondent's plant. The re- spondent, by imposing upon its employees, on August 12, the illegal condition of membership in the Brotherhood before permitting them to work, thereby terminated the employment of such employees as were not Brotherhood members on that date. Similarly, the seniority rule promulgated by the Brotherhood, which provided, in effect, that non-members of the Brotherhood who were not admitted to work on August 12, when later reinstated, be- came junior, in point of service, to those who had been Brotherhood members on August 12, is invalid. The policy effectuated by that rule was but an extension of the closed-shop condition. As a result of that policy, a number of employees who were excluded from work on August 12, because they were not members of the Brotherhood, were refused reinstatement or, upon reinstatement, were again demoted, laid off, or discharged. The respondent has sought to explain its actions with respect to those who refused to join the Brotherhood, whose applications for membership were not accepted thereby, or who suffered discharge, lay-off, or demotion by virtue of the above-mentioned seniority rule on the basis that they were required by the closed-shop contract. That contract, being invalid, cannot,-of course, serve as justification for the respondent's acts. MT. VERNON CAR MANUFACTURING COMPANY ET AL. 561 We find that each of the following employees was discharged on August 12 because of his refusal to join the Brotherhood: Forest Hays John Dowdell Joseph Bailey Joseph Callas Hobart Hayes Arthur Hoffer Virgil Hullinger Angus Cockrum Arthur F. Cook Glenn G. Francis Al Grasley James F. Hayes Ishmael Houston Riley Johnson Artie Lowry James Padfield Marvin Pigg Richard Pigg Leroy Ragan Harry Smith Hazel Sutton Gus Whitson Francis Willmore Ray Morgan Luther Atwood Harold Albert Krohe Harry Lawson Charlie Masters Henry Thomas Richard Mayberry Richard Rose Albert R. McCollum Ernie Harper Lawrence Batey James W. Francis Curtis Flanagan Clyde Fickle Evan Hungate Victor Britton We find that each of the following employees was discharged on the date set after his name because he was not a Brotherhood member : Arch Mandrell August 13, 1937 Charles Cates September 27, 1937 We find that Archie Lane was discharged on August 12 because of his refusal to join the Brotherhood, and that he was not rein- stated until October 5 because of his refusal to join the Brotherhood prior to August 12. We find that each of the following employees was discharged on August 12 because of his refusal to join the Brotherhood and that he was not reinstated thereafter because of his refusal to join the Brotherhood prior to August 12: William Channess A. E. Baird P. F. Baird Clarence Shane Max Garrison Earl Kelley Walter Lisenby Clyde Tennyson Thomas Abraham Marshall Russell Harshberger We find that each of the following employees was discharged on August 12 because of his refusal to join the Brotherhood and that, 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subsequent to reinstatement, he was again laid off, demoted, or both because of his refusal to join the Brotherhood prior to August 12: Erie Wells Willnie Lane We find that each of the following employees was discharged on August 12 because of his refusal to join the Brotherhood and was again discharged, subsequent to his reinstatement, because he was not a Brotherhood member, even after his application for such membership : Russell Lyons Samuel Howard Roy Atkinson Ernest Lowrey LeRoy Pemberton Harry Pierce Delbert Franklin Cowan We further find that by the above discharges the respondent has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. We find that the respondent encouraged and discouraged mem- bership in labor organizations by discrimination in regard to hire and tenure of employees. 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 its operations described in Section I above, have a close, intimate, and substantial relation to trade, traffic, transportation, and commerce among the several States, and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent engaged in a course of con- duct which effectively discouraged its employees from joining the Amalgamated and openly and notoriously encouraged its employees- to join, first, the United and, later, the Federal and the Brotherhood. We shall, therefore, order the respondent to cease and desist from, intimidating, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. It is clear that on dune 15, 1937, when the Amalgamated sought to bargain with the respondent, the Amalgamated represented a majority of the respondent's employees in the appropriate unit. Thereafter, the respondent required of its employees membership in the Brother- hood. Any change in designation of representatives resulting from this or any other unfair labor practice cannot be considered as the, MT. VERNON CAR MANUFACTURING COMPANY ET AL . 563 free expression of the respondent's employees. The Amalgamated is entitled to be restored to its status as the representative of a majority of the respondent's employees in the appropriate unit. In order to effectuate this, the respondent will be ordered to withdraw its recog- nition from the Brotherhood as the exclusive representative of its employees unless and until the Brotherhood has been certified as such by the Board.14 Since the contract entered into by the respondent on August 3, 1937, was with an organization which had been assisted by unfair labor practices, it does not fall within the proviso to Section 8 (3) of the Act, as hereinabove shown, and is, therefore, void and of no'effect. We shall order the respondent not to give it effect. We have found that the respondent discriminatorily discharged, laid off, and/or demoted a number of its employees listed in appendices Al B, C, and D.1' In accordance with our usual custom, we shall order the respondent to offer reinstatement to their former or sub- stantially equivalent positions to those employees who have not since been fully reinstated. Such reinstatement shall be effected in the fol- lowing manner : All employees hired after August 11, 1937, shall, if necessary to provide employment for those to be offered reinstatement, be dismissed. If, thereupon, by reason of a reduction in force, there is not sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees in ac- cordance with the respondent's usual method of reducing its .force, without discrimination against any employee because of his union affiliation or activities, following -a system of seniority to such extent, as was applied in the conduct of the respondent's business prior to August 12, 1937. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or in substan- tially equivalent positions, as such employment becomes available and before other persons are hired for such work. 14 See Matter of Lenoa Shoe Company, Inc. and United Shoe Workers of America, affiliated with the Committee for Industrial Organization, 4 N. L R B. 372; Matter of Jefferson Electric Company and United Electrical and Radio Workers of America, 8.N L R B 284. 15 Those employees listed in appendix A were discharged or laid off on the dates set opposite their names and not thereafter reinstated . Those listed in appendix B were discharged or laid off on the dates set opposite their names, thereafter reinstated and thereafter discharged or laid off again Those listed in appendix C were discharged or laid off on the dates set opposite their names and thereafter reinstated Those listed in appendix D were discharged or laid off on the dates set opposite their names , thereafter reinstated , again laid off or discharged, again reinstated , and, with one exception, demoted. A 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Many of the discharged or laid-off employees who sought or ob- tained employment elsewhere were required to leave Mt. Vernon and its immediate vicinity and to go to Chicago, St. Louis, or other places in order to do so. These employees maintained homes in Mt. Vernon or its immediate vicinity, where they lived with their families, and in going to other places to work, they incurred expenses for transporta- tion, room, board, and laundry, which they would not have incurred had they continued to work for the respondent and not been forced, by virtue of the respondent's unfair labor practices, to leave their homes. These expenses continued so long as they sought work or worked in places other than Mt. Vernon and its immediate vicinity and maintained homes in Mt. Vernon or its immediate vicinity. To the extent that these expenses diminished the earnings of such dis- charged or, laid-off employees during the periods of their respective discharges or lay-offs, we shall not deduct those earnings in computing the loss of pay such employees may have suffered."" We shall order the respondent to make those employees listed in appendix A whole for any loss of pay they may have suffered by rea- son of their respective discriminatory discharges or lay-offs, by pay- ment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of his discharge or lay-off to the date of the respondent's offer of reinstatement or placement upon the preferential list hereinabove described, minus his net earn- ings 17 during said period remaining after deduction of the expenses described in the immediately preceding paragraph, if any, incurred by him. We shall order the respondent to make those, employees listed in appendix B whole for any loss of pay they may have suffered by reason of their respective discriminatory discharges or lay-offs, by payment to each of them of a sum equal to the amount which lie nor- mally would have earned as wages from the date of his first discharge or lay-off to the date on which he was reinstated and from the date of his second discharge or lay-off to the date of the respondent's offer of reinstatement or placement upon the preferential list hereinabove described, minus his net earnings during said periods remaining after deduction of the expenses described in the immediately preceding para- graph, if any, incurred by him. We shall order the respondent to make those employees listed in appendix C whole for any loss of pay le 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. 17 By "net earnings" is meant earnings less expenses such as those described in the Immediately preceding paragraph . 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 shall be paid over to the appropriate fiscal agency of the Federal, State , county, municipal , or other government or governments which supplied the funds for said work-relief projects. MT. VERNON CAR MANUFACTURING COMPANY ET AL. 565 they may have suffered by reason of their respective discriminatory discharges, or lay-offs, by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of his discharge or lay-off to the date on which he was reinstated, minus his net earnings during said period remaining after deduction of the expenses described in the immediately preceding paragraph, if any, incurred by him. We shall order the respondent to make those employees listed in appendix D whole for any loss of pay they may have suffered by reason of their respective discriminatory discharges, lay-offs, and demotions, by payment to each of them of a sum equal to- the amount which he normally would have earned as wages from the date of his first discharge to the date of the respondent's offer of full reinstatement, minus his net earnings during the period from the date of his first discharge to the date of the respondent's offer of full rein- statement remaining after deduction of the expenses described in the immediately preceding paragraph, if any, incurred by him in the periods during which he was discharged or laid off. In computing the amounts necessary to make the employees listed in appendices A, B, C, and D whole for any losses of pay they may have suffered by reason of the respondent's unfair labor practices, there shall not be deducted from amounts which the respective em- ployees normally would have earned as wages any amounts received by the respective employees as relief payments.'8 We have found that both the United and the 'Brotherhood were formed and administered through the respondent's interference, re- straint, and coercion of its employees. Dues for both organizations and initiation fees for the latter were checked off from the employees' wages by virtue of the same pressures from the respondent, which propelled the employees into the organizations. We shall order the respondent to refund to each employee from whose wages it deducted or checked off either initiation fees or dues or both in either the United or the Brotherhood or both, the amount of such deductions or check-offs.19 We have found that the discharges, lay-offs, or refusals to rein- state the employees listed in appendix E did not constitute unfair labor practices. We shall accordingly order the dismissal of their cases. In view of the fact'that the Trial Examiner dismissed the case of the employee named in appendix F prior to the respondent's having is See Matter of Vegetaple Oil Products Company, Inc, a Corporation and Soap] and Edible Oil Workers Union, Local No. 18409, 1 N. L R. B. 989; 5 N. L R B. 52; Matter of Lone Star Bag and Bagging Company and Textile Workers Organizing Committee, S N. L. R. B. 244. 19 See Matter of The Heller Brothers Company of Neweomerstown and International Brotherhood of Blacksmiths , Drop Forgers, and Helpers, 7 N. L. R. B 646; Matter of Lone Star Bag and Bagging Company and Textile Workers Organizing Committee, 8 N. L R B. 244. 164275-39-vol xi-37 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD introduced any defense evidence and in the face of a prima facie case of the discriminatory character of his discharge having been proved, we shall order the case of that employee dismissed without prejudice. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Local Lodge No. 1756, Amalgamated Association of Iron, Steel & Tin Workers of North America, affiliated with the Committee for Industrial Organization, Mt. Vernon Lodge No. 423, Brotherhood Railway Carmen of America, United Car Builders of Mt. Vernon, Illinois, and the Federal Labor Union are labor organizations within the meaning of Section 2 (5) of the National Labor Relations Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the National Labor Relations Act. 3. The contract of August 3, 1937, between the respondent and Mt. Vernon Lodge No. 423, Brotherhood Railway Carmen of America, having been entered into as part of the respondent's interference with, restraint, and coercion of its employees in the exercise of the rights guaranteed by Section 7 of the Act, is invalid. 4. The respondent, by discriminating in regard to the hire and tenure of employment of its employees and thereby discouraging membership in Local Lodge No. 1756, Amalgamated Association of Iron, Steel & Tin Workers of North America, affiliated with the Committee for Industrial Organization, and encouraging member- ship in United Car Builders of Mt. Vernon, Illinois, in the Federal Labor Union, and Mt. Vernon Lodge No. 423, Brotherhood Railway Carmen of America, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the National Labor Relations Act. 5. The production and maintenance employees of the respondent, excluding salaried employees, foremen, assistant foremen, gang lead- ers, inspectors, checkers, and timekeepers, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 6. Local Lodge No. 1756, Amalgamated Association of Iron, Steel & Tin Workers of North America, affiliated with the Committee for Industrial Organization, was on June 15, 1937, and at all times there- after has been, the exclusive representative of all the employees in MT. VERNON CAR MANUFACTURING COMPANY ET AL. 567 such unit for the purposes of collective bargaining, within the mean- ing of Section 9 (a) of the National Labor Relations Act. 7. The respondent, by refusing to bargain collectively with Local Lodge No. 1756, Amalgamated Association of Iron, Steel & Tin Work- ers of North America, affiliated with the Committee for Industrial Organization as the exclusive representative of its employees in an appropriate unit, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the National Labor Relations Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the National Labor Relations Act. ORDER Upon the basis of the 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,. The Mt. Vernon Car Manufacturing Company, Mt. Vernon, Illinois, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Local Lodge No. 1756, Amalgam- ated Association of Iron, Steel & Tin Workers of North America,. affiliated with the Committee for Industrial Organization, or any other labor organization of its employees by demoting, laying off, discharging, or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment because of their membership in, activity in behalf of, or sympathy toward any such labor organization; (b) Encouraging membership in Mt. Vernon. Lodge No. 423, Brotherhood Railway Carmen of America or United Car Builders of Mt. Vernon, Illinois, by demoting, laying off, discharging, or re- fusing to reinstate any of its employees or in any other manner dis- criminating in regard to their hire or tenure of employment or any term or condition of their employment because of their refusal to join either of said organizations; (c) Giving effect to its contract with Mt. Vernon Lodge No. 423, Brotherhood Railway Carmen of America; (d) Refusing to bargain collectively with Local Lodge No. 1756, Amalgamated Association of Iron, Steel & Tin Workers of North America, affiliated with the Committee for Industrial Organization, as the exclusive representative of its production and maintenance employees, excluding salaried employees, foremen, assistant foremen, gang leaders, inspectors, checkers, and timekeepers; 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Recognizing Mt. Vernon Lodge No. 423, Brotherhood Railway Carmen of America as the exclusive representative of its employees unless and until it is certified as such by the Board; (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in con- certed 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 Mt. Vernon Lodge No. 423, Brotherhood Railway Carmen of America, as a representative of its employees for the purposes of dealing with the respondent concern- ing grievances, labor disputes, rates of pay, wages, hours of employ- ment, or other conditions of employment; (b) Upon request, bargain collectively with Local Lodge No. 1756, Amalgamated Association of Iron, Steel & Tin Workers of North America, affiliated with the Committee for Industrial Organization, as the exclusive representative of its production and maintenance em- ployees, excluding salaried employees, foremen, assistant foremen, gang leaders, inspectors, checkers, and timekeepers; (c) Refund to each employee from whose wages it deducted or checked off either initiation fees or dues or both in either United Car Builders of Mt. Vernon, Illinois, or Mt. Vernon Lodge No. 423, Brotherhood Railway Carmen of America, or both, the amount of such deductions or check-offs ; (d) Offer to those employees listed in appendices A, B, and D immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "The remedy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section; (e) Make whole the employees listed in appendices A, B, C, and D for any loss of pay they have suffered by reason of their respective discharges, lay-offs, and demotions by payment to each of them of a sum of money equal to an amount determined in the manner set forth in the section entitled "The remedy" above, deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee 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 MT. VERNON CAR MANUFACTURING COMPANY ET AL. .'569 of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (f) Post immediately notices to its employees in conspicuous places throughout its plant and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating (1) that the respondent will cease and desist as aforesaid ; (2) that the respondent will refrain from recognition of Mt. Vernon Lodge No. 423, Brotherhood Railway Carmen of America as the representa- tive of its employees; (3) that the respondent will bargain collec- tively with Local Lodge No. 1756, Amalgamated Association of Iron, Steel & Tin Workers of North America, affiliated with the Committee for Industrial Organization, as the exclusive representative of the respondent's employees in the appropriate unit, and (4) that the contract entered into on August 3, 1937, by and between the re- spondent and Mt. Vernon Lodge No. 423, Brotherhood Railway Car- men of America is void and of no effect; (g) Notify the Regional Director for the Fourteenth Region in writing within ten.(10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that • the complaint, as to those employees listed in appendix E, be, and it hereby is, dismissed and, as to the employee named in appendix F, be, and it hereby is, dismissed without prejudice. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Order. APPENDIx A Gale Allen ---- --------------------------------- June 28, 1937. Joseph Bailey__________________________________ August 12, 1937. A. E. Baird------------------------------------- August 12, 1937. P. F. Baird------------------------------------- August 12, 1937. Lawrence Batey________________________________ August 12, 1937. Wylie Bond------------------------------------ June 21, 1937. Joseph Callas----------------------------------- August 12, 1937. William Channess------------------------------- August 12, 1937. Charles D. Claybourn___________________________ July 19, 1937. Frank W. Claybourn____________________________ August 6, 1937. Angus Cockrum --------------------------------- August 12, 1937. John Compton ---------------------------------- June 25, 1937. Arthur F. Cook --------------------------------- August 12, 1937. John Dowdell__________________________________ August 12, 1937. Doris Allen Easley ------------------------------ May 28, 1937. Clyde Fickle___________________________________ August 12, 1937. Curtis Flanagan -------------------------------- August 12, 1937. Glenn G. Francis -------------------------------- August 12, 1937. James W. Francis_______________________________ August 12, 1937. t"`- .570 -- DECISIONS...OF =NATIONAI; -LABOR RELATIONS BOARD Max Garrison---------------------------------- August 12, 1937. James Gregory--------------------------------- June 28, 1937. Richard Gregory -------------------------------- June 28, 1937. William Gregory-------------------------------- June 28, 1937. Al Grasley ------------------------------------- August 12, 1937. Leo Harlow------------------------------------ July 22, 1937. Ernie Harper----------------------------------. August 12, 1937. 'homas Abraham Harshberger------------------ August 12, 1937. Hobart Hayes-------------- --------------------. August 12, 1937. James F. Hayes-------------------------------- August 12, 1937. Forest Hays------------------------------------ August 12, 1937. Arthur Hoffer----------------------------------. August 12, 1937. Ishmael Houston------------------------------- August 12, 1937. Virgil Hullinger-------------------------------- August 12, 1937. Evan Hungate---------------------------------- August 12, 1937. Riley Johnson---------------------------------- August 12, 1937. Earl Kelley------------------------------------ August 12, 1937. Artie Lowry------------------------------------ August 12, 1937. Arch Mandrell---------------------------------- August 13, 1937. .James Padfield--------------------------------- August 12, 1937. Marvin Pigg------------------------------------ August 12, 1937. Richard Pigg- ---------- ----------------------- August 12, 1937. Leroy Ragan----------------------------------- August 12, 1937. Marshall Russell------------------------------- August 12, 1937. Clarence Shane- -------------------------------- August 12, 1937. Luther E. Shehorn -----------------------------. June 3, 1937. William Riley Sinks ----------------------------. May 24, 1937. Foster Smith ----------------------------------- June 28, 1937 Harry Smith----------------------------------- August 12, 1937. Hazel Sutton- ---------------------------------. August 12, 1937. Clyde Tennyson --------------------------------- August 12, 1937. Fred Thomason--------------------------------- End of September 1937. Gus Whitson----------------------------------- August 12, 1937. Robert Whitson-------------------------------- July 30, 1937. Francis Willmore------------------------------- August 12, 1937. APPENDIX B Roy Atkinson ----------------------------------. August 12, 1937. Delbert Franklin Cowan------------------------ August 12, 1937. Ernest Lowrey-------------------------- ------- August 12, 1937. Russell Lyons---------------------------------- August 12, 1937. LeRoy Pemberton------------------------------- August 12, 1937. Harry Pierce--------------------------- -------- August 12, 1937. APPENDIX C Luther Atwood --------------------------------- August 12, 1937. Victor Britton---------------------------------- August 12, 1937. Charles Cates---------------------------------- September 27, 1937. Harold Albert Krohe.---------------------------- August 12, 1937. Archie Lane------------------------------------ August 12, 1937. Harry Lawson---------------------------------- August 12, 1937. Walter Lisenby --------------------------------- August 12, 1937. MT. VERNON CAR MANUFACTURING COMPANY ET AL. 571 Charlie Masters________________________________ August 12, 1937. Richard Mayberry______________________________ August 12, 1937. Albert R. McCollum_____________________________ August 12, 1937. Ray Morgan____________________________________ August 12, 1937. Richard Rose___________________________________ August 12, 1937. Henry Thomas_________________________________ August 12, 1937. APPENDIX D Samuel Howard________________________________ August 12, 1937. Willnie Lane___________________________________ August 12, 1937. Erie Wells_____________________________________ August 12. 1937. APPENDIX E Orlan C. Britton Burrell Davis Henry W. Dillow Loren Edwards Louis Harshberger Leslie Harvey Sam Houk H. A. Kroat Herbert Daniel Mendenhall Wayne Mendenhall Walter Voelker George Henry Woodrome Clarence York APPENDIX F Byford Manley