Lindeman Power and Equipment Co.

In the Matter of LINDEMAN POWER AND EQUIPMENT COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS Case No. C-578.-Decided March 2, 1939 Farm Equipment Production Industry-Interference, Restraint, and Coercion: persuading employees to refrain from joining or to resign from union-Discrimi- nation: discharges for union membership and activity to discourage membership in union-Strike: result of employer's unfair labor practices-Unit Appropriate for Collective Bargaining: no dispute ; all employees exclusive of office workers, salesmen, foremen, and supervisory officials-Representatives: proof of choice: election-Collective Bargaining: refusal to recognize representatives of union as duly constituted agents ; no intent to enter into contract-Reinstatement Or- dered-discharged employees ; striking employees, upon application, dismissing newly hired employees if necessary ; preferential list ordered ; to be followed in further reinstatement-Back Pay: awarded to discharged employees ; statements of discharged employees made at hearing with reference to returning to work while strike continued not unequivocal assertions; awarded to striking employ- ees who are not reinstated or placed on preferential list within 5 days of appli- cation for reinstatement. Mr. Patrick H. Walker and Mr. Thomas P. Graham, for the Board. Clark & Grady, by Mr. Thomas E. Grady, of Yakima, Wash., for the respondent. Mr. N. K. Buck, of Yakima, Wash., for the Yakima County Unit of Farmers Protective Association. Mr. Sumner Marcus, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Association of Machinists, herein called the International, on behalf of International Association of Machinists, Local No. 1531, herein called the Union, the National Labor Relations Board, herein called the Board, by the Acting Regional Director for the Nineteenth Region (Seattle, Washington), on November 9, 1937, issued its complaint against Lindeman Power Equipment Company," Yakima, Washing- i Incorrectly designated in the complaint as Lindeman Power and Equipment Company. 11 N. L. R. B., No. 66. 868 LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 869 ton, herein called the respondent, and duly served copies of the com- plaint and notice of hearing upon the respondent and the Union. The complaint alleged that the respondent had engaged in and was engaging in unfair labor practices 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. The respondent duly filed its answer, in which it denied substantially all the allega- tions of the complaint and set forth certain affirmative defenses. Prior to the commencement of the hearing the Yakima County Unit of Farmers Protective Association, herein called the Association, filed a motion to intervene with the Acting Regional Director. Pursuant to notice, a hearing was held at Yakima, Washington, on November 26, 27, 29 and 30, 1937, before P. H. McNally, the Trial Ex- aminer duly designated by the Board. The Board, the respondent, and the Association were represented by counsel at the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning and at the close of the hearing the Association re- newed its motion to intervene. The Trial Examiner denied these motions. The rulings are hereby affirmed. During the course of the hearing the Trial Examiner admitted into evidence over the respondent's objections two memoranda made by C. H. Moran; 2 affidavits made by Donald Campbell, H. J. Kroum, Michael Burgwin, and C. B. McCoy; 3 and a group of newspaper clip- pings which appeared in Yakima, Washington, newspapers.4 Moran, Campbell, Kroum, Burgwin, and McCoy were all witnesses at the hearing. We agree that it was error to admit these documents. The purported statements and the affidavits were not offered for the pur- pose of impeachment but rather as probative of the facts recited therein. The newspaper clippings were admitted as probative of their contents concerning which the respondent had no opportunity to cross-examine. The aforesaid documents are hereby excluded from evidence. The Trial Examiner also made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. These rulings are hereby affirmed. On April 25, 1938, the Trial Examiner filed his Intermediate Report, in which he found that the respondent had engaged in and was engag- ing in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He recommended that the respondent be ordered to cease and desist 2 Board Exhibit Nos. 2 and 3. s Board Exhibit Nos. 6, 7, 8, and 9. * Board Exhibit Nos. 23-32, inclusive. 164275-39-vol. xi-56 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from such practices, to bargain collectively with the Union upon request, and to offer full reinstatement and back pay to Donald Camp- bell and to II. J. Kroum, replacing if necessary those hired after June 9, 1937, the date of their discharge. Thereafter the respondent filed exceptions to the Intermediate Re- port and to various rulings of the Trial Examiner. On April 30, 1938, the Board notified the respondent and the Union of their right to apply for oral argument or permission to file briefs within 10 days from the date of the receipt of the notification. The respondent ap- plied for and received permission to file a brief, and subsequently submitted a brief. The Board has considered the respondent's excep- tions to the Trial Examiner's Intermediate Report and rulings and the brief in support thereof and, except as hereinabove stated, finds the respondent's exceptions to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Lindeman Power Equipment Company is a Washington corpora- tion having its principal place of business in Yakima, Washington. It is engaged in the production, assembly, retail and wholesale sale, repair, and delivery of farm and orchard equipment, machinery, and accessories. Among the chief items in which the respondent deals are tractors and other heavy farm machinery which the re- spondent sells as agent for John Deere Plow Company of Moline, Illinois. The respondent, before making such sales, frequently an- nexes to these machines parts of its own manufacture or ownership. The respondent is also engaged in the repair of these machines. Another large item in which the respondent deals is spraying equip- ment. The equipment is composed partly of items which the re- spondent sells on behalf of Friend Manufacturing Company of Gasport, New York. The respondent manufactures a considerable amount of machinery other than that already mentioned, and sells used goods which it receives in part payment for articles which it has sold. The respondent also repairs farm equipment. More than 50 per cent of the total sales of approximately $300,000 made by the respondent during the period from July 1, 1936, to June 30, 1937, were of goods shipped to it by John Deere Plow Com- pany from outside the State of Washington. Besides these products and a substantial amount of sprayer pumps, which are shipped to it from Gasport, New York, the respondent receives from outside the State of Washington small items such as drill bits and welding rods. LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 871 During the period from July 1, 1935, to April 30, 1937, the re- spondent's total sales amounted to approximately $390,000, of which approximately $20,000 were made to customers located outside the State of Washington. II. THE ORGANIZATION INVOLVED International Association of Machinists, Local No. 1531, is a labor organization affiliated with the American Federation of Labor, ad- mitting to its membership all the respondent's employees, except office workers, salesmen, foremen, and supervisory officials. III. THE UNFAIR LABOR PRACTICES A. Chronology of events The Union began to organize the respondent's employees some time in March or April 1937. Several of the respondent's employees approached Jesse Lindeman, the president and general manager of the respondent, at about this time, and inquired concerning the respondent's attitude toward the Union. Lindeman did not reply to these questions but instead called a meeting of all the respondent's employees. At this meeting he delivered an address in which he stated the advantages and disadvantages which might accrue to the respondent's employees if they affiliated with the Union. He said that the respondent would never consent to a closed-shop agreement and that, therefore, those of the respondent's employees, who were undecided about joining the Union because they feared they would lose their jobs if a closed-shop agreement were signed, could cease to worry; that if any of the respondent's employees did join the Union there would come a time when the Union would demand a closed shop which the respondent would refuse; that the Union would then probably call a strike and that those who had joined the Union would find that its regulations prohibited them from going to work; that they would consequently be without employment while their more fortunate non-union colleagues would continue to earn their wages. Lindeman concluded his address by stating that it did not matter to him whether or not a man joined a union. Shortly after this meeting, a group of the respondent's employees assembled for the purpose of organizing an independent "inside" union. They postponed definite action regarding this matter until representatives of the Union had been given an opportunity to present their side of the case. A meeting was accordingly held several days later which was attended by, among others, Michael Burgwin, the Union's business representative. The drive for an independent union ceased after this meeting. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As a result of Burgwin's presence at the meeting, Lindeman called a second meeting of his employees. He stated in an irate manner that, while any other representative of the Union was welcome on the respondent's premises, Burgwin was not. Lindeman disliked Burg- win because of certain statements Burgwin was alleged to have made regarding the efficiency of the respondent's management. Lindeman also took the opportunity which presented itself at this meeting to reiterate to his employees that the respondent would never grant a closed shop to the Union and by that statement to intimate that under the circumstances it would be futile for the men to continue their attempts at organizing the respondent's employees. Meanwhile Lindeman had met with a committee of the Union upon several occasions and, when presented with the standard proposals of the Union, had rejected them on the ground that there was included in them a proposal for a closed shop. Lindeman talked at some length with the Union's representatives. His discussions were confined, how- ever, to statements and restatements of the reasons why the respond- ent could not operate under a closed shop. He asserted that a closed- shop agreement would involve the respondent's operating under the union scale of wages and hours, which the respondent could not afford from a competitive standpoint. When the representatives of the Union offered to modify their demands to take into account the peculiar needs of the respondent's business, particularly its need for overtime work at certain seasons of the year, Lindeman stated that this would not cause him to change his mind, since under no circum- stances would he consent to an arrangement whereby those of his employees who were not able to or who did not desire to join a union would be forced into the Union. No progress was made at any of the conferences toward reaching an agreement. The Union continued to organize the employees. As it increased its membership among the respondent's employees, those employees who did not desire to join became worried as rumors spread about the shop that the Union would soon secure a contract which might have the effect of causing non-union employees to lose their jobs. In some cases this fear turned into hostility against those employees who were members of the Union. On June 8 Lindeman returned from a short trip to find the shop in a disordered state due to the indecision among the men regarding affiliation with the Union. From Lindeman's point of view the un- desirable situation in the shop had clearly been engendered by the out- side union "agitators," who he thought had persuaded Donald Camp- bell and H. J. Kroum, two of his employees, to carry on the Union's campaign. The two men, in the words of a statement signed by Lindeman the following day, "were good fellows, but easily led ... LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 873 they were good workmen and got along nicely until they became too active with their agitation." On June 9 Lindeman discharged Campbell and Kroum.6 As a result of these discharges the Union called a strike against the respondent on the following day. Although the union membership at the respondent's plant con- sisted of but 11 employees, some 30 employees failed to report to work on June 10, the first day of the strike. Subsequently all but a dozen returned to work. The strike still continued at the time of the hearing. Shortly after the strike began, the Union called upon a representa- tive of the Department of Labor and Industries of the State of Wash- ington to attempt a settlement. On June 22 an official of the International, James Duncan, and a representative of the American Federation of Labor, Charles Hughes, met with Lindeman and Thomas E. Grady, the respondent's attorney, and discussed the proposals which the Union had made to the respondent prior to the strike. These conferences achieved nothing either with respect to the discharges of the two men or with respect to the signing of an agreement. On July 9 an election was conducted by the Board's Regional Di- rector among the respondent's production employees to determine their representative for the purposes of collective bargaining. The respondent had previously stated that it had no objection to the holding of the election and had furnished a list of all those employed by it on June 1, 1937, excluding office workers, officials, superintendents, salesmen, and foremen. The 21 employees eligible to vote participated in the election. Eleven of them designated the Union as their representative. As a result of this election the respondent concedes that it was satisfied that the Union was the exclusive bargaining agent of the respondent's employees in the appropriate unit. On July 12 the re- spondent, represented by Grady and two of its officers, met with a committee which had been authorized by the Union to negotiate a contract with the respondent. Grady took the position at this meeting, as he did at the hearing, that the respondent was not obliged to deal with this committee since it had not been appointed by the Union subsequent to the election. After discussing the question of the com- mittee's authority and after having concluded that the committee was not the "official representative" of the Union, the respondent's representatives nevertheless proceeded to discuss the proposed agree- ment. They took this action because, as the respondent stated in a brief which it filed with the Board, they were "willing to discuss matters of interest with any representatives of the Union whether 5 These discharges are discussed in detail in Section III C, infra. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were official or not." No agreement was reached at this conference concerning the proposals of the Union, and this was the last con- ference which was held between the Union and the respondent. The contract which the Union proposed at the afore-mentioned conference was similar to the one it originally proposed to the re- spondent, but was modified in that the Union requested a lower wage scale and had consented to change the classifications of employees so that they would conform more closely with the respondent's opera- tions. At the meeting the Union's representatives offered to reduce wages even further. On July 20 the Union, having received no reply from the respondent concerning the proposed agreement, notified the respondent that unless the agreement was accepted before July 22 the Union would withdraw its proposed agreement which had been modified, and would insist upon the original form of agreement. The following day Ross Lindeman notified the Union by letter that the respondent would not sign the proposed agreement. Since the time of this interchange of correspondence no further negotiations have been held between the respondent and the Union. B. Interference, restraint, and coercion It is plain that the speeches which Lindeman, the respondent's chief executive, made to the employees whom he assembled on two different occasions, shortly after the Union began to organize, were calculated to dissuade the employees from joining the Union. The Union, according to the analysis which Lindeman made, could be of no advantage and might possibly result in a loss of work for some of the respondent's employees. Although Lindeman stated during the course of the meetings that he had nothing against unions, the speeches were intended and did operate to impede, if not destroy, the free exercise of the employees' right to self-organization. Moreover, this expression of the employer's antipathy toward the Union and its alleged prospective proposals were subsequently implemented by the discharges of Campbell and Kroum, two of the Union's most active members.6 We find that, by the afore-mentioned speeches, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discharges Donald Campbell and H. J. Kroum had been employed by the respondent as machinists for 6 years and 6 months, respectively, prior to their discharge on June 9, 1937. It was conceded by the respondent that until a short time prior to June 9 the work of these men had been completely satisfactory. Lindeman, moreover, stated at the 6 See Section C, infra. LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 875 hearing that he was willing to reemploy them if any openings became available. There is thus no question regarding their general com- petency, although there is an issue concerning the quality of their work in the weeks immediately preceding June 9. It is also conceded by the respondent that they were the most active of the respondent's employees in furthering the Union at the respondent's plant. A short time prior to June 9 Lindeman had designed a new wheel arrangement for certain fruit trailers which he was preparing to build. The castings for these wheels were to be made from chills or cast-iron molds, which had to be exact within 'A2 of an inch. The first chills which were manufactured did not conform to the specifications. Lindeman consulted Campbell and Kroum, who were working on the chills, in order to determine where the trouble lay. He testified that the two men attempted to cooperate with him in the correction of the defect. While the cause for the defects in the chills was still being sought by Lindeman, the respondent's pattern maker was by chance given the job of running Kroum's lathe during the noon hour. He produced more than four chills during the hour which he worked, whereas Kroum had been producing chills at the rate of one every 40 minutes. Lindeman testified that the job was a difficult one and that, consequently, he had asked the pattern maker to instruct Campbell and Kroum concerning the proper method of production, but that notwithstanding this in- struction, the chills which Campbell and Kroum produced were not satisfactory. On June 6 Lindeman left the city for 2 days and gave instructions to Campbell to devise a scheme to produce satis- factory chills during his absence. When he returned on June 8, he found the chills to be worse than ever. On the morning of June 9 Lindeman approached Campbell and Kroum while they were at their work and asked them why they could not get their minds on their business and produce satisfac- tory chills. Lindeman stated that he believed that they were intent solely upon organizing the Union at the plant and asked them why they did not "let the fellows uptown who are paid to do this work do the final wrapping up of it instead of having it forced on your head." Lindeman informed them that unless the "officials in power" of the Union could relieve them of their organizational tasks and let them "work in peace" it would be desirable for them to lay off "until this thing was over," meaning a rumored strike which Linde- man believed would occur within a day or two. The men replied that-they did not wish to lay off, and Lindeman suggested that they ask Burgwin to come to the plant in order to discuss some arrange- ments which would permit them to continue to work. Lindeman gave them until 5 o'clock that afternoon to make their decision. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kroum testified that Lindeman stated during the conversation that the men must surrender their union affiliations or quit. Lindeman denied having made such a statement and testified that he said that the men would be obliged to quit unless they were "permitted to work in peace." We believe Kroum's testimony in this respect, since it is more consonant with Lindeman's attitude as reflected in his own testimony and actions and since it is consistent with the testimony of Burgwin and McCoy discussed hereinafter. We therefore find that Lindeman told the men that they would have to relinquish their union membership and activities or quit. The two men telephoned Burgwin and told him of the option which Lindeman had presented and requested him to interview Lindeman on their behalf. That afternoon Burgwin, accompanied by McCoy, a representative of another labor organization affiliated with the American Federation of Labor, went to the plant and talked with Lindeman. Burgwin opened the conversation by asking Linde- man whether they could not settle their differences upon a friendly basis. Lindeman replied that the only way this could be done was for Burgwin not to interfere with Lindeman's employees any longer, that he could not see why the two men could not continue to work until the strike or union situation had been straightened out without at the same time engaging in union activities. Burgwin and McCoy testified that Lindeman also stated that unless Campbell and Kroum gave up their union affiliation and stopped their organiza- tional activities he was going to discharge them. Lindeman denied having made such a statement. We believe that Lindeman did make this statement because it is consistent both with his subsequent ac- tions and the nature of the respondent's defenses which are herein- after discussed. After Burgwin and McCoy left, Lindeman asked Campbell and Kroum if Burgwin had seen them. Campbell said that he had and that Burgwin did not seem to be able to do anything for them but that he, Campbell, could not see why some arrangement could not be reached to permit them to remain at work. Lindeman said that he did not think that anything could be done unless the men were permitted to work "in peace" and since this did not seem to be pos- sible he still thought that the two of them had "better lay off." At 5 p. m. Campbell and Kroum went to Lindeman's office where they and Lindeman engaged in discussion for more than an hour. Lindeman at this time asked the men what their decision was. They told him that they neither desired to give up their memberships in the Union nor wished to quit their jobs. Lindeman stated that he still believed that they had better quit. About 6 o'clock Kroum stated that supper must. be about ready, and prepared to leave. At LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 877 this point Lindeman handed them checks in full payment of their wages, notwithstanding that this was not the regular pay day. The men thereupon left and had not returned to the respondent's employ at the time of the hearing. Upon the whole record, we are convinced that Campbell and Kroum were discharged by Lindeman and did not leave of their own accord. Regardless of the phraseology employed by Lindeman in his conversations with the men during the day, he clearly pre- sented them with an ultimatum-either they had to forego their organizational activities or they had to quit. When they refused to accept either suggestion, Lindeman discharged them. The respondent contends in justification of the action taken with respect to Campbell and Kroum that the Union would not permit them to work unless the respondent's plant became a closed shop; that their work had suffered in the week preceding their discharge; and that they had created "turmoil" in the plant through their con- stant organizational activities. We shall examine these contentions. As to the first contention, the record discloses that neither the Union nor the men demanded a closed shop as a condition precedent to Campbell and Kroum continuing to work. The evidence that the work of the two men had suffered during the week prior to their discharge is inconclusive. The respondent had complained of their defective chills, but the evidence indicates, as the respondent recognized, that the defects were attributable in part to the imperfection and novelty of the process. Kroum claimed that, although there had been a complaint with respect to the chills, it was only a minor one. His position is supported by the fact that Lindeman made only passing reference to the defective chills in his conversations with the men on June 9, the day of their discharge, and by the fact that no issue is raised concerning their general competency. There is no merit in the respondent's third contention that Camp- bell and Kroum had created turmoil in the plant through their con- stant organizational activities. The record does not disclose that these two men engaged in organizational activity to the detriment of their own or anyone else's work or contravened any shop rules in the prosecution of such activity. Nevertheless, the record makes it abundantly plain that the respondent held them primarily responsi- ble for the prospective unionization of the plant and regarded their elimination as an essential prerequisite to the elimination of the Union. This was solely because they were the acknowledged leaders of the employees in their effort at self-organization. From the incep- tion of the Union the respondent was opposed to it and by Linde- man's speeches had sought to discourage the movement. The re- 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's opposition to the employees' legitimate exercise of their right to self-organization and collective bargaining created a tension and unrest among its employees described by the respondent as tur- moil. This unrest manifested itself in the persistent rumors of a strike.' The respondent recognized that the inevitable result of the unrest, unless checked, would be industrial strife, with its resultant disruption of production. The respondent sought to check the unrest and prospective strife engendered by its own opposition to the Union, not by acceptance of the principles of the Act, but by the discharge of the two acknowledged union leaders." We find that the respondent has discriminated in regard to the hire and tenure of employment of Campbell and Kroum to discour- age membership in the Union, and has thereby interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that the strike which began on June 10, 1937, was caused, as the respondent concedes, by the discharges of these men, which discharges we have found to be unfair labor practices. The strike is a current labor dispute and the strikers retain their status as employees. D. The refusal to bargain, collectively in good faith 1. The appropriate unit The complaint alleged that the unit appropriate for the purposes of collective bargaining consisted of all the employees in the re- 7 There is no evidence in the record that prior to the discharge of Campbell and Kroum either the Union or the employees took any formal strike action for any purpose. 8 That this was the respondent 's attitude and that it discharged the men for the reason mentioned above is illustrated by the contentions it makes in its brief filed with the Board The following is an excerpt from the brief We have tried in this brief to discuss the findings of the Trial Examiner dis- passionately and to point out the errors therein The respondent feels that a gross injustice has been done it by the Trial Examiner in his report and recommendations. This is not a case like so many others coming before the Board where employees who have been under-paid, forced to work long hard hours and have been discharged because they took necessary action to piotect themselves . Here is a comparatively small business laboring under financial difficulties where the employees were satisfied with their wages, hours of labor and working conditions . Along comes an outside influence, not solicited or desired by the employees , which seeks to have the em- ployees join a union so that it may force upon the employer a closed shop Neither the employer nor the employees wanted a closed shop. It was not to their best interests . In all of this both were sell within their rights as American citizens. The respondent made no objection to the employees joining a union if they desired but they did not want to do so The agitation from without caused turmoil within to which the employer rightfully objected . Two employees who had joined the union found that by reason theieof they would be unable to continue unless there was a closed shop . Their union would not permit them to continue work otheri,ise. The union was threatening to call a strike, not because there was any controversy over wages , hours of service or working conditions , but because the employer declined to sign up for a closed shop These employees werc advised to take a lay-off until the situation could be clarified . [Italics ours.] LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 879 spondent's machine shop. It appears from the record that, more precisely, the unit claimed to be appropriate consists of the 21 em- ployees who voted at the election of July 9, 1937. The respondent makes no contrary contention. We find that the employees of the respondent, exclusive of office workers, salesmen, foremen, and supervisory officials, 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 collective bargaining and otherwise effectuate the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit As previously noted, an election was conducted by the Regional Director on July 9, 1937, among the respondent's employees included in a unit which we have found to be appropriate. At this election 11 of the 21 persons who voted designated the Union as their represen- tative for the purposes of collective bargaining. The respondent stated at the hearing that, as a result of this election, it conceded that the Union represented the majority of its employees in the appropriate unit. We find that on July 9, 1937, and at all times thereafter the Union was the duly designated representative of the majority of the em- ployees in an appropriate unit, and, pursuant to Section 9 (a) of the Act, was 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 employement, and other conditions of employ- ment. 3. The refusal to bargain As stated above, when the respondent met with the Union's coin- mittee on July 12, it asserted that this committee did not truly rep- resent the Union. Its basis for this position was that the committee had not been appointed after the election which had determined to the respondent's satisfaction that the Union represented a majority of the respondent's employees in the appropriate unit. The same position with respect to the committee's authority was maintained by the respondent at all times thereafter and reasserted at the hearing. As we have noted in other cases, however, the respondent was not entitled in this situation to question the representatives which the union, representing a majority of its employees, chose to send for the purposes of negotiations with it.9 9 Matter of Piqua Munising Wood Products Company and Federal Labor Union, Local 18787, 7 N. L. R . B. 782. . 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the respondent did not consider the committee as the duly authorized representative of the Union or accord it recognition as such, the discussion which the respondent's representatives had with this committee cannot be regarded as having satisfied the duty im- posed upon the respondent by Section 8 (5) of the Act. In view of the fact that the respondent withheld essential recognition, its posi- tion expressed in its brief to the effect that it was "willing to dis- cuss matters of interest with any representatives of the Union whether they were official or not" does not suffice. Since the re- spondent did not even recognize the committee as a proper party with whom to negotiate, it would, of course, never have entered into an agreement with the Union through the committee and, in fact, did not enter into such an agreement. Accordingly, we find that the respondent on July 12, 1937, and at all times thereafter, refused to bargain collectively with the Union as the representative of its employees in the appropriate unit in respect to wages, hours of employment, and other conditions of employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and have led, and tend to lead, to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY The respondent will be required to cease and desist from the unfair labor practices described above. The respondent, in addition, will be ordered to bargain collectively with the Union if requested to do so. We have found that Campbell and Kroum were discharged by the respondent because of their union activities and membership. The respondent has not offered them reemployment since their discharge. They are, therefore, entitled to their former positions and to back pay from the date of their discharge to the date when the respondent offers them reinstatement, including the period of the strike which was caused by the discriminatory discharges.10 Although Campbell and Kroum testified at the hearing that they would not return to the respondent's employ as long as the Union's strike against the 10 Matter of Atlas Mills, Inc. and Textile House Workers Union No. 2269, United Textile Workers of America, 3 N. L. R. B. 10; Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82, 4 N. L. R. B. 498, enforcement granted National Labor Relations Board v. Star Publishing Company, 97 F. (2d) 465 (C. C. A. 9th). LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 881 respondent continued, we do not consider this conclusive in the deter- mination of the appropriate remedy for the respondent's unfair labor practices. Such testimony cannot be regarded as an unequivocal assertion that the men would not have returned had such an offer been made. Rather, it was the type of statement which any union member, more particularly a discriminatorily discharged one, would make if publicly questioned concerning his probable course of action with respect to working during the pendency of a strike caused by his own discriminatory discharge. Moreover, the respondent never actually made any offer of reinstatement to either of the men. We shall order the respondent to offer reinstatement to the dis- charged employees and to make them whole for any loss of pay they have suffered by reason of their respective discharges 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 to the date of the offer of reinstatement, less his net earnings "l during said period. Since the strike was caused, as we have found, by the respond- ent's unfair labor practices, we shall, in accordance with our usual custom, order the respondent, upon application, to offer reinstate- ment to their former or substantially equivalent positions to those employees who went out on strike and have not since been fully rein- stated. Such reinstatement shall be effected in the following manner : All employees hired after the commencement of the strike shall, if necessary to provide employment for those to be offered reinstate- ment, be dismissed. If, thereupon, by reason of a reduction in force there is not sufficient employment immediately available for the re- maining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining em- ployees in accordance 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 has heretofore been applied in the conduct of the respond- ent's business. 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 "By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local $590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal, or other work-relief projects are not considered as earnings, but, as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal , or other government or govern- ments which supplied the funds for said work-relief projects. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set forth in the previous sentence, and shall thereafter, in accord- ance with such list, be offered employment in their former or in substantially equivalent positions, as such employment becomes avail- able and before other persons are hired for such work. 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. International Association of Machinists, Local No. 1531, is .a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Donald Campbell and H. J. Kroum, thereby discouraging membership in International Association of Machinists, Local No. 1531, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in 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 Act. 4. The employees of Lindeman Power Equipment Company, ex- clusive of office workers, salesmen, foremen, and supervisory officials, constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (b) of the Act. 5. International Association of Machinists, Local No. 1531, was on July 9, 1937, and has been at all times thereafter the exclusive repre- sentative of all such employees for the purposes of collective bar- gaining, within the meaning of Section 9 (a) of the Act. 6. By refusing to bargain collectively with International Associa- tion of Machinists, Local No. 1531, as the exclusive representative of its employees in an appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Lindeman Power Equipment Company, Yakima, Wash- ington, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Association of Machinists, Local No. 1531, or any other labor organization, by LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 883 discharging any of its employees or in any other manner discrim- inating in regard to their hire or tenure of employment or any term or condition of their employment because of membership or activity in International Association of Machinists, Local No. 1531, or any other labor organization; (b) Refusing to bargain collectively with International Associa- tion of Machinists, Local No. 1531, as the exclusive representative of all its employees, exclusive of office workers, salesmen, foremen, and supervisory officials, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining and other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Donald Campbell and H. J. Kroum immediate and full reinstatement to their former positions without prejudice to their seniority and other rights and privileges; (b) Make whole Donald Campbell and H. J. Kroum for any losses of pay they have suffered by their discharge by payment to each of them of a sum of money equal to that which each would normally have earned as wages from June 9, 1937, to the date of the offer of reinstatement, less his net earnings during said period ; deducting, however, from the amount otherwise due to each of the said em- ployees, monies received by said employees during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Upon application, offer to those employees who went out on strike on June 10, 1937, and thereafter, immediate and full reinstate- ment 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 "Remedy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section; (d) Make whole the employees ordered to be offered reinstatement for any loss of pay they may suffer by reason of the respondent's re- fusal to reinstate them, upon application, following the issuance of this Order, by payment to them, respectively, of a sum of money equal to that which each would normally have earned as wages during the 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period from five (5 ) days after the date of such application for rein- statement to the date of the offer of employment or placement upon the preferential list required by paragraph (c) above, less his net earnings during that period; 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 of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (e) Upon request, bargain collectively with International Associa- tion of Machinists, Local No. 1531, as the exclusive representative of all its employees, exclusive of office workers, salesmen, foremen, and supervisory officials, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (f) Post immediately in conspicuous places at its plant notices stat- ing that Lindeman Power Equipment Company will cease and desist in the manner aforesaid , and maintain such notices for a period of sixty (60) consecutive days from the date of the posting; (g) Notify the Regional Director for the Nineteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith.