Chicago Apparatus Company

In the Matter of CHICAGO APPARATUS COMPANY and FEDERATION OF ARCHITECTS, ENGINEERS, CHEMISTS AND TECHNICIANS, LOCAL 107 Cases Nos. C-485 and B-490.-Decided May 17, 1939 Scientific Laboratories Equipment Industry-Interference, Restraint, and Coercion : anti-union activity by supervisory employees during working hours and on company property ; anti-union statements ; persuading employees to re- sign from union ; soliciting resignation by supervisory employees an unfair labor practice although such employees are members of the union-Unit Appro- priate for Collective Bargaining : production employees exclusive of salesmen, office employees, and supervisory employees with authority to hire and discharge- Representatives : membership in union as : signed applications sufficient to desig- nate ; payment of membership dues as requisite to designation of-Collective Bar- gaining: refusal to recognize representatives ; obstructing and delaying union's efforts to bargain ; negotiation in good faith , consent election, request for by em- ployer while in midst of a campaign to discredit union as ; refusal to negotiate with representatives, employer's attempt to destroy union majority and thus eliminate obligation to bargain as; ordered to bargain collectively with union as exclusive representative ; order based on majority at date of refusal to bargain-Unfair Labor Practice: violation of Section 8 (1) as constituting violation of Section 8 (5)-Discrimination : discharges , for union membership and activity; compelling union member to quit his employment ; charges of, not sustained as to one per- son-Reinstatement Ordered-Back Pay: awarded to discharged employees- Investigation of Representatives : petition for, dismissed in view of order to bargain. Mr. Stephen M. Reynolds, for the Board. Gann, Seeord, Stead do McIntosh, by Mr. Loy N. McIntosh, of Chicago, Ill., for the respondent. Mr. Frank J. Kornacker, of Chicago, Ill., for the Union. Mr. A. Bruce Hunt, Jr., of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Federation of Architects, Engineers, Chemists and Technicians, Local 107, herein called the Union, the National Labor Relations Board, herein called the Board, by Leonard C. Bajork, Regional Director for the Thirteenth 12 N. L. R. B., No. 101. 1002 CHICAGO APPARATUS COMPANY 1003 Region (Chicago, Illinois), issued its complaint dated December 6, 1937, against Chicago Apparatus Company, Chicago, Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, with- in 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. With respect to the unfair labor practices, the complaint alleged in substance (a) that on June 29, 1937, and thereafter, the respondent refused to bargain collectively with the Union as the exclusive repre- sentative of the respondent's employees in an appropriate unit, al- though a majority of said employees had designated the Union as their representative for such purpose; (b) that the respondent dis- charged Joseph Doyle and Patrick R. Doyle on or about July 23, 1937, and Alban H. Mirguet on August 25, 1937, and has since re- fused to reinstate them for the reason that they had joined and as- sisted the Union and had engaged in concerted activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid and protection; (c) that on or about August 20, 1937, the respondent through certain of its agents, discouraged membership of its employees in the Union and solicited resignations therefrom among its employees who were members; and (d) that by these and other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. On July 2, 1937, the Union filed with the Regional Director a peti- tion alleging that a question affecting commerce had arisen concern- ing representation of employees of the respondent, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On November 1, 1937, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation with respect to the petition and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and acting pursuant to Article II, Section 37 (b), and Article III, Section 10 (c) (2), of said Rules and Regula- tions, further ordered the cases consolidated for purposes of hearing. Notices of hearing, together with copies of the complaint, were duly served upon the respondent and the Union. On December 13, 1937, the respondent filed its answer, admitting the allegations of the complaint as to the character of its business and its interstate nature, denying that it had engaged in unfair labor practices, and alleging affirmatively that Alban H. Mirguet had re- signed his position and that Joseph Doyle and Patrick R. Doyle had been discharged for inefficiency. 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing was held in Chicago, Illinois, from December 13 to 16, 1937, inclusive, before Charles E. Persons, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and the Union by its agent, and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing, counsel for the Board moved to amend the complaint to include the name of one additional em- ployee, Clark Heppe, as having been discriminatorily discharged. This amendment, which alleged that Heppe was discriminatorily dis- charged on or about October 20, 1937, and that he does not desire to be reinstated to his former position, was allowed by the Trial Ex- aminer over the respondent's objection." By amended answer, the respondent alleged that Heppe "was temporarily laid off due to the passing of the peak season and recession of business . . ." Counsel for the Board also moved to amend the complaint to conform to the proof. The motion was granted by the Trial Examiner. At the close of its case, the respondent moved to dismiss the complaint on the ground of insufficient proof. The motion was taken under advise- ment by the Trial Examiner and denied in his Intermediate Report. During the course of the hearing, the Trial Examiner made several other rulings on motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On March 10, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He accordingly recommended (a) that the respondent bargain collec- tively with the Union, (b) that it reinstate Alban H. Mirguet, Joseph Doyle, and Patrick R. Doyle with back pay, (c) that it award back pay to Heppe, who does not desire reinstatement, and (d) that the respondent take certain other appropriate action to remedy the situa- tion brought about by the unfair labor practices. Thereafter, the respondent filed its exceptions to the record and to the findings and recommendations of the Intermediate Report. Pursuant to notice, a hearing was held before the Board in Wash- ington, D. C., on April 19, 1938, for the purpose of oral argument. 'Although the respondent objected to the amendment on various grounds, it did not assert its right to notice. In view of our findings regarding Heppe, we do not consider the Trial Examiner's ruling in this instance to be prejudicial. CHICAGO APPARATUS COMPANY 1005 The respondent and the Union were represented by counsel and par- ticipated in the hearing. The Board has considered the respondent's exceptions to the record and to the Trial Examiner's Intermediate Report and, in so far as they are inconsistent with the findings, conclu- sions, and order below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, an Illinois corporation, having its principal office and place of business in Chicago, is engaged in the business of manu- facturing and jobbing of apparatus and supplies for scientific labora- tories, principally those of educational institutions. The number of the respondent's employees varies from 45 to 90, since its business is highly seasonal. Manufacturing constitutes approximately one-fourth of the re- spondent's operations and consists of the production of electrical demonstration pieces, bunsen burners, tongs and tweezers, balances and weights, and kindred laboratory equipment. For the 5 months' period ending November 30, 1937, the respondent purchased raw ma- terials, aggregating about 21/2 tons, from States other than Illinois. These raw materials consisted principally of copper sheet, finished wood, screws, fibre, motors, steel, and animal and plant specimens. The remainder of the respondent's business is jobbing, about three- fourths of the materials for which are procured from States other than Illinois. During 1937, the respondent purchased approximately 9 tons of optical instruments, chemical glassware, and chemical porcelain from New York, New Jersey, and Colorado, in addition to chemical glass, plaster anatomical models, and balances and weights from Germany, unprepared slides from Pennsylvania, forceps and scissors from New York, and nitric, hydrochloric, and sulphuric acids from Indiana. The respondent's sales are generally made by mail order, approxi- mately three-fourths of its shipments, by volume, being to points outside Illinois. During 1937 about 375 tons of its products were so shipped. The respondent employs five salesmen who travel through- out Minnesota, Wisconsin, Iowa, Michigan, Indiana, New Jersey, New York, Pennsylvania, and Illinois. II. THE ORGANIZATION INVOLVED Federation of Architects, Engineers, Chemists and Technicians, Local 107, is a labor organization affiliated with the Committee for 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Industrial Organization, admitting to membership persons employed by the respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that "all the production and maintenance workers . . . except salesmen, and clerical and supervisory em- ployees," constitute a unit appropriate for the purposes of collective bargaining. In its answer the respondent denied that such a unit is appropriate but introduced no evidence at the hearing to support its denial or to assist the Board in determining what employees con- stitute an appropriate unit. The petition alleges that "all production employees exclusive of office, salesforce, and foremen" constitute an appropriate unit. Although the pleadings thus show a variation with respect to maintenance employees, the record contains no reference to such employees and tends to establish the allegation of the petition. Moreover, the efforts of the Union to bargain collectively with the respondent were on behalf of a unit composed of the production employees. The Union excludes from its membership the salesmen, office em- ployees, and supervisory employees with authority to hire and dis- charge and does not desire to represent them in collective bargaining with the respondent. Under the circumstances, we shall exclude the above classes of employees from the appropriate unit. We find that the production employees of the respondent, exclusive of salesmen, office employees, and supervisory employees with author- ity to hire and discharge, constitute a unit appropriate for the pur- poses of collective bargaining and that such unit insures to employees of the respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit The respondent's pay roll of July 11, 1937, for its production de- partment contains the names of 54 employees. Three of these in- dividuals, namely, Daniel P. Weaver, Edward F. Konkey, and Florian F. Polk, are listed respectively on the pay roll as a receiving clerk, an order picker, and the head of the chemical department. Except in the case of Polk, these designations are not supported by the record which clearly establishes that all three are supervisory em- ployees. Weaver is in fact in charge of the "receiving room" and CHICAGO APPARATUS COMPANY 1007 supervises several employees. Konkey acknowledged that he was "foreman" of the "stock room," while Polk is foreman of the chemical department. It is clear that Konkey does not have authority to hire and discharge, but the record is not definite in this respect as to the other two. For the purposes of determining the representation by the Union of a majority of the employees, it is not necessary to decide whether the three above-named supervisory employees are within the appropriate unit. Between May 21 and 28, 1937, 28 of the respondent's employees signed applications for membership in the Union. Between the latter date and June 29, 1937, an additional 19 employees similarly signed membership application cards. All the application cards were received in evidence, without objection, after identification by a representative of the Union who testified that these employees were accepted as members. In addition to these 47 employees, several others thereafter signified their intention of joining the Union. An examination of these cards shows that on June 29, 1937, and for several weeks prior thereto, the Union represented a substantial majority of the employees in the appropriate unit. At the hearing and in its exceptions to the Intermediate Report, the respondent on various grounds urged that the evidence described above did not establish the Union's representation of a majority of the employees in the appropriate unit. The respondent contends that those employees who signed the membership application cards, but who had not paid initiation fees and dues, could not have been mem- bers of the Union pursuant to its bylaws and that therefore the Union was not entitled to represent them for the purposes of collec- tive bargaining. This contention is without merit. Whether or not the employees actually perfected their applications and became mem- bers of the Union is immaterial. It is sufficient that by signing the applications the employees signified their desire to be represented by the Union for the purposes of collective bargaining.2 The respondent finally argues that in considering the issue of the Union's majority, the Board must give effect to letters of resignation which were received by the Union from 17 of its members. All these letters except two are dated between August 20 and 24, 1937. Sixteen 2 Matter of St. Joseph Stock Yards Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 159, 2 N. L. R. B. 39; Matter of National Motor Bearing Company and International Union, United Automobile Workers of America, Local No. 76, 5 N. L. R. B. 409; Matter of Zenite Metal Corporation and United Automobile Workers of America , Local No. 442, 5 N. L. R. B. 509; Matter of Cen- tury Mills, Inc. and South Jersey Joint Board, of the International Ladies Garment Work- ers Union, 5 N. L. R. B. 807 ; Matter of Trenton-Philadelphia Coach Company and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 6 N. L. R. B 112; Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No . 459, 8 N. L. R. B. 621 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the employees who so resigned further testified at the hearing that they no longer desired to be represented by the Union.8 For the reasons discussed below in Section III B, and in "The remedy," we find that the resignations and the testimony of these employees can- not operate to diminish the majority status previously obtained by the Union. We find that on June 29, 1937, and at all times thereafter, the Union was the duly designated representative of a majority of the employees in the appropriate unit, and pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain (a) History By letter dated June 16, 1937, Lewis Alan Berne, midwest or- ganizer for the Union, informed the respondent that the Union repre- sented a majority of the employees in the production department and requested a conference. On June 18, M. C. Stoelting, president of the respondent, acknowledged the letter, set a conference for June 22, and advised that C. A. Bengston, the respondent's treasurer, would appear for the respondent. The June 22 conference was held as scheduled. The Union, ap- pearing by Berne and Frank J. Koinacker, another organizer, sub- initted written proposals for consideration by the respondent. Dur- ing the conference there was some discussion of the manner in which the Union's majority would be established. The Union took the posi- tion that it would not submit its records to the respondent but would file a petition with the Board if the respondent doubted its majority and demanded proof. Bengston requested time in which to consider the entire matter, including the written proposals, and a second con- ference was arranged for June 29. At the beginning of the second conference, at which the parties were represented by the same individuals, Bengston asked the union repre- sentatives if they were prepared to prove their majority status. As the representatives replied that they had previously explained the procedure they would follow if such proof were demanded, Bengston interrupted by saying : "Well, you are not at present prepared to prove that you represent the employees." The representatives 3 Certain of these 16 employees were employed on a temporary basis, that is, they were employed during the respondent's peak season , and had been laid off prior to the time of the hearing due to the passing of that season . However, it is clear that it is the respondent's practice to reemploy them at the commencement of its busy season each year, one such employee having been so employed by the respondent for 11 years. CHICAGO APPARATUS COMPANY 1009 acknowledged the truth of Bengston's statement and started to say that the respondent had given them no indication that such proof would be requested at this conference. Bengston again interrupted and terminated the conference with the words, "Inasmuch as we have no proofs, there will be no further discussion, and the conference will come to an end." Our findings as to the events which occurred at these conferences are based upon the testimony of Kornacker. C. A. Bengston was not a witness. On the same day but after the above-described conference had terminated, the respondent distributed among its employees a mimeo- graphed "statement of policy." This statement, adopting several of the proposals which had been submitted by the Union, announced a general wage increase and outlined a policy with respect to hours of work, overtime rates of pay, vacation privileges, and a grievance pro- cedure. The statement also announced that the respondent would recognize "any union or group of employees" as the collective bar- gaining representative "for the employees of our various departments, providing satisfactory proof is given that they represent a major- ity . . ." There followed a lengthy argument on behalf of the open shop, which the respondent announced it intended to maintain partly because, "In view of the law on this point, it would be inconsistent and manifestly improper for us, as employers, to make membership in a union a condition of employment." The "statement of policy" concluded with the following paragraph : ... under the merit system, the employee does not have to ask permission of some walking delegate as to what position he may hold nor does he have to pay tribute to anyone for the privilege of working. Even a casual reader of current events described in recent developments, could easily ascertain what is sought to be foisted upon American workmen. We have our freedom at the moment and we should fight to retain it. An open shop policy, based upon a merit system, will preserve this for us. By letter dated July 1, the Union protested to the respondent that the statement had "been unanimously rejected by" the employees and "that the action of the management at the last meeting was evidence of a breach of faith." On the following day the Union filed a petition with the Board requesting an investigation and certification of representatives. During July, August, and September, 1937, three conferences were held in the Board's Regional Office and were attended by representa- tives of the Board, the respondent, and the Union for the purpose of settling the differences between the respondent and the Union. Ef- forts to arrive at a settlement, however, proved futile. The Union 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offered to submit its membership application cards in support of its representation claim, but the respondent refused to accept such a basis of settlement on the ground that considerable time had elapsed since the cards had been signed. On July 27 the respondent indicated its willingness to cooperate in the conduct of a consent election under the supervision of the Regional Director, but thereafter the Union refused to participate in such election. Between July and September, the Union secured cards signed by employees, authorizing it to represent them in collective bargaining. Thereafter it made additional efforts to bargain collectively with the respondent. Shortly prior to August 20, 1937, Kornacker telephoned J. O. Bengston, the respondent's secretary, asking for a conference. The latter replied, "that he saw no reason for continuing with the negotiations, he would not negotiate with our union." On August 20, 1937, by letter to the respondent, the Union again asserted its claim to represent a majority of the production employees and offered a proposed agreement "which your employees ask you to sign . . 21 The respondent failed to acknowledge the letter, and no further re- quests were made by the Union to bargain collectively. (b) Conclusions As we have found above, on June 29, 1937, and at all times there- after, the Union in fact represented a majority of the respondent's employees in the appropriate unit. The respondent admits that it refused to bargain collectively with the Union and seeks to justify its refusal on the ground that the Union did not prove its right to repre- sent the employees. We are of the opinion that the respondent's refusal to bargain was not based upon such failure of proof and that, by its activities described herein, it sought to relieve itself of its obligation to bargain collectively with the Union 4 It is significant of the respondent's attitude with respect to the Union's authority to represent the employees, that at the first confer- ence the respondent did not request any proof of majority represen- tation but merely inquired how such proof might be established. It was only at the second conference on June 29, 1937, that the respond- ent made such request. At that time, without referring to the Union's offer to invoke the procedure of the Act, the respondent abruptly broke off all negotiations. Had the respondent been acting in good faith, and had it had an honest doubt of the Union's majority, it is reasonable to assume that the respondent would have accepted the ' Our findings in subsection "C" infra, are further proof of the respondent's bad faith and establish further instances of the respondent 's efforts to relieve itself of its obligations under the Act. CHICAGO APPARATUS COMPANY 1011 Union's offer to file a petition with the Board.5 The respondent's failure to discuss with the Union the latter's proposal to demonstrate its authority to represent the employees, and the sequence of events which followed immediately upon the termination of the June 29 conference, convince us that the respondent was not actuated by an honest doubt that the Union had been designated by a majority of the employees as their collective bargaining representative e The record does not disclose when the "statement of policy" de- scribed above was prepared. The publication of the statement, how- ever, immediately following the termination of negotiations, demon- strated to the Union the futility of pressing its claim for bargaining recognition and revealed to the employees the respondent's preference for dealing directly with them. As described above, the statement contained many of the proposals submitted by the Union. Indeed, the respondent admits that the presence of the Union in the plant "might have expedited" the wage increases announced in the state- ment. In effect, the respondent's "statement of policy," while con- ferring upon the employees many of the benefits sought to be obtained by the Union, constituted a direct attack upon the Union's efforts to bargain collectively.' The publication of this statement dealt a severe blow to the Union's prestige by demonstrating to the em- ployees that so far as the respondent was concerned collective bar- gaining was neither desirable nor necessary. An employer who, in good faith, questions whether a labor organi- zation seeking to bargain collectively for his employees represents a majority, is not obligated to bargain with such organization in the absence of proof of its designation. Had the respondent been satisfied to question the status of the Union and to cooperate with the Union in the latter's efforts to furnish the required proof, its protestations of good faith might have proved invulnerable. The abrupt termina- tion of the June 29 conference followed immediately by the publica- tion of the statement of policy, shows, however, that the respondent's refusal to negotiate with the Union was based solely upon its unwilling- ness to deal with this labor organization as the representative of its employees, and its desire to destroy the Union. The conduct of the respondent described above, moreover, amounted to a direct refusal to bargain collectively with the Union. The duty of an employer to bargain collectively arises only if a request therefor 5Cf Matter of Burnside Steel Foundry Company and Amalgamated Association of Iron, Steel and Tin Workers of Noith America, Lodge No. 1719, 7 N L R B 714. e Cf. National Labor Relations Board v Remington Rand, Inc., 94 Fed. ( 2d) 862, (C. C. A. 2d; 1938), cert. den . 304 U. S. 576; National Labor Relations Board V Biles- Coleman Lumber Company, 96 Fed (2d) 197, (C. C. A 9th; 1938). ° Cf. Matter of the Hanson-Whitney Machine Company and International Union, United Automobile Workers of America, Local No. 428, 8 N L. R. B. 153 169134-39-vol. 12-65 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is made by a labor organization that meets the requirements of Sec- tion 9 (a). Where a labor organization representing a majority of employees in an appropriate unit seeks to bargain collectively, an employer's attempt to destroy such majority and thus to relieve himself of his obligations under Section 8 (5) of the Act is as patently a refusal to bargain within the meaning of Section 8 (5) as a forthright refusal to meet with representatives of a labor organization clothed with the right to exclusive recognition. We need not decide whether under other circumstances an employer's activities which clearly infringe upon his employees' rights and constitute unfair labor practices within the meaning of other sub- divisions of Section 8 of the Act also constitute an unfair labor practice within the meaning of Section 8 (5). It is obvious, how- ever, that under the circumstances present in the instant case, to find that the respondent's conduct in posting its "statement of policy" constituted an unfair labor practice only under Section 8 (1) of the Act would nullify Section 8 (5). So to restrict our finding "would be to hold that the obligation of one provision of the Act may be evaded by the successful violation of another." 8 The respondent, in seeking to destroy the majority status of the Union, immediately following the Union's request to bargain and its asserted intention to invoke the services of the Board in demonstrating its majority, plainly showed that it was solely interested in avoiding its obliga- tion to bargain with the Union. The respondent finally urges as proof of its good faith its asserted willingness in July to be guided by the results of a consent election and the Union's refusal to participate in such election. Under or- dinary circumstances, and particularly when the labor organization claiming to represent a majority of the employees is unwilling to disclose the names of its members in proof of such claim, an em- ployer's request that the labor organization acquiesce in a consent election to demonstrate such proof is entitled to considerable weight in determining the attitude of the employer to the collective-bar- gaining requests of a labor organization. As fully described below, however, the respondent was then in the midst of a campaign to dis- credit the Union among its employees. Its conduct had plainly placed in jeopardy the majority status of the Union and indicated its bad faith in making such proposal. Under the circumstances, the re- fusal of the Union to test its strength at that time without the full protection of the Act was not unreasonable. Our reasoning above applies with equal force to this contention of the respondent. Fur- 8 Matter of Missouri, Kansas ct Oklahoma Coach Lines and International Association of Machinists, et al., 9 N. L. R. B 597. CHICAGO APPARATUS COMPANY 1013 thermore, as we have noted above, the Union thereafter again as- serted its authority to represent the employees and again requested the respondent to bargain collectively.* It is conceded that the re- spondent received this letter. Its failure to reply remains unex- plained in the record. We find that on June 29, 1937, and thereafter, the respondent re- fused to bargain collectively with the Union as the exclusive repre- sentative of its employees in an appropriate unit, and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Interference, restraint, and coercion As described above, the issuance of the "statement of policy" con- stituted the initial step in the respondent's campaign to discredit the Union and to discourage its employees from becoming members there- of. The respondent's acts in furtherance of these objectives were committed by certain of its supervisory employees and ranged from subtle suggestion to direct coercion. Eugene C. Young, a chemical-quotation clerk and the only clerical employee who was a member of the Union, was also the chairman of that labor organization. Some time after the Union was or- ganized, C. A. Bengston asked him whether he had any grievances, stating, according to Young, that, "if he was forced through unioniza- tion of his employees to pay higher wages," the added costs would place him under a handicap with his competitors. Young testified that C. A. Bengston approached him again in August and, referring to Young's union activities, stated that, "he felt as though I had violated a trust of responsibility which the company had given me so that they could not feel that they could give me additional respon- sibilities or promotion." According to Young, J. O. Bengston, the respondent's secretary who was also present, warned him that "any employee who left the building on a strike automatically terminated his employment by the company." During October or November 1937, and subsequent to the discharges discussed below, C. A. Bengston asked Young if he was still "antagonistic" toward the respondent. Young replied that he had never been antagonistic, whereupon Bengston stated that he "was glad to hear that and he thought that I (Young) realized that . . . (the discharged em- ployees) had not been able to accomplish anything by taking their disputes to the Labor Board." Neither of the Bengstons contro- verted the statements attributed to them by Young or denied that the conversations as thus described took place. We accept Young's testimony as true. The statements were clearly intended to dis- courage Young from continuing his activities on behalf of the Union. 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Florian F. Polk, a supervisory employee in charge of the chemi- cal department, was a member of the Union. His brother, Henry A. Polk, also a union member, was a "chemical order picker" in his department. Prior to June 22, 1937, Florian Polk asked C. A. Beng- ston to assist Henry Polk, who was then in financial difficulties. Bengston assured Florian that "he would try to see what he could do for my brother." Both Florian and Henry Polk resigned from the Union on August 2, 1937. On August 12 and 13, respectively, Florian and Henry Polk both signed cards authorizing the Union to represent them for the purposes of collective bargaining. Shortly after the latter dates, Florian Polk again approached C. A. Bengston to obtain financial assistance for his brother. According to Florian Polk's uncontradicted testimony, Bengston asked him if he had signed such authorization. Upon receiving an affirmative reply, Bengston, in the words of Polk, replied, "that through the entire course he tried his best to take care of Hank, that is my brother, insofar as him being in financial difficulties, but-that while we still were members of the union it was practically impossible for him to go against his word insofar as the company policy was concerned; for that reason he could absolutely do nothing for him." Florian Polk repeated this conversation to Henry Polk and on August 17 both men revoked their union authorizations. Henry Polk testified that his revocation of the authorization was not motivated by Bengston's refusal to assist him but was "because I found out that everybody in the building found out that I signed' the slip . . ." He further testified that he had been assured that his having signed the authorization would not become generally known. In reply to a question by the respondent's counsel as to a comparison in his employer's attitude toward him before and after he joined the Union, Henry Polk stated : "I think their feeling towards me is better now than it ever was." It is apparent that Florian Polk withdrew his union authorization as a result of his conversations with C. A. Bengston. While Henry Polk denied that Bengston's conduct similarly actuated him, it is clear that he was aware of "the company policy" and that his with- drawal of support from the Union restored him to the good graces of the respondent. In addition to the above-described conduct of the respondent's offi- cials, the employees were subjected to a concerted drive on the part of supervisory employees to secure their resignations from the Union. Most active in this attempt to deplete the union membership was R. W. Tobiasson, an employee whose name does not appear on the pay roll of the production department. Tobiasson classified himself as the head of the inspection department and as "a correspondence man; handle complaints, adjustments, service correspondence." As CHICAGO APPARATUS COMPANY 1015 a supervisor with two stenographers under his direction and by rea- son of the nature of his duties, Tobiasson attended meetings of fore- men. We find that Tobiasson, identified with the management and occupying a position corresponding to a foreman, was a supervisory employee for whose activity the respondent was chargeable. Tobiasson, frankly admitting that he solicited resignations from the Union, testified: "I just went over the entire organization and asked everybody that I thought or believed belonged to the union." Upon receiving assurances from the employees he approached that they would resign, Tobiasson prepared letters of resignation for their signatures and, assertedly at his own expense, sent them by regis- tered mail to the Union. As a result of his efforts, Tobiasson in- duced 17 or 18 employees to sign letters of resignation from the Union. Although he could not recall how much time he devoted to this activity, he admitted that it was carried on during working hours. Tobiasson testified that he received the assistance of Weaver and Florian Polk in this enterprise. Konkey acknowledged having ob- tained signatures of employees to letters of resignation which were prepared by Tobiasson, but denied that he had solicited them, assert- ing that he told the employees : "I'm on one side, you are on the other side, it don't make no difference to me" what they did. After the resignations were obtained, however, there were- no remaining union members in Konkey's department. Also, all employees except one over whom Florian Polk was supervisor, signed letters of resignation. On several occasions Weaver approached employees under his super- vision and criticized the Union, stating that it was "doing no good" and that "it would be for my own good (to sign a letter of resigna- tion), . . . that if I did not sign it I might as well look for another job." We find no merit in Konkey's protestation of neutrality. Moreover, Weaver was not called by the respondent as a witness, while Florian Polk did not deny his activity described above. The respondent denies responsibility for the acts of Tobiasson, Weaver, Florian Polk, and Konkey, asserting that they were not authorized to act as they did, that it knew nothing of their activities until the resignations had been obtained, that when knowledge of their activities came to its attention the respondent directed that the activi- ties cease, that Konkey and Florian Polk were themselves members of the Union prior to or during the time of their activity, and that these four individuals, being employees, had a right under the Act to engage in activity against the Union, as well as in its behalf. Tobiasson corroborated the respondent in its assertion that he was directed to cease his anti-union activity and that he engaged in no such activity after having been so directed. 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent's assertion that the above-described activity of these four individuals was carried on without its knowledge and ap- proval is unconvincing. Several of the letters of resignation bear dates of August 23 and 24, 1937. Alban H. Mirguet, one of the em- ployees named in the complaint as having been discriminatorily dis- charged, was called into the office of C. A. Bengston on August 25. Mirguet testified : ... When I walked into the private office, Mr. Bengston was standing. . He said, "Mr. Mirguet, it has been reported to me that all day yesterday you were about the building advising the em- ployees not to sign these papers." I knew what he was referring to, and I denied being there. I told him that I was in my department the entire day before with work that I had to get out. He says, "You can't lie out of this." I said "I am not lying." [Italic supplied.] C. A. Bengston was not called by the respondent as a witness, and we accept Mirguet's testimony as true. So far as the record shows, no "papers" other than the letters of resignation were being signed by the employees or_ the previous day, and it is clear that it was these letters to which C. A: Bengston referred. J. 0. Bengston was not present on August 25 when the conversa- tion between Mirguet and C. A. Bengston commenced. J. 0. Bengs- ton testified that the respondent's officers had learned "that Mr. Mir- guet had spent a great deal of his time around the premises and not on any ostensible business of the company, and we had decided that Mr. (C. A.) Bengston would talk to him," and that after he entered the office he heard C. A. Bengston remonstrating with Mir- guet "for taking company time and for disturbing the employees of the company while they were at work." J. 0. Bengston continued, "I don't know whether he was getting memberships in the union or whether he was trying to stop people from resigning the preceding day." Upon all the evidence, we conclude that the activity in which Tobiasson, Weaver, Donkey, and Florian Polk engaged by soliciting resignations from the Union was carried on with the respondent's knowledge and approval. Irrespective of the conclusion which we have reached above, the respondent is directly chargeable for the anti-union acts of its super- visory employees. Those supervisory employees "are in constant as- sociation with employees, who take orders from them and commonly learn from them the Company's policy on other matters. The activ- ity of such supervisory employees must bind the employer unless CHICAGO APPARATUS COMPANY 1017 effectively disavowed." 9 Nor has the respondent "effectively dis- avowed" the anti-union acts of its supervisory employees. Indeed, the respondent seeks to take advantage of those acts and urges that the Board, in determining whether the Union represented a majority of the employees, recognize as valid the union resignations so ob- tained. Moreover, that certain of these supervisory employees were members of the Union does not relieve the respondent from responsi- bility for their actions. Our opinion in Matter of lYard Baking Company and Committee for Industrial Organization, et al.,10 is equally applicable here : ... the respondent is not relieved from responsibility for the union activity of its supervisory employees by virtue of mem- bership of such employees in a labor organization. A corporate employer in its relations to its ordinary employees necessarily acts through and must be held responsible for the acts of its supervisory employees. Where such employees actively interfere with . . . (a) labor organization . . . the employer itself must be deemed to have engaged in such interference .. . We find that the respondent, by the above-described activity of its executives and supervisory employees, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discharges Alban H. Mirguet, an osteologist and biologist, was hired by the respondent in March 1928 at a salary of $65 per week. His salary was raised to $70, later lowered to $45, and still later raised to $60. From the date of his employment until June 1937, Mirguet was in charge of the biological department, his work consisting principally of preparing catalogues and stock and checking orders. In June 1937, Mirguet was succeeded by Dr. Edgar A. Baird as head of that department, but it appears that he was a capable employee and that he continued to do responsible work until his employment with the respondent ceased on August 25, 1937. Mirguet joined the Union in June 1937 and became one of its most active workers. He regularly attended its meetings, and strove to induce other employees to join. His most efficient work on be- half of the Union was in obtaining certain designations of the Union as the collective bargaining representative of the employees, 9Matter of Tennessee Copper Company and A. F. of L. Federal Union No. 21164, 9 N. L. R. B. 117. See also Matter of MockJudson-Voehringer Company of North Carolina, Incorporated and American Federation of Hosiery Workers, North Carolina District, 8 N. L. R . B. 133. 10 8 N. L. R B. 558 See also Matter of Tennessee Copper Company and A. F. of L. Federal Union No. 21164, 8 N. L. R. B. 575. 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which he accomplished in company with Young, the Union's chair- man, principally after working hours by visiting the employees at their homes. Most of these authorizations were obtained about the middle of August 1937. On August 18 or 19, 1937, C. A. Langston summoned Mirguet to his office and for a period of about 2 hours engaged Mirguet in a conversation which was concerned principally with the latter's union activities. According to Mirguet, Bengston stated : It has been reported to me that you have been working evenings and during week-ends using your time, your car and gasoline going about visiting employees getting signatures on slips of paper that would be in direct opposition to what the company was trying to do. Mirguet acknowledged the accuracy of this statement, whereupon Bengston replied : "'But you know', he says, `you are working directly against the company."' At this point the conversation turned to certain phases of the respondent's business, during which Bengston complimented Mirguet on the quality of his work. The discussion, however, was again directed toward Mirguet's union activities. Bengston criticized Mirguet for the latter's use of "company time" for union business and urged that Mirguet resign from the Union : "Mr. Mirguet," he said, "if you think seriously of your acts and you wish to go along with the company I will see to it," he said, "I still have a voice in the organization and I will see to it that this is all passed over and things will go on as usual." .. . Upon Mirguet's promise to return in a few days and give him an answer, the conversation terminated. Since C. A. Bengston was not a witness, we accept Mirguet's account of this conversation as true. As we have described above, Mirguet was again summoned to C. A. Bengston's office on August 25 and accused of dissuading the em- ployees from signing the resignations from the Union which were then being circulated by Tobiasson and other supervisory employees. During this conversation Bengston reminded Mirguet of his promise of the previous week to return in a few days and discuss the pro- posal that he resign from the Union. After admonishing Mirguet for his failure to return, Bengston stated, "why don't you resign from the company ?" Mirguet refused to resign, and asked why the respondent did not discharge him if it did not desire him as an employee. Both C. A. Bengston and J. O. Bengston, who had come into the office, stated that he would not be discharged because the respondent did not want "trouble with the Labor Board." At this point C. A. Bengston said : "You haven't the guts to resign" and CHICAGO APPARATUS COMPANY 1019 "There is no room in our organization for you, get out, get out." Thereupon Mirguet returned to his office, told Baird of the conversa- tion, and announced that he was leaving the respondent's employ. Baird then left the room but returned shortly thereafter with C. A. Bengston and M. C. Stoelting, president of the respondent. C. A. Bengston asked Mirguet: "So, you have quit?", to which Mirguet replied that he had not: "You told me there was no room in the organization for me, to get out." As Mirguet left the respondent's premises, Bengston called after him: "Just a minute, just a minute." The respondent's contention is that Mirguet voluntarily ceased his employment and that he was not discharged. It is asserted that C. A. Bengston did not tell Mirguet, "There is no room in our or- ganization for you" and that, in using the words "get out," Beng- ston desired that Mirguet leave the scene of the conference and re- turn to work. J. 0. Bengston testified for the respondent that the conference concerned Mirguet's union activities and that he par- ticipated by telling Mirguet that the latter's services had not been satisfactory. After testifying that he "was becoming very much provoked," J. 0. Bengston continued: ... father (C. A. Bengston), who, seeing that I was becom- ing more and more upset and afraid that I might tell Mr. Mirguet to pack his bag and get out, asked Mr. Mirguet, or ordered him, as near as I can recall the words, "Get out, get out, and go back to your own floor," or "Get out and go to work" on the second "Get out." I don't recall exactly. It is apparent that the respondent was hesitant to discharge Mir- guet, fearing that the dismissal would give rise to charges before the Board, and it is not denied that Mirguet was challenged to resign. The latter was admittedly in doubt with respect to his status at the end of the conference and finally concluded that he had been dis- charged. In accepting Mirguet's version of his discharge, we are impressed with his definite recollection of the language used by C. A. Bengston, with J. 0. Bengston's admission that he was on the verge of discharging Mirguet, with J. 0. Bengston's hazy recollection of the incident, and with the fact that C. A. Bengston was not called by the respondent as a witness to contradict Mirguet's testimony. Under the circumstances, we find that Mirguet's interpretation of C. A. Bengston's "order" was justified and that Mirguet was in fact discharged. Even accepting the respondent's contention that Mirguet quit his employment, we must reach the same conclusion. As we have de- scribed above, Mirguet was subjected to constant admonitions and cross-examination by the Bengstons with respect to his union ac- tivity. He was advised that his continued employment was distaste- 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ful to the respondent and he was urged to resign. Under the casti- gations of C. A. Bengston on August 25, he had no alternative but to resign. An employer cannot avoid his responsibilities under the Act by creating a situation so unbearable to an employee, so detrimental to harmonious and constructive working conditions, that the employee relinquishes his position rather than continue in such a situation 11 The respondent asserts that Mirguet was an inefficient employee, and there is much testimony designed to substantiate this allegation. Since the respondent contends that Mirguet was not discharged, it is not clear for what purpose such testimony was offered other than as a defense for having denied reinstatement to him. It is plain from the record, however, that such testimony is without merit. Mirguet had been employed by the respondent for a period of 9 years, during which his services had apparently been sufficiently satisfactory to warrant his continuance as an employee. It is significant that during his conversations with C. A. Bengston on August 18 and 25 no earnest question of Mirguet's efficiency was raised, although J. O. Bengston asserted that he participated in the latter conversation by stating that Mirguet's services had been unsatisfactory. Mirguet's testimony, however, that C. A. Bengston complimented him remains uncontro- verted. Moreover, despite Bengston's assertion above, the record establishes that the quality of Mirguet's work was not the matter in issue during his dispute with the respondent. The conversations of August 18 and 25 between the Bengstons and Mirguet occurred because of the latter's union activities. The re- spondent asserted at the hearing that it objected to the union activi- ties of Mirguet which were conducted on "company time." Mirguet acknowledged that he spent a total of "three or four hours" of such time engaging in union activity. We have described, however, the anti-union activities of the respondent's supervisory employees which were also conducted during working hours. Under the circumstances, the respondent cannot be heard to complain of Mirguet's activities on behalf of the Union. We find that Mirguet was discharged because of his membership in the Union and his activities in its behalf. From the time of his discharge to the time of the hearing, Mirguet was not gainfully employed. Joseph Doyle worked for the respondent for about 6 months in 1934 and for a similar length of time in 1935. It does not appear that he was discharged for cause at the conclusion of either of those terms of employment. On March 3, 1936, he again commenced working for the respondent and at the time of his discharge he was classified as an "order picker." On May 21, 1937, he joined the Union and later ' Cf Matter Of Ste? ling Corset Co, Inc , and Universal Brassiere & Justrete Corset Go, Inc. and International Ladies' Garment Workers' Union, Local 85, 9 N L R. B. 858 CHICAGO APPARATUS COMPANY 1021 became a steward, with the duties of collecting dues and soliciting members. On the Wednesday prior to his discharge, Doyle and another em- ployee, Robert Wallenberg, engaged in a conversation concerning the business of the respondent at that time and its improvement over the previous year. During the conversation, Daniel Weaver, one of the supervisory employees who engaged in the solicitation of resignations from the Union, came within hearing distance of Doyle and Wallen- berg. On July 23, 1937, Doyle was discharged by Curtis, personnel manager, with the statement that "you and the company have come to a parting of the ways." Doyle testified that, in response to his request for the reason, Curtis stated : "Well, the conversation that you had with Robert Wallenberg on the previous Wednesday ... You know very well what the nature of that conversation was." Curtis was not called by the respondent as a witness, and we accept Doyle's testimony as true. ' That a conversation such as the one between Doyle and Wallen- berg was a matter with which the respondent would concern itself is apparent in the testimony of Tobiasson. One conference between C. A. Bengston and the supervisory employees, including Tobiasson, concerned "the financial position of the company at that time." Tobiasson testified concerning this conference that, "There had been an awful lot of gossip going around the plant, that, of course, they were turning over at a terrific profit, that the coffers were being swelled and that the employees were being exploited . . ." It is apparent that the respondent objected to conversations of the sort which occurred between Doyle and Wallenberg solely because of their connection with union demands. The respondent denies that Doyle was discharged because of his conversation with Wallenberg, and asserts that he was discharged for inefficiency. J. O. Bengston testified that Curtis had complained that Doyle was inefficient, but that no action was taken because "we had a labor situation at the plant." J. O. Bengston also testified that after Curtis had made this complaint, and several days prior to the discharge, Doyle was seen on a floor, other than that on which he normally worked, "sitting on a work bench or sitting on a truck with one of the other employees, talking to him. As I passed by he made no effort to make a move, which seemed to me rather peculiar, since I am one of the owners of the company." No action was taken against Joseph Doyle at this time "for fear of retaliation by the union." J. O. Bengston testified that, finally, on the day of the discharge, Curtis reported to him that "the Doyle boys," both, of whom are named in the complaint, were "loafing, and related a series of events concerning them, which I don't recall exactly." J. O. Bengston testi- fied that at this time he told Curtis to discharge both Doyles. 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It does not appear that Joseph Doyle was ever warned by the re- spondent or charged with being inefficient or dilatory, nor was he told that he was being discharged as an incapable employee. We do not believe that he was discharged because he was seen on a floor on which he did not regularly work, sitting on a work bench; nor does it appear that the employee who was talking to Joseph Doyle on that occasion was criticized for being dilatory. Joseph Doyle testified on cross-examination that occasionally he went to departments other than that in which he regularly worked in order to obtain materials, that sometimes "I had to wait a while for those materials to be weighed up or measured out, and then I would have a few minutes -to stand, around, in which I was really not working." Concerning this par- ticular incident, J. O. Bengston testified that, "it was very possible he (Joseph Doyle) could have been called to the" floor on which Bengston saw him. We do not believe that Joseph Doyle was discharged for being dilatory or inefficient. No indication was given to him that these were the reasons for the severance of his employment. On the con- trary, he was told that he was being discharged for another reason, which can be interpreted only to mean that the respondent regarded him as an employee who was active in the Union's efforts to bargain collectively. Although Bengston testified that at the time of the dis- charge he did not know that Joseph Doyle was a member of the Union, his statement that the latter was not discharged at the previous Wednesday "for fear of retaliation by the union" can be construed only as an admission of the respondent's knowledge that he was a member of the Union. We conclude that Joseph Doyle was dis- charged by the respondent because of his membership in the Union and his activities in its behalf. He earned about $53 at temporary employment from the time of his discharge to the date of the hearing. Patrick R. Doyle, a brother of Joseph Doyle, was employed by the respondent as a freight -elevator operator. He was hired on June 10, 1936, and, as in the case of Joseph Doyle, was discharged on July 23, 1937. - Along with his brother, Joseph, he was one of the first employ- ees to join the Union. Unlike Joseph, however, Patrick was not active in union affairs. Curtis, the personnel manager, was also the supervisor of Patrick Doyle. On the, day of his discharge, Patrick Doyle was told by Curtis that he ,was being discharged for neglect of duty. Curtis was not awitness, and the respondent's explanation of the discharge was given by J. O. Bengston. It is asserted that "on two occasions he was found checking through records in the factory for which he had no reason, or had no reason-when he was asked why he was there, he gave no reason at all." It is not related who saw Patrick Doyle under such circumstances or who requested that he explain the alleged CHICAGO APPARATUS COMPANY 1023 conduct. On cross-examination, Patrick Doyle testified that the rec- ords of the factory stockroom are kept by a clerk, and that he, Patrick Doyle, delivered "freight slips" to this clerk. While denying that his examination of the records was ever beyond the duties of a freight- elevator operator, Doyle testified that occasionally the clerk was not at his desk and that "I wouldn't consider it beyond my employment if there was nobody there to receive, if I saw the order slip, I put them together, put the two of them together and put them on the clerk's desk." Upon the entire record in this case, we cannot conclude that Patrick Doyle was discharged for examining factory records. There is no. evidence to support this assertion beyond the bare statement of J. O. Bengston. Patrick Doyle's explanation of how he may have had to look at certain records on the stockroom clerk's desk in the course of his duties is clear and reasonable. As related in the discussion of the discharge of Joseph Doyle, J. O. Bengston testified that he was told by Curtis that both Doyles had been dilatory, but that he did not "recall exactly" what Curtis had told him. No other evidence was offered to support Curtis' alleged statements. However, - Patrick Doyle testified on cross- examination that the respondent had complained once to him with respect to certain glass machine plates which had been broken, and concerning his leaving work on one occasion prior to the usual quit- ting time. The respondent, however, did not advance these incidents as reasons for his discharge. We conclude that the discharge of Patrick Doyle was designed to hinder and obstruct the Union in its organizational activities. On July 26, 1937, Patrick Doyle commenced working .for Mont- gomery Ward & Company, but resigned this position in about a week, having earned approximately $23.86. On September 27, 1937, he obtained employment, elsewhere at a salary of $22.50 per week in a position which he termed "steady" and which he held at the time of the hearing. He desires reinstatement. Clark Heppe was employed by the respondent on March 10, 1937, on a temporary basis, and worked in the chemical department until his discharge on October 20, 1937. He joined the Union at one of its meetings, probably in July, but it does not appear that he was a particularly active member. At the time of Heppe's discharge, the respondent's busy season had passed and other temporary employees were also being laid off. The respondent asserts that Heppe was laid off in the regular course of its business and it is clear that Heppe's period of employment would have expired during 1937. Heppe had seniority over several other temporary employees who were kept on at the time of his 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge, but it is not shown that the respondent had a fixed senior- ity policy. Although the case is not free of doubt, we do not con- clude that Heppe was laid off other than in the normal course of the respondent's business. Accordingly, we find that the record does not sustain the allegations of the complaint, as amended, that Heppe was discharged for union membership or activity. We find that the respondent discriminated in regard to the hire and tenure of employment of Alban H. Mirguet, Joseph Doyle, and Patrick R. Doyle because of their membership in and activities on behalf of a labor organization, and that the respondent thereby dis- couraged membership in a labor organization and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 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 tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the status quo that existed prior to the commission of the unfair labor practices. We will order the respondent to offer full reinstatement to Alban H. Mirguet, Joseph Doyle, and Patrick R. Doyle, and to make them whole for any loss of pay they have suffered by reason of their respective dis- charges 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 12 during said period. 12 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 America. Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Fedeial , State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. CHICAGO APPARATUS COMPANY 1025 Having found that the Union represented a majority of the em- ployees in the appropriate unit on the dates of the respondent's sev- eral refusals to bargain collectively, our Order will provide that the respondent, upon request, bargain collectively with the Union as the exclusive representative of the employees within the appropriate unit. We have found that certain employees signed letters of resignation from the Union. These resignations of membership were occasioned by the respondent's unfair labor practices. It will be the purpose of our Order to restore the status quo by giving effect to the Union's majority existing on the dates of the refusals to bargain collectively. A failure to order the respondent to bargain collectively, upon request, with the Union "would be to hold that the obligation of one provision of the Act may be evaded by the successful violation of another; that the freely expressed wishes of the majority of the em- ployees may be flaunted if the employer brings to bear sufficient inter- ference, restraint, and coercion to undermine the representative's majority support." 18 THE PETITION We have determined the appropriate bargaining unit and have found that a majority of the respondent's employees within that unit designated the Union as their representative for the purposes of col- lective bargaining. Accordingly, we will dismiss the petition for investigation and certification of representatives. 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. Federation of Architects, Engineers, Chemists and Technicians, Local 107, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The production employees of the respondent, exclusive of sales- men, office employees, and supervisory employees with authority to hire and discharge, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Federation of Architects, Engineers, Chemists and Technicians, Local 107, was on June 29, 1937, and at all times thereafter has been the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 13 Matter of Missouri, Kansas d Oklahoma Coach Lines and International Association of Machinists, et at, 9 N. L. R B 597. See also Matter of National Licorice Company and Ralery and Confectionery Worleis International Union of America , Local Union 40;, Greater New York and Vicinity, 7 N L IZ n 537. 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By refusing to bargain collectively with Federation of Archi- tects, Engineers, Chemists and Technicians, Local 107, as the exclu- sive representative of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment of Alban H. Mirguet, Joseph Doyle, and Patrick R. Doyle, and each of them, and thereby discouraging membership in a labor organ- ization, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to the discharge of Clark Heppe. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Chicago Apparatus Company, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Federation of Architects, Engineers, Chemists and Technicians, Local 107, as the exclusive representative of the respondent's production employees, excluding salesmen, office employees, and supervisory employees with authority to hire and discharge; (b) Discouraging membership in Federation of Architects, En- gineers, Chemists and Technicians, Local 107, or any other, labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment or by threat of such discrimination; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in ,concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. CHICAGO APPARATUS COMPANY 0 1027 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Federation of Archi- tects, Engineers, Chemists and Technicians, Local 107, as the ex- clusive representative of its production employees, excluding sales- men, office employees, and supervisory employees with authority to hire and discharge, in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment; (b) Offer to Alban H. Mirguet, Joseph Doyle, and Patrick R. Doyle immediate and full reinstatement to their former positions without prejudice to their seniority or other rights and privileges; (c) Make whole said Alban H. Mirguet, Joseph Doyle, and Patrick R. Doyle for any losses of pay they may have suffered by reason of their discharges, by payment to each of them respectively of a sum of money equal to that which he normally would have earned as wages during the period from the date of his discharge to the date of such offer of reinstatement, less his net earnings 14 during said period; deducting, however, from the amount otherwise due to each of 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, munici- pal, or other government or governments which supplied the funds for said work-relief projects; (d) Immediately post notices to all its employees in conspicuous places in and about its plant, and maintain said notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) to 1 (c), both inclusive, of this Order; (e) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act by discharging Clark Heppe. AND IT IS FURTHER ORDERED that the petition for investigation and certification of representatives filed by Federation of Architects, Engineers, Chemists and Technicians, be, and it hereby is, dismissed. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Order. 14 See footnote 12, supra. 169134-39-vol 12--G6