W. F. & John Barnes Company

In the Matter of W. F. & JOHN BARNES COMPANY and UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL UNION No. 432 Case No. C-830.-Decided May 17, 1939 Machine Manufacturing Industry-Interference, Restraint, and Coercion: ex- pressed opposition to "outside" labor organization ; sending "loyalty" letter to employees ; discriminatory discharge, for union membership and activity- Compa ny-Dominated Union: domination of and interference with formation and administration ; support; use of by employer as bulwark against "outside" unionization ; encouragement of inside organization and discouragement of other labor organization ; participation by supervisory employee ; discrimination in favor of, in recognition as representative of employees , without investigation of membership claims ; disestablished, as agency for collective bargaining- Discrimination: discharge, for union membership and activity-Reinstatement Ordered: employee discharged and refused reinstatement-Back Pay: awarded; monies received by employee for work performed upon Federal, State, county, municipal, or other work-relief projects to be deducted and paid over to agency which supplied funds for said projects. Mr. Robert R. Rissman, for the Board. Welsh & Welsh, by Mr. C. K. Welsh, of Rockford, Ill., for the respondent. Mr. Louis A. Roland, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Auto- mobile Workers of America, Local Union No. 432, herein called the Union, the National Labor Relations Board, herein called the Board, by Leonard C. Bajork, Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated May 31, 1938, against W. F. & John Barnes Company, Rockford, Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the 12N L. It. B, No. 102. 1028 W. F. & JOHN BARNES COMPANY 1029 Act. Copies, of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the Union. The complaint alleged in substance, so far as here material, (1) that the respondent on or about September 19, 1937, instigated, fostered, promoted, and encouraged the formation and growth of a labor organization among its employees, known as Independent Employees' Protective Association of Rockford, herein called the Association, and has dominated and interfered with its administra- tion, and contributed support thereto; (2) that the respondent on or about September 16, 1937, discharged and has since refused to employ F. E. Elliott, because he joined and assisted the Union, and engaged in concerted activities with other employees at the respond- ent's plant for the purposes of collective bargaining and other mu- tual aid and protection, thereby discouraging membership in the Union; and (3) that the respondent, from on or about June 25, 1937, advised and urged its employees to refrain from joining or retaining membership in the Union, and otherwise interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. On June 6, 1938, the respondent filed an answer admitting certain allegations of the complaint as to the nature of its business, but denying that it had engaged in the alleged unfair practices. Pursuant to notice, a hearing was held in Rockford, Illinois, on June 13 and 14, 1938, before Harlow Hurley, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On August 19, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, finding that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. He recommended that the re- spondent cease and desist from its unfair labor practices; offer immediate and full reinstatement, with back pay, to Felix E. Elliott; withdraw recognition from and disestablish Independent Employees' Protective Association of Rockford as collective bargaining repre- sentative of its employees; and take certain other affirmative action to remedy the situation brought about by its unfair labor practices. 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter the respondent filed exceptions to the Intermediate Re- port. The respondent was afforded an opportunity to apply for oral argument before the Board in Washington, D. C., but it made no application. The Board has considered the respondent's exceptions and, save for those exceptions which are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a corporation organized under the laws of the State of Illinois, with its principal office and place of business at Rockford, Illinois. At its plant in Rockford the respondent is engaged in the design, manufacture, assembly, sale, distribution, installation, and mainte- nance of special-purpose machinery used for heavy boring, precision boring, and allied operations. In addition, the respondent sells an engineering service and designs machines to meet customers' require- ments. All its business is on special order from its customers, of whom the principal ones are the Ford Motor Company, Caterpillar Tractor Company, International Harvester Company, Allis-Chal- mers Manufacturing Company, General Motors Corporation, and Amtorg Trading Corporation. The principal raw materials used by the respondent are steel, pig iron, machinery supplies, foundry supplies, coal, coke, and blueprint paper. During the period from May 1, 1937, to April 30,'1938, the respondent spent $53,528.47 for the purchase of the above materials. At least $3,909.96 of this sum represented purchases of materials coming from outside Illinois. The total value of the respondent's sales and shipments during the same period amounted to $1,188,918. Over 88 per cent of this amount represented sales and shipments to purchasers outside Illinois. Rail- road and truck lines are used to transport the respondent's raw mate- rials and finished products. The respondent's products are designed and manufactured under 36 United States patents and are advertised in trade papers, by means of catalogues, circulars, photographs, and otherwise. As of June 4, 1938, 298 persons were employed at the Rockford plant. II. THE ORGANIZATIONS INVOLVED United Automobile Workers of America, Local Union No. 432, is a local labor organization affiliated with International Union, United W. F. & JOHN BARNES COMPANY 1031 Automobile Workers of America, admitting to membership persons employed at the respondent's plant. Independent Employees' Protective Association of Rockford is an unaffiliated labor organization incorporated under the laws of Illi- nois. It admits to membership all employees of the respondent excluding supervisory employees above the rank of foreman. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; domination of and interfer- ence with the Association Prior to the spring of 1937, the respondent had no dealings with any union representing its employees. In the latter part of May 1937, the Union began an organization campaign among the respondent's employees. On June 3 officers of the Union were elected. On June 25, 1937, a bargaining committee of the Union consisting of employees headed by Felix E. Elliott, president of the Union, met with William W. Barton, president and general manager of the respondent and personally in charge of labor relations at the Rockford plant, for the purpose of securing recognition as the collective bargaining agent of the employees. The committee presented certain proposals to Barton, informing him that the Union had been organizing and had already secured as members over 51 per cent of the production and maintenance employees. Barton requested that the committee show him the Union's membership list. The committee refused, fearing to expose the names to him, but offered to prove its majority through agents of the Board. At this meeting Barton stated that he did not see why the men were taking steps to have an outside organization. He con- cluded that he could make no promises at that time, but that he would consider the question after he returned from a trip to England which he had already planned. After Barton's return from England, another union committee com- posed of at least six employees headed by Elliott met again with Bar- ton and Billingham, general sales manager of the respondent, on August 17, 1937. The committee stated that it represented a majority of the employees, asked for recognition and offered to permit an agent of the Board or some person not connected with the respondent to check its membership list against the respondent's pay roll. Again Barton expressed a determined opposition to an affiliated or outside union in the plant, stating that the respondent was in favor of the employees joining an independent or inside association, that "he didn't want to have them bring in any other outside organization" and "I don't see why you fellows need an outside organization. We can have 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one of our own." Billingham also pointed out to the committee that "you could get an independent charter." When the employees refused to abandon their organization, Barton finally said, "You go out and tell the boys to forget the whole damn union idea." Several days later, at another conference between Barton and the union committee, consisting of several employees headed by Elliott, Barton again refused to recognize the Union as sole bargaining agency, urged the men to leave the affiliated union and form an independent organiza- tion, and stated he would prepare a memorandum which he would send to all the employees. As appears above, Barton intended that his remarks be transmitted to the employees generally and requested the union representatives to do so. It is a reasonable inference that they did inform the other employees of Barton's attitude and we so find. Shortly thereafter, Barton mailed to each employee of the respond- ent, on company stationery, the following letter: W. F. AND JOHN BARNES CO. ESTABLISHED 1872 Manufacturers of Standard and Special Vertical and Horizontal Production Drilling and Boring Machinery ROCKFORD, ILL. U. S. A., August 06,1937. An open letter to each of you that form a part of this organ- ization; vital to the company, to you, your wives and families. DEAR FRIEND : Since my return from my business trip abroad, I, as managing head of your company, have held two meetings with a committee claiming to represent the majority of the em- ployees of the W. F. and John Barnes Company. The welfare of each of us is dependent upon the continued progress of our organization. Our problems in the past have been met and mutually discussed for the betterment of everyone, and have resulted in our past growth. I am sure that the unity of interest and loyalty of the majority of employees still exists, and doubt, therefore, if this committee represents whom they claim. The committee with which I met requested that I hold these meetings to discuss the question of collective bargaining, and I have done so. I have clearly told them that such'meetings in no way take away the rights of any individual who does not wish to be represented by them, and who may wish to deal directly with the management of the company. W. F. & JOHN BARNES COMPANY 1033 As I have told you, and as I feel all of you know, it has been the aim of the management of this company to follow a policy best suited to the good of the greatest number- To pay the highest possible wages consistent with conditions and the results of the company's operations. To make working conditions pleasant and to constantly im- prove such as fast as is possible within the financial ability of the company. The committee with which I have met assures me that the group which they represent is independent of outside influence, but at the same time they tell me that they feel it is necessary to have an outside connection to back them in their dealings with me. They have asked me to make a signed agreement with the [sic]. This I have refused to do- Since a signed agreement is not required by law. Since the history of signed agreements throughout the coun- try within the past few months has not been productive of good relations. - Since such an agreement does not recognize the rights of the large number of you employees who do not wish to join their organization. Certainly in a small group such as ours a happy sound solu- tion of this problem can be found, and the management should be able to deal with the employees individually or through group bodies. Conditions and investigation convince me that my position in this matter is right and I intend to stand by my decision. You have given me and the company your absolute loyalty in the past. I know I can count on you now. With the wish that I shall see you, your family and friends at the picnic on Saturday, I remain, Sincerely yours, WM. W. BARTON.' The same sentiments expressed so bluntly to the union committee by Barton were no less clearly expressed in this letter. "Loyalty" on the part of the employees is set forth as inconsistent with mem- bership in the Union, and the employees are then told that the re- spondent expects them to continue to give "absolute loyalty" to the respondent. The letter further states the respondent's fixed deter- mination not to sign an agreement with the ouside organization and recommends as a "happy sound solution" negotiation between the em- ployer and individual employees or inside organizations. 1 Board Exhibit No. 12. 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, by August 26, 1937, the respondent had made it clear to its employees that the respondent was steadfastly and unalterably op- posed to outside or affiliated labor organizations in general and to the Union in particular, and that it was the respondent's desire that the employees organize into an inside or unaffiliated union if they desired to organize at all. Barton's statements to the union repre- sentatives, which they transmitted to the employees generally, and his August 26 letters to all the employees were clearly coercive and restrictive.2 On the one hand they were designed to restrain the employees from joining the Union and choosing it as their bargaining representative and on the other hand to impel and coerce them into forming an inside union, if any union was to be formed, and choosing it as their bargaining representative. We find 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, and also instigated and encouraged the formation of an inside union. The above interference, restraint, and coercion had the effect de- sired by the respondent upon the employees and foremen. In the latter part of August 1937, a group of the respondent's employees began the formation of an inside organization. During the period from August to October, they conferred with Barton several times. They did not begin to secure members until about the end of Sep- tember. Prior to October 4, 1937, only 10 or 12 employees had been signed up. On that date the first organizational meeting of the Association was held, at which more employees joined, the Associa- tion's name was designated, its purposes defined, and nine directors were chosen as incorporators. On October 6, 1937, the Association was incorporated under the laws of the State of Illinois. Under its constitution and bylaws foremen, as well as non-supervisory em- ployees of the respondent, are eligible for membership. 'In Matter of Wheeling Steel Corporation and The Amalgamated Association of Iron, Steel and Tin Workers of North America, etc, 1 N L. R B. 699, 709, we said: The power of an employer over the economic life of an employee is felt intensely and directly . . . The employee is sensitive to each subtle expression of hostility upon' the part of one whose good will is so vital to him, whose power is so un- limited, whose action is so beyond appeal. And in National Labor Relations Board v . The Falk Corporation 102 F. (2d) 383 (C. C. A. 7th , 1939 ) enforcing the Board 's order in Matter of The Falk Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1528, 6 N. L. R B. 654, the Circuit Court of Appeals for the Seventh Circuit said: The position of the employer, where, as here, there is present genuine and sincere respect and regard , carries such weight and influence that his words may be coercive when they would not be so if the relation of master and servant did not exist. See also Matter of Crawford Manufacturing Company and Textile Workers Organizing Committee, 8 N. L. R. B 1237 , 1241 , and Cong Ree. May 10, 1935, p. 7967 (statement of Senator Norris; quoted in Crawford case, supra). W. F. & JOHN BARNES COMPANY 1035 Carl Lideen, an employee in the assembling department, testified that he was told by his regular foreman, Walter Sharvoneau, in Oc- tober 1937, at a time when the plant was working overtime, that Sharvoneau wished he could give Lideen some overtime work but that he could not do so unless Lideen belonged to the Association. The respondent made no attempt to contradict Lideen's testimony. We find that Sharvoneau made this statement to induce Lideen to join the Association. The respondent likewise recognized the Association as the ex- clusive representative of its employees for the purpose of collective bargaining. Barton testified that he granted this recognition "some- where along in" September 1937. Before its organizational meeting on October 4, 1937, the Association had, at the very most, 40 mem- bers. If recognition came in September, it came at a time when the Association's membership constituted only one-twelfth of the total number of employees of the respondent. According to the testimony of Russell De Groff,3 secretary and treasurer of the Association, how- ever, recognition came on November 1, 1937. On that day, repre- sentatives of the Association met with Barton, and De Groff told him that the Association had over 200 members who had signed up, constituting a majority of the 360 employees of the respondent. Barton immediately accepted this statement at face value and did not even seek to check up or require proof of majority. Although "they had their membership cards with them," Barton testified, "I didn't physically look them over and count them." As to his reason for not examining the cards Barton testified "That was their records not mine." At another point Barton testified as follows : Q. What did they show you? A. They offered their cards to me. Q. Did you look at the cards? A. I told you before I didn't count the cards. Q. So you didn't see any proof? A. I am used to dealing with people who speak the truth and I took their word for it. Q. Answer the question. You didn't see any proof ? A. I did not check the proof.4 On the witness stand, De Groff admitted, after checking his records, that he had only about 150 signatures of alleged applicants for mem- bership in the Association and as to these he was not sure that they were the genuine signatures of the persons whose names they pur- port to be. Asked to account for the additional 50 signatures which 3 Also designated as Russell De Groof in the record. 4 Italics supplied. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he claimed to have at one time possessed, De Groff stated that he might have lost them. On November 15, 1937, at the request of Karl C. Williams, at- torney for the Association, who thought that "some of the employees did not understand that we were recognized," Barton posted the fol- lowing notice in the plant : NOTICE The officers and board of directors of Independent Employes' Protective Association of Rockford have called upon me, stat- ing that they have been selected as representatives for the pur- pose of collective bargaining by the majority of the employes of this shop. After examining their records [sic] I am satisfied that they do represent the majority of our productive employes and are, therefore, under the terms of the National Labor Relations Act, entitled to act as the exclusive representatives of all such em- ployes for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of ,employment; provided, that any individual employe or group of employes shall have the right at any time to present griev- ances to this company. W. F. & JOHN BARNES COMPANY. (Signed) WM. W. BARTON.5 NOVEMBER 15, 1937. The action of Barton in recognizing the Association without at- tempting to examine its cards stands in sharp contrast to his repeated refusals to recognize the Union, which also claimed a majority of the employees, unless its cards were submitted for his personal examina- tion. Barton could not adequately explain this discrepancy, for when asked why he did not also accept the statement of the Union that they represented a majority, he could merely state, "I didn't think they had. I still don't believe they ever did." Indeed, the respondent even refused to accept the Union's repeated proposals, prior to recognition of the Association, that an agent of the Board or other impartial third party check the Union's membership list against the Company pay roll or that a consent election be held. Having instigated the formation of the Association and assisted its growth, the respondent took the next step in its campaign to thwart the Union and arbi- trarily granted recognition to the Association as the exclusive bargaining representatives of the employees. 5 Board Exhibit No. 6. W. F. & JOHN BARNES COMPANY 1037 Subsequent to its recognition, the Association discussed minor grievances with the respondent but secured no collective contract or substantial benefits. At the monthly meeting of members scheduled 4 days after the notice of recognition was posted by Barton, only 11 members, less than a quorum, were present; hence the meeting was not held. At the December meeting only 14 members were present. This was the last recorded meeting of the Association, for no quorum appeared at the January 1938 annual meeting for the election of offi- cers. Since that time the Association has been completely dormant; there have been no attempts to confer with the management, to collect dues or to function in any manner, and the hold-over officers of the Association discussed dissolving the corporation during May 1938. Thus, instead of recognition of the Association leading to increased interest and activity on the part of its membership, exactly the reverse occurred. We think the facts found above clearly require us to find that the respondent instigated, encouraged, and aided the formation of the Association, and thereafter dominated and interfered with its admin- istration. The respondent was steadfastly opposed to the Union and to affiliated unions generally and in unmistakable terms made its opposition clear to both the Union representatives and the employees generally. In its effort to eliminate the Union and avoid bargaining with it, the respondent instigated and encouraged the formation of the Association by recommending and in effect directing its employ- ees to form an inside organization, if they organized at all, and by at all times "confining the desires of the employees into and within the channel of an inside union." 6 When the Association sprang up, in response to the will of the respondent, the respondent encouraged its growth by the activity of at least one supervisor and, as we find below, by discriminatorily discharging both the president and the recording secretary of the ,Union. Thereafter, the respondent has- tened to recognize the Association as the exclusive representative of the employees in order to utilize it for its intended purpose, namely 0See Matter of Crawford Manufacturing Company and Textile Workers Organizing Committee, 8 N. L R B. 1237 , where we stated : . . . we are convinced that the formation of the Association, followed , as it was by a rapid , vigorous growth of that organization , can only be attributed to the respondent 's acts in diverting and confining the desires of its employees into and within the channel of an inside union. Where an employer thus limits his employees to a particular form of labor organization and upon such limitation being imposed , a labor organization of the prescribed pattern springs into being, such an organization , in the absence of any showing to the contrary , must be presumed to reflect , in that respect , the will of the employer Such an organiza- tion is not the result of a free choice, but one whose formation has been interfered with and dominated by the employer, within the meaning of the Act See also Matter of Simplex Wire and Cable Company and Ware & Cable Workers Federal Local Union 21020, etc., 6 N. L. R . B. 251. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a buffer and obstruction to the bargaining efforts of the Union which the respondent was seeking to destroy. After the respondent had utilized the Association for this purpose--and its continued func- tioning was no longer necessary, the respondent permitted it to become dormant by causing its bargaining efforts to remain ineffectual. We find that the respondent has dominated and interfered with the formation and administration of the Association and has contributed support to it and by so doing has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We also find that the respondent, by Barton's statements to the union representatives, by its August 26, 1937, letters to its employees, and by the activities of at least one of its supervisors, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharge of Felix E. Elliott Felix E. Elliott is a skilled mechanic and was employed by the respondent for 21/9 years prior to the termination of his employment in September 1937. Altogether, he had about 15 years' experience as a mechanic. During the time that he was employed by the respond- ent, he worked upon a grinder machine doing tool and fixture work. The grinder machine operated on two shifts. The other operator was Harold Christenson, who had been assisted by Elliott in learning to operate the machine. No complaint was ever made concerning Elliott's work or ability; in fact, the respondent admitted that "he was a good workman." During his 212 years of employment with the respondent and until its termination in September 1937, Elliott worked continuously and was never laid off. When, on several occa- sions, there had been no work to be done on his machine, he was given work in another department helping the assemblers to build machines. Elliott was an active leader in the Union from the very beginning of its activity in the spring of 1937. He joined the Union in the latter part of May 1937. At the first election of officers on June 3, 1937, Elliott was made president of the Union and at the time of the hearing still held that office. As president of the Union and chair- man of its bargaining committee, he participated in all the confer- ences between the Union and the respondent described in Section III A above. Elliott had also, prior to June 25, 1937, consulted with Bar- ton with reference to posting notices of the Union. Barton admitted that he knew Elliott was president of the Union. W. F. & JOHN BARNES COMPANY 1039 On September 13, 1937, the grinder machine on which Elliott was working broke down through no fault of Elliott. Elliott continued to do a little work on it, but the next day, the superintendent, Orville Ingwalson, stated that the pump would have to be taken off and sent out for repairs. On September 15, 1937, while Elliott was finishing his work and cleaning the machine, Ingwalson told him "when you get done I will give you some other work until this machine is repaired." When Elliott returned to work the next morning, however, Ing- walson told him that he would have to take 2 or 3 weeks off, that "the management said so." The superintendent suggested that Elliott seek work at a neighboring machine plant and said that he would telephone to that plant about Elliott. Elliott applied for work at that plant but found that Ingwalson had not telephoned on his be- half and that no work could be secured. On September 17, 1937, Elli- ott, together with the bargaining committee of the Union, conferred with Barton and protested Elliott's lay off. Barton said he would investigate the matter and would give Elliott his answer on the next day. On the following day, Barton told Elliott that after the ma- chine was repaired the respondent was going to operate the machine with only one shift instead of two, as formerly, "and the boys want the other man," namely, Christenson. To Elliott's remark, "I realize that they wouldn't dare put their neck out on account of you," Barton replied, "Well, I couldn't help it." At a conference the next day with representatives of the Inter- national Union, United Automobile Workers of America, Barton was asked why Elliott was being deprived of work in favor of a junior employee. George H. Rose, one of the international repre- sentatives at the conference, testified that Barton said he did not want Elliott in the shop, that "he would rather have him on the outside because several of the boys said they didn't want Mr. Elliott back." When Rose asked whom he meant, Barton replied the men who did not belong to the Union. In addition, Rose testified that Barton had presented as another reason for keeping Elliott on the outside that Elliott "was causing trouble," and that Barton agreed to pay and did pay Elliott 's wages to keep him out of the shop while he was considering whether to fight the Union or give it collective- bargaining privileges. In explanation, Barton testified that he agreed to pay Elliott for a short time in fairness to him because the other operator of the broken machine, Christenson, had been given tempo- rary work in another department; that he had stated that he wanted Elliott on the outside because Elliott was a specialist with no work to be done and "I don't want a man standing around in the shop." Barton thereby admitted the statement that he wanted Elliott out- side the shop. And, as Barton failed to deny having made the state- 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments that Elliott "was causing trouble" and that the non-union employees desired Elliott to leave, we find that Barton made these statements. In the light of these statements and of Barton's course of conduct described in Section III A above, we find that the reasons he actually gave the union representatives for the statement that he wanted Elliott outside the shop were those testified to by Rose and not the improbable reason testified to by Barton. After the break-down of the grinding machine, Christenson, the other operator, was given about 2 weeks' temporary work in another department. Elliott was not given such temporary work. About 3 weeks after the break-down, the machine was again placed in opera- tion. Some time later, Christenson, who had been laid off for a short time after the completion of his temporary work, was called back by the respondent to operate the grinder machine regularly. In November, Elliott, being in financial straits, called on Barton and asked to be reinstated. Barton refused "because the boys in the shop isn't going to like it" and "in order to take you back I would have to lay a man off, and we just can't do that." At the date of the hearing, Elliott had not resumed work at the plant. The respondent contended that Elliott was laid off, not permanently discharged, because of a general decline of business, and that Christen- son was retained to operate the machine for the single remaining shift because he was the "cheaper man" and was equally as good in his work as Elliott. Barton testified that it was the practice of the respondent, if a machine broke down, to lay off the operator "unless he can be moved to some other work." It was not controverted that Elliott had on several occasions worked elsewhere in the plant than upon his grinder machine. He had helped the assemblers doing machine building three or four times when his machine was idle. And Barton, himself, tes- tified that after September 15, 1937, the respondent fell behind in its assembly work and hired a considerable number of assemblers. Nevertheless, after the grinder machine broke down, the respondent, while supplying Christenson with other work, failed to provide any work at all for Elliott. We find that the respondent neither intended to nor in fact did merely lay off Elliott temporarily, but, on the con- trary, permanently discharged him. In support of the respondent's contention regarding a decline of business, Barton testified that if the grinder machine had not broken down, the lack of work in Elliott's department would have necessi- tated Elliott's lay-off a week or two later. The respondent, however, did not introduce into evidence any pay roll or other documentary records to support this claim or to support its contention of a sub- stantial decline in company business and employment. Nor did Barton know whether any employees besides Elliott and Christenson W. F. & JOHN BARNES COMPANY 1041 were laid off in their department or whether any men had been em- ployed or transferred to that department. Of necessity, records of these facts, had the claims stated been true, must have been in the respondent's possession; indeed although the existence of such records was admitted, the respondent repeatedly refused to introduce them into evidence. Under these circumstances, we cannot give any credence to Barton's unsubstantiated assertions and we find that Elliott's discharge was not caused by business conditions. Barton further testified that Christenson was chosen to return to work on the repaired grinder machine rather than Elliott because "Mr. Christenson was the cheaper man, and he had been progressing quite rapidly in improving his workmanship" and he "is as good a worker if not better worker than Mr. Elliott . . . and gives greater promise for the future." At the time of his discharge Elliott was receiving 70 cents an hour while Christenson earned 55 cents an hour. It is significant, however, that there is no evidence that either of these alleged reasons was advanced by the respondent to Elliott or to the union representatives at or after Elliott's discharge. On the contrary, as we have stated, the reasons advanced at that time show clearly the anti-union basis of respondent's choice. Although Chris- tenson was also a member of the Union, he was, in contrast to Elliott, neither an officer nor a member of any committee, nor is there evi- dence that he was in any way active in the Union. In point of service in the respondent's employ, Christenson was junior to Elliott, had no previous experience as compared to Elliott's 15 years of ex- perience, and had worked under and been taught by Elliott to operate the grinder machine. Barton testified that although the respondent did not have a seniority rule "in the technical sense," it always "tried to take care of the best workmen for the job in the long run and give some recognition to long length of service and number of de- pendents and so forth." In view of the above facts, of the respond- ent's express recognition of Elliott as a good workman, of the fact that Elliott had a family with two children, Elliott would have been the only logical choice even under these standards. Accordingly, even under an assumption, which we do not accept, that business con- ditions necessitated a reduction of shifts on the grinder machine, the respondent, in the exercise of its choice between the two employees, discriminated against Elliott because of his union activity. From all the circumstances surrounding the discharge of Elliott which occurred at a time when the company-dominated Associa- tion was getting under way, and, particularly in view of the stren- uous activities of Elliott in his leadership of the Union; the con- sistent and determined anti-union attitude and course of conduct of the respondent which we have described in Section III A above; 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the statements of Barton to the union representatives that Elliott's employment had been terminated because he was causing trouble, because Barton did not desire him inside the plant while the re- spondent was considering whether to fight the Union or not, and because the employees who were not members of the Union wafted Elliott to leave,7 the discriminatory treatment involved in granting temporary work to Christenson but not to Elliott; and in view of the failure of the respondent to sustain its contention that Elliott was discharged for reasons other than union activity, we can only conclude that the respondent discharged Elliott because of his union activities. We find, therefore, that the respondent discriminated in regard to the hire and tenure of employment of Felix E. Elliott, thereby discouraging membership in the Union, and has thereby engaged in an unfair labor practice, within the meaning of Section 8 (3) of the Act. We further find that by such action, the respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the time of his discharge, Elliott earned 70 cents an hour, and received time and a half for work beyond 40 hours. While employed by the respondent he worked on an average of 45 to 50 hours a week, but for the last 3 months of employment worked 55 hours a week. From the time of his discharge to the date of the hearing, he had received a sum of $49 from the respondent under circumstances disclosed above, and had earned $74.55 doing machine work elsewhere and $137 for work on W. P. A., where he was still employed at the date of the hearing. C. 0 ther, interference, restraint, and coercion Uncontradicted evidence was also introduced which shows that on or about October 8, 1937, Harold Mirshak, who had been employed in the plant for about 2 years and who was recording secretary of the Union, was discharged for union activities. On that day, a Thursday, Mirshak posted a union notice on a bulletin board over the tool crib after securing a tool, and immediately returned to his machine. The foreman approached and told him to remove the notice. He did so, and continued to work for the rest of the week. On Monday morning his foreman, Carl Erbe, came to him and said that the general manager had told him (Erbe) to tell Mirshak ° Even if the sole reason for the discharge was the fact that it was desired by the employees who were not members of, and were antagonistic to, the Union , the respondent's conduct would not be thereby justified . The exertion of economic pressure upon an employer does not excuse an unfair labor practice National Labor Relations Board v. Star Publishing Co., 97 F. (2d) 465 ( C. C A 9th). W. F. & JOHN BARNES COMPANY 1043 "that they could not keep on paying him as long as he was working for John L. Lewis, so he better check out." Previously, in June 1937, Barton had consented to the posting of union notices and had even supplied five or six bulletin boards for that purpose. On the morn- ing of his discharge, Mirshak attended a conference in Barton's office at which Barton and Mr. Ewart represented the Company. Ewart told Mirshak "We are not going to have any outside organi- zation running this job." Evidence concerning the above facts was introduced and admitted not in support of any allegation of a discriminatory discharge in violation of Section 8 (3) of the Act, but in support of the allega- tion in the complaint charging the respondent with interference, restraint, and coercion of its employees in the exercise of rights guar- anteed in Section 7 of the Act. The facts set forth above support the allegation and we find that by discharging Mirshak the respond- ent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act .6 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the sev- eral States, and tend to lead to labor disputes burdening and ob- structing 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. 8 Counsel for the respondent objected to the introduction of evidence regarding Mir- shak's discharge, apparently on the ground that there ere no allegations in the com- plaint that Mirshak was discriminatorily discharged within the meaning of Section 8 (3) of the Act As stated above, this evidence was introduced not in support of any allegation of discriminatory discharge but in support of the allegation of the complaint alleging violations of Section 8 (1) of the Act and reading , in part, as follows: 8. Respondent, by its officers, agents and employees . . . from on or after June 25, 1937, down to and including the date of the issuance of this Com- plaint . . . did advise and urge its employees to refrain from joining or retaining membership in the union . . . By said acts . . and by other acts, respondent did interfere with, restrain and coerce , and is interfering with, restraining and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. When the respondent's counsel learned the purpose for which this testimony was intro- duced, he made no claim of surprise nor reauest for an extension of time 169134-39-vol. 12-67 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have found that the respondent has dominated and interfered with the formation and administration of the Association and has contributed support to it. The effects and consequences of this domination, interference, and support, as well as of the respondent's continued recognition of the Association as bargaining representa- tive of its employees, constitute it continuing obstacle to the free exercise by the employees of their right to self-organization and to bargain collectively through representatives of their own choosing. Although the Association has been dormant, according to the testi- mony of its secretary, there is no evidence that it has been dissolved. There is therefore a danger that it will be revived again to frustrate the self-organization of the employees. Accordingly, in order to effectuate the policies of the Act and free the employees from such domination and interference and to remove this obstacle whose con- tinuance thwarts the purposes of the Act by preventing the free exercise by the employees of the rights guaranteed them in the Act, we will order the respondent to withdraw all recognition from the Association as representative of the respondent's employees for the purposes of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and con- ditions of work and to disestablish it as such representative.9 Since we have also found that F. E. Elliott was discriminatorily discharged, we will order the respondent to offer him reinstatement, without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of pay he has suffered by reason of his discharge by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of the reinstatement, less his net earnings 10 during said period. O See Consolidated Edison Company of New York, Inc. v National Labor Relations Board, 305 U S 197 , 236 (Dec. 5, 1938), where the Court stated : The continued existence of a company union established by unfair labor prac- tices or of a union dominated by the employer is a consequence of violation of the Act whose continuance thwarts the purposes of the Act and renders ineffective any order restraining the unfair practices. See also National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U. S. 261 (1938). 10 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 elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Jo inert of America, Lumber and Sawmill Workers Uni6n, 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 Federal, State, county, municipal, or other govern- ment or governments which supplied the funds for said work-relief projects. W. F. & JOHN BARNES COMPANY 1045 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLusIONs of LAW 1. United Automobile Workers of America, Local Union No. 432, and Independent Employees' Protective Association- of Rockford are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discrimination in regard to the hire and tenure of employment of F. E. Elliott, thereby discouraging membership in the Union, the respondent has engaged in and is engaging in an unfair labor practice,, within the meaning of Section 8 (3) of the Act. 3. By dominating and interfering with the formation and adminis- tration of, and by contributing support to, the Association, the re- spondent has engaged in and is engaging in unfair labor practices,- within the meaning of Section 8 (2) of the Act. 4. By interfering with, restraining, and coercing its employees ins the exercise of rights guaranteed by Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the 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 W. F. & John Barnes Company, Rockford, Illinois, and its officers, agents, successors, and assigns shall : 1. Cease and desist : (a) From discouraging membership in United Automobile Workers of America, Local Union No. 432, or any other labor organization of its employees, by discharging, laying off, or refusing to reinstate any of its employees, or in any manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; (b) From in any manner dominating or interfering with the ad- ministration of Independent Employees' Protective Association of Rockford, or the formation or administration of any other labor or- ganization of its employees, and from contributing support to the Independent Employees' Protective Association of Rockford, or to any other labor organization of its employees; (c) From recognizing Independent Employees' Protective Associa- tion of Rockford as the representative of any of the employees for the purpose of dealing with the respondent concerning grievances, labor 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disputes, wages, rates of pay, hours of employment, or conditions of work; (d) From in any other manner interfering with, 'restraining, or coercing its employees in the exercise of their rights to self-organiza- tion, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to F. E. Elliott immediate and full reinstatement to his former position without prejudice to his seniority and other rights and privileges; (b) Make whole F. E. Elliott for any loss of pay he has suffered by reason of his discharge by payment to him of a sum of money equal _to that which he would normally 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 during said period, deducting, however, from the amount otherwise due to said F. E. Elliott, monies received by him, during said period, for work performed upon Fed- eral, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or govern- ments which supplied the funds for said work-relief projects; (c) Withdraw all recognition from Independent Employees' Pro- tective Association of Rockford as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish Independent Em- ployees' Protective Association of Rockford as such representative; (d) Post immediately, and keep posted in conspicuous places in and about its plant at Rockford, Illinois, for a period of at least sixty (60) consecutive days from the date of posting, notices to its em- ployees stating that it will cease and desist in the manner set forth in paragraphs 1 (a), (b), (c), and (d) and that it will take the affirma- tive action set forth in paragraphs 2 (a), (b), and (c) 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 therewith. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Order.