Foote Brothers Gear and Machine Corporation

In the Matter Of FOOTE BROTHERS G EAR AND MACHINE CORPORATION and UNITED OFFICE AND PROFESSIONAL WORKERS OF AMERICA, No. 24 In the Matter of FOOTE BROTHERS GEAR AND MACHINE CORPORATION and AMALGAMATED ASSOCIATION OF IRON, STEEL AND TIN WORKERS OF' NORTH AMERICA, LODGE No. 2048 Cases Nos. 0-51-S and respectively.-Decided August 24, 193,9 Metal Products il1annfactro-iny Indr!st)y-Iraterfere)ace, Restraint, and Coer- cion,: interrogating employees regarding union affiliation; preventing organiza- tion by outside nniar-C,'onipurr.l/-Don; noted. Dndon: domination of and interfer- ence with formation; employer invites shop committee of employee representation plan to form; open solicitation in presence of supervisors; recognition denied "outside" union but immediately granted company-dominated union ; disestab- lished as agency for collective bargaining-Contract: with company-dominated union, abrogated-Check-Off: agreement for, with members of company-domi- nated union ; acquiescence in, not free choice of employees ; employer ordered to reimburse employees for amounts deducted from wages as dues for company- dominated nnion-Discrimi•na.tion: discharges for union membership and activ- ity ; charges of, not sustained as to two employees-Reinstatement Ordered: dis- charged employees-Back Pay: awarded to discharged employees-Unit Appro- priate for Coliectivc Bargaining: office and clerical employees, excluding engi- neers, draftsmen, outside salesmen, and supervisory employees-Representatives: proof of choice: comparison of membership cards with corresponding pay roll- Collecti.ve Bargaining: refusal of employer to engage in; recognition granted company-dominated union as method of defeating union chosen by majority in appropriate unit-Order: employer not ordered to bargain in view of union's change of affiliation with consequent loss of majority status. Mr. Lee Loevinger, for the Board. Winston, Strawn c(' Shaw, by Mr. G. B. Christensen and Mr. G. D. Patterson, of Chicago, Ill., for the ?espondent. Miss Sande^a G. Slotkigz, of Chicago, Ill., for the U. O. P. W. Mr. Benjamin Wham and Mr. Forest A. King, of Chicago, Ill., for the Independent. Mr. Robert L. Condon, of counsel to the Board.' DECISION AND ORDER STATEMENT OF THE CASE On June 1, 1937, Stenographers, Typists, Bookkeepers and As- sistants Union No. 20074, herein called the S. T. B. A., filed a 14 N. L. It. B., No. 82. 1045 1046 DECTSIONS OT NATIONAL LABOR RELATIONS BOARD charge with the Regional Director for the Thirteenth Region (Chi- cago, Illinois) alleging that Foote Bros. Gear and Machine Cor- poration,' herein called the respondent, had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1) and (2) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 12, 1937, an amended charge was filed by Chicago Office Workers Union, therein described as "for- merly Stenographers, Typists, Bookkeepers & Assistants Union Local 20074," 2 and on November 10, 1937, a second amended charge was filed by United Office and Professional Workers of America, Local No. 24, herein called the U. O. P. W., described in said second amended charge as "formerly" the S. T. B. A.,4 alleging each that the respondent had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1), (2), (3), and (5) of the Act. Thereafter, a supplemental criarge was filed by the U. O. P. W. alleging additipnal unfair labor practices, within the meaning of Section 8 (1) and (3) ' of the Act. Upon the amended and supple- mental charges theretofore filed the National Labor Relations Board, herein called the Board, by the Regional Director, issued its com- plaint dated December 30, 1937, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act. A copy of the complaint, accompanied by notice of hearing, was duly served upon the respond- ent and upon the U. O. P. W. On January 6, 1938, the Board by the Regional Director issued its amendment to, the complaint. On January 5, 1938, the respondent filed its answer to the complaint and a written motion to dismiss the complaint or proceedings. Oa January 10, 1938, the respondent filed an answer to the amend- ment to the complaint. The complaint, as amended, go far as here material, alleged in substance : (a) that the U. O. P. W. was formerly known as the S. T. B. A. and also as the Chicago Office Workers Union; (b) that on May 7, 10, and 17, 1937, the respondent refused to bargain col= lectively with the U. O. P. W. as the exclusive representative of all the respondent's office and clerical workers, except engineers, draftsmen, and supervisory employees, in that it met and negotiated with the U. O. P. W. in bad faith,-and since those dates the respond- ent has at all times refused to recognize, meet, bargain, and negotiate or in good faith to discuss the entering into or the signing of an agreement with the U. O. P. W., although the. U. O. P. W. had been I This is the correct designation of the respondent. 2 See footnote 6. This is the correct designation of the U. 0. P. W. 4 See footnote 6. FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1047 designated by a majority of such employees as their representative for the purposes of collective bargaining, and such employees con- stituted the unit appropriate for such purposes; (c) that the re- spondent discharged three of its employees, viz, Theodore Rakowski, on or about June 25, 1937, Raymond Hartman on or about Novem- ber 2, 1937, and S. Rice on or about January 5, 1938, because they joined and assisted the U. 0. P. W., thereby discriminating in regard to the hire and tenure of employment of these employees and dis- couraging membership in a labor organization; (d) that the re- spondent fostered, promoted, encouraged, dominated, and interfered with the formation and administration of a labor organization among its employees, known as Independent Union of Gear Workers, herein called the Independent, and contributed support thereto, and entered into a contract recognizing the Independent as sole bargaining agent of all employees of the plant, including office and clerical workers; and (e) that by virtue of the foregoing acts, and other acts therein specified, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The answer, as amended, of the respondent denied the material allegations of the complaint, as amended. It averred, among other things, that they S. T. B. A. through an alleged representative re- quested the respondent to bargain collectively with said representa- tive in behalf of "certain unnamed employees of the Respondent," but denied that the respondent refused to meet or bargain with said representative in good faith. It further averred that none of the "so-called labor organizations referred to in the Complaint" requested or undertook in good faith to bargain collectively with respondent. It requested that the complaint or proceedings herein be dismissed for the reasons set forth in the respondent's written motion to dis- miss, and, further, for the reasons that the complaint was not issued "upon the basis or as the result of a charge filed in accordance with" the National Labor Relations Board Rules and Regulations-Series 1, as amended, "by a labor organization entitled under the National Labor Relations Act and under such Rules and Regulations to make and file a charge. against the Respondent," and "that no copy of any valid charge was attached to said Complaint when the same was served upon Respondent." The afore-mentioned written motion of the respondent to dismiss the complaint and the proceedings rested upon various constitutional and other objections to the jurisdiction of the Board -over the respondent and the subject matter.-' 6 On October 25, 1937, the U. O. P. W. filed a petition with the Regional Director alleg- ing that a question affecting commerce had arisen concerning the representation of em- ployees of the respondent and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On December 20, 1937, the Board ordered an in- 190935-40-vol. 14--67 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 5, 1938, the Independent filed a motion to intervene and participate in the hearing. This motion was granted by the Regional Director on January 6, 1938. At the hearing subsequently had the intervention of the Independent was limited to matters which affected its interests. On January 8, 1938, the Independent filed its answer denying the charges of the complaint, as amended, in so far as they pertained to it, and alleging, among other things, that the respondent had recognized it as the exclusive collective bar- gaining agent for all the respondent's plant employees, including office and clerical workers, and that the respondent had entered into a collective contract with it in respect to rates of pay, wages, hours of employment, and other conditions of employment. Thereafter, upon charges and amended charges duly filed by Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 2048, herein called the Amalgamated, the Board, by the Regional Director, issued a complaint, elated January 25, 1938, against 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) and (3) and Section 2 (6) and (7) of the Act. This complaint alleged in substance that on or about November 10, 1937, the respondent discharged Adolph Matoska and at all times since has refused to reemploy him, for the reason that he joined and assisted the Amalgamated and had engaged in con- certed activities with other employees in the respondent's plant for the purpose of collective bargaining and other mutual aid and pro- tection, thereby discriminating in regard to the hire and tenure of employment of said Matoska and discouraging membership in a labor organization; that by this act and other acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. A copy of this complaint, accompanied by notice of hearing, was duly served upon the respondent. On January 28, 1938, the respondent filed an answer to the com- plaint of January 25, denying the material allegations thereof. The answer alleged, among other things, that the complaint of January 25 was "brought, prosecuted and filed by the Board for the purpose of embarrassing and humiliating the respondent and causing it to adjust, settle, compromise or cease its defense to" the complaint of December 30 and the petition of October 25, herein. vestigation on the petition and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and further ordered that for the purposes of hearing the petition case be consolidated with the complaint case and that one record of the hearing be made. On January 10 , 1938, the Board ordered the sever- ance of the petition case from the complaint case . This order was revoked, however, on January 12 , 1938 . Subsequent to the bearing , on motion by the U. O. P. W., the Board issued an order dismissing the petition and -severing the petition case from the consoli- dated cases. FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1049 Theretofore, on January 10, 1938, pursuant to notice of hearing duly served upon the respondent, upon the Independent, and upon the U. O. P. W., a hearing was begun at Chicago, Illinois, before Lawrence J. Kosters, the Trial Examiner duly designated by the Board. On January 26, 1938, while said hearing was in progress, the Board, acting pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, ordered that the case upon the complaint of January 25 be consolidated for the purposes of hearing with the case then being heard upon the complaint, as amended, of December 30. Thereafter the hearing with respect to the consolidated cases con- tinued to, and including, February 4, 1938. The Board, the respond- ent, and the Independent were represented at the hearing by counsel, and the U. O. P. W. by its representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties, subject, in the instance of the Independent, to the reservation previously noted. During the hearing the respondent made various written and oral motions to dismiss the complaints, and each of them, or the proceed- ings for various reasons, all of which motions, together with the respondent's afore-mentioned written motion of January 5, the Trial Examiner denied. Motions by the respondent that the complaints be made more specific, or that a bill of particulars be rendered, were also denied. A motion by the Board that the complaint of December 30 be amended to allege that the respondent is a Delaware corpora- tion was granted. Upon the close of the Board's proof respecting the complaint of December 30, the respondent moved for a 13-day continuance of the hearing in order to prepare its case. The Trial Examiner allowed the respondent a 1-day recess for such purpose. The Board moved that the pleadings in the consolidated cases be conformed to the proof, in so far as formal matters were concerned, which motion was granted. During the course of the hearing the Trial Examiner made various other 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. After the hearing the respondent submitted to the Trial Examiner a brief in support of its case. On March 28, 1938, the Trial Examiner filed an Intermediate Report, copies of which were duly served upon all parties, finding 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 Act, and recom- mending that respondent cease and desist from its unfair labor practices found, that it withdraw all recognition from the Independ- ent and disestablish it as a collective bargaining agency, that it offer 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstatement with back pay to Rakowski, Rice, and Matoska, and that it take certain other action to remedy the situation brought about by the unfair labor practices found. He recommended further that the allegations of the complaint of December 30, in so far as they related to the discharge of Hartman and the refusal of the respondent to bargain with the U. O. P. W., be dismissed. There- after, the respondent, the Independent, and the U. O. P. W. filed Exceptions to the Intermediate Report and the record. The re- spondent and the Independent submitted briefs to the Board . in support of their Exceptions. Upon notice duly served upon the respondent, upon the Independ- ent, upon the U. O. P. W., and upon the Amalgamated, a hearing for the purpose of presenting oral argument on the Exceptions to the Intermediate Report and on the record was held before the Board at Washington, D. C., on August 4, 1938. The respondent appeared and was represented by counsel, and the U. O. P. W. by its repre- sentative. Both parties participated in the oral argument. The Independent and the Amalgamated did not appear. The respond- ent moved that Respondent Exhibit No. 22, which had been refused admission to the record by the Trial Examiner, be admitted to the record. This motion is hereby granted. The respondent also moved for the admission of certain other exhibits relating to occurrences since the hearing. This motion is hereby denied. On August 19, 1938, the respondent submitted a supplemental memorandum in sup- port of its position. The Board has duly considered the Exceptions to the Intermediate Report and to the record, and, except where 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 Delaware corporation licensed to do business in the States of Illinois, Minnesota, and Texas, with its principal manufacturing plant and place of business at Chicago, Illinois. It maintains a branch manufacturing plant in Minneapolis, Minnesota. These proceedings concern only the Chicago plant. The respondent was incorporated on December 2, 1935. Prior to December 1932 its business and properties were owned and operated by Foote Bros. Gear and Machine Co., an Illinois corporation. The president of that company was one Fowler; its first vice presi- dent, one Barr. In December 1932 the company went into receiver- FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1051 ship, and its estate was administered in receivership and subsequently in reorganization proceedings had in the United States District Court at Chicago. Throughout the period of administration Fowler was one of two officials appointed by the court to administer the estate. On March 13, 1936, the reorganization was consummated, and the business and properties of the debtor thereafter became and were continued as the business and properties of the respondent. Fowler was then elected president of the respondent, and Barr its vice president. The respondent is engaged in the manufacture of gears, speed reducers, machinery, and other special products produced chiefly pursuant to customers' specifications. For the fiscal year ending October 31, 1937, its sales of finished products amounted to approxi- mately $2,004,000, of which amount it shipped about $1,900,000 worth, by rail and truck, from its Chicago plant to customers located in States other than Illinois. The respondent during this period purchased approximately $950,000 worth of raw materials for use in its regular course of manufacture, of which approximately $500,000 worth was shipped from sources outside the State of Illinois to the Chicago plant. On May 1, 1937, the respondent employed 355 persons at this plant. II. THE ORGANIZATIONS INVOLVED United Office and Professional Workers of America, Local No. 24,8 is a labor organization, affiliated with the Committee for Indus- trial Organization, also a labor organization, admitting to member- ship office and professional workers employed in the City of Chicago, Illinois. All office and clerical employees of the respondent em- ployed in the Chicago plant, excluding supervisors who have the power to hire and discharge, engineers, draftsmen, and outside sales- men, are eligible to membership in the U. O. P. W. Stenographers, Typists, Bookkeepers and Assistants Union, No. 20074, was a labor organization chartered by the American Federa- tion of Labor, likewise city-wide in its jurisdiction over office and professional workers in Chicago and having the same qualifications for membership as the U. O. P. W. Chicago Office Workers Unions was an unaffiliated labor organiza- tion similar in jurisdiction and in membership qualifications to the U. O. P. W. 'Whether United Office and Professional Workers of America, Local No. 24; Stenog- raphers, Typists, Bookkeepers and Assistants Union, No. 20074; and Chicago Office Work- ers Union are one and the same organization is not determined herein , for reasons here- inafter appearing. See footnote 0. See footnote 6. 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Independent Union of Gear Workers is a labor organization, in- corporated under the laws of the State of Illinois, and unaffiliated with any other labor organization. It admits to membership all employees of the respondent, including office and clerical workers, who are employed in its Chicago plant, except officials and super- visors who have authority to hire and discharge. Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 2048, is a labor organization affiliated with the Steel Workers Organizing Committee,9 herein called the S. W. O. C., and through it with the Committee for Industrial Or- ganization. It admits to membership certain of the shop employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The background of the unfair labor practices Early in 1934 a number of the shop employees of Foote Bros. Gear and Machine Co., the debtor corporation, contemplated forming a labor organization to be affiliated with the American Federation of Labor, a labor organization, herein called the A. F. of L. A document expressing interest in such a proposal was circulated by them among their fellow workers and the signatures of some 100 employees ob- tained thereto. Thereafter, a group of these employees met and dis- cussed with a representative of the A. F. of L. the formation of the proposed organization. However, no action was decided upon. The next day, after their noon lunch and before the resumption of work, all of the shop employees were summoned to a meeting by Fowler, the respondent's present president, and Barr, its present vice president. The machines in the shop were shut down. Both Fowler and Barr addressed the employees. Barr told them that he was aware of their interest in organizing a union affiliated with the A. F. of L., pointed out the possibility of their initiating a plan of employee representa- tion as an alternative to such an organization, and suggested that an election be held among the employees to determine whether they pre- ferred such an organization or the plan. He added that all em- ployees should join whichever the majority chose. Fowler then spoke. He emphasized the prevailing poor business conditions, and told the employees that "every man would have to buckle down in the work and give every bit that he could to the management, in every way he possibly could." It is plain from the foregoing facts, in the light of the entire record, that the meeting was held for the purpose of making o The Amalgamated was referred to at the hearing and in the Intermediate Report in. discriminately as the C. I. 0., the S. W. O. C., or the Amalgamated. The U. O. P. W. was also often referred to at the hearing as the C. I. O. The context, however, clearly shows the organizations intended. FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1053 apparent to the employees, a substantial number of whom had be- come interested in affiliation with the A. F. of L., the preference which the management had for an "inside" labor organization and its hos- tility toward their affiliating themselves with the A. F. of L.10 On the succeeding day, after working hours, an election in accordance with Barr's suggestion was held at the respondent's shop, in which a majority of the employees voted for an employee-representation plan. The plan of employee representation which thereafter was put into operation and which functioned until May 193711 consisted simply of an employee shop committee. The members of the committee were seven in number elected by the shop employees from among themselves to hold office for a period of 1 year. Elections for committeemen were conducted at the plant during working hours. No payments, whether of dues or for other purposes, were made by the employees to the plan, and all expenses of the plan and of the committee were borne by the management. Save for one occasion early in the history of the plan, the committee never met with its employee constituency as a group. The committee itself met periodically and conferred at intervals with Barr on the management's time and property. While the committee adjusted individual employee grievances with the management, the committee never entered into a collective agreement with the manage- ment concerning wages, hours of service, or other conditions of em- ployment. Indeed, the record does not disclose that the committee ever attempted to obtain such an agreement. Manifestly, after acquisition of its business in 1936 the respondent perpetuated by illegal support and sponsorship a form of organiza- tion whose past ineffectiveness as a collective bargaining agency was well known to the respondent's officers. We have had occasion to point out the inherent weakness of a labor organization which affords no opportunity to its members or employee participants to discuss in a body matters affecting their wages, hours of employment, or other working conditions, or as a group to instruct their leaders concerning such matters.12 The plan as it operated at the respondent's plant was little more than a phase of the respondent's personnel management, supported and maintained by the respondent. Had the evidence not 10 Cf. Titan Metal Manufacturing Y. National Labor Relations Board, 106 F. (2d) 254 (C. C. A. 3d) ; Fansteel Metallurgical Corporation v. National Labor Relations Board, 59 S. Ct. 490 , 493, 494 ; Matter of Crawford Manufacturing Company and Textile Workers Organizing Committee , 8 N. L. It . B. 1237. u See Section III, C, infra, for the manner in which the plan was abandoned. 12 Matter of Bethlehem Shipbuilding Corporation, Limited and Industrial Union of Marine and Shipbuilding Workers of America, Local No. 5, 11 N. L. R. B. 105; Matter of Servel, Inc. and United Electrical, Radio and Machine Workers of America, Local No. 1002, 11 N. L. It. B. 1295; Matter of Wisconsin Telephone Company and Telephone Operators Union, Local 175A, International Brotherhood of Electrical Workers, 12 N. L. R. B. 375. See also National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261. 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shown that the plan was abandoned in May 1937 the facts would have warranted further proceedings by the Board and the issuance of an order directing the respondent to cease and desist from recognizing that organization as the representative of its employees for collective bargaining purposes. However, under the circumstances such action by the Board need not be taken 13 B. Interference, restraint, and coercion In April 1937, about a week after the constitutionality of the Act was upheld by the United States Supreme Court, the S. T. B. A. began to solicit and enroll members among the office force at the Chicago plant. Although an attempt was made to conceal the move- ment from the respondent, the respondent soon was informed that its office and clerical employees were engaging in organizational ac- tivities. Thereupon, through its officers and supervisors, the re- spondent systematically interrogated these employees concerning their membership in the S. T. B. A. and what organizational ac- tivities were being carried on. Fowler, the president, questioned several employees. He summoned Rakowski, an employee named in the complaint and one of the most active union members, asked him whether he had joined the union, and inquired generally about the organization. Rakowski withheld acknowledgment of his affiliation. He testified that during the conversation which occurred Fowler stated that unions were "rackets" and that they prevented an em- ployee from adjusting his grievances with his employer. This was denied at the hearing by Fowler. In any event Fowler did examine Rakowski, as aforesaid. Barr, the vice president, also interrogated employees as to what they knew about the union and whether they were connected with it. Sales Manager Emmons, and the re- spondent's foremen and supervisors, by their inquiries of employees under them, displayed a like interest. We have repeatedly held that an employer's questioning of em- ployees about their union affiliation and activities contravenes the Act.'4 The respondent's attempts to elicit information of this char- acter from its office workers necessarily would intimidate, restrain, and coerce them in the exercise of their right to organize. Such interrogation constitutes a threat that the employer's economic power 13 Matter of Inland Lime and Stone Company and Quarry Workers International Union of North America, Branch No. 259, 8 N. L. R. B. 944. 14 Matter of Harry Schwartz Yarn, Co., Inc. and Textile Workers Organizing Committee, 12 N. L. R. B. 1139; Matter of. Trenton Garment Company and International Ladies Garment Workers Union, Local 278, 4 N. L. R. B. 1180; Matter of Semet-Solvay Company and Detroit Coke Oven Employees Association and International Union, United Automobile Workers of America, Local 1771, 7 N. L. R. B. 511. See also Matter of The Boss Manufac- turing Company and International Glove Workers' Union of America, Local No. 85, 3 N. L. R. B. 400. FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1055 and superior position may be used to the disadvantage of the indi- vidual employees disclosed to be members of or active in the union. But the respondent contends that its acts were not anti-union because its employees were told that they need not divulge, if they did not wish, the information sought, that they were not to interpret the interrogation as hostile to them. Moreover, the respondent states that some employees remained active in the S. T. B. A. after being questioned, and hence were not in fact intimidated. None of these contentions has merit. The respondent could not prevent the natural consequences of its acts by such statements, nor is it material that in some cases employees remained members of the S. T. B. A. or active in it.' e We.find that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. C. Interference with and domination of the formation and administra- tion of Independent Union of Gear Workers, and support thereto In the first week of May 1937 the plan shop committee, acting in behalf of an organization which, as we have indicated above, was illegal under the Act, requested a meeting with Barr, the respondent's vice president, to discuss some matters of business. Barr told the committee that he was unwilling to confer with it, and at the hearing testified that the reason therefor was that the respondent was "stall- ing" until it could be advised by its lawyers as to the validity of the plan under the Act. However, Barr informed the committee that the respondent shortly would have an announcement of consider- able importance to make about the plan. Thereafter, on May 6, 1937, Barr summoned the plan shop commit- tee to the president's office and read to them the following statement which the respondent's lawyers had prepared : Under the terms of the National Labor Relations Act, the constitutionality of which was recently upheld by the Supreme Court, employees were accorded certain definite rights with re- spect to self-organization, with which you should be familiar. In the interest of protecting your rights under the Act, this company has consulted with our counsel, Winston, Strawn & Shaw, in order to determine whether or not your present Plan of employee representation is legal, adequate and operated in such a manner as to entitle it to recognition by the mangament as exclusive bargaining agent under the National Labor Relations Act. 15 See National Labor Relations Board v. Nebel Knitting Company, 103 F. ( 2d) 594 (C. C. A. 4th). 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are informed by our counsel that your present Employee Organization is legally entitled to recognition by, us under the National Labor Relations Act if it is supported by a majority of the employees involved. We are further informed, however, that there are certain de- fects in your- manner of operation, and in your articles of association, that might operate against your best interests in the event of challenge, and might prevent the employees from ob- taining, through the Organization, the benefits intended to be conferred by the Act. We regret that because of possible misinterpretation of our motive, we do not deem it wise to counsel with or advise you, our employees, as to the necessary steps for you to take at this time, in order that you may determine whether or not your best interests are fully protected and in order that you may determine whether your organization meets the requirements of the Act in all details. However, we wish to state that we will at all times in the future, as in the past, answer all questions and advise you on all subjects that we legally can, and extend to you the same cooperative spirit as in the past. In this spirit we do advise you as our employees to seek legal advice from a competent lawyer of your own choosing to advise you as to your rights under the Act, and as to the steps to take in perfecting your organization, in such a manner that not only will all legal points be met but that the cost to you will be held to the utmost minimum. Although the foregoing statement recites that the plan was "legally entitled to recognition" by the respondent under the Act, despite "certain defects in [its] . . . manner of operation, and . . . articles of association," it is plain that the committeemen understood from the conference with Barr which followed that the plan was in fact unlawful and was not legally entitled to recognition. One of the committeemen testified, and his testimony is corroborated by the record, that Barr stated, "I don't see any reason why I should hold a conference with the company union ; according to the Wagner Act it isn't legal." Two days later, on May 8, five members of the old plan shop committee, led by its last chairman, one Egner, and ac- companied by one Shafran, an employee and friend of Egner, visited an attorney, Wham, for the purpose of securing advice and assistance in the formation of an unaffiliated labor organization for the re- spondent's employees. At this meeting there were drafted a consti- tution and bylaws for an "inside" union, to be known as Independent FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1057 Union of Gear Workers, and certain petition forms to be signed by the plant employees, containing an application for membership in the proposed union and a designation of it as representative for purposes of collective bargaining with the respondent in regard to wages, hours, and other working conditions. The Independent thus had its genesis. We are satisfied from the foregoing facts, considered in the light of the entire record and the occurrences set forth below, and we find, that the respondent at the meeting of May 6 with the plan shop committeemen manifested to them, as it intended to do, its desire that they take steps to form an "inside" labor organization, and that the committeemen so understood the import of the meeting. Al- though the respondent well knew that the plan violated the Act, it did not proceed to inform its employees generally, that is, em- ployees other than those on the committee, of the fact that the plan no longer would be available to them for adjusting grievances. The above-quoted statement, while seemingly intended for employee con- sumption, was in fact given no general publicity in the plant either by the respondent or by the plan shop committee. Instead, the re- spondent proceeded, as above stated, to advise only with the com- mittee members under the company-dominated plan. In its written statement it did not stop with declaring the plan valid or entitled to recognition, a declaration privately repudiated by Barr, and with leaving open the matter of self-organization, but suggested that the committeemen "seek legal advice . . . as to the steps to take in per- fecting your organization." In view of Barr's oral statement re- specting the illegality of the plan, which revealed to the committee- men that in the respondent's judgment the plan could not be "per- fected," and the fact that the written statement in question was read to them by Barr, the suggestion therein contained that legal advice be sought, under the circumstances was an invitation and instruction to the individual committee members to establish and carry on through a new "inside" labor organization, as in fact they did. We find that the respondent by inviting and directing the old plan shop committee members to form an inside union promoted, spon- sored, and interfered with the formation of the Independent.16 "Matter of Swift '& Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local 641 and United Packing House Workers Local Industrial Union No. 500, 7 N. L. R. B. 269 , 275, 282 , 283, order enforced in Swift d Company V. National Labor Relations Board, 106 F. ( 2d) 87 (C. C. A. 10tH) ; System. Federation No. 40, Railway Employees Department of the American Federation of Labor, et al, v. Virginian By. Co., 11 F. Stipp . 621, 625 (D. C. E. D . Va.) ; aff'd 300 U. S. 515 ; National Labor Relations Board Y. Fansteel Metallurgical Corporation , 59 Sup. Ct . 490, 494. See also Matter of Wisconsin Telephone Company and Telephone Operators Union, Local 175A, International Brotherhood of Electrical Workers, 12 N. L. R. B. 375 , and cases there cited , and dissenting opinion of Mr. Edwin S. Smith. 1058 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD On May 10, 11, and 12, 1937, Egne.r, Shafran, and the old plan shop committeemen solicited signatures of the respondent's employees to the above-mentioned petitions. In 3 days they obtained the signa- tures thereto of over 200 of the respondent's 355 employees. All those who signed worked in the shop. A substantial amount of this solici- tation was done on the respondent's time and property. At the hear- ing the respondent contended that its foremen and supervisory offi- cials knew nothing of the Independent's membership campaign being waged within the plant on company time, that the solicitation was carried on surreptitiously. We are convinced, however, from the evi- dence adduced, and we find, that the drive was unconcealed and with full knowledge thereof had by the respondent; that those solicit- ing signatures to the petitions of the Independent did so openly and moved about freely in their task from one department to another; and that this was done in the presence of and with the knowledge and tacit permission of the respondent's supervisors. Mackman, the superintendent, admitted at the hearing that during the course of the campaign one of the employees protested to him that Egner, in or- ganizing for the Independent, was misrepresenting to employees the effect of the petitions as merely obligating the signer to attend the first meeting of the Independent which it was proposed would be held. It is difficult to account for the rapidity with which the signa- tures of a majority of the employees were obtained if the securing thereof had had to be accomplished under cover. Neither Egner nor any of the old plan committeemen who performed the solicita- tion were docked in pay or disciplined for the time which they spent away from their work in engaging in 'these activities. While Barr on May 6, after reading to Mackman and to the general foreman the prepared statement above quoted, told these supervisors, among other things, that they were to prevent any union activities which might occur during working hours, that instruction was not carried out in the instance of the organizational drive of the Independent. The favorable treatment accorded the Independent organizers by the respondent stands in marked contrast with the respondent's intimida- tory questioning in the weeks previous of employees who had joined the S. T. B. A. and with its relations with the S. T. B. A., set forth below. The record shows that later, in June 1937, when undertaking to organize the office and clerical employees, the Independent engaged in equally open and undisturbed solicitation. We find that the respondent by permitting Egner, Shafran, ' and the old plan shop committeemen to carry on the afore-mentioned organizational activities on company time and property in behalf of a labor organization whose formation it had invited and directed, thereby fostered, promoted, and otherwise encouraged the formation FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1059 and growth of that labor organization and contributed support to it.', On May 13, after the day shift ended, an "open" meeting to organize the Independent was held in a hall near the plant. About a hundred shop employees attended. Egner presided, and all of the old-plan shop committee were present. One of the committeemen who worked the night shift was excused from work by his foreman in order that he might attend. At the meeting the above-mentioned proposed constitution and bylaws were explained, and the Inde- pendent set up. Egner was elected president of the Independent, and Shafran its secretary-treasurer. The old-plan shop committee- men were elected a temporary committee to seek recognition from the respondent of the Independent as a collective bargaining agency. Meanwhile, in the period from May 6, when Barr met, as related above, with the old-p]an shop committee, and May 13, when Egner, the old-plan committee chairman, became president of the Inde- pendent, and the members of the committee, a temporary committee to negotiate with the respondent, the S. T. B. A. was seeking recog- nition from the respondent of the S. T. B. A. as collective bargaining representative of the respondent's office workers and was attempting to" obtain in their behalf a collective contract from the respondent. Previously, on May 4. 1937, one Slot.kin, an organizer of the S. T. B. A. but not an employee of the respondent, visited the respondent's office for the purpose of conferring with the respondent's president, Fowler. She informed the employee with whom she spoke of her identity, and that she represented the S. T. B. A. However, she was unable to meet Fowler and was told that he was not in the plant. At the hearing Fowler stated that he had been in his office, but refused to see Slotkin because she had not made an advance appointment for the meeting. Later the same day, the S. T. B. A., by registered letter sent to the respondent and addressed to the attention of Fowler, informed the respondent that the S. T. B. A. had been designated as collective bargaining representative by a majority of the respondent's office workers, and requested a meeting with the respondent for the purpose of collective bargaining in regard to the wages, hours, and other working conditions of these employees. On May 5 the respondent, through Fowler, replied by letter suggesting that a meeting be held on May 7. This date proved unsatisfactory. However, on May 10 representatives of the respondent and of the S. T. B. A. met in the office of the respondent's lawyers. Those pres- 14 Swift A Company v. National Labor Relations Board, 100 F. (2d) 87 (C. C. A. 10th) ; Titan Metal Manufacturing Company v. National Labor Relations Board, 100 F. (2d) 254 (C. C. A. 3d) ; National Labor Relations Board v . Wallace Manufacturing Company, Zno., 95 F. (2d ) 818 (C. C. A. 4th ) ; Hamilton-Brown Shoe Company v. National Labor Rela- tions Board, 104 F. ( 2d) 49 (C. C. A.' 8th). 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent were Fowler, his attorney, Slotkin, and another.S. T. B. A. repre- sentative. Slotkin advised Fowler that the S. T. B. A. represented a majority of the respondent's office workers and presented as a basis for collective bargaining a proposed written contract, providing for wages, hours of service, and other conditions of employment of these employees. The respondent's attorney raised the question of the S. T. B. A.'s majority representation and inquired whether the S: T. B. A. would submit to him as evidence of its status the mem- bership application cards signed by the office workers. Slotkin re- fused to do this, but offered to submit these cards to a conciliator of the United States Department of Labor or to the Board, for check- =ing and comparison with the names on the respondent's office pay -roll."' The respondent's attorney and Fowler then requested time to study the proposed contract, and the meeting was adjourned to May 14. On May 13 the respondent, through Fowler, by letter delivered to the S. T. B. A. on that date, postponed until May 17 the meeting arranged for May' 14, "due to the absence of an official of the Company who must be consulted." At the hearing Fowler testi- fied that he then wished to discuss the contract with two of the re- spondent's directors who were out of the city. As already stated, by May 12 Egner, Shafraii, and the old-plan shop committeemen had obtained the signatures of a majority of the employees to the petitions, and by May 13 the organizational meeting of the Independent had been held. On May 14 Egner delivered to the shop superintendent, Mackman, for transmittal to Fowler a cer- tain draft "agreement" prepared by Wham which recited that the Independent had proved its majority representation to the satisfac- tion of the respondent, and setting forth that the respondent recog- nized the Independent as the exclusive collective bargaining agency under Section 9 (a) of the Act "of. all the employees" in the re- spondent's Chicago plant. The "agreement" further stated that upon request the respondent would meet with the Independent to consider the conclusion of a collective contract covering wages, hours of serv- ice, and other working conditions. Upon receiving the "agreement" Fowler summoned Egner. He asked Egner for proof of the Inde- pendent's majority representation, and Egner tendered the signed petitions. Fowler then instructed the respondent's secretary to com- pare the names thereon with the respondent's pay roll, while he took the "agreement" to his lawyers for their approval. This Fowler did. After an immaterial change in the language of the agreement by the same attorney who attended the May 10 meeting, Fowler returned 18 Matter of Burnside Steel Foundry and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1719, 7 N. L. R. B. 714, 723; Matter of Hamilton-Brown Shoe Company and Local No. 125 United Shoe Workers of America, af- filiated with the Committee for Industrial Organization , 0 N. L. R . B. 1073, 1131. FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1061 to his office; was informed by the respondent's secretary that the In- dependent had a majority; proceeded to reach and "finally located" by long-distance telephone the two absent directors ; obtained their consent to his executing the "agreement"; obtained a similar consent from the remaining directors of the respondent; again summoned Egner; and on said May 14 signed the "agreement" in behalf of the respondent. It developed in the course thereof that the respondent's secretary would not verify the authenticity of the signatures on the petitions and informed Fowler that such a task "would take several days." Accordingly, a certificate of authenticity was prepared and Egner signed it. The "agreement" was then posted on the plant bul- letin board: These transactions consumed about 4 or 5 hours. At no time prior to this grant by the respondent of recognition to the Independent as the exclusive collective bargaining representa- tive under the Act of all its employees, including the office and cleri- cal employees, did the respondent communicate to the S. T. B. A. or in any manner make known to it that the respondent had been re- quested, or that it proposed to recognize another labor organization as the exclusive collective bargaining representative of its office workers. The respondent and its lawyers knew on May 14 that the S. T. B. A. claimed to represent a majority of these employees. The S. T. B. A. letter of May 4 to Fowler, the May 10 conference attended by Fowler and his attorney, and the proposed contract then submitted to them, gave express and direct information to the respondent, through its president and its lawyers of the claim of the S. T. B. A. that a ma- jority of the office workers had selected the S. T. B. A. to represent them in collective bargaining with the respondent. The intimida- tory questioning, heretofore mentioned, by the respondent's man- agerial force of these employees about their joining the S. T. B. A. demonstrates that the respondent was fully aware of the fact that these employees were affiliating themselves with that organization. Nor did the respondent on May 14 believe or suppose that the Inde- pendent represented any office workers. Had it had any question on that subject, mere inquiry of Egner would have dispelled all doubt. Indeed, the petitions which on May 14 it checked against its pay roll contained no names of office workers. On May 17 the respondent, represented by its president and its attorney, and the S. T. B. A., acting through Slotkin and another representative, met in the office of the respondent's lawyers. The respondent's attorney did most of the talking. He informed the S. T. B. A. representatives that since their meeting of May 10 the respondent was .notified by the Independent of that organization's designation as collective bargaining representative by a majority of all the employees, and, accordingly, that on May 14, after proof satis- 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD factory to the respondent had been adduced, it recognized the Inde- pendent as the exclusive collective bargaining representative of such employees, including the respondent's office workers. He further stated that there did not appear to be any point in pursuing their conversations further unless and until the Board "classified" the office workers as a separate collective bargaining unit, that in the" absence of a "classification" by the Board of office workers as a sepa- rate unit the respondent had no power to recognize any labor organi- zation for any particular group of the respondent's employees. He handed to the representatives of the S. T. B. A. a memorandum set- ting forth the respondent's views with respect to the various pro- visions contained in the proposed agreement previously submitted by the S. T. B. A. The memorandum had been prepared by Fowler and his attorney, apparently without consultation of the two absent directors. It is clear from the evidence, and we find, that this memo randum. was not intended to be a basis for further negotiations, that the respondent did not propose at that time to enter upon collective bargaining with the S. T. B. A', that the purpose of the memorandum was solely to give information as to the respondent's position regard- ing the submitted agreement for whatever advantage might accrue therefrom to the respondent. The meeting thus ended. On the following day the S. T. B. A. communicated by telephone with the respondent and again was informed that the respondent would not negotiate with the S. T. B. A. There were no further meetings. On May 28, 1937, the respondent and the Independent entered into a collective contract providing for recognition by the respondent of the Independent as the exclusive collective bargaining representa- tive of all employees, a.nd containing provisions relating to wages, hours of employment, and other conditions of employment. The agreement was without a fixed duration, subject however, to termina- tion on May 1 of any year upon not less than one month's prior written notice by one party to the other. Section 3 of the agree- ment provided that the Independent would submit to the respondent a list of its members, and that in turn the respondent agreed "to deduct from the wages of the members of the Union each month the amount certified to it by the Union as being the proper amount of'dues which the members are obligated to pay to the Union, and to remit the total amount so deducted to the Union's treasurer. In the event any member shall raise any objection to this procedure, the Corporation agrees to refer such objection to the Union and the Union agrees to indemnify and hold the Corporation harmless for any claims of its members because of such deduction." Pursuant to this provision, the respondent prior to the hearing twice deducted from the wages of the Independent's members the sum of $1.50, which sum represented 3 months' advance dues, and turned over to the FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1063 Independent the amount so deducted. Nearly $800 was paid to the Independent in this manner prior to the hearing. Early in June 1937 the Independent solicited members among the respondent's office workers. As we have indicated above, this solic- itation was carried on openly and in the presence of the respondent's supervisory officials. On June 11, 1937, the respondent, as more fully set forth below, discharged Rakowski, one of the most active members of the S. T. B. A., because of his membership and activities in that organization. Many of the employees who had joined the S. T. B. A. withdrew in June from that organization and joined the Independent. On June 10, 1937, the Independent was incorporated raider the laws of the State of Illinois. The foregoing facts occurring subsequent to May 13 show not only that the respondent continued to favor and support the Independent but demonstrate the effective use which the respondent made of its creature'to destroy self-organization among its employees, especially among its office workers. On May 14 it recognized the Independent as the exclusive collective bargaining representative of its office workers, along with other employees, although the Independent was an illegal organization under the Act and the S. T. B. A. was then lawfully entitled, as more particularly set forth below, to be recog- nized as the exclusive collective bargaining representative of the office workers. By thus compelling these employees to accept repre- sentation through the Independent instead of extending recognition to their duly designated and exclusive representative under the Act, the respondent showed favoritism to the Independent and accorded it support. On May 28, 1937, the respondent, as stated above, made an agreement with the Independent covering all employees, in6lud- ing office workers, after refusing on and after May 17, 1937, to bar- gain collectively with the S. T. B. A., a refusal found below to have been an unfair labor practice. By thus treating with the Inde- pendent as the representative of the office workers and refusing to negotiate with the labor organization which in fact lawfully repre- sented them, the respondent accorded the Independent further favor and support. The reasons stated by the respondent to the S. T. B. A. representatives at the May 17 meeting, do not constitute a defense to the respondent's action in recognizing and dealing with the Inde- pendent. The respondent could not on May 17 excuse its previous grant of recognition to the Independent as the exclusive collective bargaining representative of the office workers, nor can it now excuse such grant, or its making of the subsequent contract with the Inde- pendent covering these employees, on the ground that whether these employees alone constituted a separate appropriate bargaining unit and whether their designated representative was entitled to recogni- tion were matters for the Board to decide and with which the re- 190983--40-vol. 14-68 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent need have no concern. By going forward and recognizing the Independent as the exclusive collective bargaining representative of its office workers and negotiating with the Independent on that basis, the respondent assumed full responsibility for ignoring the duly constituted representative of these employees under the Act. The respondent did not leave these issues for the Board; it decided them itself. And it did so where the organization in whose favor it resolved the question was one which it had sponsored and supported. Finally, the respondent's discharge of Rakowski because of his membership and activities in the S. T. B. A. and its check-off of dues to the Independent were acts of support. With respect to the check- off, while ordinarily it is a legitimate method of collecting union dues, here it was a device participated in by the respondent whereby con- tinued financial means was assured a company-sponsored and-sup- ported labor organization.1o The totality of the facts presented leave us no doubt that the Inde- pendent is not and never has been the freely chosen bargaining repre- sentative of any of the respondent's employees. A policy pursued by the respondent of making certain that its employees join a labor organization congenial to its will, and not affiliate themselves with any other labor organization, did not cease with the sustention of the constitutionality of the Act,. let alone with the passage of the statute. That policy was continued through the instrumentality of the Inde- pendent. The respondent's acts in connection with the formation of the Independent and its subsequent support necessarily would make manifest to the employees and indelibly imprint upon their minds the respondent's desires as to what labor organization they should join.- In structure the Independent is similar to the predecessor plan '20 and its initial leadership was substantially that of the plan. In result, the Independent is a company-dominated organization.21 We find that the respondent dominated and interfered with the formation and administration of the Independent and contributed support to it; that by such acts the respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed them by Section 7 of the Act. -'Hatter of Clinton Cotton Mills and Local No. 2182, United Textile Workers of America, 1 N. L. R. B. 97, 108; Matter of Lone Star Bag and Bagging Company and Textile Workers Organizing Committee, 8 N. L. R. B. 244; Matter of The Heller Brothers Company of Newcomerstown and International Brotherhood of Blacksmiths, Drop Forgers, and Helpers, 7 N. L. It. B. 646. 21 We have had occasion recently to comment upon some of the structural features of a labor organization such as those present in the Independent. Matter of Servel, Inc. and United Electrical, Radio and Machine Workers of America, Local No. 1002, 11 N. L. R. B. 1295. 21 Concerning events similar to those of May 14, the Circuit Court of Appeals for the Tbird Circuit observed in a case recently decided by it: "We state in this connection that In our opinion the respondent rushed to the contract with the Association to the end that it might avoid the necessity of negotiations with Its employees except through the medium of a union which it dominated." National Labor Relations Board v. Stackpole Carbon Company, 105 F. (2d) 167 (C. C. A. 3d). FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1065 D. The refusal to bargain collectively with the S. T. B. A. and the alleged refusal to bargain with the U. 0. P. W. after June 1, 1937 1. The appropriate unit The U. 0. P. W. contends that in May 1937 and thereafter the office and clerical workers employed by the respondent at its Chicago plant, excluding engineers , draftsmen, outside salesmen, and supervisors constituted a separate and distinct unit appropriate for the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of employment, and other conditions of employ- ment. The respondent and the Independent'22 however, urge that all the respondent's employees, including office and clerical workers, but excluding supervisors, then constituted an appropriate collective bargaining unit. We think it plain that in May 1937 the respondent's office and clerical employees were not a mere component part of a larger bar- gaining unit consisting of themselves and the shop employees. Traditionally, production and maintenance workers, such as the respondent's shop workmen, have seldom been organized with office and clerical employees. Such was the situation in the respondent's plant in May 1937. The office and clerical employees were separately organized by a legitimate labor organization, the S. T. B. A., which did not admit to membership production and maintenance workers. No other labor organization, including the Independent, had suc- ceeded in May or theretofore in enrolling as members any of the respondent's office and clerical employees. The afore-mentioned tradi- tional form which organization has taken, together with the substan- tial dissimilarity in status and function of office and clerical em- ployees, on the one hand, and of production and maintenance employees on the other, has led the Board to conclude that ordinarily the two groups do not constitute a single appropriate bargaining unit.23 That conclusion obtains here. It is supported by other con- 22 The claims of the Independent as to the appropriate unit are not entitled to weight since they rest upon the assumption that the Independent is a lawful bargaining agency. Cf. Matter of Eagle Manufacturing Company and Steel Workers Organizing Committee, 0 N. L. It. B. 492, 505. 2a Matter of United States Stamping Company and Porcelain Enamel TVorkers' Union, No. 18630, 1 N. L. It. B. 123; Matter of R. C. A. Manufacturing Company, Inc. and United Electrical and Radio TVorkers of America, 2 N. L. It. B. 159 ; Matter of The American Tobacco Company and Tobacco Workers International Union, Local No. 192, 2 N. L. R. P. 198 ; Matter of Motor Transport Company and General Chauffeurs, Teamsters and Helpers Local Union No. 200, 2 N. L. R. B. 492; Matter of Atlantic Basin Iron Works and Ind2is- trial Union of Marine and Shipbuilding Workers of America, Local No. 13, 5 N. L. It. B. 402; Matter of Walker Vehicle Company and the Automatic Transportation Company, divisions of the Yale f Toone Manufacturing Company and Walker-Automatic Independent Labor Association, 7 N. L. R. B. 827 ; Matter of National Motor Bearing Company and International Union, United Automobile Workers of America, Local No. 76, 5 N. L. R. B. 409, order enforced in National Labor Relations Board Y . National Motor Bearing Com- pany, 105 F. (2d) 052 (C. C. A. 9th). 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD siderations. The wages of the office and clerical employees were and are computed on a weekly basis, whereas shop workers are paid by the hour. The shop workers have worked different hours from those of the office and clerical employees. We are also of the opinion that the respondent's engineers, drafts- men, outside salesmen, and supervisory officials were not in May 1937, or thereafter, allied with the office and clerical employees in a single bargaining unit. Employees in none of the four mentioned classifications were eligible to membership in the S. T. B. A. With respect to the engineers, draftsmen, and outside salesmen, their work and interests differed materially from that of the office and clerical employees.24 Under our usual rule supervisors were not within the appropriate bargaining unit. We find that throughout May 1937, including May 14, 17, and 28, 1937, the office and clerical employees of the respondent at its Chicago plant, excluding engineers, draftsmen, outside salesmen, and super- visors constituted a unit appropriate for the purposes of collective bargaining and that said unit was one which insured to the em- ployees of the respondent the full benefit of their right to self-or- ganization and to collective bargaining and otherwise effectuated the policies of the Act. 2. Representation by the S. T. B. A. of the majority in the appropriate unit in May 1937 The respondent's office pay roll for the week of May 8, 1937, was introduced into evidence . It contains the names of 74 persons in the employ of the respondent on its office force . Nine of these per- sons were employed as engineers , two as sales engineers , two as drafts- men, six as outside salesmen , one as a typist in New York City, and one as plant superintendent. Accordingly , on May 8, 1937, there were in the respondent's employ 53 persons within the unit we have found to be appropriate. Also introduced iiito evidence were 33 cards signed in April 1937 by office and clerical employees of the respondent, whereby application for membership in the S. T. B. A. was made. The authenticity of these cards was not controverted at the hearing, and we find them to be authentic. A comparison of the names on cards with the names of the persons in the unit on May 8, 1937, establishes that on that date 33 of the 53 employees within the unit had in April 1937 applied for membership in the 24 Cf. Matter of Consolidated Aircraft Corporation and International Association of Machinists, Aircraft Lodge No. 1125, 2 N. L. R. B. 772; Matter of Bartlett & Snow Com- pany and The Bartlett & Snow Employees' Association, Inc. and United Automobile Workers of America, 4 N. L. R. B. 113; Matter of S. Blechman & Sons, Inc. and United Wholesale Employees of New York, Local 65 Textile Workers Organizing Committee-Committee for Industrial Organization, 4 N. L. R. B. 15. 01 FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1067 S. T. B. A. By such applications they designated the S. T. B. A. their representative for purposes of collective bargaining with the respondent, and their designation continued effective throughout May.2a Some of these persons testified that after affiliating them- selves with the S. T. B. A. they became members of the Independ- ent and designated it their collective bargaining representative. However, the record shows that all these employees first joined the Independent in June 1937 or thereafter. Hence, there is no showing that in May the S. T. B. A. did not represent them. Furthermore, since the Independent was company dominated, and its membership was the result of the respondent's acts and interference in contra- vention of the Act, we cannot give any effect to a defection from the S. T. B. A. to the Independent in determining the status of the S. T. B. A. as bargaining representative.26 There is no claim or contention that at any time in May after May 8, 1937, the number or identity of persons in the appropriate unit was any different than on that date. We find that throughout May 1937, including May 8, 17, and 28, 1937, the S. T. B. A. was designated and selected by a majority of the employees in the unit above found appropriate as their representative for the purposes of collective bargaining, and pursuant to Section 9 (a) of the Act, was at said time and times the exclusive representative of all the em- ployees in such unit for the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of employ- ment, and other conditions of employment. 3. The refusal to bargain with the S. T. B. A. As stated above,27 on May 4 the S. T. B. A. notified the respondent that it had been designated as collective bargaining representative by a majority of the respondent's office workers and requested collec- tive bargaining with the respondent. At the May 10 meeting the S. T. B. A. reiterated that it was the designated representative of a majority of the office employees and asked that it be recognized and bargained with as the exclusive collective bargaining representative of the office force. There is a conflict in the evidence as to whether the respondent at this meeting granted the S. T. B. A. such recogni- tion. However, the issue need not be decided, for it is clear that thereafter the respondent refused to recognize or otherwise to bar- gain collectively with the.S. T. B. A. as the exclusive collective bar- 25National Labor Relations Board v . rational Motor Bearing Company , 105 F. (2d) 652 (C. C. A. 9th) ; Matter of Hood Rubber Company, Inc. (Arrow Battery Products Divi- sion) and International Union, United Automobile Workers of America , 5 N. L. R . B. 165. " Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron , Steel, and Tin Workers of North America, Local No. 1139, 10 N. L . R. B. 33. 11 Section III, C , supra. 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining representative of the employees in the unit found appropri- ate. On May 14 the respondent granted the Independent recognition as exclusive collective bargaining representative of all employees, including those in the above unit, thereby refusing to bargain col- lectively with the S. T. B. A.23 On May 17 the respondent refused to recognize the S. T. B. A. as the exclusive representative of the employees in the unit, thereby refusing to bargain collectively with the S. T. B. A.2° On said May 17 the respondent refused to enter into negotiations with the S. T. B. A. looking toward the making of a collective agreement, thereby refusing to bargain collectively with the S. T. B. A.30 Finally, on May 28 the respondent made a collec- tive agreement with the Independent again granting that organiza- tion recognition as exclusive bargaining representative of employees in the above unit and covering their employment, thereby refusing to bargain collectively with the S. T. B. A.3' As we have heretofore stated, the respondent cannot rely on its recognition of the Inde- pendent as excusing its refusal to bargain with the designated rep- resentative of its office employees. Moreover, we are satisfied from the entire record, and we find, that the respondent's hasty recogni- tion of the Independent on May 14 was deliberately clone in order to afford the respondent a pretext for thereafter withholding recog- nition from and not bargaining with the S. T. B. A. The refusal of the respondent to recognize or negotiate with the S. T. B. A. was not motivated by any real doubt it had as to the necessity for recog- nizing its own dominated and supported organization ; its conduct was induced by a rejection of the collective bargaining principle.32 Accordingly, we find that during May 1937, particularly on May 14, 17, and 28, 1937, and each of said dates, the respondent refused to bargain collectively with the S. T. B. A. as the representative of 28 Matter of The Triplett Electrical Instrument Company , The Diller Manfacturing Company, doing business under the fire, name and style of Readrlte Meter Works and United Electrical and Radio Workers of America, Local No. 714, 5 N. L. R. B. 835. See Virginian Ry. Co. v. System Federation No. 40, Railway Employees Department of the American Federation of Labor, et al., 300 U. S. 515, 545. 29 Matter of The Louisville Refining Company and International Association Oil Field, Gas Well and Refinery Workers of America, 4 N. L. R. B. 844 , Order enforced in National Labor Relations Board V. Louisville Refining Company, 102 F. ( 2d) 678 (C. C. A. 6th) ; Matter of Piqua Munising Wood Products Company and Federal Labor Union Local 18787, 7 N. L. R. B. 782. 89 Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6 N. L. R. B. 461, Order enforced in Globe Cotton Mills v. National Labor Relations Board, 103 F. (2d) 91 (C. C. A. 5th). 81Matter of National Motor Bearing Company and International Union, United Auto- mobile Workers of America, Local No. 70, 5 N. L. R. B., 409 , Order enforced in National Labor Relations Board v. National Motor Bearing Company, 105 F. (2d) 652 (C. C. A. 9th). 32 Natignal Labor Relations Board V. National Motor Bearing Company , 105 F. (2d) 652 (C . C. A. 9th ) ; National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862, 868 (C. C. A. 2c1) ; National Labor Relations Board V. Bites-Coleman Lumber pany, 98 F. (2d) 18, 22 (C. C. A. 9th). Com- FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1069 its employees in the appropriate unit in respect to rates of pay, wages, hours of employment, and other conditions of employment. We also find that by such refusal the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. 4. The alleged refusal to bargain collectively with the U. O. P. W. after June 1, 1937 In early June 1937 the American Federation of Labor revoked the charter of the S.T. B. A. For a short period of time the members of the S. T. B. A. maintained an organization which they called the Chicago Office Workers Union. On July 20, 1937, this organization was chartered as the U. O. P. W. by the Committee for Industrial Organization. We are not satisfied upon the record before us that despite revocation of its charter by the American Federation of Labor the S. T. B. A. continued in existence as the same entity save for successive changes in name and assumption of affiliation with the Committee for Industrial Organization. Accordingly, we are unable to find that all members of the S. T. B. A. necessarily were members of the Chicago Office Workers Union and of the U. O. P. W. The record does not show how many of the respondent's employees were members of the Chicago Office Workers Union after revocation of the S. T. B. A. charter, or whether any attended the meeting at which that organization voted to obtain a charter from the Committee for Industrial Organization or attended any of the subsequent meet- ings of the U. O. P. W. Nor is there any showing that a majority of the respondent's employees in the appropriate unit were members of the U. O. P. W. after' receipt of the charter from the Committee for Industrial Organization. The jurisdiction of the S. T. B. A., Chicago Office Workers Union, and U. O. P. W. was city-wide. It is admitted that 15 per cent of the S. T. B. A. membership estab- lished a new union under a new charter from the American Federa- tion of Labor; and certain members of the S. T. B. A. testified that they did not want to be represented by the U. O. P. W. There is no showing that the U. O. P. W. after July 20, 1937, ever sought to bar- gain collectively with the respondent in behalf of the respondent's employees within the appropriate unit. Under these circumstances, because of our doubt as to whether the organization chartered as the U. O. P. W. was ever the bargaining representative of a majority of the respondent's employees in the appropriate unit, after the issu- ance to it of the charter by the Committee for Industrial Organiza- tion, we do not find the respondent's refusal to bargain with the S. T. B. A. in May 1937 to be a continuing refusal thereafter to bar- gain with the U. O. P. W. Accordingly, we will dismiss the com- 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint, as amended, in so far as it alleges that in June 1937 and thereafter the respondent refused to bargain collectively with the U. 0. P. W. For the same reason, we shall not order the respondent to bargain collectively with the U. 0. P. W. E. The disci°iminatory discharges of Rakowski and Matoslea, and the allegedly discriminatory discharges of Rice and Hartman Theodore Rakowski was hired in April 1934 to operate a comptom- eter and to perform other clerical work in the sales department of the Chicago plant. Thereafter his duties also included certain work referred to as "customer's service," consisting of answering inquiries from customers and handling customers' complaints. Rakowski was admittedly an efficient worker. He received periodic increases in salary, the last in May 1937. Rakowski became a member of the S. T. B. A. on April 20, 1937. He was one of the first of the respondent's employees to join.' There- after he solicited memberships in that organization among his fellow office workers, and was himself instrumental in persuading 24 of the original 33 employees who joined the S. T. B. A. to become members. Rakowski in other ways proved very active in the S. T. B. A. We have no doubt from the evidence before us that Rakowski's union affiliation and activities were well known to his superiors prior to his dismissal in June. Shortly after the S. T. B. A. began to organize the respondent's office employees, Rakowski was summonded by the respondent's president, as mentioned above,33 and interrogated about these activities and whether he was a member of the S. T. B. A. Although Rakowski then denied his union affiliation, we are satisfied that the respondent already knew, or, in any event, shortly there- after did know, of Rakowski's union membership and the active part he played in the organizational work of the S. T. B. A. at the plant. Not all of the employees whom the respondent illegally questioned, as heretofore set forth, concealed information about the affairs of the S. T. B. A. from the respondent. Rakowski was expected to leave for a vacation on June 11, 1937. During the preceding month part of his work, chiefly the operation of the comptometer, was transferred to another employee, one Fisli, because of the considerable amount of work Rakowski then had to perform. It was planned that while Rakowski was on his vacation the customer's service work which he did would be handled by an employee named Fajnor. Accordingly, Rakowski spent part of June 11 in giving final instructions to Fajnor about this work. As he was thus engaged Rakowski was summoned by Sales Manager Emmons. 81 See Section III, B , supra. FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1071 At the meeting which followed Emmons told Rakowski that be- cause of a "slump" in business the respondent had determined to decrease operating expenses and that in consequence Rakowski would have to be' "laid off." Emmons went on to say that he thought Rakowski might obtain a position with a mentioned com- pany in Kansas City, and that he, Emmons, would recommend Rakowski for it. Rakowski replied that, although there might have been a slight drop in the respondent's business, the amount of busi= ness still was twice what it had been when he first started working at the plant; that his own work was more than enough to keep him busy. He then protested that it was unfair to lay him off, that he had been a conscientious and hard-working employee, as the re- spondent knew. At this point Emmons interrupted and said that the respondent expected its employees to be not only hard-working but "loyal." Rakowski answered that lie did not know what Emmons meant, that he, Rakowski, had been loyal. Emmons then said that Rakowski should "think it over" and he would understand. At the hearing Emmons denied that Rakowski had protested his being laid'off or that the conversation included any discussion about Rakowski's loyalty to the respondent. Upon the whole record we are unable to give credence to this testimony of Emmons. Emmons' statement about "loyalty" had reference, we are satisfied, to Rakow- ski's membership and activities in the S. T. B. A. Such statement was consistent with the respondent's policy respecting its employees joining "outside" labor organizations. After Rakowski's "lay-off," the customer's service work was taken over by Fajnor. Fisli continued to perform the comptometer work. Fajnor was later discharged and his work was then assumed by one Nicoll, an employee in the planning department who was transferred to the sales department for that purpose. Although Rakowski ap- plied for work several times after his "lay-off," once about a week thereafter, the respondent has never recalled him to work or reem- ployed-him. The record shows that both Fisli and Fajnor withdrew from the S. T. B. A. and joined the Independent in June 1937. Nicoll ceased paying his dues to the S. T. B. A. in May and there- after did not consider himself a member. The respondent contends that poor business conditions compelled it to curtail expenses in its sales department and, accordingly, to lay off Rakowski ; and that he was selected to he laid off because he had less seniority than any other employee in that department. How- ever, there is no showing that the respondent generally followed a departmental seniority rule in its lay-offs. Rakowski clearly had seniority over clerical workers in other departments who were not laid off, and it is established that the respondent frequently shifted 1072 DECISION 7S OF NATIONAL LABOR RELATIONS BOARD its clerical help from one department to another. Moreover, the em- ployee who finally replaced Rakowski, Nicoll, not only was trans- ferred from the planning department to perform the customer's service work, but in consequence had less seniority than Rakowski had in the sales department. While it is true that in June 1937 the amount of products ordered from the respondent by its cus- tomers began to decrease, shipments of goods in June were in fact higher than in May, and the plant did more business all through 1937 than in 1934 when Rakowski was hired. We are satisfied that the respondent terminated Rakowski's em- ployment on June 11, 1937, because of his membership and activities in the S. T. B. A. The respondent was plainly opposed to its of- fice workers becoming affiliated with an "outside" labor organization. As stated above, when the S. T. B. A. commenced to organize these employees, an activity in which Rakowski played a leading role, the respondent subjected its office force to close inquiry about the development of their union and affiliation in it. When the S. T. B. A., as the duly designated representative of these employees, requested the respondent to bargain collectively with it, the re- spondent sought to avoid its duty under the Act by granting plant- wide recognition to the company-dominated Independent it had spon- sored. Prior to the upholding of the constitutionality of the Act, the respondent perpetuated and maintained a management-inspired employee representation plan. The conversation between Rakowski and Emmons on June 11 shows that the respondent had determined to rid itself finally of Rakowski. That Emmons offered to assist Rakowski procure em- ployment in another city or elsewhere does not necessarily disprove the fact that Emmons was then engaged in discriminatorily termina- ting Rakowski's employment. Emmons' reference to Rakowski's "loyalty," that is, to a loyalty measured in terms of acceptance of the respondent's policy of hostility toward outside labor organiza- tions, points to the true reason for the "lay-off." Prior to that time Emmons himself had participated in the interrogation of employees which the respondent's officers and supervisors had engaged in. His statement to Rakowski that the lay-off was occasioned by poor busi- ness was, we are convinced, a mere pretext. At that time no ap- preciable decline had occured warranting Rakowski's lay-off. Ra- kowski had worked in the plant when conditions were far worse. There is no claim that the work he had to perform had diminished because of any decline in orders. Someone would have to perform the customer's service work, and Rakowski had greater seniority than other clerical workers in the plant. The arrangements which lie had made for Fajnor to do his work in his absence, as well as FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1073 his proposed departure, afforded the respondent a convenient time to carry out its intention when it did. The respondent urges that in the second or third week of August 1937, Rakowski, in the course of a telephone conversation with the assistant sales manager, Wilson, stated that lie would "not come back to work" for the, respondent. At the time the statement, allegedly was made, charges already had been filed setting forth that the respondent had laid off Rakowski because of his union membership and activities. Under these circumstances, the Board properly may proceed to a determination of the charged unfair labor practices and to providing an appropriate remedy.34 The record shows that Wilson did not deem the statement of sufficient impor- tance to report it to his superior, Emmons, or to any other supervisor having the authority to hire, whereas Rakowski, both before and after the alleged statement, repeatedly requested the respondent, to be reinstated. The respondent also makes some point that Rakowski was laid off, not discharged, as alleged in the complaint as amended. It is immaterial whether Rakowski was laid off or discharged, for in either event he was discriminated against in regard to tenure of em- ployment, within the meaning of the Act.3S Moreover, we are sat- isfied, and find, that the respondent had no sincere intention of ever reemploying him; in fact, it permanently terminated his employ- ment on June 11. At the time of his discharge, Rakowski was earning $35 per week. Between that time and the date of the hearing he earned $27. We find that the respondent discharged Theodore Rakowski on June 11, 1937, because of his union membership and activities, there- by discriminating in regard to hire and tenure of employment, and discouraging membership in a labor organization; that by said dis- charge the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. Adolph Matoska worked for more than 10 years as a milling-ma- chine operator at the Chicago plant, employed both by the respond- ent and its predecessor. During the one and one-half years prior to his discharge on November 10, 1937, he was the only employee in his department who held the status of a master mechanic, and received the minimum wage guarantee given by the respondent to employees in that classification. There is no doubt that Matoska a' Cf. Matter of The Kelly-Springfield Tire Cwngany and United Rubber Workers of Amer- ica, Local No. 26 and James M. Reed and Minnie Rank, 6 N. L. R. B. 325, 347-8; Matter of Ingram Manufacturing Company and Textile Workers Organizing Committee , 5 N. L. R. B. 908, 911. Section 10 (a) of the Act. 36Matter of Precision Castings Company, Inc. and Iron Moulders Union of North America, Local No. 80, 8 N . L. R. B. 879, 890. 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was a capable and efficient craftsman, and the respondent does not. contend otherwise. The record shows that Matoska was a firm believer in employees. having the right to organize freely and that his superiors were aware of this. At one time he was elected a shop committeeman under the old employee-representation plan, but resigned after 6 months of service because of the ineffectiveness of the plan as a labor organi- zation. Matoska never joined the Independent and was one of the- leaders among the employees of the shop who refused to affiliate themselves with it. In May 1937 in a conversation with the shop superintendent, Mackman, Matoska indicated that he thought that the superintendent had violated the Act in encouraging the employees to join the Independent, saying "I wonder if the Wagner Law Bill means anything to you officials." In other ways Matoska made known to the management his disapproval of the Independent and his belief that respondent was violating the Act in that regard. In. the latter part of May or early in June 1937, the S. W. O. C. began to organize the employees in the respondent's shop. Matoska was one of the first to join this organization, and became very active in persuading other employees to do likewise. He distributed S. W. O. C. literature and application cards before and after work and during the lunch hours. Thereafter and before November 6, 1937, the Amalgamated was organized as a local for employees of the respondent, and those affiliated with the S. W. O. C. became members of the Amalgamated. At a meeting of the Amalgamated on No- vember 6, 1937, and 4 days before his discharge, Matoska was elected vice president of that organization. On Monday, November 8, 1937, Matoska and some 30 or 40 other employees who were members of the Amalgamated for the first time wore union buttons while at work. These buttons had been distributed to the members at the November 6 meeting and bore the following legend, "Steel Workers Organizing Committee, C. I. 0., Dues paid for Nov. 1937." On the following day, November 9, Barr came up to Matoska's machine and conversed with Matoska about his work. Matoska then was wearing his button. The record shows that only he and a few other union members wore their buttons while Barr was on the plant floor, for fear of reprisal by the re- spondent. At the hearing, Barr denied having seen Matoska's but- ton on November 9. However, Barr stood very close to Matoska in the course of their conversation, and the button which Matoska wore was red in color and quite conspicuous.36 We are satisfied from Matoska's testimony that Barr took "a good look at the but- S9 An identical button was introduced in evidence. FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1075 ton," and, in the light of the entire record, that Barr saw and under- stood its import.'? During the afternoon of the succeeding day, November 10, Matoska, while waiting a short distance from his machine for work to be as- signed him, was engaged in conversation-by one Stout, an employee, concerning the best method for performing a particular task. Stout regularly worked in another department, some 300 or 400 feet away ; at the November 6 meeting he had been elected president of the Amalgamated. While the two men were thus talking with each other, one of respondent's general foremen, Rassau, approached them. As he did so, Matoska returned to his machine. Rassau stopped at Stout's side and ordered him in vehement language to return at once to his own department. Stout did this. Rassau then went to Matoska's foreman, one Gronski, and told him, according to Gronski's testimony, "Don't let them guys stand around like that; tell them to break it up." Matoska observed this conversation be- tween Rassau and Gronski, and noticing them look in his direction, believed that they were talking about him. Accordingly, as soon as Rassau had left Gronski, Matoska went to Gronski and inquired what Rassau had said. Gronski told him the substance of the con- versation. Matoska then went to Rassau, who was walking down the plant aisle, and spoke with him. There is a conflict in the record as to what transpired thereafter. Rassau testified that Matoska came to him and asked him what business it was of his, telling the employees what to do. Another of the respondent's witnesses, an employee who saw the incident but did not hear what was said, and Rassau, testified that Matoska was angry and that he raised his hand and pointed his finger at Rassau. Matoska denied at the hear- ing that his manner was anything unusual. He stated : When John Rassau noticed me he looked at me. I said, "say, John, what is wrong?" He shouted at me, "Plenty." I said, "Well, that is not a proper answer." He said, "You are supposed to stay on your job." I said, "Well, that is exactly what I am doing, even more than that." I said, "Furthermore, I understand you are supposed to watch your boys on your side." He said, "What? You want me to go to Barr and get you a discharge card?" I said, "Well, John, that is your privilege. If you feel that way about it, go ahead." And I went to my machine. ' There was some testimony by Matoska that Barr took down the names of employees who were wearing ,S. W. 0. C. buttons . It appears that Matoska was confused about this matter. Barr testified that he seldom went into the plant without a memorandum pad upon which he noted his observations , but that he had never noted on this pad the names of those wearing buttons, and we accordingly so find. 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Following this occurrence, Rassau reported the matter to Barr. He testified that he merely told Barr about the incident and was em- phatic that he did not recommend Matoska's discharge. He also testified that Barr nevertheless decided within a "couple of minutes at the most" that Matoska should be discharged, and that no further conversation was had about the subject. Barr, oHi the other hand, testified that he had several conferences both with Rassau and with the superintendent., Mackman, about the matter, consuming over an hour in time, that he interrogated the employee whose testimony has been set forth above, and that it was not until just before quitting time that he, Barr, finally determined to discharge Matoska. On the same day, November 10, at the end of his work shift, Matoska was called to Barr's office and there discharged by Barr. Barr stated that the reason therefor was "insubordination." Ma- toska replied that he would seek reinstatement. No other conversa- tion was had. Barr neither at that time nor at any time prior or subsequent thereto discussed with Matoska the incident with Rassau which the respondent here contends brought about Matoska's dis- charge; Barr never sought or inquired into Matoska's version thereof; Barr did not consult with Gronski, Matoska's foreman, about it. The next morning Matoska returned to the plant to obtain his tools. He was met at the outer office by Barr, escorted by Barr to the door which led into the shop, and admonished to talk with no employees while gathering his tools. We do not think it necessary to determine to what extent the con- versation between Matoska and Rassan was a heated one, and where the fault lay. We are satisfied, and find, that the occurrence was not the true cause of Matoska's discharge. It is significant that Rassau who reported the incident neither expressed an opinion, nor recommended to Barr, Matoska's dismissal. We find that the in- cident, like the lay-off of Rakowski, was merely a pretext seized upon by the respondent, through Barr, to rid itself of another employee who had shown himself unwilling to yield to its policy of hostility toward "outside" labor organizations. We do not believe that an excellent workman, an old employee of many years experience at the Chicago plant, would have been ousted from his position without an opportunity to be heard and for a comparatively unimportant mat- ter were the actual reason the above-mentioned "insubordination." As stated heretofore, within 4 days previous to his discharge Matoska had been elected vice president of the Amalgamated. He was a strong, fearless leader. He wore his button in the presence of Barr, made known his views about the Independent to the superin- tendent, and in general indicated. his disapproval of the respondent's violations of the Act. The respondent's contention to the effect FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1077 that its failure to discharge other members of the Amalgamated shows that Matoska's was not in contravention of the Act has no weight. The lesson conveyed to its employees by the use of its economic power in Matoska's instance would have the desired effect. At the time of his discharge Matoska was compensated by the re- spondent for his services at the rate of 97 cents an hour and was, guaranteed a minimum of $38.80 a week. He desires to be reinstated. Matoska had earned no money since his discharge. We find that the respondent on November 10, 1937, discharged Adolph Matoska for the reason that he joined and assisted the Amal- gamated, thereby discriminating in regard to the hire and tenure of employment of said Matoska and discouraging membership in a labor organization; that by said discharge the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. S. Rice had been employed since 1930 in the office of the Chicago plant at credit and collection work. He joined the S. T. B. A. and was an active member. After the charter of the S. T. B. A. was revoked, he joined the U. 0. P. W. He is a skilled, competent em- ployee. In the latter part of November 1937 Rice was injured in Kalamazoo, Michigan, while on work for the respondent, and was confined to a hospital and later to his home pending his recovery. While recovering and on or about January 4, 1938, he received a letter from the respondent informing him that his services were, no longer required. The respondent contends that Rice was discharged because Fagan, its secretary, had taken over Rice's duties himself, and, consequently, Rice was no longer needed. The record as a whole substantiates this contention. While it is true that Fagan's questioning of Rice in the past about Rice's union activities and membership in the S. T. B. A., which Rice found it necessary to deny, casts doubt upon the conten- tion of the respondent in the matter, we cannot say that a discrimina- tory discharge in Rice's case was shown by the record. Accordingly, we will dismiss the complaint of December 30, as amended, in so far as it alleges that the respondent engaged in unfair labor practices with respect to Rice. Raymond Hartman began work with respondent in 1936 and later was transferred to the timekeeping department as a pay-roll clerk. He joined the S. T. B. A. and U. 0. P. W. but was not particularly active in either organization. He also joined the Independent. Hartman was first discharged in June 1937, but was later rein- stated on the night shift. He again was discharged in November 1937. At this time, he was informed that his discharge was "due to lack of work and other reasons." The Trial Examiner has recom- 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mended that the allegations of the complaint of December 30, as amended, as they relate to Hartman, be dismissed. We agree with the Trial Examiner's recommendation, and his ruling in that respect is hereby affirmed. We will dismiss the complaint of December 30, as amended, in so far as it alleges that the respondent engaged in unfair labor practices with regard to Hartman. IV. THE EFFECT OF TIIE 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 several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It is essential to an effectuation of the purposes and policies of the Act that the respondent be ordered to cease and desist from certain unfair labor practices in which we have found it to have engaged, and in aid of such order and as a means of removing and avoiding the consequences of such practices that the respondent be directed to take certain affirmative action, more particularly de- scribed below. We have found that the respondent in many ways has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by the Act. It is plain that the respondent must cease and desist from such practices, and we shall so order. We also have found that the respondent dominated and interfered with the formation and administration of the Independent and con- tributed support to it. The respondent likewise must cease and de- sist from such practices. Moreover, since the effects and conse- quences of the respondent's support, domination, and interference with respect to the Independent, and its continued recognition of the Independent as a bargaining representative, constitute and will constitute a continuing obstacle to the free exercise by the respond- ent's employees of their right to self-organization and to bargain collectively through representatives of their own choosing, we shall order the respondent as a means of removing this obstacle to with- draw all recognition of and to disestablish the Independent as the representative of any of its employees for the purpose of dealing with the respondent in respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment. We have found that the respondent entered into an agreement with the Independent covering wages, hours of employment, and working FOOTE BROTHERS. GEAR AND MACHINE CORPORATION 1079 conditions of its employees. There is no showing that that contract has terminated. It is necessary in order to free the respondent's em- ployees completely from the effects and influence of the existence of a company-dominated organization in their midst, and to assure them of the rights guaranteed by the Act, that such contract and 'all other contracts existing between the respondent and the Independent relat- ing to wages, hours of employment, and other working conditions, be given no effect by the respondent.,"' Therefore, we shall order the re- spondent to cease giving effect to or performing any contract or ar- rangement now existing, and to refrain from entering into, renewing, or extending any contract, relating to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employ- ment, with the Independent. The contract of May 28, 1937, between the respondent and the Inde- pendent provided, as heretofore stated, for a check-off of dues to the Independent.39 For reasons which we have stated in previous deci- sions,40 and to restore the status quo, the respondent will be required to reimburse its employees for all sums of money which the respond- ent has deducted from their wages under a check-off of dues to the Independent, whether such check-off was pursuant to that contract or any %ther contract or arrangement. We also have found that the respondent refused to bargain col- lectively with the exclusive representative of its employees in an appropriate collective bargaining unit. We shall order the respond- ent to cease and desist from such unfair labor practices. Finally, we have found that the respondent discriminatorily dis- charged Theodore Rakowski and Adolph Matoska. We shall require the respondent to offer these two persons immediate and full rein- statement to their former or substantially equivalent positions, with- out prejudice to their seniority and other rights and privileges, and to make them whole for any loss of pay they have suffered by reason of their discharges, as aforesaid, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discharge, viz, June 11, 1937, and November 10, 1937, respectively, to the date of the offer of reinstatement, less his net earnings 41 during said period. $'Hamilton-Brown Shoe Company, a corporation v. National Labor Relations Board, 104 F. (2d) 49 (C. C. A. 8th) ; National Labor Relations Board v. Staekpole Carbon Company, 105 F. (2d) 167 (C. C. A. 3d). m See Section III, C, supra. 40 Matter of The Heller Brothers Company of Newcomerstown and International'Brother- hood of Blacksmiths, Drop Forgers, and Helpers, 7 N. L. R. B. 646; Matter of Lone Star Bag and Bagging Company and Textile Workers Organizing Committee, 8 N. L. R. B. 244; Matter of West Kentucky Coal Company and United Mine Workers of America, District No. $3, 10 N. L. R. B. 88; Matter of Williams Coal Company and United Mine Workers of America, District No. 23, 11 N. L. R. B. 579. 13 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- 190935-40-vol. 14-69 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. United Office and Professional Workers of America, Local No. 24,42 Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 2048, and Independent Union of Gear Workers are labor organizations; and Stenographers, Typists, Book- keepers and Assistants Union No.. 20074, and Chicago Office Workers Union were labor organizations or was a labor organization'43 within the meaning of Section 2 (5) of the Act. 2. By dominating and'interfering with the formation and admin- istration of Independent Union of Gear Workers, and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Theodore Rakowski and Adolph Matoska, and thereby dis- couraging membership in a labor. organization, the respondent has engaged in ' and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. The office and clerical employees of the respondent at its Chi- cago plant, excluding engineers, draftsmen, outside salesmen, and supervisors, constituted throughout May 1937, including May 14, 17, and 28, 1937, a unit appropriate for the purposes of collective bar- gaining, within the meaning of Section 9 (b) of the Act. 5. Stenographers, Typists, Bookkeepers and Assistants Union No. 20074, throughout May 1937, including May 14, 17, and 28, 1937,.was the exclusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. . - 6. By refusing during May 1937, including May 14, 17, and 28, 1937, to bargain collectively with Stenographers, Typists, Bookkeep- ers and Assistants Union No. 20074, as the exclusive representative of all its employees in such unit, the respondent engaged in unfair labor practices, within the meaning of Section 8 (5) of the Act. 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 Federal , State, county, municipal , or other government or govern- ments which supplies the funds for said work-relief projects. 4a See footnote 6; also, Section III, D , 4, supra. 43 See footnote 6; also, Section III, D, 4, supra. FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1081 7. By interfering with, restraining, and coercing its employees in the exercise,of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 9. The respondent has engaged in no unfair labor ,practices with respect, to bargaining collectively with United Office and Professional Workers of America, Local No. 24, after June 1, 1937, nor in regard to the hire and tenure of employment or terms and conditions of employment of S. Rice and Raymond Hartman, as alleged in the complaint of December 30, as amended. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Foote Bros. Gear and Machine Corporation, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Inde- pendent Union of Gear Workers or the formation or administration of any other labor organization of its employees, or contributing support to Independent Union of Gear Workers or to any other labor organization of its employees; (b) Encouraging or discouraging membership in any labor organ- ization of its employees, including Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 2048, by dis- charging or refusing to reinstate employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment; (c) Giving effect to or performing any contract or arrangement now existing, and refrain from entering into, renewing, or extending any contract or arrangement, with Independent Union of Gear Workers, relating to grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment; (d) Refusing to bargain collectively in respect to grievances, labor disputes, rates of pay, wages, hours of employment, or other condi- tions of employment, with any labor organization of its employees not established, maintained, or assisted by any action .defined in the Act as an unfair labor practice, and designated and selected as a representative for the purposes of collective bargaining with it by a majority of the employees in a unit appropriate for such purposes; 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) 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 con- certed activities, for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Independent Union of Gear Workers as the representative of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment; and completely disestablish Independent Union of Gear Workers as such representative; (b) Pay to each person in its employ after May 28, 1937, an amount of money. equal to the sum of all dues which it has deducted from the wages, salaries, or other earnings of such person since May 28, 1937, on behalf of Independent Union of Gear Workers; (c) Offer to Theodore Rakowski and Adolph Matoska and to each of them, immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority and other rights and privileges; and make them whole for any loss of pay they have suffered by reason of their discriminatory discharges, by payment to each of them of a stun of money equal to that which he normally would have earned as wages from the date of his discharge, viz, June 11, 1937, and November 10, 1937, respectively, to the date of the respondent's offer of reinstatement, less his net earnings 44 during such period; deducting, however, from the amount otherwise due to each of the said employees monies received by said employee during said period for work performed upon Federal, State, county, munici- pal, or other work-relief projects; and pay over the amount so de- ducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Immediately post notices in conspicuous places throughout its plant and office and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and de- sist in the manner set forth in 1 (a), (b), (c), (d), and (e) and that it will take the affirmative action set forth in 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. "See footnote 41. FOOTE BROTHERS GEAR AND MACHINE CORPORATION 1083 AND IT IS FURTHER ORDERED that the complaint of December 30, as amended, in so far as it alleges that the respondent engaged in unfair labor practices by refusing to bargain collectively after June 1, 1937, with United Office and Professional Workers of America, Local No. 24, or engaged in unfair labor practices in respect to S. Rice and Ray- mond Hartman, be, and it hereby is, dismissed. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.