Mason Manufacturing Co.

In the Matter Of MASON MANUFACTURING COMPANY and UNITED FUR- NITURE WORKERS OF AMERICA LOCAL No. 576 Case No. C-759-Decided September 15, 1939 Furniture Manufacturing Industry-Interference, Restraint, or Coercion- Discrimination: termination of employment due to employees'. refusal to accept unlawfully imposed condition of employment that they become members of a particular labor organization; no merit in contention that respondent was not responsible for the termination of employment ; no merit in contention that the discharges were justified by alleged oral closed-shop agreement satisfying the proviso of Section 8 (3) of the Act-Closed-Shop Contract: findings of State court made in a private suit to which the Board was not a party, not con- clusive-Reinstatement Ordered-Back Pay: awarded. Mr. William R. Walsh and Mr. Charles M. Brooks, for the Board. Cupp & Cupp, by Mr. J. Wesley Cupp and Mr. George W. Hender- son, of Los Angeles, Calif., for the respondent. Mr. A. L. Wirin, of Los Angeles, Calif., for Local 576. Rosecrans & Emme, by Mr. Leo M. Rosecrans and Mr. Otto J. Emme, of Los Angeles, Calif., and Mr. J. A. Padway and Mr. Henry Kaiser, of Washington, D. C., for Local 15. Mr. Bernard W. Freund, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Charges and amended charges having been duly filed on April 1 and 22, 1938, by United Furniture Workers of America, Local No. 576, (C. I. 0.), herein called Local' 576, the National. Labor Rela- tions Board, herein called the Board, by Towne Nylander, Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint, dated May 13, 1938, against Mason Manufac- turing Company, Los Angeles, California, herein called the respond- ent, 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 National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, and notice of a hearing thereon, were duly served upon 15 N. L. R. B., No. 38. 295 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent, Local 576, and Upholsterers, Carpet & Linoleum Mechanics Union,' Local 15 (A. F. of L.), a labor organization, herein called Local 15. The complaint alleged that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Sec- tion 8 (1) and (3) of the Act by discharging and locking out the 13 employees in its upholstery department 2 on or about March 30, 1938, and thereafter refusing to reinstate them, for the reason that they had joined and assisted Local 576 and had engaged in con- certed activities for the purpose of collective bargaining and other mutual aid and protection. The complaint further alleged that the respondent had engaged in and was engaging in unfair labor prac- tices within the meaning of Section 8 (1) of the Act (1) by entering into a purported contract in writing with J. W. Buzzell and Charles L. Yost on or about March 30, 1938, by which, among other things, the respondent recognized Local 15 as sole bargaining agency for its members in the respondent's upholstery departments, although on that date neither Buzzell, Yost, nor Local 15 represented any em- ployees in those departments, and (2) by urging, persuading, and warning its employees, on or about March 30, 1938, and at other times up to the date of the complaint, to refrain from remaining members of Local 576, and threatening them with discharge if they became or remained members thereof. On May 23, 1938, the respondent filed an answer to the complaint, in which it denied the Board's jurisdiction in the case. The respond- ent denied that it discharged or locked out or refused to reinstate any of the employees in its upholstery department as alleged in the coin- plaint, and alleged that any acts by which any such employees were prevented from coming to or continuing their work were committed by persons over whom the respondent had no direction or control. It further alleged that none of the said employees was eligible for employmelit by the respondent on March 30, 1938, because all of them had ceased to be members of Local 15, with which organization the respondent had a contract requiring it to employ only members in good standing of Local 15 in its upholstery department. The re- spondent alleged that it was, and at all times had been, willing to reinstate any of the employees named in the complaint, provided that they were members in good standing of Local 15. The respondent admitted that, on or about March 30, 1938, it signed the written in- strument described in the complaint as a purported contract in writ- 1 According to the General Laws of this organization, its correct name Is "Upholsterers', Furniture, Carpet, Linoleum & Awning Workers' International Union of North America." 2 Hazel Fonceca, William C. Fisher, Arthur E. Feather, Louis M. Mueller, Winona Chalt, Rosalie Archambault, Lupe Tellez, Mike Mastro, Joe Leon, Russell White, Lowell E. John- son, Jacob Levin, and Manuel. Senteno. MASON MANUFACTURING COMPANY 297 ing, and further admitted that, on that date, none of the employees in its upholstery department was a member in good standing of Local 15; it denied, however, that it thereby engaged in an unfair labor practice within the meaning of the Act. The respondent denied that it urged, persuaded, or warned its employees to refrain from. remaining members of Local. 576, or threatened them with' discharge if they became or remained members thereof. On the same day, May 23, 1938, the respondent filed a motion that the hearing be continued to June 3, 1938, or thereafter. On May 24, 1938, the Regional Director issued an order denying the respondent's motion for continuance of the hearing. On May 26, 1938, Local 15 filed a motion to intervene in the "proceedings, together with a state- ment in support thereof. Pursuant to notice, a hearing was held at Los Angeles, California, on May 26, 27, and 31, and June 1, 2, and 7, 1938, before Jesse E. Jacobson, the Trial Examiner duly designated by the Board. At the commencement of the hearing, the Trial Examiner, after granting a notion by Local 576 to strike a portion of the statement filed by Local 15 in support of its motion to intervene in the proceedings, granted Local 15's motion to intervene. The Board, the respondent, Local 576, and Local 15 were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the. issues was afforded all the parties. The hearing was interrupted by-two continuances of 4 and 5 days, respectively, the first granted by the- Trial Examiner upon motion by' the respondent, and .the second granted upon motion by counsel for the Board, in which the respond- ent joined. On 'the first day of the hearing, the Trial Examiner granted in part a motion by counsel for the Board, filed that day, to strike certain portions of the respondent's answer.. At. the conclusion of the Board's case, he granted motions by counsel for the Board to dismiss the complaint with prejudice as 'to Mike Mastro and without preju- dice as to Louis Mueller,3 and to amend the complaint to conform to the proof. The Trial Examiner reserved ruling upon a motion by respondent to dismiss the complaint on the grounds that the Board lacked jurisdiction and that the evidence was insufficient to support the allegations of the complaint. In his Intermediate Report, he denied the motion. Upon motion made by. the. respondent during the course of the hearing, the Trial Examiner allowed. in evidence, subject to the right of any party. to move to strike portions thereof or to produce additional evidence with- respect to' the matters covered 2 The complaint was also dismissed; without .prejudice as to Hazel Fonceca at this time. On the last day of the hearing, without objection , the name of Hazel Fonceca was restored to the complaint upon motion by"counsel for the Board. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereby, a partial transcript of oral testimony taken in April 1938 before the Superior Court of the State of California in and for the County of Los Angeles, in the case of Mason Manufacturing Com- pany, a corporation v. United Furniture Workers of America, Local 576, an unincorporated association, etc., Case No. 426655, which was instituted by the respondent on or about April 1, 1938, for the pur- pose of securing an injunction against the picketing of its plant. At the close of the hearing, and in his Intermediate Report, the Trial Examiner granted in part and denied in part motions by counsel for the Board to strike portions of the said partial transcript. During the course of the hearing, the Trial Examiner made other rulings on motions, and on objections to the admission of evidence. The Board has reviewed the various rulings of the Trial Examiner, and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 13, 1938, the Trial Examiner filed his Intermediate Report, a copy of which was duly served upon all parties, in which he found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act, by discharging, lock- ing out, and refusing to reinstate Hazel Fonceca, William C. Fisher, Arthur E. Feather;-Winona Chait, Rosalie Archambault, Lupe Tellez, Joe Leon, Russell White, Lowell E. Johnson, Jacob Levin, and Manuel Senteno, as alleged in the complaint, and by otherwise inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act; and recommended that the respondent cease and desist therefrom, offer immediate rein- statement, with back pay, to said employees, and take certain other affirmative action in order to effectuate the policies-of the Act. Ex- ceptions to the Intermediate Report were filed by the respondent and by Local 15. On July 29, 1938, the respondent submitted to the Board the memorandum opinion of Judge W..Turney Fox, handed down on July 26, 1938, in the case of Mason Manu f acturing Company, a cor- portation v. United Furniture Workers of America Local No. 576, an unincorporated association, et al., supra, with a request that it be filed in -these proceedings..,, This request-is, hereby: granted. On February 23, 1939, at the request of the respondent and of Local 15, and pursuant to notice and amended notice duly served upon all the parties, a hearing for the purpose of oral argument was conducted before the Board at Washington, D. C. Counsel for the American Federation of Labor appeared in behalf of Local 15 and participated in the hearing. No other appearances were made. The Board has considered the exceptions to the Intermediate Report and, except in so far as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. MASON MANUFACTURING COMPANY 299 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Mason Manufacturing Company, a California corporation, with- its principalI place of business at Los Angeles,. California, is engaged in the manufacture of upholstered and non- upholstered furniture, including bedroom, living-room, and dining- room furniture. On March 30, 1938, the respondent employed ap- proximately 122 production employees in its plant, of whom 13 were employed in the upholstering department and 109 in other depart- ments of the plant. During the year 1937, the respondent sold $530,650.51 worth of furniture, consisting of $127,497.57 worth of upholstered furniture and $403,152.94 worth of non-upholstered furniture. Thirty-three and one-half per cent of the respondent's total sales of furniture in, 1937, or $177,607.01 worth, consisting of $38,973.75 worth of uphol- stered furniture and $138,633.26 worth of non-upholstered furniture, were shipped by the respondent to points outside California. Dur- ing.-the, year 1936, the respondent sold $428,506.32 worth of furniture of which $113,296.88 worth, or 26.4 per cent, was shipped outside California. In the course of its operations, the respondent purchases lumber;. paints; mirrors; sofa and chair frames; fabrics for covering uphol- stered furniture; springs, webbing, and cotton for filling in between the frames and the covering fabrics in upholstered furniture; and? miscellaneous items, including nails, screws, bolts, abrasive paper,. wiping rags, paper, twine, glue, dowels, sockets, globes, lacings, newspapers, and excelsior. During the year 1937, the respondent expended a total of $274,052.37 in the purchase of such materials. Of this amount, $28,032.52 or 10.2 per cent, was spent for materials. which were shipped to the respondent from points outside California. During the year 1936, the respondent purchased $216,863.05 worth of such materials of which amount $19,716.75 worth, or 9.1 per cent, was -obtained- from, outside California. The -testimony of - Lloyd Y. Schmerige'r, the respondent's secretary and treasurer, indicated, more over, that a substantial proportion of the. materials obtained by the respondent from within California originated outside California. II. THE ORGANIZATIONS INVOLVED United Furniture Workers of America, Local No. 576, is a labor organization, affiliated with the Committee for Industrial Organiza- .300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, herein called the C. I. 0., admitting to its membership generally .all employees engaged in the production of furniture in and around Los Angeles, California. Upholsterers', Furniture, Carpet, Linoleum & Awning Workers' .International Union of North America, Local No. 15, is a labor organ- ization, affiliated with the American Federation of Labor, herein -called the A. F. of L., admitting to its membership generally all em- ployees engaged in the production of upholstered furniture in and .around Los Angeles, California. Local 15 is also affiliated with the Los Aligeles Central Labor Council, an association of local unions .affiliated with the A. F. of L. III. THE UNFAIR LABOR PRACTICES A. The chronology of events Local 15 was chartered about 1900 and for many years was ap- parently the only labor organization of employees engaged in the production of furniture in Los Angeles. Its membership was at all times limited to employees engaged in the production of upholstered furniture. In 1932 or 1933, two other labor organizations were or- ganized in Los Angeles, one a local of the Trade Union Unity League 4 and the other an unaffiliated organization known as Independent Furniture Workers Union, Local No. 1. Both organizations ad- mitted both upholsterers and non-upholsterers to their membership. In 1934 Independent Furniture Workers Union, Local No..1, was chartered by United Brotherhood of Carpenters and Joiners of America, affiliated with the A. F. of L., as Furniture Workers Union Local No. 1561, herein called Local.1561, with jurisdiction generally over all employees engaged in the production of furniture in Los Angeles. On September 26, 1935, the respondent posted on its bulletin board a notice which announced that on and after September 26, 1935, the respondent would employ only members in good standing of Local 1561. The notice was signed by Frank G. Mason, the respondent's president, by the president and the business agent of Local 1561, and by the shop chairman of Local 1561 in the plant. A representative .of the United Brotherhood of Carpenters and Joiners of America signed the notice as a witness. Inasmuch as Local 15 and Local 1561 both admitted upholsterers to their membership, a jurisdictional dispute arose between. the two organizations. On October 2, 1935, Local 1561 advised the respond- ent that it was "releasing the Upholsterers temporarily in your shop, who do not belong to this Union, pending a decision from the Ameri- r I The local was dissolved in 1935. MASON MANUFACTURING COMPANY 301 can Federation of Labor." At the time, all the upholsterers em- ployed by the respondent were members of Local 15. No final de- cision was at any time made by the A. F. of L. relative to the juris- dictional dispute. Frank Mason, the respondent's president, testified in effect that following receipt by. the respondent of the letter of October 2, 1935, from Local 1561, all parties proceeded on the basis that the respondent would employ only such upholsterers as were members of Local 15. The evidence establishes, however,. that be- tween the fall of 1935 and the spring of 1936, the respondent em- ployed a number of upholsterers who were not members of Local 15 and who did not join Local 15 until the fall of 1936. Although Mason testified that the, respondent entered into a con- tract with Local 1561 in the fall of 1936, the record does not disclose the terms of any such contract. The record does disclose, however, that a written agreement, effective as of September 1, 1937, and to remain in force until August 31, 1938, was signed by the respondent and Local 1561. The agreement provided, among other things, that the respondent would employ only members in good standing of Local 1561, exclusive of office workers, teamsters, and upholsterers. On September 8, 1936, Ernest M. Bruner, business agent of Local 15, sent to Mason a proposed agreement, effective as of September 1, 1936, and to be in force until August 1, 1937, or "until a new contract is entered into," between the respondent and Local 15. The proposed agreement provided, among other things, that the respondent would employ only members of Local 15 "in the Upholstering and Bedding Departments and/or such other departments of their shop or shops as members of this union are ordinarily employed that come under the jurisdiction of" Local 15. There was transmitted at the same time a covering letter asking that immediate action be taken on the agree- ment. The respondent did not, however, sign the proposed agreement. Mason testified at the hearing that he did not sign the agreement be- cause he was not asked to sign it and that he had reached an oral agreement with Bruner in September 1936 that the respondent "wasn't to employ anybody but what belonged to the Union, in. good standing, and the shop all had to be hired through the Union." On the other hand, Bruner testified that Mason refused to sign the agreement, stating that "if the other manufacturers signed it, he would sign it."' Local 15 was at the time in question negotiating with other manufac- turers in Los Angeles with respect to agreements similar to that pro- posed to the respondent. Bruner also testified that Mason never definitely agreed to employ only members of Local 15 as upholsterers. On September 25, 1936, Mason met with Bruner and the employees in the upholstery department, and reached an agreement with them concerning-the wages to be paid the various employees. There was no 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussion at this time relative to the employment only of upholsterers belonging to Local 15. Mason testified that the reason there was no discussion on such point was that, "That was taken for granted." Between the fall of 1936 and the fall of 1937, the respondent hired approximately six new employees in its upholstery department, all of whom were members of Local 15. In August or September.1937, Local 15 submitted to the respondent a proposed contract, the terms of which are not disclosed in the record. Mason, the respondent's president, indicated at the time that, with the exception of certain of the wage provisions, the terms of the contract were acceptable to him. Mason testified that he informed Jacob Levin, a, member of the negotiating committee of Local 15, that he would "sign the contract that the majority of . . . the shops that you -are working with sign when you get down to an agreement." Local 15 was at the time negotiating with various manufacturers in Los Angeles and with the Upholstering Manufacturing League, herein -called the League, an association composed of a number of manufac- turers of upholstered furniture in Los Angeles. Although the re- spondent was not .a member of the League, Mason attended one or more of the conferences between representatives of Local 15 and rep- resentatives of the League and at one of the conferences in September 1937 remarked to John Murray, a' representative of the United Brotherhood of Carpenters and Joiners of America, that "he had reached an agreement with the upholsterers already to the effect that whatever the others did he would do." About September 20, 1937, Mason met with a shop committee of the employees of the upholstery department, and granted temporary wage increases to most of the employees in that department. Mason testified that he took this action because Local 15 and the League were taking "so long in setting their wage scales." About the middle of October 1937, after Local 15 had accepted the League's wage proposals and had authorized its negotiating commit- tee to "settle the rest of the agreement to the best of their ability," Walter Westfall, business agent of Local 15, submitted to -Mason a second proposed contract and requested that he sign it. The proposed contract, substantially identical with that subsequently signed by the League and Local 15 on November 1, 1937, provided among other things for recognition of Local 15 as the sole bargaining agency for its mem- bers in all the upholstering departments and its allied crafts; that in the event Local 15 could not furnish sufficient help when needed, the employer might advertise and hire from other sources, providing those hired obtained temporary work permits from Local 15; that "all present employees of the employer and all employees hired in the future who have worked one week or more and who have become MASON MANUFACTURING COMPANY 303 members of the union (Local 15) are steady employees. All work :shall be divided among all steady employees as nearly equally as pos- sible, regardless of seniority, in- order to avoid discrimination." Ac- ^cording to its terms, the proposed agreement was to remain in full force and effect from October 1, 1937, until August 1, 1938, and from year to year thereafter in the absence of written notice given by either party on or before July 1 of any year. At the time Westfall submitted the proposed contract to Mason, the latter objected to the scale of wages set forth therein and con- tended that the respondent should be permitted to pay lower hourly rates inasmuch as its employees were paid on a day-work basis rather .than on the piece-work basis used by most of the other concerns in Los Angeles. Westfall suggested that Mason sign the proposed agree- ment, with the understanding that further discussion be had with the view to arriving at a lower wage scale. Westfall expressed his belief that the executive board of Local 15 would approve a lower wage scale. Mason indicated his desire first to ascertain what action the League took on the agreement before it as."his decision hinged upon whatever they were going to do." About October 18, 1937, either on the day Westfall submitted the proposed contract to Mason or a day or two later, Westfall and the upholstery-department shop committee conferred with Mason relative to the matter of wages. Levin, a member of the shop committee, testi- fied that before the conference with Mason "Westf all told us he had come to an agreement with Mr. Mason on everything that agrees with everyone of us but on the question of wages, Mr. Mason does not want to pay the wages that is provided in there; that he claims he is entitled, to a lower scale of wages than the rest, and he told us that they can't settle on that scale of wages, because that would be contrary to the union, but if you fellows will agree amongst yourselves-I am not tell- ing you anything-what scale of wages you are willing to work for, I think I can show you-slip it through for the union and get those wages." It was stipulated at the hearing that at the - conference on October 18, Mason and the shop committee reached an agreement with regard to wages and that such wages differed from those set forth in the agreement submitted by Westfall to Mason. It was also stipulated that "that agreement as to wages was an oral agreement, but the time books of the Respondent will show that those wages were paid." Dur- ing the conference, there was no discussion of the proposed agreement submitted to Mason by Westfall. However, Westfall informed Mason that "if we could get the agreement signed, there was a possibility of this wage scale being accepted by the Union" and that he "believed the wage scale-the one that was offered-would be accepted under a signed agreement." . 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly after the conference with Mason, Westfall and the chair- man of the shop committee submitted the scale of wages which had been agreed upon at the conference to' the executive board of Local 15 for approval, and discussion was had ' as to whether it should' be accepted or rejected. Westfall testified that, to his knowledge, the wage scale was never approved by the executive board of Local 15 or submitted to Local 15 for ratification. He further testified that "due to the other difficulty we were having in the industry, it was, the best offer that was made, and it just dragged along and was never taken up again." Levin testified that at a meeting of Local 15 "about the 25th of November-of October, some place around there" Westfall' announced that an agreement had been reached with Mason "to the satisfaction of the workers in the shop." He further testified that "there was no details given and no questions were asked and that was the general report from all the shops and when the motion was made to approve it, it was carried and there was no details, but that was the substance of that report that was made." Several other persons who were members of Local 15 at the time in question testified, how- ever, that they were unaware of any such announcement being made at a meeting of Local 15 or of the wage scale agreed upon at the conference on October 18 being submitted to Local 15 for approval. We conclude that neither the executive board of Local 15 nor Local 15 approved the wage scale or any agreement. A day or two after the October 18 conference, Feather, a member of the shop committee, approached Mason and asked for the proposed contract which Westfall had left with him. Mason did not, however, comply with Feather's request. Mason 'testified at the hearing that he was busy at the time- Feather approached him and that he told Feather to wait until the next day. Shortly after he saw Mason, Feather informed Westfall that Mason had not signed the contract and "was not ready_ to turn it over." Westfall so stated in a report to the executive board of Local 15. Mason testified at the hearing that while alone in his office, lie had signed the proposed contract which Westfall had left him and that after signing it, he had placed the contract in his desk drawer where it remained until Local 15 inquired about it in February or. March 1938. His testimony as to when he signed the document is vague and contradictory, but tends to point to a time several days after the October 18 conference. At a meeting of Local 15 held on January 20, 1938, and attended by approximately 400 to 450 members, the secretary of Local 15 was "instructed to call a notified meeting for Tuesday, Jan. 25, 1938, to vote on the question of affiliating with the C . I. 0." The following day notices of such meeting were sent to all members of Local 15 MASON MANUFACTURING COMPANY 305 whose addresses were available, about 1,100 in all. The total mem- bership of Local 15 at the time was approximately 1,300 persons. At the meeting of Local 15 held on January 25, 1938, approxi- mately 300 persons were in attendance. A standing vote was taken .at the meeting on the question of "affiliating with C. I. 0." The vote was 230 for such affiliation and 61 against such affiliation. It was decided that the "new local" resulting from the change in affiliation should temporarily be designated as Local No. "576, affiliated with the Committee For Industrial Organization." At the close of the meeting, X58 persons signed C. I. O. application cards. All the 13 employees in the respondent's upholstery department became members of Local 576 on or about January 25, 1938, and there- after wore, while at work, buttons bearing the letters "C. I. 0." .From that time until after March 30, 1938, all of them continued to be members of Local 576. By letter dated February 4, 1938, Westfall informed the respondent that "the former members of the Upholsterers' Union, Local No. 15, A. F. of L., have affiliated themselves to the United Furniture Workers of America, C. I. 0., Local No. 576" and that "the Agreement as existed between you and Local No. 15 will now continue in full force ,and effect between you and the United Furniture Workers of America, affiliated to the Committee for Industrial Organization, Local No. 576 for the full life of the Agreement." It was stipulated at the hearing that letters similar in content to Westfall's letter to the respondent were mailed to all other furniture manufacturers in the Los Angeles area. About February 7, 1938, the United Furniture Workers of America, .affiliated with the C. I. 0., issued a charter to Local 576, granting it jurisdiction coextensive with that which had been exercised by Local 15 and Local 1561. Beginning about February 15, 1938, a number of meetings were held by persons who desired to retain their membership in Local 15 and who took the position that the status of Local 15 was not affected by the vote on January 25, 1938, relative to affiliation with the C. I. O. The various meetings were each attended by approximately 50 to 75 persons. About the middle of March 1938, the respondent needed the services for several days of two upholsterers in addition to the 13 permanent' employees in the upholstery department. Following the past practice in hiring new employees, Butts, the foreman of the upholstery depart- ment, requested a member of the shop committee to obtain two tempo- rary employees. Shortly thereafter, two members of Local 576 re- ported for work with work slips signed by Garcia, business agent of Local 576. The work slips were handed to Butts who turned them 306.. DECISIONS OF NATIONAL LABOR RELATIONS BOARD over to the shop chairman. After the two men had begun to work, Mason noticed that one of the men wore a C. I. O. button. Mason thereupon telephoned Charles Yost, a leader of the group of employees who continued to meet as Local 15. Shortly prior thereto, Yost had notified Mason that Local 15 was prepared to furnish upholsterers to.. the respondent. Yost informed Mason that the employment of the two men was in violation of the respondent's agreement with Local 15 but that Local 15 would "let it ride for a day or so." Mason then instructed Butts to discharge the two men as soon as they had com- pleted the work for which they had been employed. Butts carried out these instructions. About this same time , Yost and Power, acting president of Local 15, asked Mason what action had been taken with regard to the contract which Westfall had left with him in October 1937. Mason took from his desk the document which bore his signature but not that of Local 15. As noted above, Mason allegedly affixed his signature to the doc- ument about the latter part of October 1937. Mason expressed to Yost and Power his willingness to live up to the "agreement," but stated "that the union ought to have some responsibility" and ex- pressed a desire that Yost and Power also sign the. document. Yost replied to the effect that he felt that he should not sign inasmuch as Westfall was the business agent of Local 15 when the negotiations relative to a contract were being carried on and asked Mason whether, if the agreement was rewritten, he would object to the inclusion of the Los Angeles Central Labor Council as a party. Mason expressed himself as favorable to Yost's suggestion. Several days later, having discussed the situation with J. W. Buzzell, secretary of the Los Angeles Central Labor Council, Yost submitted to Mason a document entitled "agreement" which provided that the respondent and the "Los Angeles Central Labor Council, hereinafter referred to as the Council, representing the American Federation of Labor in this District, acting on behalf of its affiliated unions, namely : Furniture Workers' Union No. 1561 and Upholsterers' Union No. 15, and with the consent of these two unions," agreed that the Company should "employ none but members in good standing of one or the other of the two affiliated unions, as the type of employment may determine" ; that "a schedule of wage rates, working hours and working conditions shall be agreed to between the Company and the Council, which in turn is satisfactory to the Company and the Furniture Workers' Union No. 1561 and the Upholsterers' Union No. 15"; and that "such schedule of wages, work- ing hours and conditions is attached hereto and made a part of this agreement and it includes provisions for representation of grievances and other matters pertinent to a labor agreement between labor unions and employees." The document was drafted for signing by the re- MASON MANUFACTURING COMPANY 307 spondent and the Council, and for the names of Local 15 and Local 1561 to appear as underwriters . There was attached to such document an additional document which differed only slightly from the pro- posed contract submitted by Westfall to Mason in October 1937. The attached document provided that it should remain in full force and effect from October 1 , 1937, until August 31, 1938, and thereafter annually in the absence of written notice by either party on or before July 1 of any year. The document entitled "agreement" was signed by Mason for the respondent and by Buzzell for the Council. It was also "underwritten" by Yost for Local 15. The attached document was signed by Yost for Local 15 and by Mason . It is not clear from the record as to the precise date on which the aforesaid documents were signed . The record does disclose , however, that such signing took place prior to March 23, 1938. By letter dated March 23, 1937 ,5 to Mason , Yost protested that the respondent had in its plant at least two employees who were not members of Local 15 and'that such employment was in violation of the agreement existing between the respondent and Local 15 inas- much as "paragraph #2 of the agreement clearly states that you (the respondent) shall employ only members in good standing of Local 15." Upon receipt of this letter on March 23, 1938, Mason showed it to the employees who were working in the upholstery department on that day. One . of the employees, Fisher, remarked that Mason "didn't have a written contract at that time." Mason . replied that Fisher was mistaken, and that he had such a contract. On Friday, March 25, 1938, Butts instructed Levin and several other employees in the department to report for work in the latter part of the following week, rather than on Monday. The members of the shop committee met later that day and decided to ignore these instructions , apparently because they believed them to be contrary to an understanding with respect to distribution of work among the 13 employees during slack periods, which the committee , with Westfall's assistance, had reached with Mason about February 1938. Accord- ingly, Levin and three others reported for work on Monday, March 28, in addition to the four employees whom Butts had told to return on that day . At Levin's instance, Mason agreed to discuss the situation. Thereupon Levin and Mueller, together with Manuel Garcia, busi- ness agent of Local 576, and Marsh, a representative of Local 576, conferred with Mason in his office for about 3 hours. Mason knew that Levin belonged to , and that Garcia and Marsh were representa- tives of, Local 576. Mueller wore a C. I. O. button at the confer- 5 It is clear from the record that the correct date Is March 23 , 1938, and that "March 23, 19371' appeared on the letter inadvertently. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD once. According to Garcia, most of the discussion dealt with "the staggering of work and going to work and so forth." Mason agreed to continue dividing the available work equally among the em- ployees, in accordance with the previous understanding. However, heat first objected to giving any work to Levin because of his mem- -bership in Local 576. He showed Levin the letter he had received from Local 15 on March 23, and produced from his desk the document which he, Yost, and Buzzell had recently signed, and also, according to Mason, the document which Westfall had left with him in October 1937. Levin, who testified that he did not see the latter document, told Mason that, since Local 15 and Buzzell did not represent the employees in the department, the contract had nothing to do with the employees or Local 576. According to Mason, the contention was also advanced that any contract made before the members of Local 15 voted to affiliate with C. I. O. "had gone with the men," that they had "taken the contract along with them." Mason rejected a suggestion by Levin that an election be conducted to determine whether the em- ployees preferred Local 15 or Local 576, saying that, although he was neutral and did not care which union his upholsterers belonged to, he had an agreement with the A. F. of L. requiring him to employ only members of Local 15, and Local 15 and Local 576 should them- selves settle any disputes arising between them, that he "wanted them, both unions, to get together and see if we couldn't straighten this thing up in some way." Mason finally agreed to let Levin and the rest of the employees continue working for the time being regardless of which union they belonged to, the details of the distribution of work among them to be left to the foreman and the shop committee. Levin learned later in the day that he was to report to work on Thursday, March 31. On the morning of Wednesday, March 30, 1938, about 7 a. in., Yost went to the respondent's plant, accompanied by a group of men, vari- ously estimated at from 16 to 40 in number, who belonged to labor organizations affiliated with the A. F. of L. These men stood at one side of the entrance to the ,plant during the ensuing hour. With several officials of Local 15 and Local 1561, Yost went into Mason's office, just inside the entrance, and told him, according to Mason's testimony, that "they were there to go on a picket line if I didn't let the C. I. O.'s go," that "the C. I. O. workers couldn't work there." Yost said that Local 15 expected him to employ only members of Local 15, in accordance with his agreement, and that "the A. F. of L. were going to keep the C. I. O. employees out of the factory," that "if the C. I. O. upholsterers went to, work, the woodworkers would go out." Mason testified that he answered that he was neutral, and that it was up to Local 15 and Local 576 to settle the dispute between MASON MANUFACTURING COMPANY 309 themselves. He further testified that he made no effort to check the A. F. of L.'s subsequent activities in front of the plant because he relied upon his contracts with Local 15 and Local 1561, and because he considered it useless for him to attempt to interfere, in view of the A. F. of L.'s numerical strength. Between 7 and 7: 30 a. m., 8 of the 13 employees in the respondent's upholstery department arrived at the plant to report for work. They were Archambault, Mastro, Feather, Chait, Leon, Senteno, Johnson, and Mueller. Archambault and Mastro, the first arrivals, were met outside the entrance by Yost, who told them that before they could go in to work, they would have to sign cards he had with him, which bore the statement : "I, the undersigned member of Local 15, Uphol- sterers, Furniture, Carpet, Linoleum and Awning Workers Interna- tional Union of North America, agree to have the Upholsterers, Fur- niture, Carpet, Linoleum and Awning Workers International Union of North America, Local 15, act as my collective Bargaining Agent and of my own free will I pledge my allegiance to the American Fed- eration of Labor." He explained to them, according to his testimony, that "inasmuch as we had an agreement with Mr. Mason, and inas- much as Mr. Mason was willing to live up to that agreement, it was up to us to see that the members did belong to Local 15 in accordance with the terms of the agreement." Archambault and Mastro re- mained outside the'plant, and discussed the situation with the other upholsterers as. they arrived. A group of them, including Feather, Chait, and Mueller, advanced toward the entrance, but were halted by Yost, who told them flatly that they could not go to work unless they signed the "reaffiliation" cards. They refused to sign the cards: At this time, and during most or all of the time between 7 and 8: 30 a. in., there was an unusual concentration of men standing on the short stairway leading up to the entrance to the plant. Included in this group from time to time were, among others, George ("Bud") Mason, Jr., son of Frank Mason;.A. E. Johnson, a salesman employed by respondent; Frank Baylis, office employee; Curtis C. Anderson, superintendent of the mill ; Cuevas, Hennes, and Roalden, the mem- bers of the shop committee of Local 1561 at the plant; Legatt, Eche- veste, and Sagna, employees of the respondent; and officials of Local 15 and Local 1561. The non-upholstering employees were permitted to pass through without hindrance as they reported for work between 7: 15 and 7: 30 a. in. Senteno, one of the upholsterers, testified that when he arrived at the plant he started up the steps, but an A. F. of L. official stopped him and said he could not go in unless he had an A. F. of L. card. About 7:30 a. in. the upholsterers determined to report their diffi- culties to Local 576. They came upon Garcia, business agent, and Marsh, a representative of Local 576, a short distance from the plant. 199549-39-vol. 15-21 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leaving the employees, Garcia and Marsh went to the plant, where they found Frank Mason standing near the steps. Mason had appar- ently remained in his office prior to this time. Garcia asked Mason why the upholsterers could not go in to work, and Mason said, "Well, it seems there is a fight between you two unions and you fellows will have to get this thing adjusted between yourselves." To Garcia's. statement that "these people have their jobs here and they are entitled to them and under all circumstances they should be allowed to go into work in there . . .", Mason replied, "Well, they can go in if they want to join the A. F. of L." Yost, who was standing nearby during this conversation between Garcia and Mason, testified that he "heard Mr. Mason tell Mr. Garcia that he had nothing to do with this ; that it was entirely between the two unions, and he said they would have to thrash it out . . ." At the conclusion of the conversation, Garcia and Marsh rejoined the upholsterers, and Mason appears to have re- turned to his office. The above events all took place before 8 a. m. About this time, a police officer approached Yost and told him that he and the group of men he had brought with him to the plant must either start a picket line or leave the neighborhood. Yost chose the latter alternative. He testified that he "figured there wasn't any further need of me staying around there. It was evident that Mr. Mason did not intend to [permit] the C. I. 0. to work." A few minutes after Garcia's conversation with Frank Mason, all eight of the upholsterers returned to the plant and again sought to go in to their work. With Feather in the lead, they started up the steps to the entrance. According to Feather's testimony, a "plain clothes man" who previously had told Feather he was a member of the "Red Squad" stopped him and asked where he was going. When Feather replied that he had a job in the plant, Johnson, the salesman, threw up his hands and said that "that didn't mean a thing." Feather testi- fied that he then proceeded up the steps to the top but was met by George Mason who stated that he could not enter unless he signed an A. F. of L. card. He further testified that he then consulted with Garcia and that the latter spoke with George Mason. Chait testified that Garcia informed George Mason that the employees were report- ing for work and that Mason replied that they could not enter the plant unless they signed A. F. of L. cards. George Mason denied that he spoke with any employees on March 30 or sought to prevent them from entering the plant. He conceded that he had talked with Garcia, but denied that he informed Garcia .that the employees could not enter the plant unless they signed A. F. of L. cards. Following the unsuccessful attempts of the upholsterers to enter the plant, Garcia declared that a "lockout" existed and called for a picket line which was immediately established. The picketing ap- MASON MANUFACTURING COMPANY 311 parently continued for 3 days until April 1, 1938, at which time the respondent applied to the Superior Court of the State of California in and for the County of Los Angeles for an injunction to restrain the picketing. With the exception of Mastro, none of the eight employees in the respondent's upholstery department who reported to work on the morn- ing of March 30 made any further attempt thereafter to return to work. Feather testified that he had not gone back because his return to work was conditioned on his reaffiliating with the A. F. of L. Archambault testified that she had no quarrel with the respondent, "except that we can't get back until we go American Federation of Labor." Johnson said that his only difference with the respondent arose from the fact that he was required to join the A. F. of L. in order to go back to work. Senteno testified that he would like to have his job back, but would not go back except as a member of the C. I. 0. unless a majority of his fellow workers reafiliated with the A. F. of L. Mastro subsequently signed one of the A. F. of L. cards and was permitted to resume his employment at the respondent's plant. The other five employees in the upholstery department, namely, Levin, White, Fisher, Tellez, and Fonceca were not supposed to work on March 30 and they did not return to the plant thereafter. Tellez testified that she wished to go back to work, but that she understood that "they wouldn't let us go in unless we joined the American Federa- tion of Labor." Fonceca testified that a group of the employees told her that they were locked out, and that she would go back to work for the respondent if Mason would permit all the upholsterers to return as members of the C. L 0. White testified that his fellow employees told him on March 30 that resumption of work by the employees in the upholstery department was conditioned upon their joining the A. F. of L., and that he would not resume his employment so long as they could not do so also; that he would not go back to work "under the agreement that he [Frank Mason] wants us to go back to work under," as indicated by "his actions so far." Levin testified that he did not go back to work because of a conversation he had with Feather on the afternoon of March 30, during which Feather told him that the employees could not go to work unless they joined the A. F. of L. Fisher testified that his fellow employees told him that they had not returned to work because they were required to join the A. F. of L. and that he had not signed an A. F. of L. card and resumed his employ- ment because he wished to support them in their stand. At the hearing, Frank Mason stated that as long as his agreement with Local 15 was in force and effect, he, would employ the upholster- ers who had been in his employ prior to March 30, 1938, only on the condition that they became members of the A. F. of L. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Monday, April 4, 1938, the respondent hired five employees, through Local 15, to work in the upholstery department. Mason testified that the employees hired that day were sufficient in number to perform the available work. Subsequently, before the hearing in this case, the respondent hired several other upholsterers through Local 15, including Mastro. All 13 of the upholsterers , except Mastro, Mueller, Johnson, Tellez, and Fonceca, testified that they had been unemployed since March 30, 1938. The complaint was dismissed as to Mastro and Mueller. Johnson had secured employment at which he was paid 70 cents per hour, as against the 85 cents per hour which he earned at the respond- ent. Tellez was temporarily employed at 70 cents per hour; she had been paid 75 cents per hour by the respondent . It was stipulated that Fonceca, if called, would testify substantially the same as had the other upholsterers. Following a hearing in April 1938 before the Superior Court of the State of California in and for the County of Los Angeles upon the respondent's application for an order restraining picketing of its plant by Local 576 and certain named individuals , W. Turney Fox, Judge, handed down on July 26, 1938 ,,an order making permanent until August 31, 1938, a temporary restraining order theretofore issued, prohibiting picketing of the respondent 's plant. B. The discrimination in regard to hire and tenure of employment The complaint , as amended at the hearing , alleges that the respond- ent has discriminated with regard to the hire and tenure of 11 em- ployees in its upholstery department by discharging and locking out said employees on or about March 30, 1938 , and thereafter refusing to reinstate them, for the reason that they joined and assisted Local 576 and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection. The respondent denies that it discharged or locked out said employees and asserts that any acts by which any such employees were prevented from com- ing to or continuing their work were committed by persons over whom the respondent had no control or direction . It further contends that none of the said employees were eligible for employment by the respondent on March 30, 1938, because they had ceased to be mem- bers of Local 15, with which organization the respondent had a con- tract requiring it to employ in its upholstery -department only mem- bers in good standing in Local 15. We shall first consider the latter contention of the respondent. The contract upon which the respondent relies is one allegedly en- tered into in September or October 1937 and to be in force or effect from October 1, 1937, until August 1, 1938, and annually thereafter I MASON MANUFACTURING COMPANY 313 unless a notice of change in terms or termination was given by either party prior to July 1 of any year . In its answer, the respondent alleges that such a contract was made and entered into by the respond- ent, the Central Labor Council of Los Angeles, for and on behalf of its members, and Local 15, and that the contract contained a provision wherein the respondent agreed to employ in its upholstery department none but members in good standing in Local 15. We have set forth'in detail . above the facts relative to the negotia- tions which took place between the respondent and Local 15 during September and October 1937. There is no evidence that any negotia- tions were carried on by the respondent with a view toward inclusion of the Los Angeles Central Labor Council as a party to any contract with the respondent at any time prior to March 1938 . We have noted that during this period Local 15 submitted to the respondent two proposed contracts . The second proposed contract , drafted for signa- ture by the respondent and Local 15, was for a term from October 1, 1937, until August 1, 1938, and from year to year thereafter in the absence of notice given by either party on or before July 1 of any year. Mason, the respondent's president, testified that he signed the proposed contract and his testimony is to the effect that such signing took place about October 18 , 1937. The proposed contract was, however, never signed by Local 15 . It is clear that any agreement made during September or October 1937 was an oral agreement rather than a written agreement. The contentions made by the respondent in its exceptions to the Intermediate Report of the Trial Examiner are predicated upon the existence of an oral agreement , allegedly entered into about October 1937 and embodying substantially the terms set forth in the second proposed contract submitted to the respondent by Local 15. When Westfall submitted to Mason a proposed contract about the middle of October 1937, the parties clearly were negotiating with respect to a written rather than an oral agreement . Mason was un- willing at that time to sign the proposed contract because of the wage scale set forth therein and because he desired to ascertain what action the League was taking on the agreement which Local 15 had sub- mitted to it. Thereafter, as we have noted, the members of the shop committee of Local 15 on October 18, 1937, conferred and reached an agreement with respect to the wage scale . However, there was no discussion at the time relative to any other agreement . Indeed, the evidence indicates that even as to the wage scale the parties contem- plated its submission to the executive board or membership of Local 15 for approval and the incorporation of such wage scale, if so ap- proved, in a signed agreement which would also include provisions as to other terms and conditions of employment. The evidence does 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not establish that the wage scale was ever approved by Local 15 or its executive board. That at the time of the October 18 conference, the parties still contemplated a written rather than an oral agreement is shown by the fact that several days thereafter, Feather, a member of the shop committee, asked Mason about the proposed contract which Westfall had left with him and Mason's reply to the effect that he was not ready to turn over the agreement to Local 15. We have noted above Mason's testimony to the effect that several days after October 18, he signed the proposed agreement and put it in his desk drawer. He did not, however, so notify Local 15 or the respondent's employees and the agreement was at no time signed by Local 15. Any signing of the proposed agreement by Mason did not therefore give rise to a written agreement and is of little significance in determining the ex- istence of an oral agreement. If an oral agreement was entered into by the respondent and Local 15, the employees affected thereby would almost certainly have had knowledge of such fact. Although a few of the employees testified to the effect that they understood that an agreement had been reached, most of the employees testified that they had no knowledge of any written or oral agreement. It is also significant in connection with the respondent's conten- tion as to an oral agreement that when Yost and Power, acting on behalf of Local 15, asked Mason about the middle of March 1938 what action had been taken with regard to the contract which West- fall had left with him in October 1937, Mason, although expressing his willingness to abide by the agreement, stated that "the union ought to have some responsibility" and asked Yost and Power to sign the document which Westfall had left with him. Mason's state- ment that "the union ought to have some responsibility" is clearly inconsistent with the existence of a then binding agreement. Al- though Westfall's letter of February 1938 to the respondent stating that the former members of Local 15 had affiliated themselves with Local 576 and that "the agreement as existed between you and Local 15 will now continue in full force and effect between you" and Local 576, and Mason's testimony that Westfall informed him that "the men in my factory had taken the contract with them and gone over to the C. I. 0.," lend some support to the respondent's contention that an oral contract existed, the other facts set forth above strongly militate against such conclusion. Moreover, the fact that letters similar in content to that which Westfall sent to the respondent were sent to all other manufacturers in the Los Angeles area is indicative that Westfall was primarily interested in safeguarding any legal rights which Local 576 might have had. In view of the entire record, we find that the respondent did not enter into any oral agreement in the fall of 1937 or thereafter. We MASON MANUFACTURING COMPANY 315 further find that there is no merit in the contention of Local 15, .advanced at the oral argument before the Board, that the finding .of the Superior Court of California in and for the County of Los Angeles that the respondent and Local 15 entered into a valid closed- :shop agreement in the fall of 1937, extending to August 31, 1938, "is binding and conclusive on this Board, and precludes the right of this Board to inquire into the question of whether or not the contract •ever came into existence." As noted above, the Superior Court on .July 26, 1938, made permanent until August 31, 1938, a temporary restraining order theretofore issued, enjoining Local 576 and others from picketing the respondent's plant. The order was based ' on a finding that no labor dispute existed between the respondent and its employees because the respondent and Local 15 had entered into a valid closed-shop agreement in the fall of 1937 to extend until August 31, 1938. It involves, however, no departure from the -established law on the conclusiveness of judgments to hold that the respondent may not avoid its obligation under the terms of the National Labor Relations Act and nullify the rights of employees guaranteed by Congress through reliance on a decree or findings made in a private suit to which the Board was not a party.' The Act embodies a public policy of national concern and is the supreme law of the land on the subject matter covered by it. It empowers the Board to prevent any unfair labor practices affecting commerce and expressly provides that "this power shall be exclusive..." 7 Review of the Board's Orders is vested in the appropriate Circuit Court of Appeals; the Act expressly declares that the jurisdiction of that Court "shall be exclusive, and its judgment and decree shall be final," subject only to review by the Supreme Court of the United States by certiorari or certification.a We have noted above that about March 23,1938, Mason on behalf of the respondent and' Buzzell on behalf of the Los Angeles Central Labor Council signed a document entitled "agreement" which Yost on behalf of Local 15 signed as underwriter, and that Mason on behalf of the respondent and Yost on behalf of Local 15 signed an attached document which differed only slightly from the proposed agreement which Westfall submitted to Mason in October 1937. The document entitled "agreement" provided that the respondent should "employ none but members in good standing of one or the other .of the two affiliated unions (Local 15 and Local 1561), as the type of employment may determine"; the attached document provided that the respondent recognized Local 15 as the "sole bargaining agency B See Matter of National Electric Products Corporation and United Electrical and dtadio Workers of America, Local No. 609, 3 N. L. R. B. 475. 4 Section 10 (a) of the Act. 8 Section 10 (e) and (f) of the Act. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for its members in all the upholstery departments," that "all press ent employees and all employees hired in the future who have worked one week or more and who have become members of the union are steady employees" and that "all work shall be divided among all steady employees as nearly equally as possible, regardless of seniority, in order to avoid discrimination." The respondent and Local 15 assert that the parties in signing the aforesaid docu- ments intended them merely as written memoranda of an oral agree- ment reached in October 1937 and did not consider the documents as in themselves constituting any contract or contracts. Inasmuch as we have found that no oral agreement was made in October 1937, the documents cannot be considered as written memoranda of an oral agreement. The documents may not, however, be considered as affording a justification for the discharge of any employees in the upholstery department. Indeed, the respondent and Local • 15 do not so contend, and assert, as we have noted, that the documents were never intended in themselves to have any binding force and effect. Moreover, the documents, even if considered as agreements, do not come within the proviso of Section 8 (3) of the Act. The proviso states that "nothing in this Act .:. shall preclude an em- ployer from making an agreement with a labor organization . . . to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in Section 9 (a), in the appropriate collective bargaining unit cov- ered by such agreement when made." It is not clear what unit was set up by the documents. If the unit covered by the documents be deemed to consist of all the employees of the respondent, it cannot be deemed appropriate where, as here, the past bargaining history as regards the upholstery employees was on a craft basis and a ma- jority of the upholstery employees did not at the time the documents were signed desire to be represented by any party thereto. If the documents be deemed to cover a separate unit composed of the up- holstery employees, the terms of the proviso are not met since all such employees were members of Local 576 on and after January 25, 1938, and, consequently, no labor organization party to the agreement represented a majority of the employees in such unit when the docu- ments were signed. Having found to be without merit the respondent's contention that the employees allegedly discriminatorily discharged were not eligible to employment by the respondent because the respondent had a contract requiring it to employ in its upholstery department only members in good standing in Local 15, we shall now consider the contention of the respondent that any acts by which any of the per- sons in question were prevented from coming to or continuing their MASON MANUFACTURING COMPANY 317 work were committed by persons over whom the respondent had no control or direction. The respondent had advised both its employees in the upholstery -department and their representatives on March 23 and 28, 1938, that it considered itself under contract to employ only members of Local -15 in the upholstery department. Although forewarned of Local 15's intention on March 30, 1938, to "keep the C. I. O. employees out .of the factory," the respondent made no effort to dissuade Local 15 or to assure the employees that it would provide them with employ- ment regardless of their choice of labor organizations. To the em- ployees, confronted at the entrance to the plant on the morning of March 30 by the statements of A. F. of L. representatives that they 'could not go to work unless they signed A. F. of L. cards, the re- spondent's failure to intervene was persuasive that the A. F. of L. representatives were acting with the respondent's knowledge, as was the case, and that the respondent, at Local 15's insistence, intended to comply with the demand of Local 15 that only members of Local .15 be employed. This conclusion, aided by the proximity of Frank 'Mason's office to the plant entrance and by the presence in front of -the plant of persons more or less identified with the management- -including Bud Mason, son of Frank Mason, Anderson, superintendent .of the mill, Johnson, salesman, and Baylis, office employee-was con- firmed by the conversation in front of the plant between Frank -Mason, president of the, respondent, and Garcia, business agent of Local 576, in the course of which Mason, while professing himself -to be neutral in the dispute, stated that the employees could "go in if they want to join the A. F. of L." As Yost, business agent of -Local 15, testified, "It was evident that Mr. Mason did not intend -to [permit] the C. 1.0. to work." All the employees in the uphol- •stery department, including the five who did not come to the plant -on the morning of March 30, correctly understood from what they witnessed or learned from others that, unless they became members :of Local 15, application to the respondent for resumption of their work after March 30, 1938, would be useless. The respondent could have been under no illusion that the failure -of the employees to report for work after March 30, and their picket- ing of the plant, with the support of Local 576, on March 30 and 31 and April 1, was due to any cause other than their justified belief that the respondent, in accordance with its asserted contract, would not permit them to return to work so long as they were not members -of Local 15. Instead of opening the way to resumption of their employment and cessation of picketing by advising the employees that it did not require them to be members of Local 15, the re-, spondent turned to the courts for an injunction against the picketing, 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hired new employees, and, through its president, announced at the hearing before the Board that the old employees would not be per- mitted to return to work prior to the expiration of its alleged con- tract with Local 15 unless they belonged to the A. F. of L. By its conduct, the respondent vested authority in Local 15 to represent to the employees in the upholstery department on March 30, 1938, that membership in Local 15 was an effective condition of their employment, ratified and approved the representations after they were made, and foreclosed itself from now asserting that it was not responsible for those representations.9 That the respondent did not expressly discharge the employees because they were not members of Local 15 is not controlling in determining whether dis- crimination occurred. To condition employment unlawfully upon membership in a particular union, to the necessary exclusion of other labor organizations, is equivalent to an outright discharge of those employees who refuse to accept the condition.'° We find that the respondent on March 30, 1938, discriminated in regard to the hire and tenure of employment of Hazel Fonceca, William C. Fisher, Arthur E. Feather, Winona Chait, Rosalie Arch- ambault, Lupe Tellez, Joe Leon, Russell White, Lowell E. Johnson, Jacob Levin, and Manuel Senteno, thereby encouraging membership in Local 15 and discouraging membership in any other labor organi- zation, including Local 576, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. C. Other interference, restraint, and coercion The complaint alleged that the respondent urged, persuaded, and warned its employees to refrain from remaining members of Local 576, and threatened them with discharge if they became or remained members thereof. We find that on March 23, 1938, Mason showed to employees in the upholstery department a letter from Local 15 referring to a written agreement which required the respondent to employ only members of Local 15, and assured them that the re- spondent had a signed agreement with Local 15; that on March 28, 1938, in the presence of two employees and two representatives of s See Matter of The Grace Company and United Garment Workers of America, etc., 7 N. L. R. B. 766; Matter of Washington Manufacturing Company and Amalgamated Cloth- ing Workers of America, 4 N. L. R. B. 970, 1042 ; Matter of Trenton Garment Company and International Ladies' Garment Workers Union, etc., 4 N. L. R. , B. 1186, 1193; Matter of J. Gr•eenebaun Tanning Company and National Leather Workers Association, Local No. 43, etc., 11 N. L. R. B. 300. 10Matter of Atlas Mills, Inc. and Textile Workers Union, etc., 3 N. L. R. B. 10, 17, Matter of Highway Trailer Company and United Automobile Workers of America, etc.,, 3 N. L. R. B. 591 , 611 ; Matter of Mt. Vernon Car Manufacturing Company, a corpora- tion and Local Lodge No. 17,;6, Amalgamated Association of Iron, Steel ci Tin Workers of North America, etc., 11 N. L. R. B. 500. MASON MANUFACTURING COMPANY 319 Local 576, Mason displayed the letter from Local 15 and the docu- ment he had signed earlier in the month, and stated that he had an agreement requiring him to employ only members of Local 15; that on March 30, 1938, Mason, upon being asked by Local 576's business agent why the employees could not enter the respondent's plant, stated that "they can go in if they want to join the A. F. of L." We find that, by the above acts, the respondent has interfered with, restrained, and coerced its employees in the exercise of thei rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged-in and is engaging in unfair labor practices, we will order it to cease and desist there- from and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the condition which existed prior to the commission of the unfair labor practice. We have found that the respondent on March 30, 1938, discrim- inated in regard to the hire and tenure of employment of Hazel Fonceca, William C. Fisher, Arthur E. Feather, Winona Chait, Rosalie Archambault, Lupe. Tellez, Joe Leon, Russell White, Lowell E. Johnson, Jacob Levin, and Manuel Senteno. We shall order the respondent to offer to said persons reinstatement to their former or substantially equivalent positions,. without prejudice to their seniority and other rights and privileges. We shall also order the respondent to make said persons whole for any loss of pay they have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination on March 30, 1938, to the date on which the respondent offers him rein- statement, less his net earnings 11 during said period. "By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies re- ceived for work performed upon Federal , State, county. municlual. or other work-relief 320 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 Furniture Workers' of America, Local No. 576, affiliated with the Committee for Industrial Organization, and Upholsterers, Furniture, Carpet, Linoleum & Awning Workers' International Union of North America, Local No. 15, affiliated with the American Federation of Labor,' are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Hazel Fonceca, William C. Fisher, Arthur E. Feather, Winona Chait, Rosalie Archambault, Lupe Tellez, Joe Leon, Russell White, Lowell E. Johnson, Jacob Levin, and Manuel Senteno, thereby encouraging membership in Upholsterers, Furniture, Carpet, Lino- leum & Awning Workers' International Union of North America, Local No. 15, affiliated with the American Federation of Labor, and discouraging membership in any other labor organization, including United Furniture Workers of America, Local No. 576, affiliated with the Committee for Industrial Organization, the respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, A%ason Manufacturing Company, Los Angeles, Cali- fornia, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in Upholsterers, Furniture, Carpet, Linoleum & Awning Workers' International Union of North Amer- ica, Local No. 15, affiliated with the American. Federation of Labor, or any other labor organization of its employees, or discouraging projects are not considered as earnings, but as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal, or other govern- ment or governments which supplied the funds for said work-relief projects. •MASON MANUFACTURING COMPANY 321 membership in United Furniture Workers of America, Local No. 576, affiliated with the Committee for Industrial Organization, or any other labor organization of its employees, by discriminating in re- gard to hire or tenure of employment, or any other term or condition of employment; (b) 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 rep- resentatives of their own choosing, and to.engage in concerted activi- ties for the purpose of collective bargaining and other mutual aid or protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer immediate reinstatement to Hazel Fonceca, William C. Fisher, Arthur E. Feather, Winona Chait, Rosalie Archambault, Lupe Tellez, Joe Leon, Russell White, Lowell E. Johnson, Jacob Levin, and Manuel Senteno, to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges; (b) Make whole the persons named above for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from March 30, 1938, to the date on which the respondent offers him reinstatement, less his net earnings during said period; deducting, however, from the amount otherwise due to each of the said employees, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Post immediately notices to its employees in conspicuous places throughout its plant, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating that the respondent will cease and desist in the manner aforesaid, and that it will take the affirmative action set forth in 2 (a) and (b) of this. Order; (d) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. M. WILLIAM. M. LEisERsoN took no part in the consideration of the above Decision and Order.