Majestic Flour Mills

In the Matter Of CHARLES BANKS STOUT, WARDA STEVENS STOUT, AND ALICE ADELINE STOUT, DOING BUSINESS AS MAJESTIC FLOUR MILLS and FEDERAL LABOR UNION No. 20028, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C-1095.-Decided September 21, 1939 Flour Milling Industry--Jurisdiction : equitable principle of lathes not ap- plicable to the government acting in the public interest-Interference, Restraint, and Coercion : expressions of opposition to labor organization ; seeking to nego- tiate . with employees individually, knowing Union represented majority- Discrimination: shut-down of plant allegedly for repairs but actually because of union membership and activity ; Union's determination, after beginning of shut-down, to strike was ineffectual in withholding the services of its members from ' respondent in view of its determination , before the plant reopened, to end strike ; refusal to reinstate locked-out and striking employees, at request of union representatives , insisting upon individual requests-Employee Status: strikers : five individuals who voluntarily refused to work during the shut- down ; locked-out employees : retention of status of ; refusal to' accept dis- criminatory conditional reinstatement as, refusal of offer of a position -which was not substantially equivalent to that formerly held as ; employees absent from plant during lock-out as affecting status of-Strike: union's determination to strike provoked by respondent 's unfair labor practices-I+:vidence: confidential nature of union records-Unit Appropriate for Collective Bargaining : produc- tion and maintenance employees , including millers, boltermen , packers, truckers, millwrights, and warehousemen, but excluding officials, foremen, and clerical employees-Representatives : proof of choice : membership in Union ; testimony of secretary-treasurer and of members of Union ; failure of respondent to question majority during negotiations-Collective Bargaining : refusal to sign Union's proposed contract, and failure to make counterproposal ; refusal to negotiate with union representatives, insisting on dealing with employees indi- vidually-Reinstatement.. Ordered: locked-out employees , including those named in the complaint but who did not testify, and those not physically employed at time of lock-out, and striking employees who were refused reinstatement, dismissing employees hired since lock-out but not employed at commencement of lock-out, if necessary ; if not enough work available, employees to be placed on preferential . list to be offered employment as it becomes available ; upon application, one striking employee , who refused offer of reinstatement-Back Pay: awarded : . locked-out, and striking employees, from date of respondent's discrimination to date of offer of reinstatement or placement upon preferential list, excluding period between date of Intermediate Report and date of Decision, in case of employees as to whom Trial Examiner recommended dismissal of complaint, and excluding period of unavailability for employment in case of employee who was physically incapacitated ; striking employee who refused offer of reinstatement , from date of Decision to offer, upon application , of reinstate- ment or placement upon preferential list ; monies received by employees for 15 N. L. R. B., No. 60. 541 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work performed upon Federal , State, county, municipal , or other work-relief projects to be deducted and paid over to agency which supplied funds for said projects. Mr. Daniel J. Leary, for the Board... McNatt cf; McPherson, by Mr. E. J. 31cNatt and Mr. R. K. Mc- Pherson, of Aurora, Mo., and Madden, Freeman d Madden, by Mr. John G. Madden, of Kansas City, Mo., for the respondent. Mr. F. P. Sizer, of Monett, Mo., for the Union. Miss Anne E. Free7ling, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE 'CASE Upon charges duly filed by Federal Labor Union No. 20028, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board,. by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint dated November 8, 1935, against Charles Banks Stout,' Wards Stevens Stout, and 'Alice Adeline Stout, doing business as Majestic Flour Mi.l1s,2 Aurora, Missouri, herein col- lectively called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, .49 Stat. 449, herein called the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and upon the Union. On November 13, 1935, the respondent filed a bill of complaint in the United States District Court for the Western District of . Mis- souri seeking to have the Board and its agents enjoined from further prosecuting this proceeding. The District Court granted a tempo- rary injunction,3 which ruling was affirmed on August 5, 1936, by the United States Circuit Court of Appeals for the Eighth Circuit.4 The constitutionality of the Act was sustained by the United States Supreme Court on April 12, 1937.6 The injunction proceeding in the District Court-was dismissed by consent of the parties on or about July 27, 1937. 1 Designated in the complaint as Charles Bank Stout. An amendment was allowed at the hearing, without objection, changing the name to Charles Banks Stout. 2 Designated in the complaint as Majestic Flour Mills Company. An amendment was allowed at the hearing, without objection, changing the name to Majestic Flour Mills. 3 Stout v. Pratt, 12 F. Supp. 864. Pratt v. Stout, 85 F. (2d) 172. 8 National Labor Relations Board v. Jones it Laughlin Steel Corporation, 301 U. S. 1, and other cases in which the Board was a party decided on the same day. CHARLES BANKS STOUT 543 On December 21, 1937, the Union filed an amended charge, upon which the Board, by the Regional Director, issued an amended com- plaint dated December 22, 1937, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. Copies of the complaint, accom- panied by notice of hearing thereon, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the amended complaint alleged in substance (a) that on or about July 5, 1935, and thereafter, the respondent refused to bargain collectively with the Union as the exclusive representative of the respondent's employees in an appropriate unit; (b) that the respondent, with knowledge that the Union had been designated as collective bargaining representative by a majority of its employees, bargained individually with a number of its employees concerning hours and wages; (c) that the respond- ent discharged and refused to reinstate 58 named employees because they joined and assisted the Union; and (d) that by the foregoing and other specified acts and refusals, the respondent interfered with, restrained, and coerced its employees in the exercise of their right to self-organization and to engage in concerted activities for their. mutual aid and protection. The respondent filed an answer to the complaint,(' dated May 28, 1938, which admitted that the respondent is engaged in the process- ing, sale, and distribution of flour, bran, and feed, but denied that its operations affect interstate commerce; denied that it had engaged in or was engaging in the alleged unfair labor practices; averred that the Board and the Union were estopped and barred by lathes from asserting any claim for reinstatement or back pay; and moved to dismiss the complaint. After several postponements at the request of counsel for the re- spondent, a hearing was held pursuant to notice at Aurora, Missouri, from June 3 to July 2, 1938, before Peter F. Ward, the Trial Ex- aminer duly designated by the Board. The Board, the respondent, and the•Union 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. At the conclusion of the Board's case and at the conclusion of the hearing, the respondent moved that the complaint or specified portions thereof be dismissed. The Trial Examiner de- nied these motions. During the course of the hearing, the Trial Examiner made other rulings on motions and on objections to the 60n July 1, 1938 , the respondent introduced in evidence , with the consent of counsel for the Board , an amended answer correcting an inadvertent omission in its original answer, but making no substantive change. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Subsequent to the hearing,. the respondent and the Union filed briefs, which the Board has con- sidered. On December 10, 1938, the Trial Examiner filed an Intermediate Report, copies of which were duly served upon all the parties , finding that the respondent had engaged in and was engaging in unfair labor practices affecting commerce , within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He recom- mended (a ) that the respondent cease and desist from its unfair labor practices ; (b) that the respondent, upon request, bargain collectively with the Union as the exclusive representative of the respondent's production and maintenance employees ; and (c) that the respondent offer to reinstate in their former positions , and make whole for any loss of pay they may have suffered by reason of the respondent's discriminatory action , 47 individuals named in the complaint. The Trial Examiner further recommended that the allegations of the complaint be dismissed as to 11 named individuals on the ground that they did not appear and give testimony . In his Intermediate Report, also, the Trial Examiner ruled on certain motions and ob- jections to the admission of evidence , on which he had reserved his ruling at the hearing. Thereafter, the respondent filed exceptions to the Intermediate Report. We have considered these exceptions , and, save as to those which are consistent with the findings, conclusions, and order set forth below, find them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT In 1934 Charles Banks Stout, his wife, Warda Stevens Stout, and his two daughters, Alice Adeline Stout' and Charlotte Stout, pur- chased a flour mill in Aurora, Missouri, and formed a copartnership, which is registered to do business in Missouri under the trade name of Majestic Flour Mills. The copartnership owns the plant in Aurora and three grain elevators, all located in the vicinity of Aurora. Mr. Stout also owns individually Dixie Portland Flour Mill, Richmond, Virginia; Higginsville Flour Mill, Higginsville, Missouri; and Wash- ington Flour Mills, Washington, Missouri. He is president of Dixie Portland Flour Company, Memphis, Tennessee, of which the Stout family owns all the capital stock except two or three out of one thou- 4 Also referred to In the record as Mrs . Alice Edwards , having married since the issuance of the complaint. CHARLES BANKS STOUT 545 sand shares. He is also a stockholder in Pease-Moore Milling Com- pany, West Plains, Missouri, of which Robert M. Pease is president. Pease is vice president of Dixie Portland Flour Company, was man- ager for several years of Washington Flour Mills, and acts in an advisory capacity, on a profit-sharing basis, at Aurora and at other mills owned by Stout. Lawson Cook, manager of the Aurora plant, was formerly manager of Higginsville Flour Mill. • Charles -H. Alt- hoff, superintendent of milling at the Aurora and Higginsville plants,- is also at times sent to the other mills owned by Stout. The plant at Aurora, which is the only one herein involved, em- ploys approximately 120 workers, who are engaged in the processing, sale, and distribution of flour and flour byproducts. The respondent purchases approximately 85 per cent of its wheat from, and sells, approximately 85 per cent of its flour to, Dixie Portland Flour Com- pany, which has a merchandising agency at Kansas City, Missouri, as well as blending plants at Memphis, Tennessee; Mobile, Alabama; and Jacksonville, Florida. A large proportion of the wheat'pur- chased by the respondent is grown in Washington and Oregon. It also purchases wheat grown in Missouri. During the period from January 1935 to June 1938, the respondent received 5,216 carloads of grain," of which 2,663 carloads were sent from shipping points in Missouri, and 2,553 carloads were sent from shipping points outside Missouri. During the period from January 1936 to June 1938, the respondent shipped 7,920 carloads of finished' prgdi1ets;e,.ofwhich, 1,930, carloads were sent to points in Missouri and 5,990 carloads were sent to points outside Missouri. H. THE ORGANIZATION INVOLVED Federal Labor Union No. 20028 is a labor organization affiliated with. the American Federation of Labor, admitting to its membership employees of the respondent. IlI. THE UNFAIR LABOR PRACTICES A. Background. When the respondent began to operate the Aurora plant in June. 1934, it paid its employees 30 cents an hour for an 8-hour day and a 7-day week. Shortly thereafter the rate was increased to 40 cents an hour for a 6-hour day .and a. 7-day week in accordance with the code : for the milling industry promulgated under the National Industrial Recovery Act. After that Act was declared unconstitutional in May 1935, the respondent returned to the former rate of 30 cents an hour 8 A carload of wheat usually contains 90,000 pounds. A carload of flour or .feed usually contains 40,000 or 50,000 pounds. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for an 8-hour day. This change created a great deal of dissatisfac- tion, which culminated in a strike on June 5. The dispute was settled by an agreement that the strikers should return at the 40-cent, 6-hour rate. All the strikers returned to work on Sunday, June 9. Some of the respondent's employees began organizing the Union about this time. They obtained a charter from the American Fed- eration of Labor on June 12, 1935. On June 23 an organization meeting was held, at which a majority of the respondent's production employees became members of the Union. Stout came to Aurora on Sunday, June 30, and conferred with the executive committee of the Union. The union representatives complained about Lester Schroeder, a foreman in the plant, who, they claimed, abused the employees. Stout agreed to remove him, although Cook and Althoff, the man- ager and superintendent of the plant,. claimed they were unaware of his misconduct and objected to his removal. The employees also criticized Elmer Schroeder, Lester's brother, who was also a foreman, but they agreed that he should be retained. The union representatives asked for an increase in wages from 40 cents to 44 and 47 cents, according to the kind of work done. Pease and Cook opposed any increase, and stated that the respondent could not meet competition at the existing rate. Stout nevertheless stated that he would try to operate at the increased rates, and would let the Union know before any change was made. All the union representatives left the conference except Frank Cline and Everett Spangler, president and secretary-treasurer of the Union. They presented to Stout a written contract embodying the wage and hour provisions already agreed to and providing also for a closed shop, the contract to be in effect for a year. Stout discussed the contract with Pease and Cook, and then told Cline and Spangler that he could not sign it. He explained that prices in the flour-mill- ing industry fluctuate so rapidly that he could not bind the company to a specified wage scale for a year. After some discussion, Stout agreed to take the contract with him, study it further, discuss it with his Memphis attorneys, and, if possible, draw up a satisfactory con- tract and return it to the Union for its approval. He explained that he could not do this immediately, since he had other business to attend to, but he promised to get at it as promptly as he could. B. The first, refusal to bargain collectively; interference, restraint, and coercion 1. The appropriate unit The amended complaint alleges that the millers, boltermen, packers, truckers, and warehousemen employed at the Majestic plant consti- CHARLES BANKS STOUT 547 tute a unit appropriate for the purposes of, collective bargaining. During the hearing the Trial Examiner granted a motion by- counsel for the Board, to which there was no objection, to. amend this alle- gation by inserting the word "millwrights" following the word "truckers." The respondent in its answer denied that the unit -as alleged in the amended complaint was appropriate, but introduced no evidence at the hearing to support its denial or to assist the Board in determining what employees constitute an appropriate unit. - In the contract which the Union presented to the respondent on June 30, it sought to bargain .for flour packers, feed packers, mixer operators, engineers, boltermen, truckers, floormen, oilers, sweepers, delta sealers, firemen, and elevator men. It, thus appears that the Union desired to represent all the production and maintenance em- ployees in the plant. The secretary-treasurer of the Union testified that the Union admitted to membership everyone in the plant except officials and foremen having the power to hire and discharge. We -shall also exclude clerical workers 10 In addition, we shall exclude Harry Horstma-n, who is employed at the Hoberg elevator, which is situated about 10 miles from Aurora, and Kenneth Rohrbaugh, the chemist, who, as appears in Section III, D, below, was selected by' the respondent as one of its representatives in the arbitration negotiations. We find that the production and maintenance employees, including millers, boltermen, packers, truckers, millwrights, and warehousemen, but excluding officials, foremen, and clerical employees, employed at the respondent's plant in Aurora, Missouri, constitute a unit appro- priate for the purpose of collective bargaining, and that such unit insures to the employees the full benefit of their right to self-organi- zation and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of the majority in the appropriate unit The Board introduced in evidence a list, prepared by Cook, of all the employees whose names appeared on the respondent's pay roll during the period from June 15 to August 20, 1935. The complete list contains the names of 113 employees, . of whom 1111 are not within the appropriate unit. Accordingly, we find that during that period the respondent employed 102 workers in the appropriate unit. t0 See Matter of Atlantic Basin Iron Works and Industrial Union o f Marine and Ship- building Workers of America, Local No. 13, 5 N. L. R. B. 402. u The names and positions of these employees are : Lawson Cook, manager ; Charles Althoff, superintendent ; Elmer Schroeder and Leo I'achalhofer , foremen ; Kenneth Rohr- baugh, chemist ; E. L. Spangler , chief engineer ; Harry Horstman, who is employed at ,the Hoberg elevator ; . Josephine Copeland, Zelda Dunn, Elmer Ferguson,, and Helen Harris: -clerical employees. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing, over objection by the respondent's counsel, the Union introduced in evidence a typewritten list of its members and the dates on which they were enrolled. It also introduced its ledger from which the list was compiled for the limited purpose of permit- ting the respondent to check the accuracy of the list. It refused, however, to consent to the introduction of the ledger for any other purpose, and the Trial Examiner denied the respondent's, request for a subpoena directing its production. According to the Union's membership list, 62 persons in the appro- priate unit were members on June 23, 1935, and 70 on August 15, 1935. Six additional persons joined on August 29, 1935, and one on September 9, 1935. It thus appears that on and after June 23, 1935, the Union represented 62 or more of the 102 employees in the appropriate unit. At the hearing the secretary- treasurer of the Union testified that none of its members had withdrawn. Forty-eight per- sons within the appropriate unit testified as to their union membership and were available for cross-examination.12 Counsel for the respondent objected to the admission of any evi- dence based upon the Union's ledger unless he were permitted to 'inspect the entire ledger and ascertain whether there had been any withdrawals from union membership. In his Intermediate Report the Trial Examiner, having admitted the evidence subject to his ruling, overruled the respondent's objection. We are of the opinion that the Trial Examiner's rulings in denying the respondent' s request for a subpoena and in admitting evidence' of union membership drawn from the ledger were correct. Union records are of a confi- dential nature. For obvious reasons their production ought not lightly to be required over the Union's objection. As to the limited purpose for which the Union here offered them, the respondent had. ample opportunity to cross-examine. The respondent failed, by such limited examination or by cross-examination of the Union's secretary- treasurer or of the 48 union men who testified, to rebut the presump-' tion that the Union continued to command a majority from Juiie•,23; 1935, when most of its members joined, to August 29, 1935, the date of the last refusal to bargain hereinafter found.18 'a The only member of the Union who testified at the hearing that he had withdrawn was Sam Jackson . He stated that when he resumed work after the shut-down of August 20-28, 1935 , he considered that he quit the Union . As will appear, Jackson's defection took place after the respondent had directed a number of unfair labor practices against its employees in an effort to break the Union, and after the refusals to bargain herein- after found . It neither impairs -the- Union 's majority at the dates of its requests to bargain, nor raises any inference that union members withdrew prior to the respondent's refusals. is In support of his objection to the limitation imposed upon his inspection of the ledger, counsel for the respondent urged that the withdrawal of union members might therein be shown from their failure to pay dues . The record does not reveal the provisions of the Union's constitution as to the effect on membership status of non-payment of dues. Moreover, the total elapsed time between the ' Union' s achievement of a majority and CHARLES BANKS STOUT 549 It may be noted, also, that during the period in which the Union was attempting to bargain for the respondent's employees the respond- ent never questioned the Union's majority.14 We find that on June 23, 1935, and at all times thereafter, the Union was the duly designated representative of the majority of the employees in the unit which we have found to be appropriate and, pursuant to Section 9 (a) of the Act, was and is the exclusive repre- sentative.of all the employees in such,unit ,for purposes of collective bargaining. 3. The refusal to bargain in July 1935 As has been stated in Section III, A, above, the Union presented a proposed contract to Stout on June 30. After a week or so had, elapsed without any word from Stout, some of the union officers began, to urge Althoff to try to get an answer from Stout with regard to. the contract. Spangler wrote directly to Stout, but received no response. On July 16 Stout wrote to Althoff. The original of the letter-could not be found, but a copy was introduced in evidence, which reads in part as follows:. Here. is a letter from Mr. Spangler. I am in sympathy with, labor and wish to be fair and do all that can be afforded for them, but I have decided that life is too short to try to run a. closed-shop mill, while. all these little country mills set the price on^ flour. I can't find a lawyer smart enough to write a fair closed-shop contract. They all tell me it would only get me into trouble to try it ... Now the only thing I know to do, is to do your best to see that every man gets a fair deal, who works for us .and pay all we can afford. They must be consulted before any changes that affect them, but you and Lawson and the foreman must be allow:ed.to hire and. discharge as you see fit. * * * * , * * * ... At the present time, we* will not sign the contract with Mr. Spangler's Union, but we have-no objections to anyone belong- ing to it, so long as they leave men alone who do not wish to join. In case' this is not acceptable, and if you think trouble will arise in any form, shut the mill down. It is cheaper and better to quit than to have trouble with the men. the latest refusal by the respondent to bargain collectively is so short that failure on the part of union men within that period to pay dues would not , in' the absence of any affirmative action, constitute proof of their withdrawal from the Union. " See National Labor Relations Board v . Remington Rand, Inc.,, 94 ' F. (2d) '862, cert. den, May 23, 1938, 304 U. S. 576. 199549-.99-vol. 15--36 Z50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Please tell Mr. Spangler that I sent you this letter and ex- plain to him that I cannot sign the contract . . . Stout testified that he informed Althoff that the respondent would contract with the Union, but would not agree to a closed shop or bind itself for a definite term. Upon receipt of Stout's letter of July 16, Althoff showed it to Spangler, the Union's secretary-treasurer. He did not, however, communicate to the Union Stout's alleged expression of willingness to sign a modified contract. As appears from the quoted passage, the letter was shown to :Spangler at Stout's instruction, and constituted the respondent's answer to the Union's request to bargain. In it Stout not only refused to sign the contract proposed by the Union and failed to make any counterproposal, but also made the intimidatory sugges- tion that Althoff shut the plant if the Union found his terms unac- 'ceptable. . We find that the respondent, a few days after July 16, 1935, re- fused to bargain collectively with the Union as the representative -of its employees in respect to wages, rates of pay, hours of work, and ,other conditions of employment and thereby interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. C. Interference, restraint, and coercion; the refusal to bargain on August 20, 1935; the lock-out A number of employees of the respondent testified concerning anti- union statements allegedly made to them from time to time by supervisory employees. Although the supervisory employees denied leaving made the alleged anti-union statements, we find more per- suasive the testimony of the several employees who claimed that such statements were made to .them. Bill Terry testified. that Althoff told him, on the day he hired. him, which was about the middle of July 1935, that : ... the boys had a kind of half way union around here but said there was no use paying any attention to it. He said if I wanted to stay on there and get along he says not to pay atten- tion to it. He said there was no need of my joining the union. Marvin McKinley 'testified that Althoff told him on August 19 that: ... the mill is going down, to be down 9 or 10 days for re- pairs; you boys are all good boys and good workmen, but you can't remain on this job as a member of that union; this com- pany will not stand for organized labor. CHARLES BANKS STOUT 551 McKinley went to the plant about a month later to collect overtime -pay that he claimed the respondent owed him. He testified that Althoff told him then that : "You have nothing coming to you." He said, "You had a job here once, if you had stayed out of that union." Tom Vance, who was employed as a bolterman, and who, unlike the majority of the employees, worked 8 hours a day, testified to the following conversation with Althoff on August 20: ... He told me they were going to start up in the morning on 8 hours. "Well," I says, "what difference does that make to me?" "Well," he said, "Torn, I know you belong to the union, but you can't work here and belong to that." E. L. Cline was employed by the respondent as a fireman at 47 cents an hour for a 6-hour day. On August 20 Ernest Spangler, the chief engineer, told Cline the plant would be shut down that evening but he wanted him to come in to do repair work. Cline worked 8 hours on August 21. ' He testified that Spangler told him on August 21: "Well, we are going to start on 8 hours at 40 cents an hour from now on," he says, "that is the orders down here." He says, you can come back whenever I need you, I will call you again.... "As far as the damn union, the company won't have nothing to do with the union." Paul Ruckman testified that a day or two before the day on which the mill closed down '15 he had the following conversation with Schroeder, who was his foreman, and who had hired him : He asked me if I belonged to the union, and I told him no not at that time. And he said, "Are you going to join?" And I says, "I don't know." And he said, "Well, you had better not join because," lie said, "we can't use the union. If you want to hold your job why, you will have to stay out of the union." Melvin Ward testified that Schroeder,, a foreman, told him on or about August 10 "that the union didn't have much longer to func- tion, . . . about the first of the month was going to let them out." Everett Spangler was employed by the respondent as a feed packer at 47 cents an hour, 6 hours a day. He was secretary-treasurer of the Union, and one of its outstanding leaders . and spokesmen. Schroeder told him on August 19 to come in the next da;y. When Spangler came in on August 20, Schroeder asked him if he would work for 40 cents, 8 hours. Spangler told him Stout had agreed to "August 20, 1933. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the 44- and 47-cents scale and. 6 hours, and had promised not to. change without notifying the Union. Schroeder told him he could not go in to work at.47 cents, and told him, further: You and your damn unions are getting too smart, anyway. We don't intend to put up with it, and we don't want your kind on the pay roll. Fred Bunselmeyer was employed by the respondent as a millwright, and had been employed before June 1934 as a millwright at Higgins- ville and other Stout mills. He testified that Althoff, his immediate supervisor, told him on August 19 that "as soon as they'got the en- gine repaired, they would start up again with practically a new crew, and, he says, `We won't recognize any union,' he says, `but we want you to do your work when we start up."' Schroeder came to Bunselmneyer's home on the afternoon of August 21 and told him Pease wanted to see him at the plant. Bunselmeyer went to see Pease, and, he testified, "Pease says, `Fred, I want you to keep on working.' I told Mr. Pease well, I would in case that they come to an' agreement. And Mr. Pease said, `There won't be no agreement. We won't recognize the union."' Pease came to Bunselmeyer's house the next morning. At this time, Bunselmeyer testified, "Pease said, `Fred, I want you to come back to work and take your old job, and I will guarantee you.a good thing out of it, and if you take your job back,. and bring all your boys that is able and big enough to work, I will :guarantee. them a good job out of it.' I said, `Mr. Pease, I couldn't do it unless there was an agreement made.' And.` he said, `Well, there won't be no agreement.' He said, `I am going to fight the union until we spend our last penny we got."' Although. both Althoff and Pease denied making the statements attributed to them by Bunselmeyer, the Trial Examiner, in his Intermediate Report, stated that Bunselmeyer impressed him as a truthful and sincere witness. We find that the respondent, by the foregoing anti union statements made by its supervisory employees, interfered with, restrained, and coerced its employees in the .exercise of their rights to self-organiza- tion, to, form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid and, protection as guaranteed in Section 7 of the Act. In July and August 1935 the grievance committee of the Union from time to time presented various grievances to the officials of the plant. On the evening of August 19 Pease came to Aurora and conferred with Cook and Althoff concerning conditions at the plant,' including the various grievances which had been presented by the Union from time to time. Following this conference, he summoned CHARLES BANKS STOUT 553 to his office a number of the employees on the night shift, where most of the-grievances seemed to be,centered, .and conferred with them individually. Stanley Lane, the first employee with whom Pease- con-ferred, testified with regard to their conversation as follows : Then he asked me if I thought I could do a day's work in 6 hours work, and I told him yes, I thought I could. He asked me then if I didn't think 8 hours would be better. He said he was in favor of an 8-hour day. And then he went ahead to ex- plain that the company could not continue the operation of the plant under the present wage scale, and that they would have to do one of two things, and he explained what those two things were. One of them was if they continued that way, they could not compete with other mills and they would have to close the plant down, consequently, if they did that, we all would be out of a job, 'including, himself ; but the other way was they could reduce the wage scale and make an 8-hour day and continue operations. He said the proposition was up to us. So then he also said that he was tired of this monkeying business that was going on at the plant, tired of everyone trying to run the com- pany's business, and they were going to run the company's busi- ness for themselves. Then he asked me what I thought about this plan. So I asked Mr. Pease it that did not mean that by cutting the four shifts down to three shifts, a lay-off of approxi- mately 20 men? And he said yes, that would be exactly what it would be. I told Mr. Pease I thought that was a proposition for the union to take up. So he told me that was all. May Ashen also testified, with regard to his conference with Pease: . Well, he' asked- me, he told me to bring the boys over there to get, them, to•come over on his side. . . He said .that.it would mean more money to them. When Ashen answered, "Whatever the boys do I will do," Pease asked, "Do the boys pay you?" When Ashen was leaving, Pease said, "Ray, I feel sorry for you." The other employees who were -called in for these individual conferences testified to the same general .effect. Although Pease admitted that he conferred with the em- ployees individually on the night of August 19, he denied making the statements quoted above. The overwhelming weight of the evi- dence indicates, however, that he did make such statements. We find that on August 19,-1935, the respondent, by negotiating with the employees individually, although knowing that they had -designated the Union as their representative, interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. 554 DECISION'S OF NATIONAL LABOR RELATIONS BOARD Cline, the Union's president, was not on the night shift, but he. heard about these individual conferences. He telephoned J. R. An- drews, an American Federation of Labor official in Springfield, Mis- souri, who had aided in the organization of the Union, and asked him to come to Aurora. Andrews, Cline, and some of the other union offi- cials waited outside the plant until about midnight, when, the con- ferences ended, and Pease, Cook, and Althoff left the plant. The union men spoke to Pease, stating that they understood Pease had been conferring, with individual employees concerning hours and wages, whereas he should discuss such matters with them as repre- sentatives of the employees. A conference was arranged for the. -following morning. The evidence is in sharp conflict as to whether or not a conference occurred between Pease and representatives of the Union on August 20. Upon the entire record, however, we find that such a meeting did occur, and that Pease refused to negotiate with the Union and announced that the plant would close that evening. We find that the respondent, on August 20, 1935, refused to bar- gain collectively with the Union as the representative of its em- ployees in respect to wages, rates of pay, hours of work, and other conditions of employment, and thereby interfered with, restrained,. and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On August 20, at 6 p. in., the mill shut down. Production ceased at once. A few employees continued to work at packing and shipping flour which had already been milled. A few days later the mill was completely shut, and it did not reopen until August 29. The respondent maintained at the hearing that the shut-down was necessary for the purpose of making extensive engine and general re- pairs.. However, in the bill of. complaint filed in the District Court in November. 1935, which is sworn to and verified by Pease, the re- spondent stated that at the August 20 conference the union representa- tives insisted on the signing of the contract, and that : ... that agreement being. impossible complainants were forced to cease operations and to shut down their said mill on August 20, 1935, retaining only a sufficient skeleton organization to pur- chase wheat locally produced and to protect the property of the complainants . . . Although the respondent's witnesses testified that they had known for some time.that a shut-down would occur on or about August 20,. according to Pease, he did not see fit to notify the Union thereof until the day of the shut-down. During August 20, before the mill closed down, Elmer Schroeder requested the employees to sign their names and addresses on a ledger. CHARLES BANKS STOUT 555 Pease had issued instructions that this be done for the alleged pur- pose of enabling the respondent to call the employees during the shut- down and divide the repair work among them. Althoff, who had charge of the repair work, heard for the first time about the ledger and the alleged plan to divide up the repair work at the hearing. He testified that he expected only the regular repair crew to come in during the shut-down. Although the plant officials denied that they had decided to change the wage rates during the shut-down or upon the reopening of the plant, they admitted that they did decide on the morning of August 21 to pay 40 cents an hour for the repair work. When Elmer Schroeder reported this decision to some of the men who had reported for work that morning, they refused to work for 40 cents. Although he testified that there were about 50 men present, and that he had asked each one by name if he `wanted to work for 40 cents, he could recall only about 8 names. He did not call any of the people who, had signed the ledger. The "extensive" general repairs were there- upon abandoned. When the respondent reopened the plant on August 29, these repairs had not been made. Thus, to sum up, it appears that the respondent explained in its bill of complaint that it was forced to shut down the plant because the Union "insisted upon the execution of a contract," and then sought at the hearing to explain that it shut down the plant in order to, perform engine and general repairs. The respondent instructed its employees to sign their names and addresses on a ledger for the alleged purpose of dividing the general repair work among them. Yet the plans for making general repairs were abandoned at the outset of the shut-down and have apparently never been revived. Furthermore,. Althoff, who had charge of the general repairs, did not know about the ledger or about the plan to divide the repair work among the em- ployees. All these incidents, and particularly the fact that the plant closed the day after Pease had conferred with a number of employees individually concerning hours and wages, only to be told by them, that they would abide by whatever the Union decided, and after the union officers had insisted that Pease bargain concerning hours and wages with them as the duly chosen representatives of the employees,. require the conclusion that the respondent closed its plant not, as al. leged, for the purpose of making repairs, but for the purpose of lock- ing out its employees who were members of the Union and thereby- crushing the Union. The respondent also sought, by this means, to decrease wages and increase hours without consultation with the. Union, as Stout had promised. The offer of 40 cents an hour for any 8-hour day for repair work was a ruse to ascertain how many em- ployees would be willing to work at that rate. .556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A majority of the respondent's employees ceased work on August 20. A few worked for a time during the shut-down, at packing and shipping flour already milled. or. at repair work. We find that on or about August 20, 1935, the respondent closed its plant, and thereby locked out its employees, because a number of them had joined and assisted the Union, in order to discourage mem- bership in the Union and to avoid its obligation to bargain collectively with the Union. By its conduct the respondent has discriminated in :regard to the hire and tenure of employment of its employees, within -the meaning of Section 8 (3) of the Act, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights :guaranteed in Section 7 of the Act. D. Events of August 20.to August 28 Raymond Hain, president of the Aurora Chamber of Commerce, 'testified' that prior to the shut-down he had heard 'there was 'some -controversy between the respondent and its employees, and that the plant was going to be closed. He and some of the other directors ,of the Chamber of Commerce were interested in mediating the difli- -culty in order to keep the plant operating. Ham claims that he requested the respondent and the Union to send representatives to a meeting of the directors of the Chamber of Commerce to be held the evening of August 20. The union witnesses denied that they received any notice of this meeting, and claimed that they appeared 'at the meeting as a result of having seen in the Aurora Daily Ad- vertiser of August 20 the following statement : Pease and Cook will meet tonight with the Aurora Chamber of Commerce directors at.. the , postoffice and the -mill men will outline their problem to the Board. i Pease, Cook, Althoff, and Ferguson, an office employee; appeared ,on behalf of the respondent. Pease acted as spokesman. He related the trouble the respondent had had with its employees beginning with the June 5 strike. He told of the contract which the Union had pre-. 'sented to Stout. There is some dispute in the record. as to whether Pease told the Chamber of Commerce directors, as some of the re- spondent's witnesses claimed he did, that the respondent might, at some time in the future, have to lower the wages and increase the hours, or whether he told them that the plant would reopen at a reduced scale of wages. The union representatives later presented their side of the case, explaining that they had to work much harder since the respondent had increased considerably the production of the plant, that they had no lunch period, that they were abused by some of the foremen, CHARLES' BANKS STOUT 557 that an, increase in hours would mean discharging a. number of men,: and that Stout refused to negotiate an agreement with them. After hearing both sides, the directors' offered to arbitrate the diffi- culties with regard to wages, hours, and working-conditions, but they' agreed not to have anything to do with, the question of an agreement' or union recognition "because we didn't think it was any of our busi- ness, a closed shop contract or any other contract. All we were' interested in was getting the mill open and the men ready to go back to work." At a meeting on the afternoon of August 21, all the parties agreed that the matter should be submitted to arbitration, and that the arbitration committee should consist of three members from the Chamber of Commerce, two representatives of the respondent who, were not officials, and two representatives of the Union who were not officials. The respondent and the Union did not, however, agree to^ 'abide°by tlie" decision' reached by this. arbitration. committee. At ti meeting of the Union on the evening of August 21, a motion was passed "to not go to the mill to work until an agreement of some kind is reached." We find that the Union's determination to strike' was provoked by the respondent's unfair labor practices. The directors of the Chamber of Commerce did not meet to choose their committee until August 24, the first occasion upon which all of them could be present. Each member agreed beforehand to serve if elected. Ham was elected chairman of the committee. The respond- ent selected as its representatives Elmer Ferguson, an office employee, and Kenneth Rohrbaugh, the chemist. The 'full arbitration committee met Monday morning, August 26,. at' the Ame'ri'can Legion Hall. Rohiibai gh, the only chemist at* the. plant, had to leave during the morning to return to the plant, and did not thereafter participate in the arbitratioii negotiations. The' committee heard witnesses during the morning. In the afternoon the. representatives of the respondent and the Union were dismissed lest some of the witnesses be embarrassed by their presence. The arbi- tration committee met again Tuesday morning. The representatives of the respondent and the Union were again dismissed during the morning and had no further part in the arbitration negotiations.. Some time Tuesday afternoon, the Chamber of ' Commerce committee decided to present a proposal for 43 and 45 cents an hour, an 8-hour day, and a 40-hour week. When they presented the proposal to Pease,.he disapproved of.the differential in wages because it caused dissatisfaction, and agreed to pay 45 cents. He also told the com- mittee that while he preferred the 8-hour shift, he would agree to 6 hours if that would facilitate the settlement. The committee then returned to the American Legion Hall, and told a group of union, ,558 DECISIONS OF NATIONAL LABOR RELA'T'IONS BOARD men who were on the street to come to the Hall. Ham announced to them the proposal of the committee as agreed to by Pease. The -evidence is sharply contradictory as to what occurred thereafter, largely because some of the witnesses had difficulty in recalling in 1938 events which had occurred in 1935. The weight of the evidence indicates, however, that following Ham's announcement, Cline told the men-there=would be-a union meeting that evening:to:take a,formal' vote on the proposal, and that at that meeting the Union voted not to go back to work until the respondent entered into a written agree- ment of some sort with the Union. Cline reported this decision at a meeting of the Chamber of Commerce directors the following morn- ing. The directors then voted to disband the committee. Shortly thereafter Ham telephoned Pease, who came to Ham's place of busi- ness to discuss the situation. Pease told Ham that he was going to reopen the mill. He also announced this to the Aurora Daily Ad- vertiser, which carried the following item in its August 28 issue : Bob Pease, Manager of the mill, stated that the only thing left for the operators to do is to hire new men to run the mill to re- place those who will not return to work, and that faring was begun following the failure of the Chamber of Commerce nego- tiations. 'The respondent claims that former employees who applied for re- instatement were rehired on August 28, and that no new employees were hired until the morning of August 29, at which time the mill resumed operations. The new employees were hired at 40 cents, 8 hours. . Former employees who were taken back were given their choice of 45 cents and 6 hours, or 40 cents and 8 hours. The Union held another meeting on the evening of August 28, at which Andrews read a telegram he had received from William Green, 'president of the American Federation of Labor, advising the Union to "accept 'settlement on wage scale and permit question of union recognition to remain in abeyance pending further efforts . . ." Andrews and Cline advised the men to go back to work on the re- :spondent's terms. The union members thereupon voted almost unan- imously to do so. Cline tried to get in touch with Ham that eve- ning, but was unsuccessful. E. The refusal to bargain on August. 29 The next morning, August 29, the union members met at a pre- arranged place, ready to return to work. Cline went to Han1's office :and told him of the Union's vote to return to work. Cline and :Spangler testified that Ham thereupon got in touch with some of the other Chamber of Commerce directors and with Pease, and had them CHARLES BANKS STOUT 559 come to his office to discuss this matter, but that when Cline and Spangler later asked Ham what the results of this discussion were, he was very evasive, and finally told them he thought that if they applied for their jobs individually, most of them would be taken back. Ham testified, on the other hand, that when Cline told him the men were ready to go back to work, he did not try to get in touch with Pease,.but simply.. told Cline that the committee. had ,been.,discharged , and had nothing further to do with the matter. The Aurora Daily Advertiser of August 29 carried the following statement: The employees agreed to withdraw their demand for a closed shop contract, but asked that all old men be permitted to go back to work. They asked the Chamber of Commerce committee to notify the managers of this agreement this morning, but the committee had been disbanded and the Board of Directors did so. After talking to Ham, Cline telephoned Pease, who refused to meet with him. Andrews thereupon telephoned Pease and insisted on a meeting. Pease refused to meet with a committee, but did finally. agree to confer with Andrews, and gave Andrews permission to bring a friend with him. Andrews was accompanied by Phillips, another American Federation of Labor organizer. According to Pease, Cline insisted when he telephoned, and Andrews insisted when he came to the plant, on discussing the matter of the closed-shop contract. According to Cline, Andrews, and Phillips, however, they told Pease they wanted to discuss the matter of the men going back to work, but Pease refused to confer with American Federation of Labor organizers or with any representative of the employees, insisting,. on the contrary, that. he would discuss reinstatement only with the employees individually. . It is highly improbable that the union representatives, knowing that the plant had reopened, that the respondent was hiring new employees, that the old employees were congregated on the street ready to go back to work on the respondent's terms, and that. the respondent had steadfastly refused to consider a closed-shop contract,. would insist at this stage of the proceedings that Pease discuss the' signing of a closed-shop contract. We find the Union's contentions more credible. This conclusion is further borne out by the follow- ing statement made by the respondent in the bill of complaint which. it filed in the injunction proceeding: ... complainants reopened the said mill, reemployed all former employees who applied for such employment, dealing with said employees individually, and resumed their manufac- turing operations. 560 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD We find that. the. respondent, on August 29, 1935, refused to bar- gain collectively with the Union as the representative of its em ployees in respect to wages, rates of pay, hours of work, and other' conditions of employment and thereby interfered with, restrained,. and coerced its employees in the exercise of the rights guaranteed in. Section 7 of the Act. F.. The refusal to reinstate employees As we have found above, the respondent, on or about August 20,. 1935, locked out its employees because of their membership in and activity on behalf - of the Union. On August 29, when Cline, and later Andrews and Phillips, requested Pease to confer with them. regarding reinstatement of the locked-out employees, Pease refused'. to negotiate with them as representatives, insisting that he would deal only with the individual employees. At the hearing, 47 of the individuals named in the complaint testified that they had not yet been reinstated by the respondent. The remaining 11 did not testify,. but the respondent did not assert that it had reinstated them. The refusal of the respondent to accept the tender of the services :of its locked-out employees made by the union representatives con- stituted a further discouragement of membership in the Union by discrimination in regard to the hire and tenure of employment of- the respondent's employees 16 We find that the respondent, on August 29, 1935, refused, upon request, to reinstate its employees in order to discourage member- ship in the Union. By its conduct the respondent has discriminated in regard to the hire and tenure of employment, of its employees, within the meaning of Section 8 (3) of the Act, and has thereby interfered-with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. G. The individuals named in the complaint The Trial Examiner found that the respondent, on August 20, 1935, discriminatorily locked out the 47 persons named in the complaint who testified at the hearing, and thereafter refused to reinstate them. "'Inasmuch as the strike was voted at the union meeting of August 21, after the respondent had locked out most of its employees , and ended at the meeting of August 28, before the plant reopened , it was almost wholly ineffective in withdrawing or withholding employees from their work. During the shut-down, as will be shown, five of the em- ployees left their work to go on strike before the lock-out had become effective as to them. Inasmuch a:; the strike was voted in protest against the respondent 's unfair labor practices; the respondent was under obligation to reinstate. strikers on,, application, dis- misshig, if necessary, persons hired to take their places. Thus its refusal to 'reinstate its employees on August 29, pursuant to application by the union representatives, con- stituted discrimination in regard to the hire and tenure of employment of the strikers as well as of the locked-out employees. Matter of Mc%aig-Hatch, Ine. and Amalgamated Association of Iron, Steel, and Tin Workers of North America., Local No. 1249, 10 N. L. R. B. 33. CHARLES BANKS STOUT 561 It appears, however, that five such persons, all members of the Union, were not locked out, but voluntarily quit work during the shut-down under circumstances which' indicate that, they went on strike." We are of the opinion, however, that when the respondent, on August 29, refused to accept the Union's tender of the services of its members, it discriminatorily refused to reinstate the five men in question as well as the employees whom it had locked out.18 Three of the respondent's employees, U. Arney, Joe Buehler, and Jack Sullivan were not actually working at the time of the August 20 shut-down, Arney and Buehler because of injuries they had sus- tained in the course of their employment prior to the shut-down, and ` Sullivan because he was at a National Guard Camp: ° . Sullivan returned to Aurora a. day after the plant closed down, but Arney and Buehler were not discharged by the doctor until October 26 and October 10, respectively. All three of these men had been employed, and had a reasonable expectation of being reemployed, by the respondent when they were again available for employment. All were members of the Union. The mere circumstance that they were absent from the plant at the time when the respondent locked out its employees does not affect their employment status under.the Act. We find, accordingly, that the respondent locked out the three men on or about August 20, 1935. Similarly, we find that the respondent's refusal on August 29, 1935, to reinstate its employees applied also to Arney, Buehler, and Sullivan. Neither Buehler nor Sullivan has been offered reinstatement. Sometime. in October 1935, after Arney had been discharged by the doctor, he met Foreman Schroeder, who asked him when he would be ready to go back to work. Arney replied that he was a member of the Union and would return when the other men got their jobs back. Although the situation is not free from doubt, we interpret Schroeder's inquiry as an offer of reinstatement, and Arney's response as a refusal.. We find, therefore, that the respondent's discrimina- tion against Arney ended almost immediately after Arney. became well enough to resume work, and that Arney thereafter occupied the status of a voluntary striker. 17 The five employees in question are Everett Spangler, Jack McCullah, Fred Bunsel- meyer , M. Ward, and C. P. Graham . Spangler refused on August 20 to do repair work at the reduced wage rate . McCullah , after working a few hours on August 21, refused to go on another job. although in his case it would have meant higher wages, because he refused to take a union man's job, and was thereupon told that the respondent could not use him . Bunselmeyer was asked by Pease on August 21 and 22 to return to work, but refused unless the respondent recognized the Union and negotiated with it. Ward went to the plant on August 20, but Schroeder told him there was no work for him. He went in again on August 21 and was given some work. While he was working, Schroeder told him that the rates were going to be changed . He did not return to work after August 21. Graham worked August 21, and did not return thereafter. l9Matter of McKaig-Hatch, Inc. and Amalgamated Assoc kation of Iron, Steel, and Tin Workers of North America, Local No. 1139, 10 N. L. R. B. 33. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At or soon after the beginning of the shut-down, six," of the employees refused reinstatement because it was conditioned upon their abandonment of the Union. The condition thus imposed was discriminatory and illegal. The employees were entitled to uncoil- ditional reinstatement. Under the circumstances, their refusal to work does not affect their status as locked-out employees.'' W. R. Whitney, applying for reinstatement after the plant re- opened, rejected the offer of a position which was not substantially equivalent to that formerly held by him. We find that the respond- ent's discrimination against him has not been ren-iedied and that Whitney retains the status of a locked-out employee. The remainder of the 47 men against whole the Trial Examiner found the respondent had discriminated were locked out on or shortly after August 20, 1935, were refused reinstatement on August 29, 1935, and were not thereafter offered reemployment. All 47 of the employees found by the Trial Examiner to have been locked out and refused reinstatement, including 3 22 who had obtained employment in California, indicated at the hearing that they desired reinstatement to their former employment with the respondent. It appears, moreover, that none of them has obtained substantially equivalent employment. The 47 employees are listed in Appendix A below, with the dates on which they were locked out, or, in the case of the striking employees, the date on which the i•espoudent dis- criminatorily refused to reinstate them. Next to their names, in that. Appendix, are set forth the approximate amounts these employees testified they had earned up to the date of the hearing. The Trial Examiner dismissed the complaint as to the 'remaining 11 employees because they did not appear and give testimony in this .proceeding. The names of these 11 employees, however, appear on the respondent's pay roll just preceding the lock-out, and it does not appear that they were reinstated thereafter. All but one 22 of these '11 men were members of the Union. We are of the opinion 19 Toni Vance, Ed Brantegan , LeRoy Bunsehneyer , Wesley Duvall, Paul lluckman, Eugene Berry. 20 These employees are entitled to back pay as though the conditional offers of rein- statement had not been made. Matter of Carlisle Lumber Company and Lumber & Sawmill Workers' Union, Local 2511, 2 N. L. R . B. 248, order enforced in National Labor Relations Board v . Carlisle Lumber Company, 94 Fed. ( 2d) 1:38 , cert . den., May 23 , 1938, 304 U. S. 575. 21 Everett Spangler, LeRoy Leonard , and Lloyd Leonard were employed in California at the time the amended complaint was issued . They were en route to Missouri for the purpose of testifying at the hearing when the. respondent was granted, a.postpone- ment. . because counsel ' for the respondent was otherwise engaged. The testimony of these three witnesses was taken by deposition . Counsel for the respondent was present and cross-examined them. 22 Wallace Little was not a member of the Union. In our view, however, the re- spondent, by locking out and refusing to reinstate its employees , discriminated against Little as well as the other employees named in the complaint . The respondent's dis- crimination consisted, not in selecting union members for dismissal , but in locking out all its employees because a substantial number of them had joined the Union. CHARLES BANKS STOUT 563: that these 11 employees, who are listed in Appendix B below, were also discriminatorily locked out and subsequently denied reinstate-- ment.23 We find that the respondent, on or aboutAugust 20, 2935, locked'. out the employees listed. in Appendices A and B, below, excluding Everett Spangler, Jack McCullah, Fred Bunselmeyer, M. Ward, and Chase Graham, and on August 29, 1935, refused to reinstate the em- ployees listed in Appendices A and t, below, including' ' Everett. Spangler, Jack McCullah, Fred Bunselmeyer, M. Ward, and Chase Graham, thereby discriminating in regard to their hire and tenure of employment, discouraging membership in the Union, and inter- fering with, restraining, and coercing its employees in the rights, guaranteed in Section 7 of the Act. TV. 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 obstruct- ing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. We shall order the respondent to cease and desist from such interference, restraint, and coercion, and to, take certain affirmative action designed to effectuate the policies of the Act, and to restore, as nearly as possible, the situation that existed prior to the commission of the unfair labor practices. We have found that the respondent has refused to bargain collec- tively with the Union as the representative of its employee§ with respect to wages, rates of pay, hours of employment, and other condi- tions of employment. We shall order the respondent to bargain collectively with the Union, upon request. The respondent contends that the Board is estopped from assert- ing, and is barred by lathes from enforcing, any claim for reinstate- ment or back pay. The claim of estoppel is based on the fact that in the course of the injunction proceedings the Board denied that it intended "to order and direct complainants to restore a large num- ber of employees to work and to pay said employees wages during the period that they have rendered no service therefor .. ." Such de- 2 Matter of Kuehne Manufacturing Conypany and Local No. 1791, United Brotherhood of Carpenters and Joiners of America, 7 N. L. R. B. 304. 564 DECISIONS OF NATIONAL, LABOR:. RELATIONS BOARD nial, however, was expressly based on the fact that the Union had not filed a charge alleging violation of Section 8 (3) of the Act. The Board had no such problem before it at that time and of course had no such intentions. Following the dismissal of the injunction ^,pro- ceeding, the Union filed an amended charge alleging :violation of Section 8 (3), whereupon the Board issued its amended complaint. We find that the Board is not. estopped from proceeding upon its amended complaint. The respondent also contends that the Board is barred by lathes from enforcing a claim for reinstatement or back pay inasmuch as the amended complaint was not issued until December 22, 1937, more than 2 years after the commission of the alleged unfair labor prac- tices. The Board was, however, enjoined during the greater part of that period from proceeding on any charges as a result of the re- spondent's bill of complaint. During the pendency of such injunc- tion, it would have been futile for the Union to seek to amend its charge. Its delay in effecting such amendment was attributable in large.part to the respondent's activity. Moreover, as we said in the Colorado Milling c Elevator Company case : 24 The Board acts in the public interest to effectuate an important national policy designed to eliminate the causes of certain ob- structions to the free flow of commerce by the mitigation and elimination of unfair labor practices which tend to cause indus- trial strife and unrest. Such benefits as the Board's remedial orders confer upon individual employees are only incidental to the exercise of its power to effectuate the policies of the Act by remedying conditions created by unfair labor practices. It is well settled that the equitable principle of lathes is not applica- ble to the government acting in the public interest.25 The respondent's claim of lathes is without merit. We, have found that the respondent locked out a number of its employees on or about August 20, 1935, and refused to reinstate them on August 29, 1935, to discourage membership in the Union. We have also found that certain other employees went on strike on or about August 20, 1935, and were also discriminatorily refused rein- statement, on application, on August 29, 1935. In order to effectuate the policies of the Act, we shall order the respondent to offer' to its employees who are listed in Appendices A and B, except U. Arney, immediate reinstatement to their former or substantially equivalent employment. The offer of reinstatement shall be without prejudice 24 Matter of Colorado Milling d Elevator Company and Denver Trades and Labor Assembly, 11 N. L. R. B. 66. 95 See United States v. Nashville, Chattanooga d St. Loris Railway Company, 11S Ti. S. 120. 125; United States v. Beebe, 127 U. S. 338, 344; United States v. Insley, 130 U. S. 263, 266; Federal Trade Commission v. Algonia Lumber Co., et al., 291 U. S. 67. CHARLES BANKS STOUT 565 to their seniority and other rights and privileges. Such reinstate- ment shall be effectuated in the following manner : All employees hired after August 20, 1935, who were not on the respondent's pay roll prior to August 20, 1935, shall, if necessary to provide employment for those to be offered reinstatement, be dis- missed. If, after this is done, there is not, by reason of 'a reduction in the force of employees needed, sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business . Those employees remain- ing after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accord- ance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions as such employment becomes available and before other persons are hired for such work. We shall also order the respondent to make whole all the employees listed in Appendix, A, .except.. U. Arney, for any losses of pay they may have suffered by reason of the respondent's discrimination against them, by paying to each of them an amount equal to that which he would normally have earned as wages during the period from the date of the respondent's -discrimination 29 against him, as indicated in Appendix A, below, to the date of the offer of reinstate- ment, or 'placement on the preferential list, less his net earnings 27 during that period. 26 It has been our policy not to award back pay to strikers for the period during which they were voluntarily on strike, even when the strike was called in protest against unfair labor practices . In the Instant case, however, the respondent locked out most of- its employees before the strike began , and did not reopen its plant until the strike had' ended ; ' The. strike fdid • not. result in the withdrawal or withholding. of the locked-out employees from work. Except as to Everett Spangler , Fred Bunselmeyer. Chase Graham, M. Ward, and Jack McCullah , who voluntarily quit work during the shut -down, it did not interrupt the respondent's obligation to make payments of back pay. See Matter of ,Somerset Shoe Company and United Shoe Workers of America, 12 N. L. It. B. 1057. As to the five who went on strike , back pay will be computed from the date of the respondent's refusal of the Union 's tender of services of its members. 2713y "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of 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 deductible as "net earnings " but, as provided in the Order below, shall be deducted and paid over to the appropriate fiscal agency of- the Federal , State, county, ' municipal , or other government or governments which supplied the funds for said relief . projects. 199549-39-vol. 15 37 566 DECISIONS Or NATIONAL LABOR RELATIONS BOARD Since Arney was not available for employment from the time of the lock-out to October 1935, and since in October 1935 he refused to return to work until the other union members were taken back, he has been either unavailable for employment, or on strike, from August 20, 1935. We shall order the respondent, upon application, to offer reinstatement to Arney in the same manner as the employees listed in Appendices A and B, and to make him whole with back pay for the period from the respondent's refusal, on application, to offer him reinstatement or placement upon the preferential list discussed above to the date of the respondent's offer of employment or place- ment upon such preferential list, less the amounts, if any, which he will have earned during that period. The employees listed in Appendix B are also . entitled- to receive back pay but, inasmuch as the Trial Examiner recommended the dismissal of the complaint as to them, we shall, in accordance with our usual practice, exclude from the computation of their back pay the period from December 10, 1938, the date of the Intermediate Report, to the date of this Decision.28 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Federal Labor Union No. 20028 is a labor organization, within the meaning of Section 2 (5) of the Act. . 2. The production and maintenance employees, including millers, boltermen, packers, truckers, millwrights, and warehousemen, but excluding officials, foremen, and clerical ' employees, employed at the respondent's plant in Aurora, Missouri, constitute 'a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Federal Labor Union No. 20028 was on June 23, 1935, and at all times thereafter has been, the exclusive representative of all the employees iri such unit for the purposes of collective bargaining, within the meaning, of Section 9 (a) of the Act. 4. The respondent, by refusing to bargain collectively with Federal Labor Union No. .20028 as, the exclusive representative of its em- ployees in an appropriate unit, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. The respondent; by discriminating in regard to the hire and tenure of employment, and the terms and conditions of employment of the'employees listed in Appendices A and B, thereby discouraging Matter. of B., R . Hojelinger Co., Inc. and United Wall Paper Crafts of North America, Local,;No., 6,;1 N. , L..R. B. 760. _ CHARLES BANKS STOUT 567 membership in the Union, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. The respondent, by interfering with, restraining, and coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair' labor practices, within the meaning of Section 8 (1) of the Act. The aforesaid unfair labor practices are unfair labor practices, within the meaning of Section 2 (6) and (7) of the Act. ORDER .Upon the basis of the foregoing findings of. fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Charles Banks Stout, Warda Stevens Stout, and Alice Adeline Stout, doing business at Majestic Flour Mills,. and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Federal Labor. Union No.. 20028 as the exclusive representative of its production and main- tenance employees, including millers, boltermen, packers, truckers, millwrights, and warehousemen, but excluding officials, foremen, and clerical employees, employed at the respondent's plant in Aurora, Missouri ; . (b) Discouraging membership in Federal Labor Union No..20028, or"in any other labor organization of its employees, by discharging or refusing to reinstate any of its, employees or in any other .manner discriminating in regard to their hire or tenure of employment or any terms or conditions of their employment; . (c) In any other manner interfering with, restraining, and coerc- ing its employees in the exercise of their rights 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 and protection, as guaranteed in Section 7. of the . Na- tional Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a} Upon request, bargain collectively with Federal Labor Union No. 20028 as the exclusive representative of its production and main- tenance employees, including millers, boltermen, packers, truckers, 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD millwrights, and warehousemen, but excluding officials, foremen, and clerical employees, employed at the respondent's plant in Aurora, Missouri, in respect to rates of pay, wages, hours of work, or other conditions of employment; (b) Offer to the employees listed in Appendices A and B, except U. Arney, immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the sec- tion entitled "The remedy" above, placing those employees for whom employment.is not immediately available upon a preferential. list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (c) Upon application, offer U. Arney immediate and full rein- statement to his former or a substantially equivalent position, with- out prejudice to his seniority and other rights and privileges, in the manner set forth in the section entitled "The remedy" above, or, if employment is not immediately available, place him upon a prefer- ential list in the manner set forth in said section, and thereafter, in said manner, offer him employment as it becomes available; (d) Make whole all the employees listed in Appendix A, except U. Arney and Joe Buehler, for any losses of pay they may have suffered by reason of the respondent's discrimination against them, by paying to each of them an amount equal to that which he would normally have earned as wages during the period from the date of the respondent's discrimination against him, as set forth in Appendix A, below, to the date of the offer of reinstatement or placement upon the preferential list, less his net earnings 29 during that period; pro- vided that the respondent shall deduct from the back pay due each of said employees a sum equal to that received by said employee for work done in Federal, State, county, municipal, or other work-relief projects during the period for which back pay is due hint under this Order, and shall pay any such amount deducted to the appro- priate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects ; (e) Make whole U. Arney for any losses of pay he may have suffered by reason of the respondent's refusal, upon application, to offer.him reinstatement or placement upon the preferential list, by paying to him an amount equal to that which he would have earned .is wages during the period from the date of such refusal to the date of the respondent's offer of reinstatement, or placement upon the preferential list, less his net earnings 29 during that period; pro- 29 See footnote 27, supra. CHARLES BANKS STOUT 569 vided that the respondent shall deduct from the back pay due Arney a sum equal to that received by him for work done in Federal, State, county, municipal, or other work-relief projects during the period for which back pay is due him under this Order, and shall pay any such amount deducted to the appropriate fiscal agency of the Fed- eral, State, county, municipal, or other government or governments which supplied the funds for said projects; (f) Make whole Joe Buehler for any losses of pay he may have suffered by reason of the respondent's discrimination against him, by paying to him an amount equal to that which he would have earned as wages during the period from August 20, 1935, the date of the lock-out, to the date of the offer of reinstatement, or placement upon the preferential list, excluding from the computation of his back pay the period from August 20, 1935, on which date he was unable to work, to October 10, 1935, the date on which he was released by the doctor, less his net earnings 30 during the periods for which back pay is computed; provided that the respondent shall deduct from the back pay due Buehler a sum equal to that received by him for work done in Federal, State, county, municipal, or other work-relief projects during the period for which back pay is due him under this Order, and shall pay any such amount deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other gov- ernment.or governments which supplied the funds for said projects; (g) Make whole all the employees listed in Appendix B for any losses of pay they may have suffered by reason of the lock-out, by paying to each of them an amount equal to that which he would have earned as wages during the period from August 20, 1935, the date of the lock-out, to the date of the offer of reinstatement, or placement on the preferential list, excluding from the computation of their back pay the period from December 10, 1938, the date of the Intermediate Report, to the date of this Decision, less their net • earnings 30 during the periods for which back pay is computed ; pro- vided that the respondent shall deduct from the back pay due each employee a sum equal to that received by such employee for work done in Federal, State, county, municipal, or other work-relief proj- ects during the period for which back pay is due him under this Order, and shall pay any such amount deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said projects; (h) Post immediately notices to its employees throughout its plant in Aurora, Missouri, stating: (1) that the respondent will cease and desist in the manner set forth in paragraphs 1 (a)., (b), and (c) of 80 See footnote 27, supra. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this Order; and (2) that the respondent will take the affirmative action required in paragraphs 2 (a), (b), (c), (d), (e), (f), and (g) of this Order ; (i) Maintain such notices for a period of at least sixty (60) con- secutive days from the date of posting; (j) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. APPENDIX A3' U. Arney, August 20, 1935__ Ray Ashen, August 20, 1935__ $2,610.35 520. 55 Stanley Lane, August 2,0, 1935--------------------- $2,549.17 Eugene Berry, August 22, 1935_____________________ 627.50 LeRoy Leonard, August 20, 1935---------------------- 1,125.00 Ed Brantegan, August 21, 1935_____________________ 910.52 Lloyd Leonard, August 20, 1935-=------------------- 1,100.00 Arthur Brown, August 20, 1935--------------------- 299.00 Hap McCullah, August 20, 1935--------------------- 1,025.25 Joe Buehler, August 20, 1935_ Fred Bunselmeyer, August 1, 266.80 Jack McCullah, August 29, 1935 -------------------- 161.00 29, 1935------------------ 3, 753.90 Rich McCullah, August 20, Leroy Bunselmeyer, August 1935--------------------- 1, 312.00 21, 1935_________________ 72.00 Marvin McKinley, August 20, E. L. Cline, August 20, 1935__ 65. Q0 1935____________________ 234.78 Frank Cline, August 20, 1935_ Paul Cline, August 20, 1935_ 1, 889.40 708.13 Kenneth Metcalf, August 20, 1935--------------------- 1, 693.51 0. T. Davis, August 20, 1935_ Wesley Duvall, August 21, 644.80 Louis Montgomery, August 20, 1935 ----------------- 4.50 1935_____________________ 1,113.00 C. W. Murphy, August 20, Cleto Etheridge, August 20, 1935-------------------- 495.00 . 1935-------------------- 256.20 Buck Powell, August 20, Joe French, August 20, 1935_ 949.60 1935-------------------- 310.64 John Geinnling, August 20, 1935-------------------- 974.00 J. E. Robinson, August 20, 1935-------------------- 738.97 Bennie Gibson, August 20, 1935_____________________ 1,220.00 Paul Ruckman, August 21, 1935 --------------------- 1, 017. 70 Frank Giemling, August 20, 1935____________________ 985.00 Geo. Schank, August 20, 1935-------------------- 500.00 Barney Graham, August 29, 1935 --------------------- 815.59 Everett Spangler, August 29, 1935-------------------- 252. 85 Chase Graham, August 21, 1935--------------------- 1,575.22 Dean Stratton, August 20, 1935-------------------- 178.00 Jack Hadley, August 20, 1935--------------------- 1,380.00 Jack Sullivan, August 22, 1935--------------------- 1, 070.00 Roy Horn, August 20, 1935- 790. 74 Bill Terry, August 20, 1935_ 762. 00 Tom Kittrell, August 20, 1935-------------------- 720.70 Harold Usery, August 20, 1935--------------------- 1, 205.00 "There is some discrepancy in the record as to the spelling of some of these names. We have adopted the spelling used in the copy of the respondent's pay roll which was introduced in evidence. CHARLES BANKS STOUT Torn Vance, August 20, 1935_ $1, 040.00 M. Ward, August 29,1935-- , 722.20 W. It. Whitney, August 20, 1935_____________________ 396.95 571 Nero Wilson, August 20, 1935--------------------- $81.76 V. Wyman, August 20, 1935_ 496. 00 APPENDIX B 32 Ora Berry Lawrence Holtmeyer Clarence Blades Joe Holzen Leo Bohanon Wallace Little Harry Clover D. Powell Paul Griffith Bob Sei,bough Calvin Hadley MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order. 32 See footnote 31, supra.