Schwarze Electric Co.

In the Matter Of SCHWARZE ELECTRIC COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE WOR.I]ERSOF AMERICA, LOCAL:NO.• 268 Case No. C-409.-Decided October 23, 1939 Electric Automobile Accessories and Sound Equipment Manufacturing Indus- try-Interference, Restraint, and Coercion : expressing disapproval of an outside union ; attempts to foster one union in preference to another-Company-Domi= nated Union: participation by supervisory employees in formation ; solicitations for membership by supervisory employees ; membership of supervisory employees in company-dominated union ; closing of plant to permit attendance at meetings ; disestablished as agency for collective bargaining-Closed-Shop Contract: with company-dominated union, abrogated-Discrimination : discharges for union membership and activity ; employees laid off for lack of work later denied reinstatement because of their union membership and activity ; charges not sustained as to some employees-Reinstatement Ordered : employees discrimina- torily discharged to be offered immediate reinstatement ; employees temporarily laid off because of lack of work to be placed upon a preferential list for employ- ment in the order of their seniority before hiring other , persons-Back . Pay: awarded to employees discriminatorily discharged-Strike-Age:eenien,t: ,strike settlement-Employee Status: where employee obtains job with less pay resigna- tion considered effective as of date employer notified. Mr. Earl 1Z. Cross, for the Board. Clark cC Bean, by Mr. L. E. Bean, of Adrian, Mich., for the respondent. Mr. Lawrence J. Hammond, of Adrian, Mich., for the E. R. U. Miss Fannie M. Boyls, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Union, United Automobile Workers of America, Local No. 268, herein called the U. A. W. A., the National Labor Relations Board, herein ..called the Board, by the Acting Regional Director for the Seventh Region, (Detroit, Michigan), issued its complaint dated November 13, 1937, against Schwarze Electric Company, Adrian, Michigan, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within 16 N. L. it. B., No. 33. 246 SCHWARZE ELECTRIC COMPANY 247 the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. In respect to the unfair labor practices, the complaint alleged in substance that the respondent had (1) discharged 58 of its employees' because they had joined and assisted the U. A. W. A. and had engaged in concerted activities with other employees for the purpose of col- lective bargaining and other mutual aid and protection, (2) dominated and interfered with the formation and administration of a labor organ- ization known as the Employees Representative Union, herein called the E. R. U., and contributed support thereto, and (3) expressed oppo- sition to the U. A. W. A. and engendered fear of loss of their jobs because of membership in or activities in behalf of the U. A. W. A. The complaint and accompanying notice of hearing were duly served upon the respondent, the U. A. W. A., and the E. R. U. Thereafter the respondent duly filed an answer in which it admitted the allegations in the complaint relative to its corporate existence and the relation of its business to commerce, denied that it had engaged in the unfair labor practices with which it was charged, and pleaded affirmatively that 3 of the 58 employees named in the complaint had never been employed by it,2 that 8 were discharged for cause,3 that 7 had voluntarily quit their employment,4 and that the remainder were temporarily laid off because of a seasonal decline in production. Pursuant to the notice, a hearing was held at Adrian, Michigan, from December 2 to and including December 9, 1937, before David F. Smith, the Trial Examiner duly designated by the Board. Upon motion made by the E. R. U. at the commencement of the hearing, it was permitted to intervene. On December 3, 1937, it filed an answer to the complaint, in which it denied that the respondent had dominated and interfered. with its formation and administration or contributed support to it. The Board, the respondent, and the E. R. U. were I The names of these employees are as follows : Charles Fuller , Helen Johnson , Kenneth Baldwin, Arlene Mort , Ella Drake. Roger Watson , Phyllis French , Evelyn Baker, Mina Tidswell, Luella Butts , Ethel Mallory, Price James , Carroll James , Frank Hannon, Mabel Cornell , Ella M . Dinse, Ruth Stuart , Roy Housman , Earl VanNorman , Helen Corbett, Elda Guss, P. B. Salvador , Sophia Glenn , Mary Pachay, Evelyn Benfield , Earl Carver, D. C. Dieckeroff, Howard Delo , Lawrence Beebe , Fay Hill, Laverne Anderson , Alvin Blanchard, Charles B. Bumpus , Alice Graf, Raymond James, Forest Flaherty , Audrey Calkins, Law- rence Barenck , Marjorie Van Volkenburgh , June Negus, Marguerite , Parlette , Ford Brock, Velma Brieschke , Helen Reck, Gertrude Miller, Hugh Schearer, Joe Fisher , Francis Guyman, Carl Miller, Carey L. DeTray, Florence Heskett , Marcella Polhemns, Josephine VanNest, Frank Barrett , Betty Havens, Merle Chestier , James Miller , and Carl Smith. The employees referred to were named in the complaint as Frank Homer, Ella Dense, nnil Lawrence Anderson. Their names correctly spelled are : Frank Hannon , Ella M . Dinse, and LaVerne Anderson . The complaint was amended to correct the spelling of Ella Dense to Ella Al. Dinse. Although the record discloses the correct spelling of the other two names no amendment was offered to correct the spelling. 8 The names of these employees are as follows : Evelyn Baker, Mina Tidswell , Helen Reck , Price James, Earl VanNorman , P. B. Salvador, Hugh Schearer, and Francis Guyman. The names of these employees are as follows : Fay Hill , Audrey Calkins , Lawrence B:n•enek . Gertrude Miller, Carl Miller , Carey L. DeTray, and Florence Heskett. 247383-40-vol. 16--17 248 DECISIONS OF NATIONAL LABOR RELATIONS UOARD represented by counsel, and participated in the hearing. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. Counsel for the respondent, at the close of the Board's case, moved that the allegations of the complaint with respect to 25 persons named therein who failed to appear and testify be dismissed.5 The Trial Examiner reserved his ruling on this motion and in his Intermediate Report dismissed the complaint as to these persons. Also at the close of the Board's case, and again at the close of the hearing, the respond- ent and the E. R. U. each moved to dismiss the complaint upon the ground that the evidence adduced at the hearing had, failed to sus- tain the allegations of unfair labor practices alleged in the complaint. These motions were denied. During the course of the hearing, the Trial Examiner made other rulings on various motions and on objec- tions to the admission of evidence. The Board has considered all rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On January 14, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all the parties. He found that 28 of the employees named in the complaints had been dis- charged by the respondent solely because of their membership in and activities in behalf of the U. A. W. A., that 4 had been discharged for cause, and that 1 had voluntarily quit her employment.8 The Trial Examiner further found that the respondent had dominated and in- terfered with the formation and administration of the E. R. U. and contributed support to it. He recommended that the respondent cease and desist from engaging in the afore-mentioned unfair labor practices, that it reinstate, With back pay, the employees found by him to have 5 The names of these persons are as follows : Charles Fuller, Ella Drake, Frank Hannon, Mabel Cornell , Roy Housman , Earl VanNorman , P. B. Salvador, Mary Pacbay , Helen Cor- bett , Evelyn Benfield , Earl Carver, D. C. Dieckeroff, Laverne Anderson , Charles R. Bumpus, Forest Flaherty , Lawrence Barenck , Velma Brieschke , Hugh Schearer , Francis Guyman, Carey L. DeTray, Marcella Polhemus , Josephine VanNest, Frank Barrett, Carl Smith, and Raymond James. 6 The names of these employees are as follows : Helen Johnson , Kenneth Baldwin. Arlene Mort, Phyllis French, Evelyn Baker, Luella Butts, Ethel Mallory, Ella M. Dinse, Ruth Stuart, Elda Guss, Sophia Glenn , Howard Demo , Lawrence Beebe, Fay Hill , Alvin Blanchard, Alice Graf, Mina Tidswell , Marjorie Van Volkenburgh , June Negus , Marguerite Parlette, Ford Brock, Helen Reek , Gertrude Miller, Carl Miller, Florence Heskett, Betty Havens, James Miller, and Norlene Anderson . Norlene Anderson , although she testified at the hearing, was not named in the complaint . The attention of counsel for the Board was called to this fact at the time Anderson testified , but he made no request that the com- plaint be amended to include her name . The Trial Examiner therefore erred in finding that the respondent discriminated in regard to her hire and tenure of employment, and his finding in this respect is hereby set aside. The Trial Examiner made no finding with respect to Merle Chesher , one of the employees named in the complaint. We shall consider his case in Section III, infra. 7 The names of these employees are as follows : Roger Watson, Carroll James, Price James, and Joe Fisher. The name of this employee is Audrey Calkins. SCHWARZE ELECTRIC COMPANY 249 been discriminatorily discharged, and that it disestablish the E. R. U. as an agency for collective bargaining. On February 18, 1938, the respondent filed exceptions to the Inter- mediate Report and requested to be heard in oral argument before the Board. Pursuant to notice duly served upon the respondent, the U. A. W. A., and the E. R. U., a hearing for the purpose of oral argu- ment was held before. the Board in Washington, D. C., on March 17, 1938. Counsel for the respondent and the U. A. W. A. appeared and participated in the oral argument. Counsel for the E. R. U. did not appear. The Board has considered the exceptions to the Intermediate Report, and save as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit, and they are hereby overruled. Subsequent to the oral argument, upon request of the Secretary of. the Board, the respondent furnished the Board with two seniority- lists, one listing employees of the respondent according to their depart- ments and the other listing them according to their jobs within each department. Attached to the first of these lists was a stipulation signed by counsel for the respondent, and Carl Woll, president of the U. A. W. A. The stipulation related to the first seniority list and certain facts concerning working conditions, which we shall consider in our findings of fact.9 We hereby make said seniority lists and stipulation a part of the record in this case.10 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Schwarze Electric Company is a corporation organized and exist- ing since 1904 under the laws of the State of Michigan. It operates a factory at Adrian, Michigan, at which it manufactures automobile horns, oil gauges, windshield defrosters, fire-alarm signals, school bells, household bells, chimes, sirens, and paging and calling equipment and systems. About 85 per cent of its total business pertains to automobile equipment. The respondent normally employs about 367 persons. Its gross sales average about $80,000 a month. Raw materials used by the respondent consist chiefly of steel, fibre, paper board, screw-machine products, copper, brass, and aluminum. About 65 per cent of these products are obtained from States other The stipulation is set forth in full in footnote 18, infra. 10 Counsel for the respondent in a letter to the Board , dated April 5, 1939, contended that the list compiled to show job classifications should be made a part of the record. The U. A. W. A., by signing a stipulation attached to the list , indicated its willingness that such list might be considered a part of the record. 250 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD than Michigan. Approximately 50 per cent of the finished products are shipped outside Michigan. II. THE LABOR ORGANIZATIONS INVOLVED International Union, United Automobile Workers of America, Local No. 268, is a labor organization affiliated with the Committee for In- dustrial Organization, herein called the C. I. O. Local No. 268 received its charter from the International Union on March 22, 1937. Employees Representative Union is an unaffiliated labor organiza- tion, incorporated under the laws of the State of Michigan on April 29, 1937. It admits to membership all employees of the respondent, including foremen and office employees. III. THE UNFAIR LABOR PRACTICES A. Domination of and interference with formation and administration of the E. R. U.; interference , restraint, and coercion 1. Background About February 1937 the U. A. W. A. commenced organizing em- ployees at the respondent's plant. Soon thereafter Ernest (Red) Leffel, assistant superintendent at the plant, called all employees together and told them that he had heard that the plant was being organized and that increases in pay similar to those requested at another plant organized by the U. A. W. A. in Adrian would be requested of the respondent; that the respondent was making only a penny on each horn and could not afford to grant raises. He advised them "to think it over" before they joined any union. During the latter part of April 1937 a negotiating committee of the U. A. W. A., consisting of Howard Delo, Audrey Calkins, Lawrence Beebe, Alvin Blanchard, and Alice Renner, all employees of the re- spondent, met with Harry M. Beery, the respondent's general man- ager and treasurer, informed him that the U. A. W. A. represented a majority of the employees, and presented to him a proposed contract for his consideration. Beery told them that "he was in accord with a. union but not in accord with an outside union, outside organizers, or outside people dominating" and suggested that they "not affiliate or join up with an outside union, but with the union that was under way at that time." 11 He nevertheless requested that the committee submit to him a list of the U. A. W. A. members in support of its claim that the U. A. W. A. represented a majority of the employees. The com- mittee promised to submit to the union members the question of 11 The E. R. U. SCHWARZE ELECTRIC COMPANY 251 whether or not a membership list should be given Beery. The proposed contract was then discussed and Beery promised to draw up and submit to the committee a contract which would be acceptable to him. This new proposed contract was later submitted by Beery to the commit- tee and rejected by the U. A. W. A. The U. A. W. A. also declined to authorize the submission of a list of its members. While these negotiations were taking place, Leffel, the assistant superintendent, was interviewing organizers from the American Fed- eration of Labor, herein called the A. F. of L., and planning to bring that union into the plant, and Kenneth Young, Clarence Davis, and other employees referred to by several witnesses as "old timers," were planning the formation of an "inside" labor organization, referred to by Beery at his first conference with the U. A. W. A. committee. Leffel testified that he preferred the A. F. of L. to the C. I. O. but abandoned his plan to bring the A. F. of L. into the plant when he learned that the "old timers" preferred a union of their own. On April 27, Kenneth Young, a stock chaser, with headquarters in the office of William Engel, superintendent, used the respondent's facil- ities for typing and mimeographing pledge cards for a proposed "inside" union. These pledge cards were circulated throughout the plant during working hours by Kenneth Young, Clarence Davis, and other employees, with the aid of Homer Teller and Russell Snellen- berger, assistant foremen of the machine shop, Edwin Bahs, foreman of the assembly department, Vern Hoover, foreman of the paint shop, and Mary Rechlau, instructor of a line of girls in the assembly department. Upon the request of a committee consisting of Young, Davis, and Bahs, an interview with Beery was granted for the after- noon of April 28. Young and Davis attended the interview, the purpose of which, as expressed by Young, was "to see if we (the com- mittee) could stop the C. I. O.'s from getting an agreement." Young and Davis took with them approximately 175 pledge cards or appli- cations for membership in the proposed "inside" union. Beery told them that he 'could not deal with them unless they represented at least 51 per cent of the employees and unless those employees were organized. Young and Davis thereupon left the plant and employed an attorney, Lawrence J. Hammond, to assist them in organizing a union. They returned to the plant during the afternoon of the same day, typed notices of a meeting to be held that evening, and posted the notices upon the respondent's bulletin boards located throughout the plant. Pledge cards were distributed by supervisory employees and other employees interested in the formation of the "inside" union during the afternoon of April 28 and all employees were informed that they needed such cards to admit them to the meeting. The object of this requirement was explained by Young to be the exclusion of U. A. W. A. members who might attempt to break up the meeting. '252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Formation of the E. R. U. A night shift of approximately 50 employees had been reporting for work regularly at about 5: 15 o'clock each evening prior to April 28. On that evening, however, all except about a dozen employees remained away to attend the meeting. Engel, superintendent of the plant, instructed the night watchman to send those who reported for work home. About 250 employees including Balls, Leffel, Teller, and other supervisory employees attended the meeting. Leffel and Teller at that time would normally have been on night duty. The employees voted at the meeting to form the Employees Representative Union, elected officers and directors, and adopted bylaws. Among the officers and directors elected -were : Louis Robins, a leader or set-up man in the machine department, referred to by one of the employees as "sort of foreman," director and later treasurer; Clarence Davis, a repair man,12 and Andrew Roesch, a millwright whose duties required their attendance in all departments of the plant, president and di- rector, respectively; and Mary K. Bloomer, a cost accountant, and Kenneth Young, a stock chaser, both of whom worked in the offices of the respondent, directors. Mary Rechlau, instructor of a line of girls in the assembly department and variously referred to by the employees as a "floor-lady" or as a "forelady," was later elected secretary. Approximately 170 or 175 employees, including Leffel and Teller, joined the new organization that night. The board of di- rectors met later that night and signed articles of incorporation which were filed with the Michigan Corporation and Securities Com- mission on the following day. 3. The strike and its settlement While the organizational meeting of the E. R. U. which we have just described was in progress, the U. A. W. A. called a strike and formed a picket line around the plant. Leffel, who received word of the strike while at the meeting, announced to the employees present that they need not report for work on the following morning. As a result of the strike the plant was completely shut down until May 5, at which time the strike was called off pursuant to the following agreement negotiated between the respondent and the U. A. W. A.: This agreement made and entered into this 5th, day of May A. D. 1937, by and between Schwarze Electric Company, a Michigan Corporation of Adrian, Michigan, of the first part and Adrian Union U. A. W. A. Local No. 268 by their duly authorized negotiating committee and David Hall, International Representative U. A. W. A. of the second part. v For more than a month prior to the hearing he had been working in the experimental department at an increase in pay of about $5 a week. SCHWARZE ELECTRIC COMPANY 253 WHEREAS, the said local union U. A. W. A. employees of said first party have declared and are operating a strike, as a result of which the manufacturing plant of said first party has been unable to operate, and WHEREAS, the said Local Union 268 claiming a majority of the employees of first party and whereas other employees of first party designating themselves as Employees Representative Union of the Schwarze Electric Company, are also claiming a majority of said employees and have, filed a petition with the Federal. Labor Relations Board, under the so-called Wagner Act, for an investigation and election to legally determine said majority, and WHEREAS, said first party and second party have negotiated and have arrived at an agreement to be temporary pending the election to be held under the Wagner Act, to determine said majority by reason of filing said petition and said parties are now desirous of placing said agreement in writing. Now therefore this agreement witnesseth as follows : First, First party shall reemploy the following persons : Carey DeTray, Gertrude Miller, Carl Miller, LaVern Anderson, Francis Guyman, Price James, Frank Barrett; said reemployment to commence with the reopening of the plant and said parties to possess their seniority rights, provided however, that Vern An- derson shall be placed according to his ability and provided further that Francis Guyman shall be placed at work in a position to which he is adapted; Second, Second party agree that they will not cease work, strike, picket or boycott and first party agrees there shall be no lockouts so long as this temporary agreement remains in force; Third, Second party agrees that there shall be no union activi- ties or solicitations on company property and first party agrees that it will not permit same to be done by others; Fourth, That in the event of shortage of stock or orders necessitating a lessening or (sic) production, that reduction shall first be to four working days per week and thereafter seniority and merit govern, to be determined by Arbitration Board con- sisting of two employees and two representing the management, and in case of inability to agree, a fifth person shall be designated by the Board to decide said question. Fifth, It is agreed between the parties that the eligibility of voters at the election petitioned for and to be held, shall be the company payroll existing at the time of the strike, as of April 29th, 1937. It is hereby declared to be the intention of the parties hereto that the conditions herein specified are the considerations of this 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract in order to arrive at this settlement which is hereby recognized and agreed as being a temporary contract to permit the reopening of plant of first party, whereby all employees may have employment and work pending the result of the election petitioned for to determine a majority under the Wagner Act. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first above written. Despite its agreement not to permit union activities or solicitations on its property, and despite the fact that it posted notices on its bul- letin boards prohibiting union activities during working hours, the respondent immediately upon reopening its plant commenced an active campaign to assist and foster the growth of the E. R. U. E. R. U. members were permitted to solicit memberships during working hours, and Homer Teller, assistant foreman of the machine shop, Bahs, and Leffel assisted in the solicitations. The respondent's bulletin boards were used by the E. R. U. for posting notices of its meetings. On or about May 11 the employees on the night shift were given. per- mission by Leffel to leave their work for 2 hours to attend an E. R. U. meeting. Teller had the power shut off and all but three of the em- ployees attended the meeting. As a result of the encouragement and support given by the re- spondent to the E. R. U. and the violation by the respondent of the strike-settlement agreement, the U. A. W. A. on May 14 filed with the Board's Regional Director a charge that the respondent was fos- tering, supporting, and interferinb with the formation and adminis- tration of the E. R. U., and thereafter no election was conducted to determine which union, if either, represented a- majority of the em- ployees. During the latter part of June 1937, the respondent recognized the E. R. U. as the sole representative of its employees for the purposes of collective bargaining and agreed to grant demands of the E. R. U. for increases in pay. During the latter part of September, the re- spondent agreed to grant the E. R. U. a closed shop and thereafter posted upon its bulletin boards the following notice : GENERAL NOTICE NO. U-4 OCT. 7, 1937. The Employees' Representative Union, an organization com- posed of employees of the Schwarze Electric Company, which organization has been recognized by the Company as represent- ing the majority of employees and therefore entitled to the right to bargain for all employees, has petitioned this Company through its president, in a letter dated September 29, 1937, for a closed shop. After giving this serious consideration, the SCHWARZE ELECTRIC COMPANY 255 management hereby agrees to grant the request for a closed shop for a period of six months. Those exempt from this agreement will be : Salaried em- ployees, department heads, foremen and assistant foremen, chief inspector, '%vatchmen and those on special police duty. New employees will be required to sign an application at the time of employment, the terms and conditions of payment to be handled directly by the Employees' Representative Union. The Company will also recognize a shop steward system, to be set up in the plant in accordance with terms and conditions as discussed in a meeting between the directors of the Employees' Representative Union and the Management of the Company. The records of discharged employees will be available at all times for review by the Executive Committee, and any mis- understanding over any discharged employee can be discussed with the management by the Executive Committee through regular meetings, or special meetings can be called when necessary. H. M. BEERY, General Manager. October 22 was set as the date by which all employees had to join the E. R. U. Carl Woll, president of the U. A. W. A., advised U. A. W. A. members to join the E. R. U. in order to retain their jobs.13 Apparently they did join, for there was no evidence in the record that any U. A. W. A. members were laid off or discharged after October 22, and Clarence Davis testified that if any members of the U. A. W. A. were working at the plant, they were also members of the E. R. U. Beery testified that he never gave the employees permission to leave the plant for the purpose of attending an E. R. U. meeting; that he never knew of their 2-hour absence on the night of May 11; that he had instructed his foremen to take no sides in the controversy involving the E. R. U. and the U. A. W. A.; and that when he learned that some of the foremen had joined the E. R. U., he re- quested Engel, the superintendent, to instruct them to withdraw. Regardless of the truth of these assertions by Beery, the respondent is no less responsible for the acts and conduct of its supervisory employees.14 We find that the respondent has dominated and interfered with the formation and administration of the E. R. U. and has con- 13 The U. A. W. A. claimed that it had between 175 and 225 members at the plant in May and June 1937. 14 See Virginia Ferry Corporation v. National Labor Relations Board, 101 F. (2d) 103 (C. C. A. 4th) ; and National Labor Relations Board V. A . S. Abell Company, 97 F. (2d) 951 (C. C. A. 4th). 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tributed support to it; 11 and that the respondent by said acts and by other acts set forth above, designed to discourage membership in the U. A. W. A., namely, by Leffel's admonition to the employees "to think it over" before joining any union, by his subsequent at- tempt to foster an A. F. of L. union at the plant, and by Beery's statement to the U. A. W. A. committee that he was not in accord with an "outside" union, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Discrimination in regard to hire and tenure of employment Because of a decrease in production at the plant, it became neces- sary for the respondent, commencing about May 20, 1937, and con- tinuing over a period of 3 or 4 months, to reduce its force from approximately 367 employees to about 200. The complaint alleges, however, that in the reduction 58 employees were chosen for dis- charge because of their membership or activities in behalf of the U. A. W. A.1e Twenty-five of. the fifty-eight employees failed to appear and testify at the hearing, and the complaint was dismissed as to them. We shall, therefore, consider only the cases of the remaining 33 employees. Harry M. Beery, general manager and treasurer of the respond- ent, testified that he attempted to live up to all the terms of the strike-settlement agreement. That agreement provided, in regard to lay-offs, that in the event of a lessening of production, the workweek should be reduced to 4 days, that if lay-offs were thereafter necessary, seniority and merit should govern, and that the seniority and merit of employees should be determined by an arbitration board to consist of two employees and two representatives of the management. In some departments, and as to certain employees, the workweek was shortened during the summer of 1937. But the respondent, on June 28, posted a notice on its bulletin board to the effect that it was at that time establishing a 50-hour week, that employees on the day shift would be required to work 9 hours a day for 5'1/2 days each week, and that employees on the night shift would be required to work 10 hours each night for 5 nights of each week. The U. A. W. A., however, did not insist upon the respondent carrying out the 11 Cf. Titan Metal Manufacturing Company and Titan Employees Protective Association et al., Intervenors, v. National Labor Relations Board, 106 F. (2d) 254 (C. C. A. 3rd). '° It is immaterial whether these employees were discharged or laid off. If their em- ployment terminated because of their membership or activities in behalf of the U. A. W. A., they were in either event objects of discrimination within the meaning of Section 8 (3) of the Act. Matter of Harry Schwartz Yarn Co., Inc., and Textile Workers Organizing Committee, 12 N. L. R. B. 1139; Matter of Seroel, Inc., and United Electrical, Radio and Machine Workers of America, Local No. 1002, 11 N. L. R. B. 1295; and Matter of Precision Castings Company, Inc., and Iron Moulders Union of North America, Local 80, 8 N. L. R. B. 879, 890. SCHWARZE ELECTRIC COMPANY 257 agreement to reduce the workweek to 4 days or .that .an arbitration board be established to determine lay-offs according to ' seniority and merit .17 Its failure to request an enforcement of the 'agreement was perhaps caused by its own unwillingness to have executed that part of the agreement which provided for an election, with the E. R. U., a company-dominated union, appearing upon the ballot. The respondent nevertheless contends that it gave -due considera- tion to seniority in laying off the employees. It furnished Leffel and Bahs with a list of the employees in their respective departments, pre- sumably listed in the order of seniority, with instructions to follow the lists in effecting lay-offs. These seniority lists were not introduced in evidence. However, subsequent to the hearing, the respondent furnished the Board with two seniority lists, orie listing all employees of the plant according to their departments and the other according to their jobs within the departments, each list showing the date when each em- ployee was hired, the date of his lay-off or lay-offs, the date of his discharge, the date when he quit, and the date of his reinstatement. These lists we have treated as apart of the record.18 Although the 17 See footnote 18, infra. 11 Attached to the first of these lists, the one which classified employees only as to departments, was the following stipulation : At the request of the Secretary of the National Labor Relations Board dated July 23, 1938, that further information be furnished in the form of a list of all employees em- ployed by the respondent between May 6 and December 2, 1937, listed according to their jobs and departments and showing the lengths of service , date of lay-off or layoffs after May 6, 1937, and date of reinstatement of each employee whether he was laid off, quit or discharged ; information relative to whether or not the United Automobile Workers of America ever requested the respondent to comply with the terms of the strike agreement of May 5 , 1937, especially paragraph 4 thereof regarding the four-day week and the functioning of an Arbitration Board and information concerning the extent to which the respondent has adhered to a seniority policy in the past in laying off and reinstating its employees and more specifically, whether or not it has followed a seniority policy similar to the one it claims it followed during the summer of 1937 : IT IS STIPULATED AND AGREED that the list attached hereto Is a list of all employees em- ployed by the respondent Company between May 6 and December 2, 1937, listed according to their jobs and departments and showing the length of service, date of layoff or layoffs after May 6, 1937, and the date of reinstatement of each employee with the showing as to employment termination whether the said employee quit, was laid off or discharged. . IT IS FURTHER STIPULATED AND AGREED that no request was made of the respondent by the United Automobile Workers of America to comply with the terms of the strike agree- ment of May 5, 1937, and that the four- day week agreement was carried out for a period of three weeks after the signing of the agreement with two shifts, or equivalent to eight shifts per week at the end of the three-week period , and that thereafter the night shift was discontinued and the plant operated five days a week or the equivalent of five shifts. That it Is the contention of the respondent that it has always been their policy to adhere to seniority rights of its employees according to their respective departments and class of work. That It is the contention of the United Automobile Workers of America that the respondent never did follow this alleged seniority policy. (Signed ) CARL WOLL, President, Int'l Union, United Automobile Workers of America, Local 268. (Signed ) CLARK & BEAN, Attorney for the Schwarze Electric Co. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two lists are not entirely consistent with each other and some of the information contained therein is contradicted by testimony in the record, we have given due consideration to the lists and accepted the information contained therein as accurate except in so far as other evidence clearly establishes an inaccuracy. Many of the job classifications set forth on one of the seniority lists are not mentioned elsewhere in the record, and some of the job classifications or operations frequently referred to by the witnesses who testified are not mentioned on either seniority list. For example, Bates and other witnesses referred to lay-offs from the Ford line, the Overland line, and the Hudson line within the assembly department. Only the Hudson line is listed, but numerous other operations are named, some of which we must assume are parts of the Ford line or the Overland line. Many of the employees listed under these other operations testified that they worked on the Ford line. We shall treat further of this problem in connection with the individual cases hereinafter discussed. The foreman of each department apparently had the power, al- though not the exclusive power, to hire and discharge employees. Whether or not U. A. W. A. members were discriminated against in connection with the lay-offs and subsequent refusals to reinstate, can best be determined by considering the actions of the foremen of the several departments. We shall first, however, point out a few general considerations which appear to throw light upon the respondent's treatment of U. A. W. A. members. The following employees were apparently the most active of the U. A. W. A. members at the plant : Carl Miller, employed December 31, 1934, and his wife Gertrude Miller, employed January 14, 1935, who held organizational meetings at their home; Howard Delo, em- ployed March 3, 1937, chairman of the strike settlement committee and other U. A. W. A. committees; Audrey Calkins, employed May 31, 1933, and Alvin Blanchard, employed November 6, 1936, mem- bers of the strike settlement committee; Alice Renner, employed February 25, 1935, and Lawrence Beebe, an employee of about 15 years' service, employed last on March 1, 1937, who, with Delo, Cal- kins, and Blanchard, served on a committee which met with Beery before the strike was called. Carl and Gertrude Miller were dis- charged prior to the strike but were reinstated as a result of the strike settlement agreement. They and all other U. A. W. A. mem- bers above mentioned were laid off prior to the hearing. Only one of them, Alice Renner, was reinstated, and she became a member of the E. R. U. At the time of her lay-off from the job of punch press operator, for a 2-week period while inventory was being taken, an- SCHWARZE ELECTRIC COMPANY 259 other punch press operator, Erma Butts, who was an E. R. U. steward and junior to Renner, was retained and given other work to do. Remier testified that in October 1937 she and her husband, who was also employed by the respondent, were called into Beery's office and asked what they intended to do about joining the E. R. U. They replied that they did not know, and he then told them that they "would be better off" if they joined because he had granted the E. R. U. a closed shop and that everybody would have to join.19 Mrs. Renner then asked Beery about the Board's investigation of charges that the E. R. U. was company dominated and Beery replied that "he did not think it would amount to anything" and added, "we all know that the Labor Board is partial, or sympathetic to the C. 1. O." Beery admitted having called Alice Renner and her husband into his office after he had heard from Engel that they were dissatisfied with the closed-shop agreement. He did not deny having made the statements attributed to himm, by Mrs. Renner, and we accept her account of the interview as substantially correct. Both Alice Renner and her husband thereafter joined the E. R. U. The following employees were apparently the most active of the E. R. U. members : Clarence Davis, employed February 5, 1934, presi- dent; Eva Ott, employed March 29, 1935, vice president; Belle Holtz, employed March 24, 1919, and Mary Rechlau, employed October 28, 1924, secretaries; Cecil Sentel, not listed on either of the seniority lists, and Louis Robins, employed June 3, 1929, treasurers; and An- drew Roesch, employed February 11, 1921, Kenneth Young, employed September 21, 1936, Mary Bloomer, not listed on either seniority list, Dorothy Turnwald, employed January 19, 1935, and Ada Brown, employed February 26, 1937, all members of the board of directors of the E. R. U. In addition to these officers and directors, the E. R. U. had 25 stewards in the various departments of the plant, 11 of whom had been employed by the respondent between November 1936 and March 1937. The record contains no evidence relative to the tenure of employment of Cecil Sentel and Mary Bloomer. All other officers and directors of the E. R. U. were working at the time of the hearing. Only one of them, Ada Brown had been laid off between May and December 1937, and she was laid off for only two periods of 2 and 3 weeks each. Of the 25 E. R. U. stewards, only 2, Verda Hebb and Erma Butts, had been laid off prior to the hearing, and their lay-offs did not occur until September 1 and October 1, respectively. It is true that more "old timers" at the plant joined the E. R. U. than joined the U. A. W. A. However, an examination of the list of 19 In regard to the closed -shop contract , Beery testified that he understood that only new employees would be required to join the E. R. U. The closed-shop agreement as understood by Davis and Young, however, and,as enforced by the E . R. U applied, as we have pointed out in Section III, A, above, to old as well as new employees. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .leaders of both organizations shows that there were employees old in seniority as well as young in seniority active in each organization. We find it significant that all of the 7 U. A. W. A. leaders and only 3 .of 34 E. R. U. leaders were laid off prior to the hearing. Five of the seven U. A. W. A. leaders would not have been laid off if seniority had been followed. None of the three E. R. U. leaders who were laid off had seniority over the employees retained. Furthermore, three other E. R. U. leaders would have been laid off had seniority been followed. A further fact which appears to us significant, and more than a coincidence, is that none of the seven employees whom the U. A. W. A. claimed to have been discriminatorily discharged prior to the strike, and whom the respondent agreed in the strike settlement agreement to reinstate, were working for the respondent at the date of the hearing.20 Engel testified that all of these employees who were reinstated after the strike were insubordinate, refused to do what they were told to do, and took the attitude that the respondent -could not discharge them. He cited no instances of such insubor- dination, however, and the record contains no other evidence in support of that statement. Another fact which makes us look with suspicion upon the conduct of the respondent in laying off and reinstating its employees is the gross misrepresentation of facts and contradictory testimony by certain representatives of the respondent at the hearing. We refer in particular to the testimony of Bahs, foreman of the assembly department. In response to questions by both counsel for the Board and the Trial Examiner, at the hearing, Bahs testified positively that no new employees had been hired in his department subsequent to the time when the lay-offs commenced and prior to the hearing. He further testified that he did not intend to hire any new employees until those employees who were laid off were reinstated. He was thereafter requested by counsel for the Board to bring to the hearing room records of the respondent, showing all employees who were then employed in his department. The plant pay roll for the week ending November 30, 1937, was subsequently brought into the hear- ing room, and Balls requested the Trial Examiner to permit him to correct a statement which he had theretofore made to the effect that 20 As to one of the seven , t1arey DeTray, it is true that the only proof adduced, namely, the statement in the seniority lists furnished by the respondent , indicates that he was reinstated but later quit his job. Although all seven were named in the complaint, only three appeared and testified at the hearing . Two of the three , Carl Miller and Gertrude Miller, we have found were discriminatorily laid off. See a discussion of these cases , infra. As to the third , Price James , he was never reinstated after the termination of the strike. Although his earlier discharge we find to have been for cause , this fact affords no explana- tion of the failure of the respondent to carry out its agreement of reinstatement. Frank Barrett was apparently not reinstated upon the termination of the strike . Two others, Francis Guyman and Laverne Anderson , were reinstated but later laid off. Guyman would not have been laid off at all and Anderson would have been laid off for only about 1 month, had seniority been followed in effecting lay-offs on their jobs. SCHWARZE ELECTRIC COMPANY 261 . no new employees had been hired in his department. He then ad- mitted that 18 or 20 new employees had been hired. One of the seniority lists furnished subsequent to the hearing shows that 43 new employees were hired in the assembly department between June 25 and November 2, 1937, and that 30 of these new employees were still working on December 2, when the hearing commenced. Moreover, we are impressed with the testimony of one June Fields who was sent by an employment agency in Adrian to see the re- spondent on August 20. She was met by. Burry, the respondent's watchman and personnel officer, who took her application and asked her whether she belonged to the U. A.. W. A. Fields was a member of the U. A. W. A. but was delinquent in the payment of her dues. She explained such fact to Burry and told him that because her dues were not paid up she did not know whether she belonged or not. He then told her "You know we don't want any trouble with the C. I. O. We are all washed up. We don't want any more trouble." Fields was not given a job. Betty Havens, one of-the U. A. W. A. members who was laid off, testified that one of her friends, Maxine Bryan, who was hired for a short time 2 or 3 months prior to the hearing, informed her that Burry had asked her about her union affiliation at the time she applied for work; that she, Bryan, informed Burry that she was not a. member of any union, and was hired. This testimony was not denied by the respondent. Burry did not testify at the hearing. We accept Havens' testimony as true. That the respondent was taking into consideration the union affilia- tion of employees which it was hiring or reinstating during the summer and fall of 1937 is further substantiated by uncontraverted testimony of Phyllis French, a U. A. W. A. member who wore her union button at the plant and was among persons laid off. She tes- tified that upon one occasion. when she returned to the plant, seeking reinstatement, Bahs told her, "Well, you know, we are trying to have a closed shop"; she replied, "I suppose I will have to join the other union in order to get a job"; and that he answered, "Yes, if you have one." Although the exact time when this conversation took place is not clear, it occurred more than 8 weeks prior to the hearing, before the closed-shop agreement with the E. R. U. became effective. The closed-shop agreement with the E. R. U., a company-dominated union, of course furnished no legal justification for the respondent's refusal to employ persons who were members of any other labor organization or who refused to join the E. R. U. The above related incidents, the inquiries and statements of Burry and Bahs, show that, for some time prior to October 22, the respondent was attempt- 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to establish a closed shop in favor of the E. R. U., and thus elim- inate its employees who were members of the U. A. W. A. From the observations above made, and each of them, we are con- vinced, and find, that the respondent pursued a policy of discrimina- tion against those of its employees who held membership in or were active in behalf of the U. A. W. A. by laying them off or discharging them as well as by refusing to reinstate them. In considering the individual cases of alleged discrimination be- low, we bear in mind the fact that neither the E. R. U. nor the U. A. W. A. has furnished the Board with a list of its members and that a number of employees other than those considered below, whose union affiliations, if any, we do not know, were also laid off or dis- charged and not reinstated by the respondent, although their senior- ity was such that they would not have been laid off had seniority alone been considered. 1. The machine department Just after the termination of the strike on May 5, before the re- spondent commenced laying off employees in the machine department, 112 were working there. Between that date and December 2, 1937, when the hearing in this case commenced, 54 of the old employees were laid off or discharged and 11 new employees were hired, 6 of whom were still working on December 2.21 What proportion of the 54 employees were members of the U. A. W. A. does not appear from the record. Leffel, assistant superintendent of the plant, who also acted as foreman of the machine department, testified that in his department he had always considered seniority in laying off em- ployees and that after the termination of the strike, he followed the seniority list furnished him by Engel, the superintendent. Leffel's employment with the respondent ceased in August 1937. He was succeeded for a short period by Homer Teller, who had been an assistant foreman under Leffel. The record does not indicate whether Teller laid off any employees while acting as foreman. Tel- ler was in turn succeeded by Jack Taylor as foreman. Taylor did not testify at the hearing. Almost all of the lay-offs in the machine department were, however, effected by Leffel. Concerning new em- ployees, Leffel testified, "There was nobody hired in my supervision until the day I left. If there was anybody hired after that I don't know, but every man or woman that I laid 'off if I got in a little rush job I would call one of the others back."; Four of the eleven new employees, however, were hired in May and June while Leffel was in charge of the machine department. 21 The seniority list broken down into job classifications shows that. only five new employees were hired. We consider the other list, which names 11 new employees, more accurate. SCHWARZE ELECTRIC COMPANY 263 Nineteen of the machine-department employees who were laid off or discharged are named in the complaint. Only 10 of them testified. We shall consider individually the cases of , each of these 10 employees. Roger Watson was employed in February 1935 as a punch-press operator. On July 16, 1937, he was laid off by Russell Snellenberger, an assistant foreman under Leffel, and was told by Snellenberger that he would be recalled within about a week, after inventory was taken. Watson was not recalled until November 23, 1937, and was then given only 4 days of work between. that date and the day when he testified, December 4, 1937. Watson joined the U. A. W. A. soon after it was organized in March. He testified that shortly prior to the hearing he met Beery in a beer garden, that Beery commented on seeing Watson's name in the complaint which had been served upon the respondent, and asked Watson whether he was "going through with it"; that when Watson replied that he was, Beery stated, "You are a fool . . . You will never go back to Schwarze to Work again." Beery admitted having seen Watson in a beer garden. He denied having made the statements attributed to him by Watson and testified that Watson had approached him and asked him about returning to work, and that he, Beery, had requested Watson to go to the plant and ask someone there about being reinstated. Watson's testimony was not convincing. Further- more, the fact that Watson soon after interviewing Beery returned to the plant and was reinstated, indicates that Beery's account of the meeting in the beer garden was correct, and we so find. Watson had, in 1935, and also in 1936, been laid off during slack seasons. Although he was one of the oldest in seniority in his depart- ment, as well as on his job, the record does not indicate that his lay-off in 1937 was different in character from his previous lay-offs. We find that he was not laid off because of his membership or activi- ties in behalf of the U. A. W. A. The finding of the Trial Examiner that he was discharged for "cause" is not supported by the record.22 Ford Brocle was employed on August 11, 1936, and was working as a punch-press operator during the summer of 1937 when lie was laid off several times. On July 26, and on October 20, he was laid off for periods of about 1 week each. On November 2, he was again laid off and had not been reinstated at the time of the hearing. 22 Each of the seniority lists furnished by the respondent indicates that Watson was discharged on November 30, 1937. The Trial Examiner found that he was discharged for cause, although it is not clear whether his finding relates to the termination of employ- ment on July 16, 1937, or on' November 30, 1937. However, since neither Watson nor any representative of the respondent testified concerning a discharge on November 30, 1937, we shall treat the statement on the seniority lists that he was discharged on that date as probably erroneous and, in any event, as outside the scope of the complaint. 247383-40-vol. 16--18 264-• DECISIONS OF NATIONAL LABOR RELATIONS BOARD For most of the summer, prior to his last lay-off, he worked only 2, 3, or 4 days a week. Brock joined the U. A. W. A. and paid dues to that organization for about 2 months. About October 1, 1937, he joined the E. R. U. because he was told by Louis Robins, acting foreman at that time, that the "dead line" was near and that Brock would not have a "card in the rack" if he did not sign an application for membership in the E. R. U. His last and longest lay-off as we have noted , occurred more than a month after he had joined the E. R. U.. Under the circumstances, although Brock had seniority over a number of other employees in the machine department who were not laid off in 1937, we find that his lay-offs were not occasioned by his membership or activities in behalf of the U. A. W. A. Betty Havens was employed by the respondent on November 7, 1936, and worked as a punch-press operator and also in the assembly room of the machine department. Havens joined the E. R. U. at its first meeting on April 28. She joined the U. A. W. A. on the following morning. She was laid off on June 2, 1937, at which time she was told by Leffel that there was not much work to be done and that she would be recalled when he wanted her. Although she applied for reinstatement three or four times prior to the hearing, she was not reinstated. On the seniority list, it appears that all employees working in the assembly room of the machine department except one, Mary Fox, were laid off in May or June 1937. Mary Fox was laid off on October 25, 1937. Betty Havens had seniority over Mary Fox and all other employees in the assembly room. However, the record does not indicate whether or not Mary Fox was a member of the U. A. W. A. Under the circumstances , we are not convinced that Havens was laid off because of her membership in the U. A. W. A. Luella Butts was first employed by the respondent on February 5, 1936. She was laid off twice during the year 1936 for periods of several months each time. She was last reinstated on November 2, 1936, and worked until May 26, 1937, at which time she was again laid off, and told by Leffel that he would try to give her 2 days of work each week. Butts had worked both in the assembly department on the Ford line and in the machine department as a punch-press operator. She was a member of the U. A. W. A. Before her lay-off she had been asked by Homer Teller, assistant foreman of the machine depart- ment, to join the E. R. U. She refused to join, and " he asked her, "Why not? " She replied that she had joined one union and did not SCHWARZE'ELECTRIC COMPANY 265, want to join another. He then told her that the E. R. U. would do her more good than her own union. Shortly after her lay-off, she applied for reinstatement and was told by Leffel that he would not give her a job because she had gone to the steward of her union instead of seeing him about being changed from one position to another. She was not given the 2 days' work a week which had been promised her, although her seniority was among the highest in her department as well as on her job. She testified that at the time she was laid off "a lot of girls" who were members of the E. R. U. and who had less seniority than she had were not laid off. The respondent did not refute this testimony and we accept it as true. We'find-that, the respondent laid off and. refused to reinstate. Luella Butts because of her membership and activities in behalf of the U. A. W. A. She earned between $18 and $20 a week while working for the respondent. Alvin Blanchard was employed on November 6, 1936, as a punch- press operator. He was laid off on June 7, 1937, by Leffel, who told him that the lay-off was necessary because of a decrease in production but that he, Leffel, would try to recall Blanchard within a few days or a week. Blanchard had not been recalled at the date of the hearing. He had such seniority in his department as well as on his job that he would not have been laid off had. seniority been followed in effecting the lay-offs. Blanchard was a member of the negotiating committee of they U. A. W. A. which met with Beery before the strike was called, and was also a member of the strike-settlement committee. The apparent difference in treatment by the respondent of the leaders of the U. A. W. A. and the leaders of the E. R. U. has already been pointed out. The respondent has not contended that Blanchard's work was not entirely satisfactory, and has offered no reason why Blanchard was laid off when other employees junior to him were retained. We find that Blanchard was laid off and refused reinstatement because of his membership and activities in behalf of the U. A. W. A. He earned about $23 or $24 a week while working for the respondent. He had not obtained other regular employment prior to the hearing. Sophia Glenn was employed by the respondent on November 24, 1936, as a punch-press operator. She was laid off on June 7, 1937, by Leffel, who told her that there was no more work for her to do but that he would recall her within 2 or 3 weeks. She had not been recalled at the date of the hearing. Although two E. R. U. stewards, junior to Glenn, were not laid off, other punch-press operators, whose union affiliations, if any, we do not know, and who were senior to Glenn, were laid off. If seniority had been strictly followed in effecting lay-offs, Glenn, would, have been laid off anyway. Leffel testified that he knew Glenn was a member of the U. A. W. A. but contended that she was 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nevertheless laid off according to seniority. He indicated that there were three other employees in his department junior to her, whose work she could not do. Before her lay-off, Snellenberger had requested her to join the E. R. U. and told her that she "would be protected more" if she joined the E. R. U. and that she would not "have a job any longer if (she) walked with the others." "Snellenberger, however, did not have supervision over Glenn, and there is no evidence which indi- cates that lie was in any way responsible for her lay-off. We are not convinced that she was laid off because of her membership in the U. A. W. A. Price James was employed by the respondent on February 23, 1937, as a punch-press operator on the night shift. On March 27, he was, discharged by Homer Teller who told him that he had been talking too much. James had been working for the Home Canning Com- pany in Adrian prior to his employment by the respondent but was laid off at the Home Canning Company because of a seasonal decline in business. He returned to his work at the Home Canning Com= pany after March 27. Shortly prior to his discharge, James had made a trip to Toledo, Ohio, for the purpose of persuading union organizers to organize the respondent's plant. It does not appear, however, that the respondent knew of this trip. Only two employees, other than James apparently knew about the trip. Leffel testified that James was discharged because he left his work and talked too much and consequently did not make his rate. We find that James was dis- charged for the reasons alleged by Leffel. Carroll James, a brother of Price James, was employed by the respondent on February 23, 1937, as a punch-press operator. He joined the U. A. W. A. about April 15. He was laid off on May 23, 1937, by Leffel, who showed him a seniority list and told him that he was one of five men who would be laid off at that time but that he would be recalled later. He did not have sufficient seniority to entitle him to retain his posi= tion after lay-offs became necessary. The record affords no basis for the finding of the Trial Examiner that he was discharged for cause. Leffel testified that Carroll James was laid off in accordance with seniority, and we so find. Lawrence Beebe had been employed by the respondent intermittently over a period of about 15 years prior to his lay-off on May 20, 1937. His last employment with the respondent commenced on March 1, 1937. He had theretofore quit his job on January 25, 1937. During the 15 years of his employment with the respondent, he had been laid off only once, and then for a period of only about 3 days in 1936, while the respondent was taking inventory. When laid off by Leffel SCI{W\rARZE ELECTRIC COMPANY 267 on May 20, he was.told that he should meet Leffel on the following Wednesday night and that Leffel might be able to reinstate him. Leffel did not meet him. at the appointed time and place. Beebe re- turned to the plant several times to seek reinstatement and was each time told by Beery or by Burry, the watchman and personnel officer of the respondent, to return later. Since Beebe had quit his job in January and was not reemployed until March 1, 1937, he did not have sufficient seniority to avoid being laid off when lay-offs became necessary. Beebe had joined the U. A. W. A. prior to the commencement of the strike and was a member of the committee which negotiated the strike-settlement agreement. It was the contention of the U. A. W. A. that his activities in its behalf motivated the respondent in laying him off. However, Beebe himself, on cross-examination, admitted that he was probably laid off because of a decrease in production. His lack of seniority on his job or in his department dissuades us from finding otherwise. Elda Guss was employed by the respondent on March 24, 1937, as a punch-press operator. She was laid off on May 20 by Leffel, who told her that he could not use her any more. Guss was a member of the U. A. W. A. and wore her union button to work. Robins, a leader or set-up man whom Guss considered as "sort of a foreman," had at one time requested Guss to join the E. R.. U., told her that it would be to her benefit to join, and that the respondent could not meet the demands of the U. A. W. A. She, however, refused to join. Guss did not have seniority over any other punch-press operator who was retained at the time she was laid .off. We are, therefore, not convinced that her membership in the U. A. W. A. or her refusal to join the E. R. U. was the cause of her lay-off. Joe Fisher had worked for the respondent intermittently for about 21/2 years prior to his lay-off on May 20, 1937. On April 13, 1937, however, he had been discharged for engaging in a fight with another employee and was not reinstated until April 27, 1937. He therefore had no seniority over any puch-press operator at the time he was laid off on May 20. Fisher was a member of the U. A. W. A. but at Leffel's invitation attended the E. R. U. meeting of April 28. It does not appear that he was an ardent advocate of the U. A. W. A. We find that he was not laid off because of his membership or activities in behalf of the U. A. W. A. The Trial Examiner found that Fisher was discharged for cause. He perhaps had reference to the discharge of April 13. Both Fisher and the respondent contend that Fisher was laid off on May 20, and we so find. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The assembly department On May 6, 1937, immediately after the termination of the strike, there were approximately 168 employees working in the assembly department. Of the 168 employees, 52 were laid off or discharged prior to December 2. Forty-nine more were hired between May 6 and the hearing on December 2, 1937.23 Thirty-one of the forty-nine new employees were still working on December 2. Edwin Bahs, foreman of the assembly department, testified that he used the seniority list furnished him by the respondent in laying off employees according to the group or operation upon which they were working, and that he followed the seniority list as closely as possible, although he also considered whether or not the employees were capable of handling the jobs on which they worked. He testi- fied that there were six or eight operations or departments within the assembly department, such as the Ford assembly line, the bell section, push-button section, horn-repair department, the Hudson line, and the Overland line, which involved different kinds of work.24 He further testified that most of the lay-offs were on the Ford line and that although in past years employees on the Ford line were customarily transferred from one operation to another as work became slack on one operation and increased on another, this had not been the practice during the last few years. Testimony of many of the witnesses, however, indicates that the practice of transferring employees from one operation to another within the assembly depart- ment was never discontinued. Regardless of the extent, if any, to which the practice of transferring employees from one operation to another was discontinued in 1937, we shall give due regard, in con- sidering the cases of the employees listed below, to Bahs' contention. As we have pointed out above, Bahs first contended that no new employees had been hired in the assembly department since May 1937,25 then later admitted that 18 or 20 new ones had been employed, z' The seniority list broken down into job classifications shows that only 41 new em- ployees were hired. We consider the other list, which names 49 new employees, more accurate. m The seniority list which classifies the employees according to their jobs, separates them into 33 different jobs within the assembly department. 25 The following are excerpts from the testimony of Bahs on this subject : Q. Do I understand ever since last May you have been letting people out of the assembly department? A. Yes, sir. Q. There hasn 't been any occasion of taking new employees on, is that it? A. No, sir. Q. Has there been any new employees employed in your department since the lay-off around June 15, 1937? A. No, sir. Trial Examiner SsiiTrc . I understand you to say you have taken on no new help at all in the assembly department since June 15? A. I don 't remember of a new help. Trial Examiner S MITH. Not a single new person? A. No, sir, not until we get these other people back that has been laid off. SCHWARZE ELECTRIC COMPANY ' 269 whereas -one of the seniority lists - shows -that 49 new ones were, em- ployed since May 6, 43 of whom were hired subsequent to June 15. The lay-offs commenced about May 13. Twenty-three of the fifty-two old employees who were laid off or discharged between May 6 and the date of the hearing, are alleged in the complaint to have been discriminatorily discharged because of their membership or activities in behalf of the U. A. W. A. Only 18 of these 23 employees appeared and testified at the hearing. We shall consider below, under their job classifications'26 the alleged dis- criminatory lay-offs or discharges of these 18 employees. "Winders-Spool Type Coils" Audrey Calkins was employed by the respondent from 1923 to 1928 and again from April 1, 1930, to August 17, 1937. She worked at winding coils at the time of her lay-off on August 17. Because of her long service with the respondent, she had been placed in charge of the table at which she worked. She testified that just before quit- ting time on August 17, Bahs told her, "I will have to lay you off until Monday morning," August 23; that she believed that her entire table was to be laid off and told the girls at her table that there would be no more work for them to do until Monday morning; that Bates overheard her and told the girls that only she, Audrey Calkins, was being laid off; that one of the girls asked Bates, "Well, what has she done now?"; and that Bahs replied, "I don't know whether she has done anything. I haven't seen the paper lately," then walked away. Calkins further testified that she had never received any complaint about her work. She had never before been laid off unless her whole table was laid off. Bahs testified that coils had been coming from Calkins' table without being properly inspected, that he had called her attention to that fact several times, and that on the afternoon when he laid her off, he told her that he "would have to lay her off for a few days in order to kind of warn her that she be a little careful in the next few weeks or days to come." He did not deny the incident related by Calkins, indicating her belief that the entire table was being laid off. Calkins' assumption that she would not be laid off when the remainder of her table was retained seems unlikely if Bates, in fact, told her that she was being laid off as a warning that she should be more careful. Bahs' testimony in many other respects, some of which we-have already mentioned, is inconsistent and unreliable. We accept Calkins' version of her lay-off as correct. 20 The job classifications are those listed by the respondent on one of its seniority lists. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Calkins was a member of the U. A. W. A. and wore her union but- ton to work continuously. She had served on the U. A. W. A. com- mittees which interviewed Beery before the strike was called and which negotiated the strike-settlement agreement. Calkins had greater seniority than anyone else working on her operation. She was also among the highest in seniority within her department. As we have already observed, although Calkins had been an employee of the respondent for many years prior to August 17, she had never be- fore been laid off except when her entire table was laid off. We find that she was laid off because of her membership and activities in behalf of the U. A. W. A. She was earning an average of $17.50 a week at the time of her lay-off. She obtained other employment which paid her $15 a week at noon on August 18, and informed the respondent on Monday, August 23, that she did not desire to return to her job. She explained as the reason for not desiring to return that she believed from ob- serving treatment accorded other U. A. W. A. members, that her first lay-off would be followed by other lay-offs and perhaps eventual discharge because of her membership in the U. A. W. A. "Test Room" Merle Chesher was employed intermittently for about 101/2 years prior to March 31, 1937, in the assembly department, where he worked as a tester. On that date, he was paid off by Paul Burry who, in response to an inquiry by Chesher, disclaimed knowledge of the reason for his lay-off, then asked Chesher whether he belonged to the U. A. W. A, Chesher replied that he was not a member. He then inquired of Engel concerning the cause of his lay-off. Engel told him that he, Chesher, had been complaining about working overtime and that his production was low. Chesher joined the U. A. W. A. be- tween March 31 and April 7, the date upon which he was reinstated. On October 25, he joined the E. R. U. in order to retain his job. At the hearing, he testified that he did not then believe that he was laid off because of any union activities. We find that he was not laid off for such reason. Carl Miller was employed by the respondent on December 31, 1934, and prior to his discharge on March 23, 1937, had worked in the machine department, in the paint department, and in the test room of the assembly department. He was doing the latter type of work when discharged. He had been highly praised for his work by Bahs, Engel, and Beery. During March 1937, Carl Miller and his wife, Gertrude, who was also employed by the respondent, held several meetings of employees SCHWARZE ELECTRIC COMPANY 271 at their home, for the purpose of organizing a union. Carl joined the U. A. W. A. during that month. Shortly prior to Carl's dis- charge, Engel called an employee, Merle Sayers, into his office, gave him a raise in pay, then questioned him about the U. A. W. A. which was then being organized, and specifically asked him whether Carl Miller was a member of the U. A. W. A. Sayers refused to divulge any information.27 About that time, Leffel was informed by Clyde Fields, another employee, that Carl and Gertrude Miller were hold- ing union meetings at their home. Leffel, on one night during March, parked his car in front of the Millers' residence and watched outside while a union meeting was in progress within. Leffel later questioned Carl about the meetings and talked to Engel about them. It was shortly thereafter that both Carl and Gertrude were dis- charged. Both Bahs and Engel testified that Carl's work became unsatisfactory prior to his discharge. Engel further testified that he believed Carl was intentionally slowing down and decreasing the quality of his work. Carl was reinstated on May 6 as a result of the strike-settlement agreement, and his discharge on March 23 is not within the scope of the complaint. The events leading up to the discharge have been recited, however, in order to throw light upon the respondent's espionage activities, its interest in the union activities of its em- ployees, and its knowledge of Carl's U. A. W. A. activities. On August 23, 1937, Carl decided to remain away from work dur- ing the morning to attend to personal business. He telephoned the respondent's office and notified the office girl that it would be im- possible for him to report for work until noon. When he returned to work at noon, he found his card gone from its rack and was told by Balls that he had been laid off because of his absence that morning. Carl had, on several occasions in the past, taken voluntary leave of absence under similar circumstances, without objection by the respondent. On the same morning that Carl was absent, another employee, Aubrey Skeese, who was not a member of the U. A. W. A., had also taken voluntary leave of absence. Skeese was not laid off' or discharged because of his absence. Under the circumstances, we are convinced that the respondent was seeking a plausible excuse to rid itself of one of the most active of the U. A. W. A. members. We find that the true reason for Carl's lay-off was his U. A. W. A. membership and activities. Carl earned an average of about $25 a week while working for the respondent. ' Engel testified that he asked Sayers only whether the latter "belonged to any group of employees or any secret organization that was in effect intentionally slowing up . . . production ." We find the testimony ' of Sayers more convincing . Sayers was subsequently demoted from his position as final tester and his increase in pay was taken from him. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He had obtained no other regular employment at the time of the hearing. Alice Graf 28 was employed by the respondent on November 20, 1936, and worked in the test room until about June 1, 1937, at which time she was temporarily assigned to work on the Overland line. On June 3, she was laid off with 'a large group of other employees- from the test room and was told by Bahs that he would send her a card when he needed her. Although Graf returned to the plant seek- ing reinstatement about 15 times prior to the hearing, she was not reinstated. She was a member of the U. A. W. A. and wore her union button to work. She had seniority over several other em- ployees of the test room who were never laid off and she would not have been laid off had seniority been adhered to in effecting lay-offs on her job. Bahs testified that her work was satisfactory and that her lay-off was only temporary. He did not explain, however, why Graf was selected for a lay-off when several other employees, who were junior to Graf, were never laid off. We find.that he laid her off because of her membership in the U. A. W. A. Graf earned an average of about $13 a week while working for the respondent. She obtained no other employment prior to the hearing. Fay Hill was employed by the respondent on December 3, 1936, and was working in the test room on May 17, when it became necessary for him to remain away from work for 3 days because of illness. He testified that when he returned to work on May 20, he was told by Bahs that there was no work for him to do and that he would be laid off until a week from the following Tuesday, that is, until June 1. On June 1 Bahs again told him that there was no work available for him; that Hill then informed Bahs that he had a chance to take a job in a nearby town, Hillsdale, delivered his tools to Bahs, and requested Bahs to let him know when he could return to work for the respondent; and that Bahs promised to do so. Although Bahs did not deny the above-related statements, he con- tended, after examining Hill's discharge ticket, dated May 28, that Hill quit the respondent's employ and that Bahs "did not have time" to lay him off. This contention is inconsistent with the undisputed facts above set forth. Hill's job at Hillsdale was only temporary in its nature, and it is clear that he intended to work there only while waiting for the respondent to recall him. We find that he did not quit his job with the respondent. Hill was a member of the U. A. W. A. on May 20, when he was laid off. He had such seniority that he would not have been laid "' The complaint, which incorrectly spelled her name as Alice Grof, was amended to spell it as above shown. SCHWARZE ELECTRIC COMPANY 273 off had Bahs followed his asserted seniority policy. We find that he was laid off and refused reinstatement because of his membership in the U. A. W. A. Hill earned an average of $20 or $21 a week while working for the respondent. At the time of the hearing he was employed on another job which he obtained about July 15 and at which he earned an average of about $22 a week. Marguerite Parlette,29 Ethel Mallory, and Helen Johnson, three other U. A. W. A. members who were employed as testers, did not have sufficient seniority to avoid being laid off. Bahs testified that each was laid off because of a lack of work to do and that the work of each was satisfactory. We do not therefore find that they were laid off because of their U. A. W. A. membership. Parlette and Johnson were told by Bahs that they would be notified when to return to work. It 'had' been customary for the respondent either to notify employees personally or by a notice inserted in an Adrian newspaper when to return to work after lay-offs. Neither Parlette, Johnson, nor Mallory were notified to return prior to the hearing. Two new employees were hired as testers on August 25 and September 13 respectively, and had the respondent followed its assert- ed seniority policy in reinstating employees who were laid off, Mar- guerite Parlette and Ethel Mallory would have been reinstated to the two positions in the order named. The respondent has offered no ex- planation for its failure to recall them and we must conclude that such failure was in furtherance of its purpose, as hereinbefore ex- emplified, of ridding the plant of U. A. W. A. members. "Mechanism and Projector Assembly" Only two of the eight employees listed as working on the mechanism and projector assembly were laid off and no new employees were hired. One of the two, Marjorie Van Volkenburgh,30 a U. A. W. A. member who wore her union button at the plant, was laid off on June 3.31 Although she was senior by 23 days to one other employee, Bowen, who was never laid off, another employee, Cox, who was senior to both Van Volkenburgh and Bowen was laid off on August 25. Van Volkenburgh would have been laid off on August 25 even if a seniority policy were followed. We are not informed of the union affiliation, if any, of any other employee on this operation. Bahs testified that Van Volkenburgh was only temporarily laid off 2 9 The complaint , which incorrectly spelled her name as Marg. Parlett, was amended to spell it as above shown. 3D The complaint which incorrectly spelled her name as Marjory Van Valkenburg, was amended to correctly spell it as above shown. u Van Volkenburgh testified that she was carrying supplies for girls on the Ford line at the time she was laid off . However, we shall accept the respondent 's classification of her job as correct. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the Ford production line, that her work was slow but that he would consider reemploying her. Under the circumstances, we are not convinced that Van Volken- burgh was laid off or discharged because of her U. A. W. A. member= ship or activities. "Frame Sub-Assembly" Helen K. Deck, a U. A. W. A. member who wore her union button at the plant, was employed by the respondent on November 15, 1936, and was assembling coils on the Ford line on June 23, 1937, when she was discharged by Bahs. He told her that she had not been keeping up with her work very well and that she should go home and rest up for a couple of weeks. Bahs testified that he discharged Reck because three girls on the line on which Reck was working had complained to him that she worked too slowly. We find that he discharged her for that reason. "Diaphragm Assemblies" Ella M. Dinse is listed by the respondent as working on diaphragm assemblies and also on the Hudson line. She and other employees were laid off by Mary Rechlau on July 21, and told that they would be sent word when to return . The entire Ford line consisting of 35 or 40 employees, were laid off or transferred to other jobs on that date in order to facilitate the taking of inventory . "Diaphragm assemblies" was apparently a part of the Ford line. We find that Dinse was employed on "diaphragm assemblies " rather than on the Hudson line at the time of her lay-off. All employees on the Ford line except Dinse and two other U. A. W. A. members, Ruth Stuart and Phyllis French, whom we shall discuss later, were reinstated within 2 weeks and their lay-offs are not mentioned on the seniority lists. Dinse had seniority over another employee who worked on dia- phragm assemblies . No employee except Dinse was laid off that operation except while inventory was being taken. The respondent offered no explanation for its failure to reinstate Dinse after in- ventory had been taken. The evidence does not show that Dinse wore her U. A. W. A. button at the plant. However, by reason of the fact that the respondent through its assistant superintendent, Leffel, had spied upon one or more organizational meetings of the U. A. W. A. at the Miller residence, had, through Engel, attempted to obtain information concerning the identity of U. A . W. A. mem- bers from Merle Sayers , and had, through its foreman and forelady discussed the U . A. W. A. with various employees and solicited memberships for the E. R. U., we are convinced that it knew the SC.h1WARZE ELECTRIC COMPANY 275 identity of the U. A. W. A. members regardless of whether they wore U. A. W. A. buttons at the plant. Bearing in mind the policy which the respondent had adopted of ridding the plant of 17. A. W. A. members, its failure to offer any explanation for refusing to reinstate Dinse after inventory was taken convinces us that its reason for not reinstating her was her U. A. W. A. membership, and we so find. Dinse earned an average of $12 or $13 a week while working for the respondent. She had obtained no other employment prior to the hearing. "Adjusters" Janes Miller, a member of the U. A. W. A., failed to report for work on the morning of June 19. When he reported for work at noon, he was laid off by Bahs, who told him that he, Miller, was the best man Bahs had but was "undependable," and that he would be called back to work in about 2 weeks. Miller accused Bahs of laying him off because of his U. A. W. A. membership, but Bahs denied the accusation. Miller returned to the plant about 2 weeks later and was informed by Burry, the watchman and personnel officer, that there was no work for him to do. Bahs testified that Miller was a good worker but was absent from the plant too often and that Bahs would consider reinstating him only on the condition that he would work steadily. Only one other adjuster, Beraneck, on whose behalf the U. A. W. A. filed charges that he was discriminatorily discharged but who did not testify at the hearing, had seniority over Miller at the time the latter was laid off. Miller would not have been laid off had seniority been followed. However, since the respondent has not contended that it considered seniority in Miller's case, such fact is unimportant, except to show that Miller would not have later been laid off because of a decrease in production. Miller had on other occasions taken voluntary leave of absence from his work and had not been laid off or discharged for so doing. We are convinced, in view of his exceptionally good record as a workman, that even though he might have been laid off on June 19 as a repri- mand, he would have been reinstated at the end of 2 weeks when he was told to return, if he had not been a member of the U. A. W. A. We find that the respondent refused to reinstate him at that time because of his membership in the U. A. W. A. Miller earned an average of about $15 a week while working for the respondent. He had not prior to the hearing obtained employment which was regular or substantially equivalent to his job with the respondent. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Tighteners" Kenneth Baldwin is listed by the respondent as an adjuster. How- ever, he testified that he worked on the Ford line as a tightener when he was laid off by Bahs on June 3 and told that he would be notified when to return. This testimony was not contested at the hearing. We find that Baldwin should be classified as tightener. He testified that another member of the U. A. W. A., who also worked as a tight- ener, was laid off on the same date and that shortly thereafter a new employee, Donald Dickinson, was hired to take Baldwin's place. This testimony is confirmed by the seniority list, which shows that Dick- inson was employed as a tightener on June 28, 1937. The seniority list shows that Sherman, the other employee laid off on June 3, had seniority over Baldwin, and that Baldwin in turn had seniority over only one employee who was never laid off. Baldwin, therefore, would have been laid off in any event on June 3, but the respondent has offered no explanation of why it did not reinstate Baldwin on June 28 instead of hiring Dickinson, a new employee, as a tightener. Bahs testified that Baldwin's work was satisfactory and that he would consider reinstating Baldwin. Baldwin was a member of the U. A. W. A. when laid off. We find that the respondent refused to reinstate Baldwin on June 28 because of his U. A. W. A. membership. He earned an average of about $15 a week while working for the respondent. He had not obtained other regular employment prior to the hearing. "Hudson Line" The respondent has listed Florence Heskett, June Negus, Ruth Stuart, Mina Tidswell , and Ella M. Dinse, five U . A. W. A. members in whose behalf the U. A. W. A. filed charges, as employees of the Hudson line. We have hereinbefore found that Ella M. Dinse was employed on armature assemblies. There is no testimony in the record that any of the other four U. A, W. A. members worked on the Hudson line. There is testi- mony that Heskett worked on the Ford line and that she was an experienced adjuster; that Stuart worked on the Ford line when laid off and had worked on almost all jobs except soldering ; and that Tidswell had worked on the Ford line and was the oldest solderer on her line. There is no testimony in the record concerning the job at which Negus worked.32 Bahs testified that the Hudson line had 22 Even if the respondent's contention that these employees were employed on the Hudson line were correct, it appears that it has discriminated against each of them with regard to hire or tenure of employment. Thus, at the time Heskett was laid off on August 15, 1937, SCHWARZE ELECTRIC COMPANY 277 been operating only since June or July. If this be true, it is unlikely that any of the above-mentioned U. A. W. A. members were employed on the Hudson line at the time they were laid off. In determining whether the respondent has discriminated in regard to the hire and tenure of employment of Heskett, Stuart, and Tidswell, who we are convinced worked on the Ford line, we shall not compare them with other employees listed on the Hudson line. Florence Heslcett 33 was employed by the respondent on January 15, 1935. On June 6, 1937, she became ill and was unable to return to work until about August. At that time she interviewed Bahs, who told her that inventory was being taken then and that he could not put anyone to work but that he would give her work to do when inventory was completed. When inventory was completed about August 5, she again saw Bahs. He then told her "that they had changed arrangements in the office and he could not hire anybody any more," and that she would have to see Paul Burry about a job. She filed an application for reinstatement with Burry and returned to the plant seeking work several times thereafter. On one of those occasions she saw Burry hire two girls who had never worked at the plant before. On another occasion, after hearing that Bahs had re- quested Burry several times to reinstate her and that Burry had failed to call her, she interviewed Bahs again. He then told her that he had wanted her "back on six days" to teach some new girls ad- justing, because she was a good adjuster and he could depend upon her for that work. Immediately thereafter Heskett saw Burry and accused him of failing to call her because she was a "C. I. O. girl." He replied to the accusation by telling her that he would call her "when lie got ready." Heskett was a member of the U. A. W. A. and had worn her union button at the plant. Few employees of the assembly department had greater seniority than Heskett. None who had as much seniority as Heskett, except members of the U. A. W. A., were laid off. A discharge ticket 34 made out by Bahs and dated June 3, 1937, 3 days prior to the date upon which Heskett testified she was forced to be absent because of illness, states that the cause of her leaving was lack of work and non-attendance, that the character of her work was slow, and that the respondent would not consider reemploying four junior employees , at least three of whom were members of the E. A . U., were retained, and they were still employed at the time of the hearing . During September and October 1937, four new employees were hired , although if laid-off employees had been reinstated in the order of seniority to the positions thus open , Negus, Stuart, and Tidswell would have been restored to employment. 33 The complaint, which incorrectly spelled her name as Florence Haskett , was amended to spell it as above shown. 84A discharge ticket was made out for all employees whose work terminated either by discharge or by lay-off. 278 DECTSIONS OF NATIONAL LABOR RELATIONS BOARD her. Although Heskett was absent from work because of illness upon .a number of occasions in 1935, she apparently worked steadily throughout the year 1936 and until June 6, 1937. Other than the .statement on the discharge slip referred to above, the record con- tains no evidence that' Heskett's work was slow. Bahs' repeated promises to recall Heskett and his statement to her that she was a good adjuster who could be depended upon for that work, as well as his request to Burry that she be reinstated to teach some new girls u,dj listing are inconsistent with the statement on the discharge slip that Bahs would not consider reinstating her: Such statement on the discharge slip is also inconsistent with one of the seniority lists wherein she is stated to be laid off for lack of work rather than •discharged. We find that she was denied reinstatement after the completion of the taking of inventory on or about August 5, because of her U. A. W. A. membership and activities. She earned an average of about $15 a, week while working for the respondent. She had not obtained other employment prior to the hearing. June Negus was laid off on June 15 35 with about 10 other girls in the assembly department, all of whom were members of the U. A. W. A. Bahs told her when laying her off that he would recall her when he needed her. She had not been recalled at the date of the hearing. There is no testimony in the record concerning the kind of work at which Negus was employed in the assembly department. For lack of better evidence, we shall therefore consider her classification on the seniority list under Hudson line as correct. On that job, she had greater seniority than any other employee who was laid off. Al- though all employees below her in seniority were also laid off, one of them, Sevilla Benner, whose union affiliation, if any, does not appear from the record, was not laid off until September 22, 1937. Four new employees were hired, one on September 9, one, on Septem- ber 23, and two on October 4. Consequently, if Bahs had laid off employees on the Hudson line in accordance with their seniority, Negus would not have been laid off. Bahs testified that Negus was only temporarily laid off, that her work was satisfactory, and that lie would consider reemploying her. He did not explain why it was necessary to lay her off at all. Negus was a member of the U. A. W. A. and wore her union button at the plant. We conclude that Bahs laid her off because of her membership in the U. A. W. A. 35 The seniority lists state that she was laid off on May 20. However, in view of the many inaccuracies and inconsistencies on the lists, we prefer to accept Negus' testimony that she was laid off on June 15, as correct. SCHWARZE ELECTRIC COMPANY 279 . She earned from $12 to $15 a week while working for the re- spondent. On October 26, 1937, she obtained a job at a drug store in Adrian at which she earned substantially the same amount weekly. However, she was employed at a different type of work than that performed by her at the plant. Moreover, she necessarily lost the benefits of seniority which she would have retained and accumulated had she not been laid off by the respondent. Ruth Stuart was laid off on July 21 "' with other girls on her line and was told by Mary Rechlau, who was in charge of the line, that she was being laid off for about 2 weeks, until after inventory was taken, and that Balls would send her a card, notifying her when to return. Stuart testified that she worked on the conveyor, did repair work and almost every other kind of work except soldering. She further testified that she was doing the same kind of work that Mary Hatch and Irene Hummel, both of whom were junior to Stuart, were doing, at the time of her lay-off. Hatch and Hummel are listed by the respondent as armature assemblers. Balls testified that she worked on the Ford line. We find that she was employed as an armature assembler on the Ford line, and not on the Hudson line, It the time of her lay-off. Stuart returned to the plant many times, seeking reinstatement, but had not been reinstated at the date of the hearing. She was one of the oldest girls in seniority both on her job and in her department and would have been reinstated after inventory was completed had the respondent followed its asserted seniority policy. On one occasion after the respondent had commenced hiring new girls for the assembly department, Stuart asked Burry why he did not give her a job. He replied that he was hiring some new girls for a night shift, that he had received no word from the office to take her back, and further that when he was told to call the old girls back, he called them, and when he was told to hire new girls, he hired new ones. A discharge ticket introduced in evidence states that Stuart was laid off, that her work was fair, that she was dissatisfied and that the respondent would not consider reemploying her. Balls, when asked why he. would not consider reemploying her, testified, after having read the discharge ticket, "Well, I would say she was slowing up the production." Stuart joined the U. A. W. A. before the strike was called, served on the picket lines during the strike, and .wore her union button to work most of the time. She had been requested by Rechlau to sign 3a The seniority lists state that she was laid off on July 27. However , the testimony of Dinse and French, who were also laid off the Ford line just before inventory was taken, corresponds with that of Stuart in regard to the date , July 21 , and we accept that date as correct. 247383-40-vol. 16--19 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a card which would admit her to the organizational meeting of the E. R. U. but failed to do so. Stuart is not one of the employees listed in the respondent's answer as discharged. The record contains no evidence other than Bahs' equivocal statement at the hearing, that Stuart slowed up production. We are convinced that the re spondent had reference to her U. A. W. A. membership and activities in marking "Dissatisfied" upon her discharge slip, and that it refused, to reinstate her after inventory was completed because of her U. A. W. A. membership and activities. She, earned an average of about $17.50 a week while working for the respondent. She had not ob- tained other employment prior to the hearing. "Wire and Solders" Mina Tidswell is listed by the respondent as an employee of the Hudson line. However, she worked at soldering coils most of the time and did other kinds of work only when her regular work be- came slack. Bahs testified that she worked on the Ford line. She was soldering coils on May 25 when Bahs told her that she "could not keep up" with her work and that he would have to lay her off until the Ford line started. Tidswell admitted that her production was below that of other solderers. Bahs testified that he laid her off because she slowed up her group. Her discharge ticket states that the respondent will not consider reemploying her. Tidswell had joined the U. A. W. A. and wore her union. button at the plant. However, under the circumstances we are not convinced that she was laid off because of her U. A. W. A. membership or activities. "Contact Assembly" Phyllis French was one of the three U. A. W. A. members who were laid off the Ford line on July 21 just before inventory was taken and were never thereafter reinstated.37 'French testified that Bahs had told her that she was a good worker and that when she was laid off, he promised that he would let her know when to return and that she would be one of the first called back. Bahs did not deny having made the statements attributed to him by French and we find that he made them. He nevertheless claimed that he did not intend'to reinstate her because she slowed up produc- tion. It was 'French to whom Bahs made the statement, when she applied for reinstatement, that the respondent was trying to have a closed shop at the plant. He had never complained to her that she slowed up production. French was one of the employees who 17 See cases of Ruth Stuart and Ella Al. Dinse, supra. SCHWARZE ELECTRIC COMPANY - 281 wore their U. A. W. A. buttons at the plant. We are satisfied that Bahs' reason for deciding that he would not reinstate her was her U. A. W. A. membership. French was the only employee working as a contact assembler on July 21 who was not reinstated and still working at the date of the hearing. However, she was junior to all other contact assemblers ex- cept one, Marie Jordan, who was hired by the respondent on the same day French was hired. The union affiliation, if any, of Jordan does not appear in the record. Furthermore, no new contact assembler was hired prior to the hearing. We shall not, therefore, order that French be reinstated immediately but shall provide for her reinstatement ill the future as provided in the section entitled "Remedy," infra. 3. Tool department Howard Delo, chairman of the U. A. W. A. committee which met with Beery, before the strike was called, and also chairman of the strike-settlement committee, was laid oft on May 25 by Engel, who told him that the lay-off was necessary because of a lack of work to do. Delo had less seniority than any other employee in the tool department, and was properly the first employee to be laid off. We find that the respondent, by laying off and failing to reinstate -Delo did not discriminate and is not discriminating in regard to his hire and tenure of employment. 4. Paint department Employees of the bonderizing department and paint department were customarily transferred from one department to the other. They are all listed by the respondent as employees of the paint department. Gertrude Miller was first employed by the respondent on January 14, 1935. She quit her job on July 25, 1935, but was reemployed on August 25, 1935. She was discharged on April 3, 1937, shortly after she and her husband, Carl Miller, had held a meeting of employees at their house and Leffel had spied upon the meeting. Leffel testified that both Gertrude and Carl were laid off after they had held union meet- ings at their home and he had talked the matter over with Engel. Engel testified, however, that he recommended Gertrude's discharge because he believed that she was intentionally passing up defective work on her job as inspector in the assembly department. Gertrude was reinstated on May 6 as a result of the strike-settlement agreement and her discharge on April 3 is not within the scope of the complaint. Although she was reinstated to her regular job as inspector in the assembly department on May 6, she was transferred to the paint de- partment on May 13. She was thereafter laid off for 2 weeks, theca 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given work for 1 week and again laid off on August 17. She was never recalled after being laid off the last time. Engel admitted that Gertrude had been exceptionally good at her inspection job in the assembly department for about a year and one-half prior to her discharge on April 3. He did not claim that her work as inspector was not entirely satisfactory after she was reinstated. He contended however, that her transfer to the paint department. was at her own request, that when work became slack in the paint department, she asked that he transfer her back to her inspection job, but that he then refused to transfer her back because another employee was filling her old job satisfactorily. Gertrude denied positively that she had asked for a transfer from the inspec- tion to the paint job or vice versa. We find her testimony the more convincing. However, even though she asked for the transfers, as contended by Engel, and her transfer to the paint department was at her own request, she should not have been laid off had the respond- ent adhered to its asserted seniority policy in effecting lay-offs. Ger- trude had greater seniority than any other employee in the paint department.38 Many junior to her, including two E. R. U. stewards, were not laid off. We find that the respondent laid off Gertrude Miller on August 17, 1937, because of her. U. A. W. A. membership and activities. She, earned between $16 and $20 a week while working for the respondent. She had not obtained other employment prior to. the hearing. Arlene Mort, a U. A. W. A. member who wore her union button to work, was employed in the bonderizing department before the strike. After the termination of the strike, she was transferred to the machine department, then to the assembly department. On May 18 Balls informed her that he could not use her in the assembly department any longer, since he was having to lay some employees off, and sent her to Leffel. She requested Leffel to reinstate her at her old job in the bonderizing room where she had seniority over one other girl who was also a member of the U. A. W. A. Leffel informed her that he did not need her. Under the circumstances, we are not convinced that Mort was laid off because of her U. A. W. A. membership and activities. Evelyn Baker had worked intermittently for the respondent since 1933. Her last employment, however, dated only from February 6, 1937. On May 12 work in the paint department became slack, apparently because the respondent had sent two large drums of brackets. to another factory to be painted, and Baker was "checked :;B It was expressly provided in the strike-settlement agreement that Gertrude and other employees reinstated as a result of the agreement should not lose their seniority rights. SCHWARZE ELECTRIC COMPANY 283 out" 39 by her foreman, Vern Hoover, at about 1 p. m. Baker then reported this fact to Hall, a U. A. W. A. organizer, who telephoned Engel in her behalf and requested Engel to keep her busy. Engel was apparently very much irritated by this call. On the following morning, May 13, when Baker returned to work, she was laid off "until further notice," and had not been recalled at the date of the hearing. Although several employees junior to Baker and some her senior were laid off on May 20, none except Baker were laid off earlier. We are satisfied that Baker would not have been laid off until May 20 had she not sought the aid of the U. A. W. A. organizer when she was "checked out" on May 12. Engel testified that when work slowed up in the paint department he offered to trans- fer Baker to the assembly department, but that she refused such trans- fer and quit her employment. Baker denied that she had ever refused to work in the assembly department. We find Baker's testimony in this respect the more credible, especially in view of the fact that Engel admitted that the U. A. W. A. organizer had asked him to keep Baker busy. We find that Baker was denied employment by the respondent from May 13 to May 20, 1937, because of her U. A. W. A. membership and activities. She earned an average of $16 or $17 a week while working for the respondent. C. Conclusions in regard to discharges, lay-offs, and refusals to a reinstate We have found that the respondent discharged or laid off and re- fused to reinstate Price James, Helen K. Reek, and Mina Tidswell for cause, that it did not lay off Roger Watson or Merle Chesher because of their U. A. W. A. membership or activities, and that it had reinstated Watson and Chesher prior to the hearing. We shall there- fore dismiss the allegations of the complaint as to these five employees. As to 11 other employees, Luella Butts, Alvin Blanchard, Ella M. Dinse, James Miller, June Negus, Audrey Calkins, Carl Miller, Alice Graf, Fay Hill, Gertrude Miller, and Evelyn Baker, we have found that the respondent laid them off because of their U. A. W. A. mem- bership and activities; and that, as to five others, Kenneth Baldwin, Florence Heskett, Ruth Stuart, Marguerite Parlette, and Ethel Mal- lory, the respondent did not lay them off, but did refuse to reinstate them in lieu of hiring new employees because of their U. A. W. A. membership and activities. We find that the respondent by laying off the first 11 employees- above named and each of them, and by re- fusing reinstatement to the last five employees above named, and each 39 Employees were frequently "checked out," that is. dismissed for the remainder of the .day, when work was slack. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of them, has discriminated in regard to the hire and tenure of employ- ment of said employees, thereby discouraging membership in one labor organization, the U. A. W. A., and encouraging membership in another labor organization, the E. R. U. We further find that the respondent by said discrimination in regard to the hire and tenure of employment of the above-named 16 employees, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. The remainder of the employees, 11 in number, we have found either lacked sufficient seniority to avoid being laid off when it became necessary for the respondent to curtail its working force, or for other reasons were temporarily laid off. The allegations of the complaint in regard to the discharge of these 11, Ford Brock, Betty Havens, Sophia Glenn, Carroll James, Lawrence Beebe, Elda Guss, Joe Fisher, Marjorie Van Volkenburgh, Helen Johnson, Arlene Mort, and Phyllis French will therefore be dismissed. As we have pointed out above more than 50 new employees Were hired after the respondent com- menced laying off employees because' of a decrease in production. While it appears that several of the 11 above-named employees had worked at more than one type of job at the plant and it does not affirmatively appear that any of the 11 could not have filled the jobs for which most of the new employees were hired, nevertheless, it ap- pears that many other employees who were laid off and in whose behalf the U. A. W. A. did not file charges, were also never reinstated. We :shall not, therefore, order that the new employees be replaced by the 11 U. A. W. A. members above named. However, since we have found in Section III B above that the respondent has pursued a policy of discrimination against U. A. W. A. members, we shall make further provision for these 11 employees in the section entitled "Remedy" infra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the E. R. U. and contributed SCFIWARZE ELECTRIC COMPANY 285 support to. it. That organization cannot, therefore, serve the em- ployees as a genuine collective bargaining agency, and we shall order the respondent not only to cease and desist from dominating and inter- fering with the administration of and contributing support to such labor organization, but to withdraw recognition from and completely disestablish the E. R. U. as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. The closed-shop agreement made by the respondent with the E. R. U. on October 7, 1937, was by its terms to be in effect for only 6 months. It appears, however, that the respondent also made other agreements or arrangements with the E. R. U. concerning wages, rates of pay, hours of employment, and other conditions of employ- ment. These agreements or arrangements, having been made with an organization assisted in its formation and administration by the respondent, are not the results of collective bargaining within the contemplation of the Act, but rather the results of efforts by the respondent to stifle the organizational activities of the U. A. W. A. and to frustrate and defeat true collective bargaining by and with its employees. Whether any of these agreements or arrangements, any renewals or extensions thereof, or any new agreements with the E. R. U. are now in effect, we are not informed. However, to render more effective our order requiring the respondent to cease and desist from recognizing and to disestablish the E. R. U. as a collective bargaining agency, we shall require the respondent to cease giving effect to any agreement or arrangement-now existing, and to refrain from entering into, renewing, or extending any agreement or arrange- ment relating to rates of pay, wages, hours of employment, or other conditions of employment, with the E. R. U., as representative of any of the employees of the respondent.40 We have found that the respondent has engaged in an unfair labor practice by discriminating in regard to the hire and tenure of em- ployment of Luella Butts, Alvin Blanchard, Ella M. Dinse, James Miller, June Negus, Audrey Calkins, Carl Miller, Alice Graf, Fay Hill, Gertrude Miller, Evelyn Baker, Kenneth Baldwin, Florence Heskett, Ruth Stuart, Marguerite Parlette, and Ethel Mallory. Since Audrey Calkins, after having been laid off on August 17, re- signed from her job on August 23,41 we shall not order that the 90 See Matter of Williams Coal Company, et at. and United Mine Workers of America, District. No. 23, 11 N. L. R. B. 579; Cf. Matter of Berkey and Gay Furniture Company and International Union, United Automobile Workers of America, Local 1118, 11 N. L. R. B., 282. 41 Calkins' new job, obtained at noon on August 18, paid her less money. Consequently, we shall not consider that she resigned from her old job until she actually notified the respondent to that effect on the morning when the respondent expected her to return to work. 286 DECISIONS OI, NATIONAL LABOR RELATIONS BOARD respondent offer her reinstatement, but only that it make her whole -for any loss of pay which she may have suffered by reason of her lay-off by payment to her of a sum equal to the amount which she normally would have earned as wages from the date of her lay-off to August 23, when she resigned from her job, less her net earnings 4z during that period. Evelyn Baker is entitled to back pay only from May 13, 1937, the date of discrimination against her, to May 20, 1937, when she would have been laid off if seniority had been followed. We shall order the respondent to offer reinstatement to the remainder of the above-named employees and to make them whole for any loss of pay they may have suffered by reason of their respective lay-offs or the respondent's discriminatory refusal to reinstate them by payment to each of them of a sum equal to the amount which they normally would have earned as wages from the date of their lay-off to the date of the offer of reinstatement, less their net earnings 43 dur- ing that period. Since, as we have found in Section III B, above, the respondent has followed a policy of'ridding its plant of U. A. W. A. members, there is grave danger that the respondent has not subsequent to the hearing' and will not in the future offer reinstatement to Evelyn Baker, Ford Brock, Betty Havens, Sophia Glenn, Carroll James, Lawrence Beebe, Elda Guss, Joe Fisher, Marjorie Van Volkenburgh, Helen Johnson, Phyllis French, and Arlene Mort, even though their own or substantially equivalent positions have been or will be open. For this reason, and in order to effectuate the policies of the Act, we shall order the respondent to place these employees upon a list of its employees who were -temporarily laid off because of lack of work, and to offer them employment in the order of their seniority upon the list when employment in their respective classification be- comes available before hiring other persons.44 Howard Delo, 2 days after he was laid off, obtained another job which paid him about three times the amount he was making while working for the re- 42 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 her unlawful discharge and the consequent necessity of her seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings, but as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. 93 See footnote 42 above. 44 Cf. Matter of American Numbering Machine Company and International Association of Machinists, District #15, 10 N. L. R. B. 536; American Manufacturing Concern and Local No. 6, Organized Furniture Workers, 7 N. L. R. B. 753; and Matter of Benjamin Levine, doing business under the name and style of Estellito Fixtures Company, and International Brotherhood of Electrical Workers, Local Union No. 438, 6 N. L. R. B. 400. SCHWARZE ELECTRIC COMPANY 287 spondent. He does not desire reinstatement . We shall not therefore require that his name be placed upon the preferential list. Upon the basis of the above findingsi of fact and upon the entire .record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. International Union, United Automobile Workers of America, Local No. 268 , and Employees Representative Union are labor organi- zations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of Employees Representative Union and contributing sup- port thereto, the respondent has engaged in and is engaging, in un- fair labor practices , within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Luella Butts, Alvin Blanchard , Ella M. Dinse, James Miller, June Negus, Audrey Calkins, Carl Miller, Alice Graf, Fay Hill, Gertrude Miller, Evelyn Baker, Kenneth Baldwin, Florence Heskett, Ruth Stuart, Marguerite Parlette , and Ethel Mallory, and thereby discouraging membership : in International Union, United Automobile Workers of America., Local No. 268, and encouraging membership in Employees Representative Union, the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (3) of the Act. 4. 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. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. By discharging Price James, Helen K. Reek, and Mina Tidswell, and by laying off Roger Watson, Merle Chesher, Howard Delo, Ford Brock, Betty Havens, Sophia Glenn, Carroll James, Lawrence Beebe, Elda Guss, Joe Fisher, Marjorie Van Volkenburgh , Helen Johnson, Phyllis French, and Arlene Mort, the respondent has not engaged in an unfair labor practice , within the meaning of Section 8 (3) 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 re- spondent, Schwarze Electric Company, Adrian, Michigan, its officers, agents, successors , and assigns, shall: 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Recognizing Employees Representative Union' as the repre- sentative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work; (b) In any manner dominating or interfering with the adminis- tration of Employees Representative Union, or with the formation or administration of any other labor organization of its employees, or contributing support to Employees Representative Union or any other labor organization of its employees; (c) Giving effect to or performing any agreement or arrangement now existing, and refrain, from entering into, renewing, or extending any agreement or arrangement, relating to rates of pay, wages, hours of employment or other conditions of employment, with .Employees Representative Union, as representative of any of the employees of the respondent, Schwarze Electric Company; (d) Discouraging membership in International Union, United Automobile Workers of America, Local No. 268, encouraging mem- bership in Employees Representative Union, or encouraging or dis- couraging membership in any other labor organization of its em- ployees, by discharging, laying off, or refusing to reinstate employees or in.any other manner discriminating in regard to their hire and tenure of employment' or any term or condition of employment; . (e) In any manner interfering with, restraining, or coercing. its employees in the exercise of the right to self-organization, to form, join, or' assist labor organizations, .to bargain collectively through representatives of their own choosing, and to engage i'n concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Employees Representative Union as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish Employess Representative Union as such representative; (b) Offer to Luella Butts, Alvin Blanchard, Ella M. Dinse, James Miller, June Negus, Carl Miller, Alice Graf, Fay Hill, Gertrude Miller; Kenneth Baldwin, Florence Heskett, Ruth Stuart, Marguerite Parlette, and Ethel Mallory, immediate and full reinstatment to their former or substantially equivalent positions, without prejudice to their seniority and other rights or privileges previously enjoyed by them; SCHWARZE ELECTRIC. COMPANY 289 (c) Make whole Luella Butts, , Alvin Blanchard, Ella M: Dinse, James Miller, June Negus, Audrey Calkins, Carl Miller, Alice Graf, Fay Hill , Gertrude Miller, Evelyn Baker, Kenneth Baldwin, Florence Heskett, Ruth Stuart, Marguerite Parlette, and Ethel Mallory for any loss of pay they have suffered by reason of their lay-off, or the re- spondent's refusal to reinstate them, by payment to each of them of a suin of money equal to the amount which they normally would have earned as wages during the period, in the case of Luella Butts, Alvin Blanchard, June Negus, Carl Miller, Alice Graf, Fay, Hill , Gertrude Miller, Ella M, Dinse, James Miller, Kenneth Baldwin, Florence Heskett, Ruth Stuart, Marguerite Parlette, and Ethel Mallory, from the date of their lay-off, or the respondent's refusal to reinstate them to the date of the offer of reinstatement, less their net earnings 45 during said period, and in the case of Audrey Calkins, from August 17, 1937, the date of her lay-off to August 23 , 1937, the date upon which she was told by the respondent to report back to work, less her net earnings 46 during said period, and in the case of Evelyn Baker, from May 13, 1937, the date of her lay-off, to May 20, 1937, the date upon which she should have been laid off, less her net earnings 46 during that period; deducting, however, from the amount otherwise due to each of said employees, monies received by said employees during said periods for- work performed upon Federal , State, county, municipal, or other work- relief projects ; and paying over the amount, so deducted, to the ap - propriate fiscal agency of the Federal, State, county , municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Place Evelyn Baker, Ford Brock, Betty Havens , Sophia Glenn, Carroll James, Lawrence Beebe, Elda Guss, Joe Fisher, Mar- jorie Van Volkenburgh, Helen Johnson, Phyllis French, and Arlene Mort upon a list of its employees who were temporarily laid off because of lack of work and offer them employment in the order of their seniority upon the list when employment in their classification becomes available before hiring other persons; (e) Immediately post notices in conspicuous places throughout its plant stating that the respondent will cease and desist in the manner set forth in 1 (a ), (b), (c), (d), and (e) and that it will take the affirmative action set forth in 2 (a), (b), (c), and (d) of this Order; (f) Maintain such notices for a period of at least sixty (60) con- secutive days from the date of posting; See footnote 42, supra. .e Ibid. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (g) Notify the Regional Director for the Seventh Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed with respect to the lay-off or discharge of Price James, Helen K. Reek, Mina Tidswell, Roger Watson, Merle Chesher, and Howard Delo. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.