Blanton Co.

In the Matter of BLANTON COMPANY and UNITED OLEOMARGARINE WORKERS LOCAL INDUSTRIAL UNION No. 4891 Case No. C-801.-Decided October 31, 1939 Oleomargarine Manufacturing Industry-Interference, Restraint, and Coer- cion : discrediting union and union leaders ; threat to move plant ; engendering fear of loss of employment for union activity ; conducting of poll necessitating choice of union or company ; offering of bonus and vacation with pay to induce employees to renounce union-Discrimination : refusal to reinstate , following strike ; discharges ; charges of, dismissed as to several employees-Reinstate- ment: ordered, of all but three . of the strikers named in the complaint-Back Pay: awarded , to employees refused reinstatement , from date of refusal to reinstate to date of offer of reinstatement ; monies received by employees for work performed upon Federal, State, county , municipal or other work-relief projects to be deducted and paid over to.agency which supplied funds for-said projects-Unit Appropriate for Collective Bargaining : production and- main-tenance employees, excluding supervisory and office and clerical employees ; no. controversy as to-Representatives : proof of choice : testimony of secretary of union; failure of respondent to question majority during negotiations-Collec- tive Bargaining : refusal to negotiate with union representatives insisting on dealing with employees only ; refusal at outset of negotiations to embody any agree- ment in a signed contract ; affirmative order to bargain with the union and to em- body-understandings in written agreement-Strike: caused by respondent 's refusal to bargain-Strike Settlement : no effect on rights of strikers to reinstatement. Mr. Alan F. Perl, for the Board. Case, Voyles C' Stemmles, by Mr. Clarence T. Case, and Mr. George L.. Stemmles, of St. Louis, Mo., for the respondent. Mr. Louis Cokin, of counsel to the Board. . DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed 2 on behalf of Oleo- margarine Workers Local Industrial Union No. 489, herein called the Union, the National Labor Relations Board, herein 'called the . 'In the charges and complaint, the name appears incorrectly as "United Creamery Workers of America affiliated with the Committee for Industrial Organization." This was corrected' by motion at the bearing. 2 The respondent contends that the charges cannot support the Board's complaint since there was no "testimony given in the record to show his [James Nash, Field Representa- tive of the C. I. O.] authority as an agent for said alleged union to make the said charges upon which the complaint is based." (Respondent's Exceptions 2, 3.) Such authority is not necessary.. Under Article II, Sec. 1, of National Labor Relations Board Rules and Regulations-Series 1, as.amended, a charge "may be made by any person or labor organi- zation." These rules and regulations were complied with here. Furthermore, the respond- ent's brief states that "his (Nash's) title is merely descriptio personis." 16 N. L. R. B., No. 79. 951 247383-40-vol. 16--61 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board, by the Regional Director for the Fourteenth Region (St. Louis, Missouri), issued its complaint and amended complaint dated June 6 ,and..13, 1938,, respectively, against The Blanton Company,3 St. Louis,-Missouri, herein called the.;respondent, alleging that the respondent had engaged in and was engaging in unfair" Tabor prac- tices affecting commerce; within the meaning. of Section 8 (1), (3), and (5) and. Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.. Copies of the complaint, as amended, were duly served upon the respondent and upon.the_ Union. Concerning the unfair labor practices, the complaint alleged, in substance, that on or about June, 11, 1937, and at all times thereafter, the respondent. refused to bargain collectively with the Union as, the exclusive representative of the -respondent's employees in an appro- priate bargaining unit; that the respondent discriminated in regard to the hire and tenure of employment of 20 persons named in the complaint, thereby discouraging membership in the Union; and that by these and other acts. and conduct, the respondent interfered with, restrained, and coerced its employees in the exercise of the. rights guaranteed in Section 7 of the Act.. On June 13 -and 16, 1938, re- spectively, the respondent filed an answer and an amended, answer admitting the allegations concerning its corporate exis't'ence and the' nature of its business, including the allegation that its raw materials and finished products move in interstate commerce. It denied all the allegations of the complaint with respect to the unfair labor practices. Pursuant to a notice and amended notice duly served upon the respondent and upon the Union, a hearing was held on June 16, 17, 18, 20, and 21, 1938, at St. Louis, Missouri, before Hugh C. McCarthy, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Although served with notice, the Union did not appear at the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded ' all parties. 'During the course of the hearing, counsel for the Board moved that the charges alleging the violation of Section 8 (3)' of the Act as to Philip Sulzak, Ed. Loehr, Betty Nor- man, Nettie Barger, and 'Rose Niemeier be dismissed; without preju- dice. 'The motion was granted.' At the close of the Board's case, counsel for the Board moved to conform the pleadings to the proof. The motion was granted. At the close of the ,hearing; counsel for the respondent moved that "the charges and the claims presented in 'the complaint and in the amended complaint be' dismissed for the reason'that they have not been proven by the evidence in the case." 3 Incorrectly designated in the formal papers as "Blanton Company." BLANTON COMPANY 953 The motion was denied. . During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence . The Board has reviewed all the rul- ings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 17, 1938, the Trial Examiner issued his Intermediate Report, copies. of which were duly served upon all parties, finding that the respondent had engaged in the unfair labor practices alleged in the amended complaint, except in so far, as the complaint alleged that the discharges of- Roscoe Jones, Kilbourne -Hicks, Helen Schlue- ter; Leona Clirisco; 'Lena Niemeiei; -and Margaret Grosse were eun- fair labor practices. On August 10, 1938, the respondent filed excep- tions to the Intermediate Report and requested oral argument before the Board. On June 8, 1939, the respondent filed a brief. Pursuant to notice duly served upon the respondent and upon the Union, a hearing for the purpose of oral argument was held before the Board on June 8, 1939, in Washington, D. C. The respondent appeared by counsel and participated in the argument. The Union did not appear. The Board has considered the exceptions of the respondent to the Intermediate Report and, except to the extent indicated below, finds no merit in them. Upon ;the entirel.record in thet case, the. Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, a Missouri corporation, owns and operates a plant ,at St. Louis, Missouri, where it is engaged in the business of manu- .facturing and processing oleomargarine, food shortening, mayon'- 'naise, and other vegetable oil products. The principal raw materials used by the respondent are animal fats and vegetable oils. The respondent spends approximately $2,500,000 annually for raw ma- teriarls, of which' 75 'per cent of the aiiim U' fats and. 90 per cent "of the vegetable oils are shipped to it from points outside the State of Missouri. The respondent does an annual business amounting to approximately $2,950,000, of which approximately 42 per cent is derived from out-of-State sales. . The respondent employs approx- imately 106 production employees. II. THE ORGANIZATION INVOLVED United Oleomargarine Workers Industrial,Union No. 489 is a Tabor organization affiliated with the Congress of Industrial Organizations. It admits to membership all production and maintenance workers in the -respondent's plant, excluding supervisors and office and clerical; employees. 954 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD III. THE,-''UNFAIR . LABOR PRACTICltS A. The refusal to bargain collectively; interference, restraint, and coercion 1. The appropriate unit The complaint alleges that all the production and maintenance employees; excluding supervisors and office and clerical employees, constitute a unit appropriate for the purposes of collective bargain- iiig. The respondent at the hearing made no contention as to the appropriate unit and offered no evidence that the unit described in the complaint is not appropriate. The record..does not disclose any reason for departing from this unit. We find that all the production and maintenance employees of the respondent, excluding supervisors and office and clerical employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit The recording secretary of the Union, Mildred Kelly, testified under subpena that the Union had 103 signed membership cards of a total of 106 employees in the appropriate unit in June 1937. Kelly also stated that she destroyed all of her records and cards in April 1938, giving no explanation for her action 4 The respondent made no effort to impeach or contradict her testimony. On the other hand, the fact that 65 employees within the unit went on strike on June 15, 1937, and followed the leadership of the Union tended to corroborate her testimony that the Union represented a majprity..pf the, employees.5 We find that in June 1937,. and at all times thereafter, the Union was the duly designated representative of a majority of the employees in the appropriate unit and that by virtue of Section 9 (a) of the Act, was the exclusive representative of all employees in the unit for the purposes of collective bargaining. 4 Although the respondent in its answer denies that the Union represented a majority of the employees within the appropriate unit, at .the hearing,,it stated,that at no time•in the discussions with the Union was the question of majority in issue: See National Labor Relations Board v. Remington Rand, Inc., 94 F. ( 2d) 862 (C. C. A. 2d, 1938), cert. den. 304 U. S. 576. 5 Matter of Century Mills, Inc. and South Jersey Joint Board of the International Ladies Garment Workers Union, 5 N. L. R. B. 807. - BLANTON COMPANY, 955 3. The refusal to bargain; interference, restraint, and coercion (a) Chronology of events In May 1937 Tonie Sentner, organizer for the Union, commenced organizational activities in the respondent's plant. On June 1, 1937, David A. Blanton, president of the respondent,e ordered his foremen to notify all the employees in the plant of a meet- ing to be held at the close of the day's work. At this meeting Blan- ton announced that he had heard that a union was organizing in the plant and that he called the meeting so that the respondent and the employees could come to a better understanding of their labor rela- tions. Although Blanton stated that he "had no objection to any of his employees joining a. union and paying their union dues as long as they see fit," he went on to tell his employees that "when you join a union and you want to work on a union basis then you lose your position working under our profit-sharing agreement." 7 Blanton emphasized that under his profit-sharing plan and handling of labor, whereas many union men were walking the streets without work he had retained and made work for many employees whom he could have laid off without any impairment of the respondent's efficiency of operation. Blanton also stated that "before there was any indica- tion of dissatisfaction, our auditor had already been instructed to prepare a vacation list and a further bonus plan for the next six months in addition to the vacation plan with.salary" and that "you appreciate that union shops do not give vacations with pay, nor do they share profits and give bonuses ... if anyone is now considering a union affiliation that they make it known immediately to our auditor so that he may properly classify everybody for our future plans." On June 2, 1937, the Union sent a letter to the respondent stating that it represented a majority of the employees and asking for a conference for the purpose of collective bargaining. The request was granted and on June 4, 1937, Sentner, together with a committee of five employees, met with Blanton. Sentner offered to prove by means of membership cards in her possession that the Union repre- sented 80 per cent of the respondent's employees. Blanton requested that the cards be left with him overnight to check with the respond- ent's list of employees. Sentner refused to allow the cards to be checked without .the presence of a union member, and the issue of union representation was dropped. 6 To use the language of the respondent 's brief, "Mr. Blanton was President and prin- cipal stockholder. He alone determined the labor policies of the company." 7 The profit-sharing plan was started by Blanton in the first part of 1935 . The em- ployees' shares were computed and adjusted quarterly in keeping with the respondent's .profits. These shares were given to the employees over and above their basic wage. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 5, 1937, the Union presented a proposed closed-shop con- tract to Blanton. Blanton refused to consider this contract stating that it did not "cover his requirements." On June 6, 1937, Dorn, auditor of the respondent, acting. pursuant to Blanton's order, took a poll of all the . employees asking them whether they preferred the union plan or the profit-sharing plan. The results of this poll were in favor of the profit-sharing plan. When Blanton apprised the union committee of this fact, Sentner stated that it was an unfair poll. Blanton replied that he did not realize it at the time but that perhaps it was unfair. Between June 7 and 14, 1937, there were daily meetings of the union committee with Blanton. During these meetings Blanton stated, "I will bargain and I. will bargain until the cows come home but I won't sign a contract with the C. I. 0." He also expressed the opinion that Sentner was a Communist and a radical, and announced that he took the "Tom Girdler" 8 stand in these matters. On June 11, 1937, Blanton sent questionnaires, letters, and final bonus checks to his employees. The questionnaires contained the following questions among others : Assuming that the property is soon to be sold, are you going to look for another job, or do you desire that the company re-locate in or around St. Louis, and are you satisfied to continue your employ with the Company? Answer Yes or No. Yes------------ No------------ If the Company continues in business in St. Louis or vicinity, would you prefer to have a Union represent you in your labor relations with the Company, or do you have sufficient confidence in the fairness of the management to discuss at any time any grievance you may have? Cross out one of the following,,leav- ing the expression of your desires. I am for the Union representing me. I would prefer to represent myself in my labor relations. Cross out one of the plans below, leaving your best secret decision at this time. I hereby withdraw from the Company's profit-sharing plan and under the conditions understand that there will be no bonus after withdrawal. I hereby express my desire to remain in the Company's profit- sharing plan, and my acceptance of the usual six months bonus and readjustment of drawing account will confirm my desire to remain in the plan to the exclusion of any other plan. 8 See Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9N.L.R . B.219. BLANTON COMPANY 957 The following are pertinent excerpts from the' letters accompany- ing the questionnaires : we are herewith enclosing our final bonus check, which will possibly be the last bonus check that we will'give to those employees. who have not been satisfied with our Profit-Sharing Plan. You may not appreciate. it, but your personal, secret opinion is going to be important for the future of the Company. As you have possibly read in the papers, this plant will soon be taken by the United States Government for a memorial park site. Condemnation suits have been filed against the owners of the block south of 'this plant during this week by the Govern- ment, and we are told that the papers are being made up in Washington to be sent out here to condemn 37 city blocks; and inasmuch as our plant and property is located within this area, it is only a matter of a short time until the Government is going to take possession of our property; and the problem now con- fronting this Company is whether we are going to continue in business in St. Louis or whether we will move out of St. Louis, or whether we will move a part of our property to Helena, Arkansas, and continue in business there where we are now operating a plant and know that the labor conditions are satisfactory.- If in your answers you indicate to me that our labor relations .with you are unsatisfactory, then this business in all probability will be discontinued in St. Louis and we expect to make our plans accordingly. The Company will not stay in St. Louis to give employment to people who oppose its policies and what is being done for them, and if the Company stays what it does in the future will be no different than what has been done in the past; and, when I ask you for your secret and unidentified opinion as to your future relations with the Company based on the past, I hope you will consider my questions carefully and give me your best secret advice, which when compiled will have considerable to do as to what this Company will do in the future. I want to make it plain that owing to the opportunity we now have to discontinue business that it is only, reasonable that you give me your best advice. Blanton testified that the bonus check was enclosed in this letter as a "persuader," and that if a majority of the employees answered in favor of the "Union plan" he would consider that as an unfavorable answer. 958 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD On June 15, 1937, following a union meeting and a strike vote, the union employees went on strike for union recognition and threw a picket line around the plant. The strike continued until July 13, 1937, during which the plant was partially shut down. Between June 15 and July 12, 1937, Blanton met daily with vari- ous union organizers and employees. He became adamant during these meetings and refused to meet with any union organizers, union attorneys, and certain employees." Blanton refused to discuss any- thing with the committee while Elza Smith or Lena Niemeier, employees, were members thereof. On July 2, 1937, the attorney for the Union, in a letter to Blanton, offered to compromise by calling off the strike and holding a consent election. The latter further apprised Blanton that the Union would construe the respondent's refusal to settle the strike as a lock-out. Blanton replied that he was. formulating a statement of his labor- policy which he would announce to the employees at a meeting to be called by him. On July 2,1937, Blanton sent the following letter to the employees : To All Employees of The Blanton Company up to the Begin- ning of the Week of June 14th, and Others Employed in Good Faith Since June 14th: The President of the Company is calling a meeting for all of the above-described employees for Tuesday morning, July 6th, at 9:30 a. m., the meeting to be held on the third floor of the refinery building. At that meeting the President of the Company will read and make known the labor policy of the Company. A copy of the policy will be handed to each and everyone attending and posted on -the bulletin board so that everyone connected or interested may know exactly where the Company stands in regard to labor. That policy will contemplate the right of employees having a union to represent them in their labor relations with the Company, and that union ". shall be the exclusive representative of all the em- ployees in such unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment; Provided, That any individual em- ployee or a group of employees shall have the right at any time to present grievances to their employer." 9 Blanton characterized the union organizers as radicals, Communists, and people seeking only to profiteer at the expense of the employees. In its brief the respondent states: "Blanton suggested that perhaps something definite could be accomplished if just the com- mittee of employees, without their expert advisers, sat around the table. Blanton sug- gested to all of these negotiators that perhaps they might be able to reach an agreement without the aid of these outsiders." . BLANTON COMPANY 959 This policy was made known to all employees who attended the meeting on June 1, 1937, and will be re-confirmed and further explained in the written memo we propose to publish to all employees as stated above. At this meeting' the matter of strike settlement will be dis- cussed with those employees now on strike. It has been suggested by the Attorney and the Committee representing the strikers that the strike be called off immediately and that "All persons employed by the Company at the time the strike was called shall be reinstated to their former positions as soon as work is. available without discrimination for union membership .or activity." The above is taken from a memo that was handed to the writer by the Attorney for the Committee and we are giving serious consideration to accepting the Attorney's proposal in part as substantially correct as to law and policy. If and when the management of the Company accepts the At- torney's proposal it will be understood that all employees who return to work will receive an advance of 10% of the basic wages, effective July 1st; and, it is further understood that if any employee is not satisfied with his basic wage, with the added 10%, then he will have the right to present his grievance to the management immediately, and his grievance will be given full consideration for final determination of the matter. On the other hand if there is any group of employees who desire to form a labor union, such as recognized and formed under,.the law, these employees will then proceed to form their union to conform to the law, and the management will recognize this union as the exclusive bargaining agent of the employees in their labor relations with the Company, bearing in mind that there are a number of employees who have expressed a desire to conduct their labor relations as individuals and that these employees will be protected in their legal rights. It is further understood that pending the forming of a labor union, or in the absence of any specific unsettled grievance, these employees will be paid the 10% advance in basic wages, which they received prior to leaving their employment on June 15th. It is to be hoped that all former employees and those now working will attend this meeting for a better understanding of our labor policy and a satisfactory compliance with it all around. I further desire to state that each and every employee may be assured that there will be no trouble whatever in attending this meeting or coming to or going from this plant at any.other 960 DEOISIONS OF NATIONAL, LABOR RELATIONS BOARD time, as the St. Louis Police Department, from the Chief on down, have assured us that each and every employee will be given protection in coming to and going from work. If for any reason you cannot attend the meeting , I would sug- gest that you write me a letter and tell -me that you could not come or did not desire to come under the conditions , as it will be understood that those who do not attend have no further interest in their position with this company, and the Company will so take it. With best wishes for a pleasant 4th of July, and a sincere desire that we may be able to reach a satisfactory understanding between us , beg to remain Very sincerely yours, D. A. BLANTON, President. Pursuant to this letter, a meeting of the employees was held at which Dorn read and Blanton discussed a prepared statement of the respondent's labor policy. The striking employees did not attend this meeting but were allegedly represented by their committee of five. The labor policy provided : Referring further to the National Labor Relations Act, the Supreme Court has stated in sustaining the Act, "It does not compel any agreement whatever." This being the law, this Company will not sign any agreement 10 As explained in statement of June 1st, The Blanton Company has carried a number of its old employees who have now reached an age where they cannot stand the demands of the so-called union shop, and it will be necessary for us to retain this type of labor on terms agreeable to the individual and the manage- ment, or have it understood that the employe will pass a test as to physical fitness. Some union shops refuse to employ men who have attained the age of forty-five years and if we find that we are handicapped in our new relations the Company reserves the right to eliminate any employe who has become incapacitated on account of age. This Company has paid employes full time when away on account of sickness, some employes having been carried as much as months at a time, and it is submitted that this is contrary to union. practice, and this policy will not be continued. 10 The contents of some of the statements in the respondent's message were obtained from the "Comments on the National Labor Relations Act by the Industrial Association of St. Louis, Inc." BLANTON COMPANY 961- All employees understand that our properties are located in what is known as the Memorial Park site which is being taken over by the United States Government for national park pur- poses: Since the President of the Company addressed the em-, ployes on June 1st, he has conferred with a high Government official who has told him that our plant will be condemned in due course, and it is only right and reasonable that all employes know that there is a serious question as to whether the Company will continue to operate in St. Louis, and all employes now have the right to protect themselves against future contingencies over which we have no control. If we approach our problems of labor relations in a sane man- ner and talk the language of the grease business on a man-to-man basis we will get somewhere with success to labor and satisfaction to the management. On the other hand, if we allow ourselves to become involved with lawyers and their technicalities and others who do not understand our problems, we are likely to be- come involved in loss of time and expense that will be paid out of our hard earned income. The Company feels that the less money we pay out to useless attorneys the more we will have to pay for real service. Blanton further stated that the meeting was called as a result of the letter received from the union attorney on July 2, 1937; that inasmuch as the striking employees did not attend, it was evident that the attorney had refuted his letter; and that as this was not the first complication growing out of outside representation,. "it would be the policy of the Company in the future to deal direct with the em- ployees either as individuals or through any group or any committee representing any group strictly according to law." On July 8 and 9, 1937, Blanton met with a committee of the em- ployees. This committee was comprised solely of members satisfac- tory to Blanton because of his refusal to meet with union organizers, union attorneys, and certain employees. Blanton prepared and read memoranda at these meetings which purported to be an agreement in settlement of the strike. Pursuant to these memoranda, the majority of the strikers re- turned to work on July 17, 1937, and the strike was terminated. The terms of the strike settlement provided that the Union would be recognized by the respondent as the bargaining agency for its mem- bership only, the bargaining to be done by an elected committee of its members; that the committee or the employees would deal at all times with the respondent; and that no outsiders would participate or be involved in any bargaining or negotiations between the re- spondent and its employees. 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 12, 1937, Harry D. Lee, president of the Union, told Blanton that there was no union in the plant at that time.. Blanton immediately dictated and had mimeographed in the respondent's, office a statement reading : THE BLANTON COMPANY Effective this date I desire to conduct my labor relations direct with the management of the Company. ---------------------------- This statement was distributed to all the employees in the plant. As a result of the answers to this poll, Blanton sent a letter to the employees stating that approximately 100 per cent of the employees had expressed the desire to conduct their labor relations direct with the management and that the respondent was giving consideration to returning to its former plan [the profit-sharing plan] which was built up from years of experience. Blantoii testified that shortly of-, terwards the respondent returned to its former methods of operation. On January 11, 1938, the Union sent a letter to Blanton requesting a conference for the purpose of collective bargaining and the rein- statement of the employees refused reinstatement after the strike. Blanton called together the members of the negotiating committee of July 8 and 9, 1937, and asked them to read and sign a letter he had dictated in reply to the union request. The letter stated that the employees in the plant were satisfied with the agreement of July 1937, that the,committee had canvassed the employees in the plant and had obtained approximately 100 per cent of the signatures of the employees to a written understanding as to their future labor relations, that these labor relations did not contemplate any outside representation, and that the committee was continuing to function as a representative of the employees in a. general way without any "com- pany union." This letter was signed by all five committeemen and a copy of the letter was sent to the. Board. (b) Conclusions We are satisfied from the foregoing findings of fact that the re- spondent refused to bargain collectively with the Union and at the same time deliberately pursued a policy designed to discourage its employees from exercising the rights guaranteed by the Act. Blan- ton's speech of June 1, 1937, the poll conducted by Dorn on June 6, and the questionnaires, letter, and bonus payments issued on June 11 constituted a series of threats and bribes which plainly demonstrated BLANTON COMPANY -963 to the employees the respondent's opposition to .the. Union and its desire that they refrain from engaging in any form of union activity. The keynote of the respondent's policy was sounded in the repeated request that the employees choose between the "union plan" and the "profit-sharing plan." The issue was thus clearly drawn between the acceptance of the respondent's "policies" and the retention of membership in the Union. Not satisfied with drawing this issue, the respondent used every facility at its command to induce its em- ployees to renounce the Union and accept the respondent's "policies." The respondent made- clear to-its employees - that the choice of the ",union plan" would be followed by, lay-offs, the loss of bonuses, and the removal of the plant to a site outside St. Louis,-that the choice of the Union indicated opposition to the respondent's policies. At the same time the respondent made equally clear to its employees that the choice of the "profit-sharing plan" would be rewarded with vacations with pay, further bonuses, and continued employment,- that the choice of the "profit-sharing plan" indicated loyalty to the respondent and approval of its policies. The respondent's employees, in considering the desirability of ad- hering to, the Union and being represented by it, had the right to make their own decisions free from the respondent's interference. The employees were obviously not permitted this freedom. The re- spondent injected itself into the field of 'self-organization, a field reserved exclusively to its employees, marshalled all the economic weapons at its command, and sought to destroy the desire of the em- ployees for self-organization and collective bargaining. The prospect of vacations with pay and further bonuses,, and the bonus payments of June 11 were obviously offered to discourage union activity.l" The threat of removal from St. Louis should the employees adhere to the Union served to magnify the respondent's largess. In the face of such overwhelming, opposition to union activity the employees were help- less. It is not therefore surprising that the respondent could assert at the close of 1937'that the Union had been driven out of the plant. The respondent urges that its plant site was subject to condemnation proceedings and that it merely apprised the employees of this fact. Such proceedings, however, had been pending for more than a year. We have no doubt that the announcement was timed to defeat thee, growth of the Union. Moreover, the respondent unlawfully utilized the situation by threatening to reestablish its plant outside the city "See Matter of, Roberti Brothers, Inc. and Furnitare .workers Union, Local 156.4,8 N: I. R. B. 925. 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if its employees persisted in their union activity.12 The respondent .contends that it continually reminded the employees of their freedom to join a union if they so desired. Such statements, however, when accompanied by threats of reprisals, as here, do not nullify the co- ercive effect of the respondent's activities.- The circumstances described above point irresistibly to the con- clusion that the respondent, although meeting with the Union, merely followed the form rather than the substance of collective bargaining. The respondent vilified outside representatives, appealed directly to its employees individually to accept the respondent's profit-sharing plan rather than union representation, dictated the personnel of the union bargaining committee, refused at the outset to enter into a signed agreement with the Union, announced the respondent's policy of dealing "direct with the employees either as individuals or through any group of any committee representing any group," and finally compelled a hand-picked committee of its employees to accept a memorandum purporting to be a strike settlement agreement. The respondent contends that it did in fact bargain collectively with the Union, and that such bargaining resulted in the strike set- tlement agreement of July 8 and 9, 1937. As noted above, the so- called agreement of July 8 and 9 settling the strike contained no pro- visions for recognition of the Union as the exclusive bargaining repre- sentative of the employees. At most, the documents dictated and read to the committee by the respondent were no more than statements of policy accepted by the committee 'under the compulsions brought about by the respondent's unfair labor practices rather than an agree- ment resulting from genuine collective bargaining. The respondent's brief states that "there were changes from time to time in the personnel of this committee; at Blanton's request some members were rejected, but the employees selected their substitutes." It is apparent that the employees designated the committee to represent them in the strike settlement solely because the respondent refused to deal with the Union's organizer and attorney, the bargaining representatives of their own choice. Under such circumstances, to hold that the com- mittee was the freely chosen representative of the employees or that the respondent was under no further obligations to bargain with the Union would be to nullify the provisions of Section 8 (5) of the Act.14 As we have stated in Matter of Stewart Die Casting Corporation and United Automobile Workers of America, Local No. 998, et al .,15 in- 12See Matter of Southern Colorado -Power Co., a corporation and H. H. Stewart and I. L. Watkins, individuals , 13 N. L. R. B. 699. " Matter of Southern Colorado Power Co ., supra, footnote 12. 14 Matter of Scandore Paper Boa Co., Inc. and Continental Container Corporation and Paper Box Makers Union, Local 18239, 4 N. L. R. B. 910. 1514 N. L. R. B. 872. I BLANTON COMPANY 965 volving the consideration of an agreement similarly obtained by an employer : Nor are the rights of the striking employees or the obligations of the respondent under the Act regarding them affected in any manner by reason of the U. A. W.'s acquiescence in the terms and conditions of the strike settlement. The U. A. W. was striking for recognition as the bargaining representative of the employees for collective bargaining. By the conditions of the strike settlement the respondent perpetuated its unfair labor practices and neither recognized the U. A. W. nor nego- tiated regarding its demands. At the time of the settlement the parties occupied the relative positions of victor and vanquished in the economic warfare which had taken place, with. the re- spondent as victor, and thus able to dictate its own terms and conditions as to peace. The respondent's occupation of this strategic position was not due to legitimate use of its superior economic force as a weapon in combatting the equally legitimate exercise by the employees of their right to strike, but the strike had been prolonged and the respondent's victory therein achieved by the respondent's resort to practices condemned under the Act. Finally, subjugated by reason of the unfair labor practices of the respondent, and no longer able to continue the fight, the U. A. W. had no alternative but to accept the terms and con- ditions dictated by the respondent. To hold under these cir- cumstances that acquiescence by the U. A. W. in the terms and conditions imposed by the respondent operated to deprive the employees of any of their rights under the Act, would be to give legal sanction to the illegal acts which finally compelled the U. A. W. to accept the settlement, in lieu of its unequivocable right to recognition and collective bargaining, and the equally unequivocal right of the individual employees to reinstatement upon the conclusion of the strike prolonged after March 23, 1937, by the respondent''s unfair labor practices. The foregoing language is equally applicable here. Finally, while the attitude of the respondent prevented genuine collective bargaining, the respondent in addition indicated through- out that it would not enter into a signed agreement, even though an understanding were reached. We have held under substantially sim, ilar circumstances that collective bargaining in good faith ordinarily requires a willingness to embody terms reached in a signed agreement.16 16 See Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge Nos. 64, 1010, and 1101, 9 N. L. R. B. 783; Matter of Highland Park Manufacturing Co. and Textile Workers Organizing Committee, 12 N. L. It. B.. 1238, and cases cited therein. I 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find; that on June 2, 1937, and at all times thereafter, the re- spondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit' in respect to wages, rates of pay, hours of employment, and other conditions of employment. We further find that the respondent, by the acts set forth above, including its refusal to bargain collectively with the Union, interfered with, restrained, and coerced its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid ai d protection as guaranteed in Section 7 of the Act. We further find that the strike was caused by the respondent's refusal to bargain collectively with the Union. B. Discrimination with respect to hire and tenure of employment As stated above, on July 8 and 9, 1937, the respondent and the committee of employees came to an agreement for the settlement of the strike, which provided, among other things, that the employees would terminate the strike and that the respondent would reinstate all strikers to their former positions as soon as work was available. The complaint, as amended, alleged that the respondent, refused to reinstate 15 striking employees because of their melrlbership in and activity on behalf of the Union. As stated above, during the hearing the names of five of these were dismissed from the complaint." The respondent contends that under the strike settlement, as evi- denced by the memorandum of settlement, it was not required to reinstate these strikers. For the reasons stated above, however, the strike settlement did not deprive the individual employees of their unequivocal right to reinstatement upon the conclusion' of the unfair labor practice strike. Inasmuch as the strike was caused by the respondent's unfair labor practices, the striking employees were, in the absence of some valid cause for discharge, entitled to reinstatement to their former posi- tions upon request.18 Since the respondent relies upon specific reasons for its refusal to reinstate each of the strikers alleged to 37 Philip Sulzak, Ed. Loehr, Betty Norman , Nettie Barger , and Rose Niemeier. 1s Black Diamond Steamship Corp. v. National Labor Relations Board, 94 F. (2d) 875, cert. den ., 304 U. S . 579, enforcing order in Matter of Black Diamond Steamship Corpora- tion and Marine Engineers' Beneficial Association, Local No. 38, 3 N. L. R. B. 84; Matter of McKeig-Hatch, Inc. and Amalgamated Association of Iran, Steel, and Tin Workers of North America, Local No. 1139, 10 N. L. R. B. 33; Matter of Western Felt Work, a corpo- ration and Textile Workers Organizing Committee, Western Felt Local, 10 N. L. R. B. 407. The strikers would, under the doctrine of the foregoing cases, be entitled to reinstatement even though they had been displaced by new employees during the strike. In the instant case, however , none of the strikers in question had been replaced and consequently such issue does not arise. BLANTON COMPANY 967 have been discriminated against, we shall consider the case of each employee separately., -' - Clarence Mitchell began his employment with the respondent in 1920.' He was employed as an oil blender at the time of the strike. Mitchell had been a foreman in the respondent's plant until 1936- when he relinquished that position due to illness. After an absence of several months in 1936, he returned to work and was told by C. C.. Mannebach, vice president of the respondent, that he had a lifetime job in the plant. Mitchell was not returned to the respondent's employ at the termi- nation of the strike. He testified that on. the first day of the strike,, James Van Amiscourt, his foreman, stated to him, "Charlie, if T were you I would stay off the picket line, I wouldn't be showing- my face around because the old man [Blanton] • is sore at you any-- way." Although Van Amiscourt testified at the, hearing, he did not deny having made this statement and we accept Mitchell's testimony- as true. Mitchell was captain of the picket line during the strike. The respondent contended that it did not reinstate Mitchell because- of his illness and continued absence from work. Van Amiscourt testified that Mitchell absented himself from his duties four or five- times a month. However, the respondent produced no records at the bearing substantiating this testimony. Mitchell testified that- he was absent only 3 days in the 14 months preceding the strike.. At no time was Mitchell censored for his absences. We accept Mitchell's testimony as true. Shortly after the termination of the strike, Mitchell asked Man- nebach to be reinstated to his former position. Mitchell testified' that Mannebach replied, "Well, Charlie, the old man [Blanton] is. pretty sore at you for joining the local and being out on the picket line. He figured you had no business joining the Union, that you should have stuck with them, and seeing you on the picket line. made him sore all the more." Mannebach denied having made this statement. In view of the respondent's vigorous attacks- upon the Union, however, we credit Mitchell's testimony. It is plain from the record that if Mitchell was guilty of frequent absences, as asserted by the respondent, he was never warned about- them. The evidence is uncontradicted that he was an excellent work- man while on the job. The fact that prior to the strike the respond- ent saw fit to retain Mitchell, without so much as an admonition concerning his alleged frequent absences, is a clear indication that the reason advanced by the respondent for its refusal to, reinstate him was culled ex post facto to screen its true motive.'9' 10 See Matter of Highway Trailer Company and United Automobile Workers of America;. Local No. 135 and Local No. 136, 3 N. L. R. B. 591 , order enforced in National Labor Rela- tions Board v. Highway Trailer Company, 95 F. (2d ) 1012 (C. C. A. 7th; 1938)'. 2472,83-40-vol. 16--62 968 DEOISIONS' OF NATIONAL LABOR RELATIONS BOARD We find that the respondent, by refusing to reinstate Mitchell on July 12, 1937, and at all times thereafter, discriminated in regard to his hire and tenure of employment, thereby discouraging member- ship in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. . George Bickel was working as an assistant engineer at the time of the strike and had been employed by the respondent in this capac- ity since 1926. Bickel was a member of the union negotiating com- mittee and active on the picket line. He testified that on the first day. of the strike Peterson, his foreman, stated to him, "George, you've got one more chance to work in this factory ... I got a paper here for you to sign. Are you for the Company or against the Company?". Bickel replied that he was for the Union. Peterson was not called as a witness at the hearing and we find that he made the statements attributed to him by Bickel. After the strike, Bickel asked Blanton for reinstatement. Blanton asked him why he had been on the picket line and told him to seek another job. The respondent contended that it did not reinstate Bickel to his former position because he was not licensed as required by the St. Louis Code. and Ordinances. Peterson resigned from his position during the strike and the chief engineer hired to take his place re- fused to work with unlicensed assistants. Despite the fact that Bickel was not a licensed engineer he had occupied the position as assistant engineer for the respondent for a period of 11 years. In view of Peterson's and Blanton's statements to him, it is apparent that the real reason Bickel was refused rein- statement was not because he was an unlicensed engineer but because of his union activity. We find that the respondent, by refusing to reinstate Bickel on July 12, 1937, and at all times thereafter, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. Henry Vollmer and Elmer Webb began their employment with the respondent in November 1924 and January 1934, respectively. They were employed as maintenance men at the time of the strike, acting as carpenters, electricians, and pipe fitters. Both joined the Union and participated in the strike. Vollmer and Elmer Webb were not called back to their positions at the termination of the strike. A week before the strike, Vollmer testified that Peterson came to him and said, "The old man [Blanton] BLANTON COMPANY 969 wants to know how the fellows stand." Vollmer replied that he had signed a union card and was going to remain with the Union. Webb testified that Peterson during this period asked him, "Are you going to stick with the Union or are you going to stick with Blanton, with the Company ?" Elmer Webb replied that he was going to stay with the Union. Peterson was not called as a witness and we find that he made the. remarks described above. The respondent contends that its only reason for refusing to re- instate Vollmer and Elmer Webb is that its plant is to be condemned for a United States park project and that this necessarily meant a curtailment of maintenance work. It appears from the evidence that the respondent knew of the proposed condemnation of its plant for approximately' a year prior to the time of the strike. There were 14 maintenance men in the plant at the time of the strike and the respondent retained them all but Vollmer and Elmer Webb when it resumed operations on July 12,1937 .20 At the time of the oral argument held before the Board on June 8, 1939, the plant had not yet been condemned. It thus appears that the proposed condemnation had not been effected after at least 2 years' notice to the respondent. Nor did the respondent show by credible evidence that such condemnation proceedings were imminent in July 1937. The foregoing facts, considered in the light of the respondent's hostility toward unionization of its employees and the -steps which it took to prevent their organization, as heretofore found, convince us that the respondent refused to reinstate Vollmer and Elmer Webb because of their activities on behalf of the Union, rather than because of the alleged need for curtailment of maintenance work in the plant. We find that the respondent, by refusing to reinstate 'Vollmer and Elmer Webb on July 12, 1937, and at all times thereafter, discrim- inated in regard to their hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restrain- ing, and coercing its employees in the exercise of the rights guar- anteed in Section 7 of the Act. George Partney, Charles Webb, and Fred Schroeder were first employed by the respondent in the spring of 1937, the early part of 1936, and in June 1934, respectively. They were all working as com- mon laborers at the time of the.'strike. They were members of the Union, were active on the picket line, and were refused reinstate- ment after the strike. Charles Webb, in addition to being active on the picket line and during the course of negotiations with the respondent, was treasurer of the Union. It does not appear . from the evidence whether or not seniority or any other regular plan of reducing the force was observed by the respondent in selecting the two maintenance ,men to be dropped. 970 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD Partney testified that shortly prior to the strike, Elwin Gile; his: foreman, asked him whether he was in favor of joining the Union or whether he was going to stay with the respondent and be satisfied with the bonus plan that Blanton offered. Partney replied that he was not in favor of the bonus plan and preferred the Union. Schroeder testified that when he applied for reinstatement 3 weeks after the termination of the strike, Gile stated to him that he was -discharged for participating in the Union, and that "Anyway your uncle is working here and we don't want any relatives working here ;anyway." The fact that Schroeder had an uncle on the pay roll of the respondent was known by the respondent at the time he was hired. Although Gile was called as a witness by the respondent and testified at the hearing, he failed to deny the above testimony of Partney and Schroeder which we accept as true. The respondent contended that Partney, Schroeder, and Charles Webb were not reinstated after the strike because of their inefficiency.. Various supervisory officials of the respondent testified that Partney,. Schroeder, and Charles Webb were inefficient and had on numerous occasions, prior to the strike, "loafed" on the job. Mannebach testi- fied that the respondent had determined to discharge these three men prior to the strike but refrained from doing so because of their union affiliation. The evidence is uncontradicted that these three men were never apprised that their work was unsatisfactory. Assuming that the respondent's allegations of incompetence are meritorious, nevertheless, if the respondent refused to reinstate Part- ner, Schroeder, and Charles Webb on July 12, 1937, because of their affiliation it committed an unfair labor practice whatever "proper causes" may then have existed for terminating their employment. While proof of the presence of proper causes at the time of the refusal to reinstate may have relevancy and substantial bearing in explaining what otherwise might appear as a discriminatory dis- charge, such proof is not conclusive. The issue is whether such causes in fact induced the refusal to reinstate or whether they are but a justification of it in retrospect.21 The fact that the respondent claimed that Partney, Schroeder,, and Charles Webb were inefficient several weeks before the strike but chose not to warn them or to take any disciplinary measures, and in light of Gile's statements to Partney and Schroeder, we believe that the respondent's true motive in refusing Partney, Schroeder, and Charles Webb reinstatement was their union affiliation rather than their alleged inefficiency. - 21 Matter of Kelly-Springfleld Tire Company and United Rubber Workers of America, Local No. 26,,and James Reed and Minnie Rank, 6 N. L. R. B . 325, order enforced in The- Kelly-Springfield Tire Company v. National Labor Relations Board, 97 F. (2d) 1007 (C. C. A. 4th, 1938). BLANTON COMPANY 971 We find that the respondent has discriminated in regard to the hire and tenure of employment of George Partney, Fred Schroeder,' and Charles Webb, thereby discouraging membership in the Union :and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. George Bennett began his employment with the respondent in February 1927. He was employed as a common laborer in the plant and at the time of the strike was engaged in the work of processing' beef suet. He was a member of the Union, was active in the picket line, and was denied reinstatement at the termination of the strike. The respondent contended that it did not reinstate Bennett because it discontinued buying raw beef fat and thus had no further neces- sity for Bennett's services. The evidence is uncontradicted that no one was hired or delegated to take over Bennett's former duties in the plant. It is apparent from the foregoing facts that Bennett was refused reinstatement because of respondent's change in method of opera- tion rather than because of an anti-union animus on the part of the respondent. We find that the respondent has not discriminated with regard to the hire and tenure of employment of George Bennett. Elza Smith was working as a trackman at the time of the strike and had been. employed by the respondent in this capacity since January 1, 1937. Smith was a member of the union negotiating -committee and active on the picket line. During the strike, Smith was arrested for assaulting Mannebach during a fracas that occurred outside the plant. The respondent contends that it did not reinstate Smith because of his assault upon Mannebach. From all the evidence in this case, we conclude that the respond- ent's refusal to reinstate Smith was not an unfair labor' practice within the meaning of the Act. Kilbourne Hicks was first employed by the respondent in January 1937. He was employed as a trackman at the time of the strike. Hicks testified that he was receiving medical treatment throughout the period of the strike for an injury suffered in the plant several days before the strike. He took no part in union activities before, during, or after the strike. The respondent contends that Hicks was an inefficient workman and for that reason was not called back when'the plant reopened. . We conclude that there is insufficient evidence to sustain the alle- gations of the complaint with respect to Hicks. Therefore, the allegations charging the respondent with having discriminated against Hicks in violation of Section 8 (3) of the Act will be dismissed. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition to the employees alleged to have been unlawfully refused reinstatement after the strike the complaint alleges that five employees, who were reinstated at the conclusion of the strike, were subsequently discharged for union activity : Roscoe Jones was first employed by the respondent in July 1934 and was working as a deodorizer at the time of the strike. Jones was a member of the Union and served on the picket line during the strike. He was reinstated to his former-position at the conclu- sion of the strike and retained it until about September 1, 1937. At that time, he was discharged by Gile for having caused a spill of approximately - 8,000 pounds of oil. The respondent contends that this was the- only reason for Jones' discharge, and introduced evi- dence to show that on previous occasions two employees had been instantly discharged for the same type of negligence. It appears from the foregoing facts that Jones was not discharged. because of his union activities. Therefore, the allegations charging the respondent with having discriminated against Jones in violation of Section 8 (3) of the Act will be dismissed. Margaret Gross, Lena Niemeier'22 Leona Clirisco, and Helen. Schlueter were first employed by the respondent in June 1935, in July 1936, in 1938, and in May 1937, respectively. They were all members of the Union and all served on the picket line during the strike. They were reinstated to their former positions at the termi- nation of the strike and retained until April 1938, when they were all discharged. These women were engaged in the work of cartoning at the plant.. In March 1938; the respondent installed a wrapping machine thus. eliminating the work of four women. The work of cartoning and wrapping is interchangeable. All of these discharged women were married and the respondent introduced evidence to show that it, followed a policy of discharging or laying off married women first. From the foregoing facts it is apparent that the respondent dis- charged Gross, Niemeier, Chrisco, and Schlueter because their jobs were eliminated rather than because of an anti-union animus. Ther allegations charging the respondent with having discriminate& against Gross, Niemeier, Chrisco, and Schlueter in violation of Sec- tion 8 (3) of the Act will be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section= III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and 22 Incorrectly designated Lena Nelmeler In the complaint. BLANTON COMPANY 973 substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor prac- tices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the condition which existed prior to the commission of the unfair labor practices. We have found that on June 2, 1937, and thereafter, the respondent refused to bargain collectively with the Union. The respondent con- tends that the Union no longer represents a majority of employees within the appropriate unit. We have found, however, that prior to the respondent's unfair labor practices, the Union had the member- ship of a large majority of such employees. If this membership waned, it was a result of these unfair labor practices. To permit the respondent to relieve itself by such methods of the obligation to bargain collectively, would violate the purpose and policies of the Act.23 In addition, since the respondent refused to enter into a signed agreement regardless of the terms, and since we have found that this constituted a refusal to bargain collectively, we shall address our order specifically to the wrong sought to be remedied and order the respondent to embody any understandings reached in a signed agreement upon request. We have found that the respondent engaged in unfair. labor prac- tices in refusing to reinstate Henry Vollmer, Elmer Webb, George Bickel, Charles Mitchell, Charles Webb, George Partney, and Fred Schroeder. We shall order the respondent to offer reinstatement to 23 Cf. Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge Nos. 64, 1010, and 1101, 9 N. L. R. B. 783, where we said : "The necessary delays incident to the adjudication of a dispute have postponed the Board's order until a time considerably subsequent to the original wrongful refusal to bar- gain . The refusal to bargain collectively disrupts the morale of the men , has a. deterring effect upon the organizational activity of the Union and a discouraging influence on mem- bers already gained which tends to induce them to drop from the ranks . . . If an order to bargain collectively cannot be deemed an appropriate remedy for the refusal to bargain collectively unless the [Union's] majority is kept intact until the Board can issue a deci- sion, the plain policy and intent of the Act will be defeated . The respondent would be permitted further to evade the obligation of Section 8 (5) by profiting from the discour- aging effects of its already accomplished violation of that very obligation. We cannot concede the validity of such a doctrine of futility, and we hold that to effectuate the poli- cies of the Act, the respondent's refusal to bargain must be remedied by an order to bar- gain, based on the majority obtaining on the date of the refusal to bargain." See also Matter of Arthur L. Colten and A. J. Colman, co-partners, doing -business as Kiddie Kover Manufacturing Company, and Amalgamated Clothing Workers of America, 6 N.. L. R. B. 355, aff. in National Labor Relations Board v. Arthur L. Colten and Abe J. Colman, co-partners doing business as Kiddie Kover Manufacturing. Company, .105 F. (2d). 179 (C. C. A. 6th , 1939). °974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these employees to their former or substantially equivalent positions :and to make them whole for any loss of pay they have suffered by reason of their respective discriminations by payment to each of them of a sum equal to the amount which he normally would have earned :as wages from the date of the refusal to reinstate to the date of the -offer of reinstatement, less his net earnings 24 during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. United Oleomargarine Workers Local Industrial Union No. 489 is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The production and maintenance employees of the respondent, -excluding supervisors and office and clerical employees, constitute a unit appropriate for the purposes of collective bargaining, within the -meaning of Section 9 (b) of the Act. 3. United Oleomargarine Workers Local Industrial Union No. 489 is and has been at all times since June 1937, the exclusive representa- tive of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing and continuing to refuse to bargain collectively with United Oleomargarine Workers Local Industrial Union No. 489 as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment of Henry Vollmer, Elmer Webb, George Bickel, Charles Mitchell, Charles Webb, George Partney, and Fred Schroeder, thereby discouraging membership in the Union, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of. the Act. 6. 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. "By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of 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 thgreof 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. BLANTON COMPANY 975 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not discriminated in regard to hire or tenure of employment of Kilbourne Hicks, Elza Smith, George Bennett, Roscoe Jones, Lena Niemeier, Leona Chrisco, Margaret Gross, and Helen Schlueter, thereby discouraging membership in a labor organi- zation, 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 respond- ent, The Blanton Company, St. Louis, Missouri, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Oleomargarine Workers Local Industrial Union No. 489 or any other labor organization of its employees by refusing to reinstate or in any other manner discrim- inating in regard to hire and tenure of employment or any term or condition of employment of any of its employees; (b) Refusing to bargain collectively with United Oleomargarine Workers Local Industrial Union No. 489 as the exclusive representa- tive of all its production and maintenance employees, excluding supervisors and office and clerical employees; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Oleomargarine Workers Local Industrial Union No. 489 as the exclusive representa- tive of all its production and maintenance employees, excluding supervisors and office and clerical employees, in respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and, if an understanding is reached on such matters, embody said understanding in a signed agreement; (b) Offer to Henry Vollmer, Elmer Webb, George Bickel, Charles Mitchell, George Partney, Charles Webb, and Fred Schroeder im- mediate and full reinstatement to their former or substantially '976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equivalent positions without prejudice to their seniority and other rights and privileges; (c) Make whole Henry Vollmer, Elmer Webb, George Bickel, Charles Mitchell, George Partney, Charles Webb, and Fred Schroeder for any loss of pay they may have suffered by reason of the respondent's refusal to reinstate them, by payment to each of them of a sum of money equal to that which he would normally have earned as wages from the date of the respondent's refusal to rein- state him to the date of such offer of reinstatement, less his net earn- ings during said period; provided, however, that the respondent shall deduct from the amount otherwise due each of the said employees monies received by him during said period for work performed on any Federal, State, county, municipal, or other work-relief projects, a.nd pay over the amount so deducted to the fiscal agency of the Federal, State, county, municipal, or other government or govern- ments which supplied the funds for said work-relief projects; (d) Immediately post notices in conspicuous places throughout its :plant, and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), and (c) and that it will take the affirmative action set forth in 2 (a), (b), and (c) of this Order; (e) Notify the Regional Director for the Fourteenth Region in writing 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 allegations of the amended .complaint, charging the respondent with engaging in unfair labor practices within the meaning of Section 8 (3) of the Act by refusing to reinstate Betty Norman, Kilbourne Hicks, Ed. Loehr, Elza Smith, Philip Sulzak, Nettie Barger, Rose Niemeier, and George Bennett, and by discharging Roscoe Jones, Lena Niemeier, Leona Chrisco, Margaret Gross, and Helen Schlueter, be, and they hereby are, dismissed.