Ed. Friedrich, Inc.

In the Matter Of ED. FRIEDRICH, INC. and MILL WORKERS LOCAL No. 1764 Case No. C-338.-Decided November 6, 1939 Ice Box, Display Case, and Billiard Table Manufacturing Industry-Interter- ence; 'Restraint , and Coercion: anti-union, statements...by, supervisory employees ; interrogating employees regarding their union activity ; expressed opposition to outside organization-Company-Donrioa.ated Union : domination of and interference with formation and administration ; support ; denial to union of privilege to, solicit membership on company time and property although company-dominated union accorded such privilege ; organization of, by supervisory employees on company time and property ; disestablished as collective bargaining agency- Closed-Shop Contract : with company-dominated union, invalid ; respondent or- dered to cease and desist giving effect to, or any other agreement with company- dominated union-Discrimination: discharge of employee because of refusal to' join company-dominated union ; to encourage membership in company-domi- nated union and discourage membership in bona fide union; not justified by closed-shop contract, since contract invalid as having been made with company- dominated union-Reinstatement Ordered: discharged employee-Back Pay: awarded discharged employee. Mr. Warren Woods, for the Board. Mr. J. D. Dodson, of San Antonio, Tex., for the respondent. Mr. A. F. Cadena, of San Antonio, Tex., for the Mill Workers_ Mr. Philip B. Lush, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Mill Workers: Local No. 1764, herein called the Mill Workers, the National Labor- Relations Board, herein called the Board, by Edwin A. Elliott,, Regional Director for the Sixteenth Region (Fort Worth, Texas),, issued its complaint, dated November 5, 1937, against Ed. Friedrich,, Inc., San Antonio, Texas, herein called the respondent, alleging that. the respondent had engaged in and was engaging in unfair labor- '.The original charges and first amended charges were filed by the American Federation, of Labor. The second amended charges were filed by Mill workers Local No. 1764. 17 N. L. R. B., No. 24. 387 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. In respect to the unfair labor practices, the complaint alleged, in substance, (1) that the respondent, prior to July 9, 1937, and there- after, fostered, encouraged, sponsored, dominated, and interfered with the formation, enlistment of membership in, and administration of Ed. Friedrich Inc. Employee's Union, herein called the Friedrich Union; (2) that the respondent entered into a closed-shop contract with the Friedrich Union; (3) that the respondent discharged and refused to reinstate Joe Kohl and Frank A. Baranek, the former because he joined and assisted the Mill Workers, and the latter be- cause he refused to join the Friedrich Union, and because they en- gaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection ; and (4) that the respondent, by the above acts and by other acts set forth in the complaint, interfered with, coerced, and restrained its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint, accompanied by notices of hearing, were duly served upon the respondent and the Mill Workers. On November 11, 1937, the respondent filed its answer admitting the allegations of the complaint concerning the nature and interstate, character of its business and admitting that it had entered into a closed-shop contract with the Friedrich Union, but denying the al- leged unfair labor practices. Pursuant to notice, a hearing was held on November 15, 16, 17, 18, and 19, 1937, at San Antonio, Texas, before Waldo C. Holden, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Mill Workers were represented and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the hearing counsel for the Board moved to dismiss without prejudice the allegations of the complaint with respect to the discharge of Kohl for the reason that he was not available as a witness. The Trial Examiner granted the motion without objection by the respondent. The ruling is hereby' affirmed. At the hearing counsel for the respondent made application to the Trial Examiner for the issuance of subpenas to require the attend- ance of five named witnesses. The Trial Examiner received the application and signified his intention to refer it to the Board in Washington. At that point, however, counsel for the Board stated that a number of the persons in question were already under subpena by the Board and would, therefore, be available to the respondent, and that the others would appear voluntarily at the request of the ED. FRIEDRICH, INCORPORATED 389 respondent. Thereupon, counsel for the respondent and counsel for the Board entered into an arrangement whereby three of the desired witnesses were to appear under subpenas previously issued by the Board, and the two remaining witnesses were to be requested to appear voluntarily . The Trial Examiner did not forward the appli- cation to the Board and later returned it to the respondent. It appears from the record that. all the persons in question appeared as witnesses at the hearing . In its exceptions , which are referred to below, the respondent contends that it was prejudiced by the failure of the Board to issue the subpenas at its request. In view of the facts set forth above , we find this contention to be without merit. During the course of the hearing, the Trial Examiner made sev- eral other rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On December 31, 1937, the Trial Examiner filed his Intermediate Report in which he found that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act, and rec- ommended that the respondent cease and desist therefrom , and that it take certain specific affirmative action, including the withdrawal of recognition from, disaffirmance of the agreement with, and dis- establishment of the Friedrich Union , and including also an offer to reinstate Frank A. Baranek to his former position with back pay from the date of his discharge. Thereafter, on January 7, 1938, the respondent filed its exceptions to the Intermediate Report. By letters dated May 5, 1938, the Board advised the respondent and the Mill Workers that they were granted the right, within 10 days from the receipt thereof, to apply for oral argument or permission to file briefs before the Board. Neither availed itself of this right. The Board has considered the exceptions, and save for those which are consistent with the findings, conclusions, and order set forth herein, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a Texas corporation with its principal place of business at San Antonio , Texas. It is chiefly engaged in the manu- facture and sale of ice -box equipment, display cases, and billiard tables. The respondent has a capital stock of $600 ,000. Its gross sales in 1936 were $1,115,212.53 , of which amount more than 60 per 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cent represents sales outside the State of Texas. About 70 per cent of the respondent's raw materials, consisting mainly of lumber, sheet metal, plate glass, and paints, are purchased outside the State. The respondent stipulated at the hearing that, by virtue of the interstate character of its business, it is subject to the jurisdiction of the Board. The respondent employs about 229 persons at its plant. H. THE ORGANIZATIONS INVOLVED Mill Workers Local No. 1764 is a labor-organization chartered by United Brotherhood of Carpenters and Joiners of America, which, in turn, is affiliated with the American Federation of Labor. It admits to membership all employees of the respondent engaged in milling, fashioning, joining, assembling, erectingi fastening, or dis- mantling of all materials of wood, hollow metal, or fiber, the laying of all cork and compos, all asphalt shingles, erecting and dismantling of machinery, and the manufacturing of all wood materials where the skill, knowledge, and training of a carpenter are required, either through the operations of machines or hand tools. Ed. Friedrich Inc. Employee's Union is an unaffiliated labor or- ganization admitting to its membership all employees of the respond- ent with the exception of corporate officers and directors. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; domination of the F2 iedrich Union Toward the ' end of June 1937, a considerable number of the resDondent's employees attended at least one meeting of the Mill Workers at the American Federation of Labor Temple in San An- tonio. Encouraged by this manifestation of interest on. the:.part of the employees, A. F. Cadena, an organizer for the American Federa- tion of Labor, went to see Richard Friedrich, vice president of the respondent, and requested permission to go through the plant and talk to the employees on behalf of the Mill Workers. Friedrich refused the request, stating that he did not permit solicitation of any kind on the respondent's property. Shortly thereafter, a represent- ative of the Mill Workers, assisted by one of the respondent's em- ployees, stood outside the respondent's plant and distributed hand- bills announcing a mass meeting of the employees to be held at the Labor Temple on the evening of July 6. The meeting was held ac- cording to schedule and was attended by between 35 and 50 of the respondent's employees, a number of whom signed applications for membership in the Mill Workers. ED. FRIEDRICH, INCORPORATED 391 Frank A. Baranek, an employee in the glazing department who attended the meeting, testified that about 2 days after the meeting Henry Baumann, his foreman, asked him why he wanted "to go up to the Labor Temple and get around that union," and if he "was fool enough to go up there and pay (his) hard earned money and get no benefit from it." Likewise, according to the testimony of Frank Bernhard, another employee who attended the meeting, Baumann spoke in similar terms to Bernhard and further stated that a "com- pany= union" was the "best thing" for the employees. Also, Fred- Golla, assistant foreman in the glazing department, stated that Bau- mann questioned him concerning the meeting and the Mill Workers generally and asked Golla if he was attending meetings of that organization. At the hearing, Baumann denied that he made any statements derogatory to the Mill Workers and favoring a "company union." The Trial Examiner found that Baumann made the state- ments in question. In view of the Trial Examiner's finding, to- gether with the fact that the conduct attributed to Baumann by the three employees is consistent with the activities of the respondent and its supervisory employees set forth below, we find that Baumann interrogated the employees about their union activities and expressed his opposition to the Mill Workers and his approval of a "company union" in the terms described by the above witnesses. At about` the same time, Amil' KI'och, foreman of the woodworkii7g" department, told another employee, Henry Keuntz, "that the firm had been in business for 50 years and-did not believe in unions, and that they had been without a union that long and they would continue-without a union." Kloch also stated that he could see no benefit to the employees in joining an "outside union," and concluded his remarks with the warning that "Many a man would like to have (Keuntz's) job." One of the employees who attended the meeting of the Mill Work- ers was Stuart Bergman, an assistant foreman in the porcelain `de`= partment. Shortly after the meeting, Bergman and about 15 other employees, most of whom were assistant foremen, met at the home of one of the employees and discussed plans for the organization of an inside union, that is, an unaffiliated union limited to the employees of the respondent. At that meeting it was decided to circulate a petition in favor of such an organization among the employees. Accordingly, on the following day, Bergman and other members of the organizing group circulated among the employees small sheets of paper containing the following caption : We, the undersigned, hereby petition Ed Friedrich, Inc. to allow us to form our own Union. 247384-40-vol. 17-26 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bergman and his associates carried the above paper through the entire plant during working hours and solicited the signatures of all the employees . In Bergman's own department the petition was cir- culated by Bergman and an employee named Gus Hanger , to whom Bergman referred at the hearing as his "stand -by." Bergman took the paper down one side of the room and Hauger down the other side. . Upon being approached by Hauger, one employee , Harold Giraud, refused to sign, whereupon Bergman went to Hauger's as- sistance and quickly induced Giraud to affix his signature to the paper. One of the petitions was brought to Frank Baranek by Paul Petsch, a glazer . When Baranek at first refused to sign, Petsch persisted, stating that the paper did not "amount to anything." Although Baranek finally signed, he stated at the hearing that he was not aware of the nature of the petition and that so far as he was concerned he was "just signing a piece of paper." It appears that a large majority of the employees signed the petition. Sometime in the afternoon of the same day, Bergman handed the petition to Harrison , the respondent's office manager , with instruc- tions to deliver it to either Richard or George Friedrich , vice presi= dent and secretary, respectively, of the respondent. Harrison took the petition to Richard Friedrich, who immediately prepared and distributed to all the employees over the printed signatures of George and Richard Friedrich, and also of Ed Friedrich , president of the respondent, the following notice: It has been reported to me that over 95 % of our employees are desirous of forming an employees union, which is appar- ently entirely satisfactory with us. We are glad to learn of your organization plans and we will be pleased to meet with you any time after Monday July 12, by appointment , to discuss this matter and enter negotiations. Soon after the above notice, referred to in the record as the "blue dodger," was issued, Bergman posted on the respondent's bulletin board an unsigned notice of a mass meeting to be held in the recrea- tion room at the respondent 's plant on the evening of July 15. At this juncture Paul K. Brinkoeter assumed the leading role in the formation of the incipient inside union. Brinkoeter had been employed by the respondent for about 20 years. For many years he was a foreman , but about 10 years before the hearing was promoted to chief engineer, a position of higher rank than foreman, and by virtue of which he is responsible for the operation of the entire plant. Shortly after the distribution of the notice expressing the respondent's approval of an inside union, Brinkoeter and Bergman went to see M. J. Arnold, an attorney, and requested him to address the mass meeting of the employees. Brinkoeter stated that he ap- . ED. FRIEDRICH, INCORPORATED 393 proached Arnold at the suggestion of one Tasto,2 who was vice president of an unaffiliated union at the Household Furniture Com- pany, another plant. in San Antonio. Tasto told Brinkoeter that Arnold had assisted the employees at that plant in organizing their union and in drawing up the constitution and bylaws, and might be of assistance to Brinkoeter in a similar capacity. Upon being ap- proached by Brinkoeter and Bergman, Arnold agreed to speak to the respondent's employees and explain the "Wagner Act." The mass meeting was held as scheduled on the night of July 15 in the recreation room at the respondent's plant, and was attended by most of the respondent's employees, including the foremen and assistant foremen. At the meeting Brinkoeter introduced Arnold, who ,gave a brief discussion of the Act and then read to the group the' constitution and bylaws of the union at the Household Furniture Company's plant. During the course of his talk, Arnold strongly advised the employees to "get their own organization on its feet and rolling along" before considering joining any national organization such as the "C. I. 0. or A. F. of L." After Arnold finished speak- ing, there was some discussion of -the constitution and bylaws, and a few minor changes were made in them. When that was done, a blank ledger was produced, and the employees were requested to sign their names therein as an indication of their approval of the consti- tution and bylaws and their acceptance of membership in the inside union. Following the close of the meeting, a number of employees signed the ledger, and on the following morning Bergman and his associates solicited the signatures of the remainder of the employees. A large majority of the employees signed the ledgers on the one or the other occasion. . Sometime before the above meeting, Cadena and several other rep- resentatives of the Mill Workers, having heard rumors of the pro- posed meeting, went to Richard Friedrich and requested permission to attend the meeting and speak to the employees on behalf of their organization. Friedrich refused the request, stating that he did not wish any "outsiders" to be present. The "Articles" of the inside union gave it the name of Ed. Fried- rich Inc. Employee's Union. These Articles were adopted from those of the unaffiliated union at the Household Furniture Company plant, and provided, inter alia, for the establishment of an "Executive Committee." This committee was given the "authority to act for the members on all questions and on all subjects," and was to -be composed of one representative from each of the departments in the plant. The Articles provided that the foremen were to be considered as a department and as such to be, represented on the committee. Tasto's first name does not appear in the record. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Articles further provided that the officers of the organization should be elected from the members of the Executive Committee. Shortly after the mass meeting, the Friedrich Union conducted an election to select the members of the Executive Committee. The balloting took place in the plant during working hours, and the votes were counted by the foremen of the several departments. Brinkoeter and Bergman were both elected to serve on the committee, the former as representative of the foremen's department and the latter as representative of the porcelain shop. Soon after its selec- tion, the Executive Committee met and 'nominated' from- its,--own members two candidates for each of the general offices of the organi- zation, with the exception of the office of secretary, for which only one nomination was made. Pursuant to the nominations, the names of the candidates were placed on ballots, and an election was conducted for the purpose of choosing officers from the list of nominees. This election also was conducted in the plant during working hours. The balloting resulted in the election of Brinkoeter and Bergman as president and vice president, respectively, of the Friedrich Union. The other officers selected were Arthur J. Kinley, secretary, and Tom Stephens, treas- urer. Kinley works in the respondent's office, where he handles ap- plications and sales contracts and does secretarial work for the Fried- richs. Stephens is employed in the drafting department. Subsequently, on about July 26, the newly elected executive com- mittee held a meeting. At this meeting Brinkoeter produced a pro- posed agreement between the Friedrich Union and the respondent, and read it to the committee, stating that the agreement was satis- factory to the respondent. The committee approved the proposed contract as read and decided to submit it to the vote of the members. In accordance with the committee's decision, Kinley, the secretary, ran off copies of the document on the respondent's mimeograph ma- chine 'arid 'distributed the copies to the' employees. The, members were afforded an opportunity to note on the copies their objections to any of the provisions of the agreement. Thereafter, the copies were collected, and it was found that most of them had been returned without objections. Some of the employees indicated their dissatis- faction with the agreement, however, while others refrained from noting their criticisms because they thought it would be useless to object. Shortly thereafter, without holding a general meeting to discuss or explain the agreement or to deal with the objections raised by some of the employees, the Executive Committee submitted the pro- posed contract to George Friedrich. The committee made no offer to prove that it represented the majority of the employees, nor did ED. FRIEDRICH, INCORPORATED 395 Friedrich make any inquiry with respect to its majority representa- tion. Instead, he read the proposed agreement twice, and then im- mediately signed it without objection to or modification of any of its provisions. Nor did he, after the agreement was presented. to him, discuss,dt. with,.either_.Ed or„Richard Friedrich, both of whom were actively engaged in the management of the plant. The agreement between the respondent and the Friedrich Union reads as follows : AGREEMENT Ed. Friedrich, Inc., hereinafter called "Employer", and the Ed. Friedrich, Inc. Employees Union, acting herein through its Executive Committee, do hereby enter into the following contract: 1. With the view of enabling the Employees to contact the Employer, for the mutual advantage of both, it is agreed that the Employees shall be represented in all conferences with the Employer by the Executive Committee. The Employer agrees to have conferences upon request, at reasonable times, with the Executive Committee. In all dealings with the Employer, the Employees shall be bound by the actions of the Executive Com- mittee. Both the employer and the employees recognize that the continued prosperity of the Employer is essential for the welfare of both the Employer and the Employees, and conse- quently, the Employer and the Executive Committee of the Employees, at all conferences and in all dealings with each other, agree upon all occasions and in all transactions, to. be fair and courteous and reasonable, with the view of promoting the welfare of both. 2. The subject matter of wages, and hours of work, and over- time, and working conditions, are subject matters that may be taken up from time to time, and disposed of by agreements .,,entered ,into..between the Employer and the Employees, acting through their Executive Committee. 3. The Employer agrees that it will not retain in its employ over the protest of the Executive Committee of the Ed. Fried- rich, Inc. Employees Union, except in the event of a strike, any person who is eligible to become a member of the Ed. Friedrich, Inc. Employees Union, and who either fails to apply for mem- bership or whose application, for membership has been rejected by the Executive Committee of the Ed. Friedrich, Inc. Em- ployees Union. . 4. With the view of promoting the efficiency of employees, the rule of superior efficiency shall prevail over seniority. 396 DECISTONS OF NATIONAL LABOR RELATIONS BOARD Consequently, whenever promotions, extra work, temporary :l'ay'= offs, or permanent reduction of force, is determined upon by the Employer, the Employer shall not be obligated to observe'rights of seniority, but shall have the exclusive right to come to its determination, ' and make selections from its employees, influ- enced solely by its judgment as to the respective skill and desir- ability of the various employees who may be effected. 5. The Employer shall have a right to hire, discharge, lay off, and increase employees as, in the judgment of'the employer, its business conditions and business outlook may justify. 6. The Ed. Friedrich, Inc. Employees Union agrees to pay a rental of $1.00, to Ed. Friedrich, Inc., for the use of the em- ployees recreation hall, on the occasion of the Meeting held on the 15th day of July, 1937. Each time the Ed. Friedrich, Inc. Employees Union holds a, meeting, in the said recreation hall, it agrees to pay for such use a rental of $1.00. Such rental shall fall due on the 1st day of August of each year. On August 19, after the agreement was executed, the Executive Committee of the Friedrich Union held a meeting for the purpose of determining what action should be taken with respect to wages and hours. At that meeting it was decided "that each department Executive was to take it up with his men in his department and endeavor arriving at some satisfactory wage and hour scale." Thereafter, in accordance with the above decision, the members of the committee consulted the employees in their respective depart- ments and received specific instructions with respect to the wage increases desired by the employees in each department. A few days later, on August 24, the committee again met to consider the matter of wages. At this meeting, despite its definite instructions to the contrary, the committee decided that "rather than (to) endeavor setting a definite wage and hour scale at this time," that it would "defer the matter until later." Consequently, the committee aban- doned any effort to obtain a general increase and delegated Brink- oeter to confer with the respondent, and "see if it were possible to secure an increase in pay for those deserving men in the different departments." The committee further declared, however, that "This request and the amount of increase to each man was to be left to the decision of the employer." In accordance with the committee's decision, Brinkoeter met with George Friedrich and told him that the committee felt that in some individual cases deserving employees were receiving less wages than other employees doing similar work, and requested Friedrich to investigate the matter and "see what he could do about" granting individual increases. The entire conference lasted about 10 minutes. ED. FRIEDRICH, INCORPORATED 397 Pursuant .to the above request, Friedrich "spent about 15 or 20 minutes going down the whole time book" in order. to determine whether inequalities existed. Subsequently, after obtaining the ap- proval of Richard Friedrich, lie put into effect a number of raises. Some of the employees receiving the raises did not know what brought them about, nor did Brinkoeter or the committee make any inquiry as to the number or recipients of the raises. Brinkoeter stated that he did not consider that the matter was of any "interest" to him. It is plain from the facts set forth above that the respondent 'has stifled self-organization among its employees and installed as their representative the Friedrich Union, an organization which is domi= nated, controlled, and directed by the respondent. As soon as the employees manifested interest in the Mill Workers, the respondent, after expressing in no uncertain terms its opposition to that union, set about establishing the Friedrich Union as a labor organization which would be more amenable to its purposes and will. This was accomplished largely through the efforts of several supervisory em- ployees under the active leadership of Paul Brinkoeter, who is one of the highest ranking supervisors in the plant. These representa- tives of the respondent fostered and organized, and assumed complete control of the Friedrich Union. In this they were materially aided by the action of the respondent in permitting them to solicit membership in, and engage in other activities on behalf of, the Fried- rich Union on company time and property, privileges which the respondent consistently denied the Mill Workers.3 Having thus established the Friedrich Union, the respondent immediately took steps to consolidate it as the bargaining representative of the em- ployees. Pursuant to this design, the respondent quickly and with no pretense at bargaining entered into a collective agreement with the Friedrich Union requiring membership therein as a condition of employment. Although replete with advantages for the. respondent, the agreement contains no concessions to the employees with respect to wages, hours, or working conditions, and is clearly not such an agreement as would be freely executed by a bona fide labor union. This fact, together with the patently spurious nature of the negotia- tions preceding the agreement as well as those which were engaged in with respect to the wage negotiations thereafter, amply demon. strates the extent of the respondent's domination of the Friedrich Union and,its bargaining committee.4 , Finally, in view of its one- sided nature, the alacrity with which the respondent entered into it 3 See Matter of firma Engineering Company and Committee for Industrial Organization, 14 N. L. it. B. 736. 4 Matter of Picker X-Ray Corporation, Waite Manufacturing Division, Inc. and Inter- national Association of Machinists, 12 N. L. R. B. 1384. 398 DECISIONS OF NATIONAL LABOR RELATTIONS- BOARD and the other circumstances surrounding its execution, the agreement can only be regarded as the culminating step in the respondent's program of forestalling the advent of the Mill Workers, and estab- lishing and perpetuating the Friedrich Union as the representative of its employees.5 We "find ' that, by the above acts; the respondent has dominated and interfered with the formation and administration of the Fried- rich Union and has contributed support to it, and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. We further find that the agreement of July 29, 1937, between the respondent and the respondent-dominated Friedrich Union is void and of no effect.5 B. 'The discharge of Frank A. Baranek The complaint alleged that the respondent discharged Baranek because 'he refused to join the Friedrich Union and engaged in con- certed activities with other employees for the purposes of collective bargaining and other mutual aid and protection. The respondent contends (1) that Baranek was not discharged, but voluntarily left the respondent's employ, and (2) that even if Baranek were dis- charged, such discharge was effectuated pursuant to a valid closed- shop agreement between the respondent and the Friedrich Union. Baranek was employed by the respondent as a glazier's helper. On July 6, 1937, Baranek attended the meeting of the Mill Workers and.. signed an application for membership in that organization. Subsequently, on July 15, he attended the organizational meeting of the Friedrich Union, and on the following morning Bergman ap- proached him and asked him to sign the membership book of the Friedrich Union. Baranek refused to sign. Thereafter, on about August 6, Henry Baumann, his foreman, told Baranek that he would have to "join the company union or pack his tools and get out." Despite., this ultimatum, Bar.anek continued-in- the.#respondent's employ for some time. On about October 11, however, Arthur Kin- ley, secretary of the Friedrich Union, asked Baranek if he were going to join the Friedrich Union and intimated that Baranek would be discharged if he refused to do so. About 2 days later, on Wednes- day, October 13, George Friedrich called Baranek into the respond- 5 Matter of J. Greenebaumn Tanning Company and National Leather Workers Association, Local No. 43, affiliated with the C. 1. 0., 11 N. L. R. B. 300; Matter of Arma Engineering Company and Committee for Industrial Organization, supra. 9 See National Labor Relations Board v. Pacific , Greyhound Lines, Inc. (C. C. A. 9), 106 F. (2d) 867, in which the court said : . The Drivers had an agreement with Greyhound but it was undoubtedly invalid ab initio because procured by the domination of Greyhound by acts prohibited by section 8. ED. FRIEDRICH, INCORPORATED 399 ent's office'and asked him if he had become a member of the Friedrich Union. When Baranek replied in the negative, Friedrich warned', Baranek that he would have to join the plant union or leave the respondent's employ. At the conclusion of the interview, Friedrich gave Baranek until the following Friday to make up his mind. On Friday, October 15, Baranek did not report his decision on the matter to George Friedrich as the latter had demanded. At the end of that day, which was pay day, Baranek received his pay in full, although the respondent's practice was to pay the employees through Wednesday only, holding back from their pay envelopes each week the wages earned on pay day and the preceding Thursday. In spite of this clear indication that his services were no longer wanted, Baranek returned to work on the following Monday morn- ing. When the respondent learned of his presence, Baranek was immediately called to the office of George Friedrich, who again told Baranek that he would have to join the Friedrich Union or quit. Friedrich also told Baranek that his name had been removed from the time book and that if he returned to work he would receive no pay. Baranek thereupon gathered up his tools and left the plant. At one or both of the conferences between Baranek and George Friedrich, the latter showed Baranek a letter which he had received from the executive committee of the Friedrich Union requesting Baranek's discharge. The letter read as follows : Due to numerous complaints from other members of the Ed. Friedrich, Inc. Employees' Union, and after having given your employee, Frank A. Baranek, sufficient time to join our organiza- tion, which he apparently refuses to do ; the Executive Commit- tee of the Ed. Friedrich Inc. Employees' Union respectfully request that you take the subject up with Mr. Baranek. After talking to Mr. Baranek, if he still feels that he does not wish to join our organization then in compliance with Section 1, Article 10, of the Articles of the Employees' Union you are kindly requested to dispense with Mr. Baranek's services. On the basis of the above facts it is clear that the respondent dis- charged Baranek because he refused to join the Friedrich Union. The respondent's contention that Baranek was not discharged but voluntarily quit his job is obviously without merit. The facts indi- cate that the respondent called in Baranek and presented him with the alternative of accepting membership in the Friedrich Union or leaving the respondent's employ, and that when Baranek persisted in his refusal to join that organization the respondent removed his name from the time book, gave him his pay ii full, and told him if he continued working he would receive no wages for his services. It is difficult to conceive of how a discharge could be more effectively 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consummated. Even if Baranek had quit his employment, as is contended by the respondent, after being presented with the alterna- tive of joining the Friedrich Union or quitting, the respondent's position would be no more tenable. To condition employment upon membership in a company-dominated union and thus to force an employee to surrender his rights under the Act or quit his job is equivalent to an outright discharge, if he chooses the latter alternative.' The respondent's contention that Baranek's discharge was effec- tuated pursuant to a valid closed-shop contract and, consequently, was justifiable under the proviso to Section 8 (3)8 of the Act is likewise without merit. At the time the contract in question was executed the Friedrich Union was not the free choice of a majority of the respondent's employees and was a labor organization which had been established, maintained, and assisted by the respondent's unfair labor practices." For that reason, the closed-shop contract does not fall within the proviso to Section 8 (3) of the Act and, therefore,. cannot operate as a defense to Baranek's discharge.10 We find that the respondent, by discharging Frank A. Baranek on or about October 18, 1937, discriminated in regard to his hire and tenure of employment, thereby encouraging membership in the Fried- rich Union and discouraging membership in the Mill Workers. We further find that, by such conduct, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. At the date of his discharge Baranek was earning $16 a week. At the time of the hearing he had not obtained employment elsewhere. 7 See Matter of Atlas Mills and Textile Workers Union. 3 N. L. R. B. 10; and Matter of Highway Trailer Company and United Automobile Workers of America, Local No . 135 and Local No. 136, 3 N. L. R. B. 591, enforced upon consent in National Labor Relations Board v. Highway Trailer Company, 95 F. (2d) 1012 (C. C. A. 7th, 1938). 8 The proviso reads : "That nothing in the Act . . . shall preclude an employer from making an agreement with a labor organization ( not established, maintained , or assisted by any action defined in this Act as an unfair labor practice ) to require as a condition of employment membership therein if such labor organization is the representative of the employees as provided in Section 9 (a) in the appropriate bargaining unit covered by such agreement when made." 8 See subsection A above. 10 See Matter of J. Greenebaum Tanning Co . and National Leather Workers Association, Local No. 43, affiliated with the C . 1. 0., 11 N. L. R. B. 300; Matter of Cowell Portland Cement Company, a Corporation and International Union, Mine, Mill & Smelter Workers of America , Local #356, 8 N. L. R. B. 1020; Matter of Hamilton-Brown Shoe Company, a Corporation and Local No. 125 United Shoe Workers of America, affiliated with the Com- mittee for Industrial Organization , 9 N. L. R. B. 1073 ; Matter of Jacob A . Hunkele, trad- ing as Tri-State Towel Service of the Independent Towel Supply Company and Local No. 40 United Laundry Workers Union , 7 N. L. R. B. 1276; Matter of Missouri-Arkansas Coach Lines, Inc., and Brotherhood of Railroad Trainmen , 7 N. L. R. B. 186; Matter of Lenox Shoe Company, Inc., and United Shoe Workers of America, affiliated with the Committee for Industrial Organization, 4 N. L. R. B. 372: Matter of Highway Trailer Company and United Automobile Workers of America , Local No. 135 and Local No. 1.36, 3 N. L. R. B. 591; Matter of Clinton Cotton Mills and Local No. 2132, United Textile Workers of America, 1 N. L. R. B. 97. ED. FRIEDRICH, INCORPORATED 401 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 its operations described in .Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY . Having found that the respondent has engaged in unfair labor practices, we shall order the respondent to cease and desist therefrom and, in aid of such order, to take certain affirmative action which we find will effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the Friedrich Union and has contributed support to it. Its continued existence is a conse- quence of violation of the Act thwarting the purposes of the Act and rendering ineffective a mere order to cease and desist from the unfair labor practices." In order to effectuate the policies of the Act and to free the employees of the respondent from such domination and inter- ference, and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed them by the Act, we shall order the respondent to withdraw all recognition from the Friedrich Union as a representative of any of its employees for the purposes of collective bargaining with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other condi- tions of employment, and to disestablish the Friedrich Union as such representative.'2 Since the agreement between the respondent and the Friedrich Union in effect embodies recognition of the Friedrich Union as such representative, and since further the agreement represents the fruits of the respondent's unfair labor practices, a device to perpetu- ate their effects, and a cover under which the respondent may continue to commit unfair labor practices, we will order the respondent specifi- cally to cease and desist from giving effect to this or any other agree- ment it may have entered into with the Friedrich Union in respect to rates of pay, wages, hours of employment, or other conditions of work 13 Further, specifically ordering the respondent to cease and Il Consolidated Edison Company v. National Labor Relations Board, 305 U. S. 197. 12 National Labor Relations Board v . Pennsylvania Greyhound Lines, Inc., 303 U. S. 261 National Labor Relations Board v . Pacific Greyhound Lines , Inc., 303 U. S. 272. 13 In National Labor Relations Board V . Stackpole Carbon Company, 105 F . ( 2d) 167 (C. C. A. 3d), the Court enforced a similar order, stating : "The portion of the Board 's order referred to is remedial and not punitive. This section of the order was necessary in order to insure to the employees of the respondent their rights of self-organization and of collective bargaining , and to effectuate in general the policies of the Act, and was sanc- tioned by the decision of the Supreme Court in the case of National Labor Relations Board v. Pennsylvania Greyhound Lines , Inc., supra." 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desist from giving effect to the agreement with the Friedrich.Union . follows from our more general order with respect to withdrawal of recognition and disestab]ishment, hereinabove described 14 We have also found that the respondent discharged Frank A. Baranek because he refused to join the Friedrich Union, thereby encouraging membership in the Friedrich Union and discouraging membership in the Mill Workers. We shall, therefore, order the respondent to offer Baranek immediate and full reinstatement with- out prejudice to his seniority and other rights and privileges, and to make him whole for any loss of pay he may have, suffered by reason of his discharge by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement less his net earnings 15 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. Mill Workers Local No. 1764 and Ed. Friedrich Inc. Employee's Union are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Ed. Friedrich Inc. Employee's Union, and by contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning. of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Frank A. Baranek and thereby encouraging membership in the Friedrich Union and discouraging membership in the Mill Workers, the ret.pondent 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 their 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. 14 See Clover Fork Coal Company v. National Labor Relations Board, 97 F. ( 2d) 331 (C. C. A. 6th). "By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and' Sawmill Workers Union, Local' 2590, S 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 appro- priate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work -relief projects. ED. FRIEDRICH, INCORPORATED 403 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Ed. Friedrich, Inc., San Antonio, Texas, and its officers, agents, successors, and assigns shall: 1. Cease and.desist from : (a), Dominating or interfering with the administration of Ed. Friedrich Inc. Employee's Union, or with the formation or admin- .istration of any other labor-organization of its-employees, and from contributing support to Ed. Friedrich Inc. Employee's Union or any other labor organization of its employees ; (b) Recognizing Ed. Friedrich Inc. Employee's 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; (c) Giving effect to its contract of July 29, 1937, or any other contract it may have entered into, with Ed. Friedrich Inc. Employee's Union in respect to rates of pay, wages, hours of employment, or other conditions of work; (d) Encouraging membership in Ed. Friedrich Inc. Employee's Union or any other labor organization of its employees, or dis- couraging membership in Mill Workers Local No. 1764, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment or any term or condition of em- ployment ; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain -collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and 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) Withdraw all recognition from Ed. Friedrich Inc. Employee's Union as a representative of its employees for the purposes of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employ- ment, and completely disestablish Ed. Friedrich Inc. Employee's Union as such representative; 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Offer to Frank A. Baranek immediate and full reinstatement to his former position without prejudice to his seniority or other rights and privileges; (c) Make whole Frank A. Baranek for any loss of pay that he may have suffered by reason of his discharge, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period; deducting, however, from the amount otherwise due said employee, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Immediately post and keep- posted in conspicuous places throughout the respondent's plant for a period of at. least sixty (60) consecutive days from the date of posting,, notices to its employees, stating (1) that the respondent will cease and desist in the manner set forth in paragraphs 1 (a), (b), (c), (d), and (e) of this Order, and (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; (e) Notify the Regional Director of the Sixteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.