The Van Iderstine Co.

In the Matter of THE VAN IDERSTINE COMPANY and DISTRICT # 50 OF THE UNITED MINE WORKERS OF AMERICA Case No. C-7f?7.Decided November 17, 1939 Poultry feed, Tallow, Soap Materials and Related Products Manufacturing Industry-Interference, Restraint, and Coercion: antiunion statements, threat- ening bodily harm to union organizers ; permitting notice to be posted on bulletin board berating union and urging employees not to join it ; interrogating employees concerning their union activities ; seeking to induce employee to spy on union members ; attending union's meeting and heckling its speaker ; searching union member for membership cards ; engaging in surveillance of union meeting-Company-Dominated Union : domination of and interference with formation and administration ; assistance and support in formation of ; utilized to counteract and negate organizational activities of outside organization; soliciting membership in and collecting dues for, by supervisory employees ; permitting initiation fees and dues to be collected and membership cards dis- tributed by employees in plant during working hours, while at same time dis- couraging membership in outside organization ; permitting the posting of mem- bership petitions on bulletin board, coercing the employees to sign the. petitions ; participation in selection of shop stewards, permitting their selection by em- ployees in plant during working hours, allowing their first meeting to be held on company time and property ; granting a wage increase and posting notices giving credit therefor to ; disestablished as agency for collective bargaining- Settlement Agreement: events occurring prior to, considered where there has been further conduct exhibiting a continuity with its conduct and attitude prior to such agreement-Discrimination: as to tenure of employment : discharge for union membership and activity to discourage membership in the Union ; dis- charge for union membership and reluctance in joining company-dominated union ; to discourage membership in union and encourage membership in com- pany-dominated union ; charges of, dismissed as to one person for want of proof ; presence of proper causes at time of discharge not conclusive in deter- mining, since issue is whether such causes in fact induced the discharge or whether they are a justification in retrospect-Reinstatement Ordered: dis- charged employees-Back Pay: awarded. Mr. Will Maslow, for the Board, Breed, Abbott & Morgan by Mr.. Thomas E.. Kerwin and Mr. Charles H. Tuttle, of New York City, for the respondent. Mr. William P. Ryan, of New York City, and Mr. Sam Horn, of Maspeth, N. Y., for the Association. Mr. Herman Edelsberg, of New York City, for the United. Mr. Vincent A. Burns and Mr. Edwin L. Swope, of counsel to the Board. 17 N. L. R. B., No. 69. 771 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed in behalf of United Mine Workers of America, District 50, herein called the United, the National Labor Relations Board, herein called the Board, by Elinore M. Herrick, Regional Director for the Second Region (New York City), issued its complaint dated February 16, 1938, against The Van Iderstine Company, Long Island City, New York, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice. of hearing, were duly served upon the respondent, The Van Iderstine Employees' Association, herein called the Association, and upon the United. With respect to the unfair labor practices, the complaint, as amended at the hearing,' alleged in substance, that the respondent interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act; that the re- spondent dominated and interfered with the formation and admin- istration of a labor organization of its employees, known as The Van Iderstine Employees' Association, and contributed support to it; and that the respondent discharged Edward Crum on or about November 15, 1937, Zigmund Cenderoski,2 on or about December 1, 1937, and Philip Jackson, on or about December 29, 1937, because they joined and assisted the United. On February 25, 1938, the respondent filed an answer traversing all the material allegations of the complaint except the allegation that the respondent was en- gaged in interstate commerce. On March 1, 1938, the Association filed a motion to intervene and participate in the hearing. The Asso- ciation also filed an answer denying all the allegations in the com- plaint concerning it, and denying knowledge or information sufficient to form a belief as to the other allegations. A motion to inter- 3 On March 30, 1938, the United filed a supplemental charge alleging that the respondent had discharged Edward Crum, on or about November 15, 1937, because of his membership in and activity in behalf of the United. On the same day counsel for the Board served notice on counsel for the respondent that he intended to move at the beginning of the hearing that the complaint be amended to include this allegation . At the beginning of the hearing counsel for the Board made such a motion which was granted by the Trial Exam- finer without objection. 2 Name incorrectly spelled Sigmund Sindowski in the complaint. THE VAN IDERSTINE COMPANY 773 vene was granted by the Regional Director, but participation was, limited to the issues raised by the allegations in the complaint that the respondent dominated, interfered with, and contributed support to the Association. On March 30, 1938, pursuant to the respondent's request filed with the Regional Director on March 3, counsel for the Board furnished the respondent with a bill of particulars. Pursuant to notice duly served upon the respondent, the Associa- tion, and the United, a hearing was held at New York City, on March 31, and April 4, 5, and 6, 1938, before Elliott L. Biskind, the Trial Examiner duly designated by the Board. The Board, the respondent, the United, and the Association were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties, subject, in the case of the Association, to the reservation previously noted. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. Except for one ruling, discussed below in Section III-C, denying the admission in evidence of certain of Zigmund Cenderoski's time cards, the rulings are hereby affirmed. On June 18, 1938, the Trial Examiner filed his Intermediate Report, a copy of which was duly served on all parties, finding that the respondent had engaged in and was engaging in, unfair labor employees in that department. The Association, operating under a Section 2 (6) and (7) of the Act. He found that the respondent had formed and sponsored the Association and that it was dominating and interfering with its administration and contributing support to it. He also found that the respondent had discharged Philip Jackson and Zigmund Cenderoski because of their affiliation with and activities in behalf of the United; and that Edward Crum had not. been discharged for union activity or membership, but had been discharged for cause. The Trial Examiner recommended that the respondent cease and desist from its unfair labor practices and take certain affirmative action to remedy the' situation brought about by the unfair labor practices. Thereafter the respondent and the Association filed exceptions to the Intermediate Report. Pursuant to notice duly served on all the parties, a hearing for the purpose of oral argument was had before the Board in Washington, D. C., on December 22, 1938. The re- spondent, the United, and the Association were represented by coun- sel and participated in the argument. Thereafter, a brief in support of its case was submitted by the respondent. The Board has con- sidered the exceptions to the Intermediate Report, and in so far as 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they are, inconsistent with the findings, conclusions, and order set forth below, 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, a. Maine corporation, has its principal office and place of business in Long Island City, New York. It is engaged in the manufacture, sale, and distribution of poultry feed, tallow, soap materials, meats, fats, and related products. The respondent obtains about 15 per cent, amounting to about 300,000 pounds, of its raw materials , consisting of fats, bones, and offal, outside the State of York, and sells and ships approximately 30 per cent of its finished products to points outside the State of New York. The respondent admits that its operations affect interstate com- merce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED United Mine Workers of America, District No. 50, is a labor organization affiliated with the Committee for Industrial Organiza- tion" admitting to membership production employees of the respond- ent excluding employees in the collection department. The Van Iderstine Employees' Association is an unaffiliated labor organization admitting to membership all production employees of the respondent including employees in the collection department, but excluding executives. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, aiul coercion In June 1937 the United commenced an organizing campaign among the respondent's employees. and, on June 28, held its first organization meeting. The respondent met this campaign with ac- tive opposition. On June 25, 1937, Joseph Mark, an employee, while talking. to three United organizers outside the respondent's plant during his lunch hour, turned and discovered the respondent's super- intendent, Walsh, standing. behind him. Walsh then ordered Mac- Donald ,4 the respondent's timekeeper, to summon the police and, as Walsh walked away, he instructed MacDonald and another employee to kick the organizers "in the pants." At about the same time there a Now the Congress of Industrial 'Organizations. MacDonald is referred to as O'Donuel in the respondent 's brief. THE VAN IDERSTINE COMPANY 775 appeared on the respondent's bulletin board; where it posted notices to its employees, such as, safety signs and working schedules for the employees, a typewritten notice 6 warning the employees not to join the United because it was "a racket," and stating that labor or- ganizations "take a man's money" and cause him to be discharged. During the day of June 28, Theodore Holmes, foreman of the poul- try-feed department, asked several employees who were unloading a barge if they planned to attend the United's meeting that evening. Upon receiving affirmative answers, Holmes stated that they were "mighty foolish": and Warned, "If you fellows go to this meeting make sure you don't sign anything." At the hearing Holmes first denied talking to these employees on June 28, but later said that he could'not relriember speaking to the men "unless it was to give them orders." In view of the positive evidence that he had so stated, and the record as a whole, we are satisfied that Holmes made the state- ment. After work that evening a number of the respondent's employees, including Holmes, admitted by the respondent to be a supervisory employee, and Koch and Harrison, whom we hereinafter find to be supervisory employees, attended the United's meeting held in a hall near the plant. During the meeting Foreman Holmes asked the speaker, a United organizer, what the United proposed to do with the money it collected from the employees and what benefit they would derive from joining it. He also asked if the United "was like the rest of the rackets." Holmes and the organizer then en- gaged in an argument. At the hearing Holmes denied that he had_ attended the meeting to interfere with the organizational activity of the respondent's employees but admitted that he had no intention of joining the United, and explained that he had attended "for curiosity's sake." Hohnes could not remember the nature of the questions which he had asked, but. denied criticizing the United. We are satisfied that Holmes made the statements at the meeting as recorded above and that his motive in questioning the organizer was to arouse distrust of the United in the employees' minds. The next day, Holmes approached Kimkowski, an employee, who. had attended the United's meeting on the previous evening, jerked his coat aside and searched his pockets. Kimkowski asked Holmes what'he Was looking for and Holmes replied that he was looking for ' This bulletin board , also referred to as a black board in the record , was located in the- timekeeper 's office near the time clock where the employees punch in and out before and- after work. ' This notice was not available at the hearing, and the record is not clear as to who. signed it. Two witnesses testified that it was signed by Superintendent Walsh . However, a third witness testified that the president of the Association signed it. Since the author- ship of the notice is doubtful we make no finding in that respect but we do find that the_ respondent permitted its posting upon the plant bulletin board. 247384-40-vol. 17-50 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the United membership application cards Kimkowski was distribut- ing. Holmes did not find any cards.7 Later, during the same day, Holmes again approached Kimkowski and complained, "It is a fine thing for you to do, joining the Union, the C. I. 0., after me giving you a good position," and then demoted Kimkowski to his former job. The next day Kimkowski, and several other United members, were discharged. Thereafter, the United filed charges with the Board, alleging that the respondent had committed unfair labor practices within the meaning of the Act. Subsequently, conferences were held between the Board and the parties as a result of which the respondent agreed to reinstate seven United members and the United withdrew the charges.8 The second meeting of the United was scheduled to be held on July 9. On that evening several of the United's members standing in front of its meeting hall, before the meeting was to commence, ob- served that a number of the respondent's supervisory employees, namely, Walsh, Holmes, Harrison, and the foreman of the "extrac- tion plant" were near the hall where they could observe the members entering it. No explanation was offered for their presence in the vicinity of the United's meeting place.sa We find that these super- visory employees were keeping the meeting place under surveillance. We find that the respondent, acting through its supervisory em- ployees, by ordering its timekeeper and another employee to inflict bodily harm on the United organizers, by permitting a notice to be posted on its bulletin board berating the United and urging the em- ployees not to join it, by interrogating its employees concerliing their United activities, by attending the United's meeting and heckling its speaker, by searching a United member for United membership cards, and by surveillance of United meetings, has interfered with, re- strained, and coerced its employees in the exercise of rights guar- anteed them in Section 7 of the Act. B. Domination of the Association, and interference, restraint, and coercion In 1933 the Association was organized among the respondent's collection-department employees.9 Its membership was limited to employees in that department. The Association, operating under a 7 At the hearing Holmes could not remember asking Kimkowski whether he has any application cards but denied that he had "searched" him. 8 These charges and the settlement are discussed more fully in Section III C in connec- tion with the discharges in issue in this proceeding. °" Holmes denied that he was in the vicinity of the meeting hall on July 9, but we do not credit his denial. ° The function of the collection department is to collect raw materials from various sources and convey them to the respondent's plant in trucks. The employees in this department consist mainly of chauffeurs and their helpers, the garagemen and the mechanics. THE VAN IDERSTINE COMPANY 777 constitution drafted by its members, 'served mainly as a social and athletic organization for these employees until July 1937.10 On June 28, 1937, the same date that the United's first meeting was held,11 a meeting of all the respondent's employees for that night was called by the Association. Two employees, Miller, a painter, and Bill Shea, the head electrician, whose duties permitted them to cir- culate through the plant, orally informed the employees, during working hours, that the meeting was to be held. About 100 collec- tion-department employees and 35 or 40 factory workers attended the meeting and voted in favor of expanding the activities of the Association and also of extending its membership to include the factory workers. Prior to this meeting, Horn retained an attorney. On July 2 another meeting of the Association was held with about the same attendance as the June 28 meeting. The attorney retained by Horn opened the meeting by reading a proposed constitution for the Association, which, among other things, extended its activities to include those of a labor organization and provided that all em- ployees of the respondent, excluding executives, should be eligible for membership. After some discussion the constitution was adopted with a minor amendment.12 During the meeting several officers and a board of directors were elected. It had been agreed during the meeting that the board of directors should be composed of an equal number of factory workers and collection-department employees, but all those elected were collection-department employees. At the July 2 meeting the employees were asked to sign petitions with the following heading: 13 I hereby request and accept membership in the above named As- sociation, and of my own free will, authorize it, The Van Ider- stine Employees Association, their agents or representatives to act for me as a. Collective Bargaining Agency in all matters per- taining to pay rates, wages, hours of employment and other conditions of employment. Thereafter, some of these petitions were circulated by Shea and Miller in the respondent's plant, but most of them were posted on the respondent's bulletin board located in the timekeeper's office near the 10 The respondent's president testified that the Association had made some requests for wage adjustments and improvements in working conditions for its members ; however, Sam Horn, who had been employed by the respondent for a number of years and was chairman of the Association's board of directors, testified that the Association was only a social organization and had not undertaken "any labor work," or collected any dues from its members. u This meeting was called by a circular which was issued by the United on June 26, 1937. 32 The factory workers voted at both meetings despite the fact that they were not mem- bers of the Association. 13 The record does not disclose the number of employees who signed the petition at the July 2 meeting. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time clock.14 There they were signed by a large number of em- ployees. One petition was posted on the board at a time and re- placed with another when it became filled with signatures. They were posted for a period of about 5 weeks ; in fact, it was not until after July 29, when the Association had furnished the respondent proof that it represented a majority of the employees, as hereinafter discussed, that the respondent's vice president, Charles Hausserman, instructed Horn to remove the petitions from the bulletin board. At the hearing Foreman Holmes testified that although he went through the timekeeper's office and punched the time clock every morning, he "never saw any" of the petitions. Upon further examination, Holmes admitted, however, that he had seen some of the petitions "hanging up on a board in the timekeeper's office." Holmes also stated that he would not permit any employee to solicit membership in a labor or- ganization during working hours but explained that he had not taken steps to remove the Association's membership petitions from the re- spondent's bulletin board, because he "just took it for granted that was all right." The fact that these petitions were being posted on its bulletin board was, therefore, known to and sanctioned by the respondent. This is further evidenced by an incident which occurred in July, when Foreman Dietz escorted two or three employees from his department, including Cenderoski, to the timekeeper's, office, shortly after quitting time, and urged them to sign the petition, adding, "Look. [at] all the benefits you are going to have." - Cende4 roski replied that be did not "want your benefits," saying, "I want a raise now." Dietz had nothing more to say. About a month later, however, Dietz again urged Cenderoski to sign the petition and Cen- deroski finally capitulated and signed. MacDonald, the timekeeper, filled in his address.15 MacDonald further assisted Horn by furnish- ing him with the respondent's identification numbers for many of the petitioners' signers and Horn marked them opposite their signa- tures. Some of the employees who were unable to write placed their identification marks on the petition. These marks were witnessed by MacDonald as well -as Koch and Harrison. The respondent dis- claims responsibility for the assistance furnished the Association by 1^ See footnote 5. ]G Cenderoski's name does not appear on Board Exhibit No. 3, 3A, and 3B, which is com- posed of a number of separate pages of the petition. The respondent points to this fact among others as discrediting Cenderoski's testimony. We do not think that it does. All the pages of the petition had not been signed prior to July 29 when the Association claimed 247 signers as members ; moreover, there are only 242 signatures on the pages which were submitted in evidence. Since Cenderoski claimed that he was the last man to sign the petition and since there is no showing that Board Exhibit No. 3, 3A, and 3B contains all the pages of the petition and since the respondent failed to call Dietz or MacDonald to refute Cenderoski's testimony, we do not disbelieve his testimony that he signed the peti- tion. While certain other portions of Cenderoski's testimony are conflicting and confused, its the respondent asserts, we are of the opinion that Cenderoski is a credible witness and that his difficulties were attributable primarily to his limited knowledge of the language. THE VAN IDERSTINE COMPANY 779 its timekeeper. While there is no showing that the respondent ex- pressly authorized MacDonald's action, or that MacDonald is a super- visory employee, we are not persuaded by the contention. The cir- cumstances under which this assistance was rendered negatives the assertion that it was given without the respondent's knowledge. After some of the pages of the petitions were removed from the bul- letin board by Horn, he and MacDonald searched through the re- spondent's time cards, which were arranged numerically, for the cards of the signers, and then placed the respondent's identification numbers for some of the signers opposite their names on the petition. This operation was performed openly in the timekeeper's office dur- ing working hours on several occasions and consumed about 15 or 20 minutes. Moreover, the Association's petitions had been posted on the bulletin board in MacDonald's office with the respondent's knowl- edge and tacit consent, and MacDonald was not called as a witness to explain his action. Under all the circumstances, we find that MacDonald rendered this assistance with the respondent's knowledge and approval. After the July 2 meeting, the Association commenced an intensive organizing campaign in the respondent's plant among the factory employees. The record establishes that several of the respondent's supervisory employees were active in soliciting employees to join the Association. The testimony of a_ number of the employees to this effect was not refuted by the respondent at the hearing. Frank Olech testified, and we find, that Leo Novak, his foreman, and Bill Shea, the head electrician'16 solicited him to join the Association. Shea told Olech that he had to join the Association and pay the $2 initiation fee, whereupon Olech pleaded poverty. Later, Shea urged Olech to pay the initiation fee, but Olech refused to do so. The next day, in the presence of Novak, Shea accused Olech of having prom- ised to pay the fee on the previous day and called him "a big liar" because he had not paid it. Novak then warned Olech that he must join the Association and pay the fee or a "very bad condition" would result for him. Olech then reconsidered and told Novak that since he desired to retain his job, he would bring the money within the next few days. Later, Olech offered to pay the $2 to Novak, but was instructed by Novak to give it to Shea, who took the money. John Petekiewicz testified and we find that his foreman asked him if he belonged to the Association and, upon receiving a negative answer, the foreman advised him that "everybody must" join it. Stephen Shivak testified and we find that his "boss," the chief engineer over eight or nine employees in the engine room, and Shea asked him to "Although Olech in his testimony did not refer to Shea by name, but referred to him as the "electrician man," It is evident from the record that he was referring to Shea. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD join the Association. Shivak first refused but later reconsidered and joined. He gave his initiation fee to the chief engineer. Robinson, an employee, also stated at the hearing and we find. that he was informed by his foreman, Harry Burns, that the respondent was organizing "an Association of their own." In July 1937 Foreman Larry Dietz assembled the employees in his department about 5 minutes before their lunch period and spoke to them. Dietz instructed the employees to "join the company union" and warned them not to "join the C. I. 0." because it was "a racket." Dietz also stated, "Let us make our own union, then we [will] get good benefits . . . If you get sick, you get $5 . . . and if you die .. . then you get $200.00 or $150.00-for benefits." 17 Wojcik, an em- ployee who received Association fees and dues in his department, testified and we find that Dietz later questioned him as to which employees had not "paid up," and Wojcik told him "how things were." 18 In its brief the respondent claims that Superintendent Walsh and Foreman Holmes are its only supervisory employees, and that they alone have the authority to hire and discharge employees. It is clear, however, that Dietz is. also a supervisory employee,, possessing au- thority to discharge employees. The record shows that Dietz not only issues orders to the employees in his department, but that he dis- charged one of the complainants involved in this case.1° As to Koch, Harrison, Burns, Novak, Shea, Mike, the foreman of the extraction department, and Joe, the chief engineer,20 the record does not show whether they have the power to hire or discharge employees ; how- ever, the record does establish that they are considered by the other employees to be supervisory employees. Koch and the chief engineer issue orders to employees; Harrison, Burns, Novak, and Mike are. 17 The Association ' s constitution provided certain insurance and sick benefits for its members. Is Wojcik testified for the Board at the hearing in response to a subpena . He stated that he did not desire to testify . On the day before the hearing the Board 's attorney had interviewed Wojcik at length concerning the issues in this case ; however, at the hearing , although he was able to remember many things which occurred some time prior to the hearing , he claimed that he was unable to remember what he had said during the interview . Upon being asked to explain his lack of memory , Wojcik stated that " maybe" it was because he "did not have enough sleep " the night before the bearing or because he "wasn 't paying any attention" and "might have been in a daze " during the interview. The Trial Examiner finally warned Wojcik that unless he showed a disposition to tell the truth, proper measures would be taken to compel it. Thereafter , Wojcik testified at some length. Although the respondent in its brief states that the Trial Examiner excluded Wojcik's testimony and contends that this action was not justified , we are unable to find any such ruling in the record . We assume that the respondent in referring to the exclusion of the testimony may have reference to the fact that the Trial Examiner did not base any find- ings on it in his Intermediate Report. We see no reason for excluding Wojcik 's testimony and will consider it with the rest of the record. 10 See Section C, infra. 10 The full names of the foreman of the extraction department and the chief engineer do not appear in the record. THE VAN IDERSTINE COMPANY 781 described as foremen by employees; 21 and Shea is referred to as the head electrician with 1 or 2 assistants. The respondent did not call as witnesses Dietz, Koch, Harrison, Burns, Novak, Shea, Mike, the foreman of the extraction department, or Joe, the chief engineer, to refute any of the testimony concerning their status or activities in the respondent's plant. Aside from the direct evidence of these per- sons' supervisory status, it does not seem reasonable to us that the respondent's plant, with its approximately 325 employees, functions without any supervisory employees other than its superintendent and one foreman. We find that all these individuals are supervisory employees.22 On July 3, 1937, the Association sent a letter to the respondent, claiming that the Association represented a majority of its employees and requesting it to bargain. Actually, of the respondent's 325 em- ployees, the Association could claim only the 135 or 140 who attended the meetings. The respondent replied on July 10, requesting proof that the Association represented a majority. On July 29, Davidson, a law clerk in the Association attorney's office, presented to Arthur Hayes, the respondent's president, a typewritten list which purported to contain the names of 247 of its employees who had signed the petition, and made available for his inspection the original signed membership petitions. Hayes readily accepted the list, as proof, with- out comparing the names appearing thereon with those on the pe- titions and without checking the authenticity of the signatures on the petitions. The first bargaining conference engaged in by the Association and the respondent was not held until October 1937. Shortly before the October bargaining conference, elections for the purpose of selecting delegates or shop stewards for each department in the plant were conducted by direction of the Association's board of directors. As noted above, all the directors were collection-department employees. Some of the respondent's foremen took a part in these elections. Assistant Foreman Koch was elected his department's delegate. Wojcik, upon being selected the delegate for his department, handed his name and address to his foreman because as he stated at the hearing he understood that the foreman "was suppose to have" the name of the employee chosen. In October a meeting of the elected delegates was called by Horn. The meeting was held in Superintendent Walsh's office with his per- mission. It lasted about an hour and was held during working hours. The purpose of the meeting was to prepare demands to be made at the conference which was scheduled to be held with the respondent a 21 Holmes in his testimony described Koch and Harrison as being "straw bosses." zx See National Labor Relations Board V . American Manufacturing Company et. al., 106 F. ( 2d) 61 (C. C. A. 2d). 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week later. At the bargaining conference which was held the follow- ing week the delegates asked for an increase in wages for the factory employees. No request for an increase was made for the collection- department employees. The respondent had voluntarily granted them an increase in wages around August or September 1937. The respondent's representatives agreed to grant a 5 cents an hour in- crease. They instructed the delegates to ascertain and advise them if this met with the employees' approval. No other conferences were held, but the increase was made effective at once. The day after the conference, at which the wage increase was given '23 the power in .the poultry-feed department was shut off and the employees were instructed by Assistant Foreman Koch to "go upstairs." When the employees had assembled, Foreman Holmes addressed them, stating in effect that the respondent was granting them a 5-cent increase in wages and if they did not think it was enough they could "get out." After making this statement, Holmes overheard Crum, a United member, remark to a fellow employee, "Do you see that? What we need is the C. I. O. [the United]," to which Holmes retorted, "Especially you guys, if you think you are going to get any raise . . . there is a ten foot gate -out there, and if anybody don't like it, it is open." Holmes denied at the hearing that the "C. I. 0." was mentioned during this meeting, but we do not believe his denial. After the raise was agreed upon, the following notice, dated Oc- tober 21, 1937, was posted by the respondent on the bulletin board : Negotiations of the factory committee of the Van Iderstine Em- ployees Association have resulted in the Company granting an increase of 5 cents per hour to all factory workers. New rate to be effective Monday, October 18th."' Several employees, at frequent intervals between June and De- cember 1937, observed notices with regard to the activities of the Association, such as announcements of meetings, posted both on the respondent's bulletin board and under the glass on the time clock. Sometime after July 3, 1937, the Association's board of directors petitioned the New York Board of Standards and Appeals for per- mission to incorporate the Association." On August 10, 1937, after a hearing had been held, the New York Board of Standards and Appeals recommended that a certificate of incorporation for the 23 The record does not disclose the precise date. 21 The wage increase was retroactive. 25 The applicable laws of the State of New York in effect provide that no certificate of Incorporation shall be issued to a labor organization without the approval of the New York Board of Standards and Appeals. THE VAN IDERSTINE COMPANY 783 Association be not approved "as it would not be in the interest of good public policy." 26 Conclusions as to the Association Prior to July 2 the Association had served mainly as a social or- ganization for the collection-department employees, but in June 1937, at the same time that the United began to organize the factory em- ployees, the activities of the Association were expanded to include those of a labor organization and its membership was extended to include the factory workers. The factory workers, but not the col- lection-department employees, were eligible for membership in the United. The transformation of the Association from a social to a labor organization and the extension of its membership to include the factory employees was accomplished with the assistance and sup- port of the respondent at a time when, as we have found, the re- spondent was bringing the full force of its coercive pressure to bear upon its employees who affiliated with the United. The record establishes that the respondent utilized the Association to counteract and negate the organizational activities of the United. The re- spondent accomplished this objective by (1) soliciting membership and collecting fees or dues for the Association through its super- visory employees, Dietz, Koch, Novak, Burns, Shea, and the Chief Engineer; 27 (2) permitting Association initiation fees and dues to be collected and membership cards distributed by employees in the plant during working hours while at the same time discouraging membership in the United through its supervisory employees as de- scribed herein in Sections A and D; (3) permitting the Association to post its membership petitions on the respondent's bulletin board, and furnishing the identification numbers of the signers of the petitions to the Association; through Dietz coercing Cenderoski and other employees in the former's department into signing the petition, and through Koch and Harrison witnessing the signatures of other employees who were unable to write; (4) permitting Association shop stewards to be selected by the factory workers in the plant during working hours and through Koch and Dietz participating in the selec- 2 Under the New York General Corporation Law, the Membership Corporation Law, and the New York Labor Relations Act, and other provisions of the Labor Law , upon a proper showing that an employer has exercised coercion in the formation of a labor organization, the New York Board of Standards and Appeals has power to disapprove a certificate of incorporation of such an organization . See Campbell v. Picard, 300 N. Y. S. 515, 165 Misc . 148. Also see New York General Corporation law § 9-a, as amended by Laws 1937, C. 820, § 11 , subd . 1-a, as amended by Laws 1937 , C. 820, § 2; Labor Law § 1 et $eq. n " with i`espect to the acts of the supervisory foreman , the doctrine of respondeat superior applies, and petitioner is responsible for the actions of its supervisory foreman, even though it had no actual participation therein ." See National Labor Relations Board v. Swift & Company, 106 F . ( 2d) 87 , 1939 ( C. C. A. 10th ). Also see National Labor Relations Board v. The A. S. Abell Company, 97 F. (2d ) 951 (C. C. A. 4th,. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lions, 28 and thereafter permitting the stewards to hold their first meeting in Superintendent Walsh's office during working hours ; (5) granting the factory employees whom the United was attempting to organize a wage increase at the first bargaining conference,29 imme- diately putting it into effect, and then posting a notice on its bulletin board giving the Association credit for it.80 The respondent contends in its brief, in effect, that the United preempted the same privileges that the Association enjoyed without interference on its part.31 This contention is not supported by the record. While it is true that the United members engaged in organ- izational activity on the respondent's premises during working hours, such activity was not as extensive as the Association's and, more important, in none of it did the United have the respondent's assist- ance and support as did the Association. On the contrary, the respondent actively resisted the United's efforts at organization, as we have heretofore found.32 We find that the respondent has dominated and interfered with the formation 33 and administration of the Association and has con- tributed support to it, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discharges On June 29, 1937, the day after the United's first meeting, which Foreman Holmes attended, the respondent discharged a number of 21 Koch was elected a shop steward and the name of the shop steward selected in Dietz's department was handed to Dietz for transmittal to the Association. 20 Although proof of the Association 's majority was readily accepted by the respondent on July 29, no machinery was set up by the Association for the purpose of collective bargaining until shortly after the 7 discharged employees , who were active United mem- bers , were reinstated by the respondent in the latter part of September 1937 (see Section C, infra), at which time there was the threat that the United would intensify its organi- zational activities among the factory workers. 30 Although the wage increase was less than the stewards had been instructed to demand by the employees they represented, it was not submitted to the employees for their consideration. 31 The respondent 's brief states : "There is only one true picture that can be drawn from the record about this general condition . It is certain that C. I. O. leaflets, bulletins and notices were distributed on and off the premises , in the locker rooms and during working hours , in the dressing rooms , during time off and that speeches appealing for membership in the C . I. O. were daily and hourly occurrences." 32 The difference in the respondent's attitude and policy with respect to the two labor organizations is aptly illustrated by that portion of Foreman Holmes' testimony at the hearing to which we have hereiuabove adverted , in which he stated that he would not permit any employee to solicit membership in any labor organization during working hours and that if be had observed any employee soliciting membership in the United he would have reported him to Walsh , but that the membership petition of the Association was permitted to remain on the respondent 's bulletin board , because he "took it for granted that was all right." 33 While the Association had a formal existence prior to the respondent 's unfair labor practices , we find that the respondent dominated and interfered with its conversion from a social organization to a labor organization with membership eligibility coextensive with the respondent's plant and , hence, with its formation within the meaning of the Act. THE VAN IDERSTINE COMPANY 785 employees including most of those who had attended the meeting. Thereafter the, United filed charges with the Board alleging that these employees had been discharged because of their affiliation with the United. Later, as a result of conferences participated in by the respondent, the United, and a Board representative, the respondent offered to reinstate seven of the discharged employees, namely, Joe Mark, Joe Hila, Edward Crum, Jerome Brown, Philip Jackson, Otto Molzon, and Anthony Kimkowski, on a 1 month's good behavior basis. The United accepted the respondent's offer and withdrew the charges. Thereafter all of the employees, except Joe Hila, re- turned to work, two returning on September 24 and four on Septem- ber 27, 1937. Of the six employees reinstated, Kimkowski was the only one still employed at the time of the hearing. Three had resigned and two, Philip Jackson and Edward Crum, were discharged .and are complainants in this case. The respondent contends that because of the settlement and be- cause of the Trial Examiner's finding in his Intermediate Report that it had not been established by a preponderance of the evidence that Jackson and Crum, two of the complainants in this case, were discriminatorily discharged on June 30, 1937,34 the Board is pre- cluded from considering any matters occurring prior to June 30. We find this contention to be without merit. The complaint alleges that Jackson and Crum were discriminatorily discharged on or about December 29 and on or about November 15, 1937, respectively, and the Trial Examiner's findings in no way bar us from considering all the relevant evidence in the record which tends to prove or disprove the allegations in the complaint. With regard to the settlement, we will not refrain from considering events occurring prior to an agree- ment or settlement where the respondent has engaged in further conduct exhibiting a continuity with its conduct and attitude prior to such agreement or settlement.35 Inasmuch as the record in this case establishes that the events which occurred subsequent to the settle- ment were but further manifestations of the respondent's continued hostility toward the United, we must, therefore, regard the events preceding the settlement as a part of the respondent's course of con- duct continuing thereafter. Philip Jackson first entered the respondent's employ in May 1937. Jackson was among those employees whom Holmes, his foreman, attempted to dissuade from attending the United's June 28 meeting and warned that if they did attend, not to sign anything. However, 84 We make no findings with respect to the reasons for these discharges since they are not in issue under the pleadings. 8' Matter of Hope Webbing Company and Textile Workers Organizing Committee of the C. I. 0., Local No. 14, 14 N . L. R. B. 55; Matter of Allsteel Products Manufacturing Company (Inc.) and International Association of. Machinists, Local 1308, 16 N. L. R. B. 72. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in spite of Holmes' warning, Jackson attended the meeting and signed a United membership card. As previously stated, this was the meeting attended by Holmes and two of the respondent's other supervisory employees. The next day Jackson was assigned to the task of loading sacks on one of the barges. While Jackson and the other employees worked, they discussed various subjects including the United. Presently Holmes approached the barge "in a rage" and demanded in abusive and profane language that Jackson explain what he was doing. Jackson explained that he had been assigned to the barge, whereupon Holmes remarked to the other employees, "Don't pay any attention to him [Jackson], he will get you fired." Holmes then ordered Jackson transferred to another barge where other United members were working. On June 30 Jackson and Kimkowski were discharged, but, pursuant to the agreement men- tioned above, they were reinstated by the respondent on September 24, 1937, subject to 1 month's good behavior. Jackson continued active in the United and became an officer. Alonzo Hunter, an employee, testified and we find that after Jackson's reinstatement, Koch promised "an easy job" to Hunter, who had often engaged in conversations with Jackson and Crum, if Hunter would report what Jackson and Crum were discussing. Hunter replied that he "would think it' over." Later, Koch asked Hunter if he had decided, but Hunter continued to be evasive. Hunter's testimony was not denied. Jackson had been warned by Shea, the head electrician, to join the Association and "stop being so foolish." However, Jackson did not take Shea's advice. In November, while Jackson was singing through a "cone" during a rest period, Holmes accused Jackson of "making the shop a broad- casting station," escorted him to Superintendent Walsh, and at- tempted to persuade Walsh that Jackson should be discharged. Walsh, however, did not discharge Jackson. On December 29 Jackson and Kimkowski were assigned to the task of loading bags on hand trucks which other employees rolled to a barge on which the bags were loaded. The barge captain exhorted Dan Lyons, an assistant foreman, to speed up the loading as the barge was late in leaving. The barge had been partially loaded on the previous afternoon, at which time there were four employees loading the bags on the hand trucks, but on the day in question only two employees, Jackson and Kimkowski, were assigned to this task. Lyons told Jackson and Kimkowski to "shake it up," to which Kim- kowski replied, "we are no horses." Lyons then reported the situa- tion to Holmes and asked him to see if he could expedite the loading. Holmes timed them for an hour and then went and spoke to them. According to Jackson, Holmes accused him of telling Lyons that Jackson and Kimkowski were not "horses," to which Jackson replied THE VAN IDERSTINE COMPANY 787 that he had not said a word to anyone that morning. Holmes then ordered Jackson to "shut up." A heated argument ensued, after which Holmes discharged Jackson. Holmes claims that he dis- charged Jackson for using profane language. Jackson claims that Holmes first used profane language and that he retaliated with simi- lar language. Holmes claims that he reprimanded the men because of their slowness, in a mild tone, and that Jackson replied with "a torrent of profane language." After his discharge, Jackson went to Hausserman, who had told the six United members when they were reinstated that any time "they thought they were not getting a fair deal to come to" see him, and related to Hausserman what had happened. Jackson stated that Holmes had used vile language, re- peating the words, and that he had lost his temper and answered in similar language. Hausserman then summoned Kimkowski, who was instructed by Holmes to go to Hausserman's office. When Kim- kowski arrived at the office he told Hausserman that he had heard Jackson but not Holmes use profane language. When Jackson could not prove that Holmes had used profane language first, Hausserman would not intercede in his behalf. The respondent contends that Jackson was discharged for insub- ordination in cursing his foreman, Holmes. There is no dispute concerning the fact that Jackson did curse Holmes in the course of the altercation between them on December 29, 193'7. The issue re- mains, however, as to whether the respondent discharged Jackson for that reason or because of his union membership and activity. There is a sharp conflict in the evidence as to whether Jackson or Holmes first applied epithets to the other. While we do not think that the resolution of that conflict is determinative of the issue for reasons hereinafter stated, we shall treat with it here, since it is a factor entitled to weight in deciding upon the cause for Jackson's dis- charge. At the hearing, Kimkowski testified that Holmes had first used profanity. He explained that he had not made that statement to Hausserman because he was excited when Holmes instructed him to go to Hausserman's office, believing that he was being sent there to be discharged. While Kimkowski's statement to Hausserman casts doubt upon his subsequent retraction, his misrepresentation to Hausserman is understandable when considered in the light of the circumstances, and we do not think that his earlier statement to Hausserman necessarily represented the true statement of the fact. Other considerations persuade us that it did not. Neither Holmes' prior relationship with his subordinates nor the tenor of his remarks to them in other contexts, as revealed in the record, coupled with the fact that he had timed Kimkowski and Jackson one hour before reprimanding them lead, us to believe that his approach was con- ciliatory as he asserts. Moreover, if Jackson had initiated the curs- 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing it seems unlikely to us that he would have immediately and voluntarily have sought out Hausserman to request the redress of a grievance. Upon all the evidence we find that Holmes cursed Jack- son first. However, even if contrary to our finding, Jackson cursed Holmes first we would conclude that the altercation was not the actual cause of Jackson's discharge but rather a pretext for it. Holmes was the United's principal antagonist among the respondent's supervisory staff. Jackson on the other hand was one of the United's active adherents and, in October, shortly after his reinstatement, had been elected the United's shop chairman. About a month before Jackson's discharge Holmes had tried unsuccessfully to have Jackson dis- charged for the incident in connection with the "cone." The fact that despite the asserted pressure to get the barge loaded on the day of Jackson's discharge, Holmes took an hour to observe the man's activity before approaching him evidences a similar attempt to secure cause for his discharge. We find that Holmes discharged Jackson in actuality because of his union membership and activity and not because of the altercation which served as the occasion for it. While we do not believe that Hausserman ratified Holmes' act for discriminatory reasons, we do not consider that material. Jackson's discharge by Holmes was dis- criminatory. The respondent had clothed Holmes with authority to effect such a discharge and hence is chargeable with his action. We find that the respondent discharged Jackson on December 29, 1937, because of his membership and activity in the United. We find that the respondent has discriminated with respect to the hire and tenure of employment of Philip Jackson, thereby discourag- ing membership in the Union and has thereby interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. At the time of his discharge on December 29, 1937, Jackson was earning 45 cents an hour and was averaging from 53 to 55 hours a week. Jackson has been unemployed since his discharge, and desires reinstatement. Edward Crum was active in the United from its inception in June and had attended its first meeting on June 28. Like most of the other employees who attended this meeting he was discharged on June 30, and, pursuant to the agreement discussed above, was rein- stated by the respondent on September 27. Thereafter, he was in- structed by Holmes not to discuss the United with his fellow em- ployees in the plant. After his reemployment he was assigned to work which was hard and unvaried, but after complaining to Haus- serman his work was made easier. THE VAN IDERSTINE COMPANY 789 Crum was discharged a second time on October 23, 1937. The respondent claims that he was discharged for tardiness . The record shows that, although Crum knew that his reemployment was subject to one month's good behavior, he repeatedly reported late, for which lie had been reprimanded several times. In fact , just two or three days prior to his discharge, Crum had been warned that the next time he reported for work late, he would be discharged, and on October 23, 1937, when Crum reported 30 minutes late, Walsh dis- charged him . At the hearing Crum admitted that he was often late and stated : "After I got reinstated I worked so doggoned hard I did not care if I came in or not. If they fired me, I did not care." The Trial Examiner in his Intermediate Report found that Crum had been discharged for cause . No exceptions . were . filed to this finding. We affirm the findings of the Trial Examiner and find that the respondent has not discriminated against Cruni in regard to his hire or tenure of employment , or any term or condition of employ- ment, as alleged in the complaint , as amended. The discharge .of Zigmund Cenderoski Cenderoski entered the respondent's employ in March 1937. In July, Larry Dietz, who was Cenderoski 's foreman, assembled the employees in his department, shortly before their lunch period, and urged them to join the Association and warned them not 'to join the United because it was a "racket ." About a week later, Dietz escorted. several employees from his department , including Cenderoski, to the timekeeper's office where the Association 's membership petition was. posted.36 Dietz attempted to persuade Cenderoski and the other em- ployees to sign it by describing the benefits they would derive from. joining the Association , such as insurance and sick benefits, but. Cenderoski flatly refused to sign, stating that he was not interested in insurance, but wanted "a raise now." Wojcik, an employee, who. was active in the Association , also urged Cenderoski to join the Asso- ciation, but Cenderoski refused, explaining that he was already a member of the United. Cenderoski had joined the United in July.. Wojcik warned Cenderoski that if he did not join the Association,. and pay his initiation fee, he would be discharged. Wojcik was the Association's delegate for Dietz 's department, and received Associa- tion fees and dues from the employees . Wojcik stated at the hearing that Dietz had questioned him regarding how the employees in the'. department "were coming along" with the payment of their fees and- dues, and that he told Dietz "how things were." Wojcik informed. Dietz that Cenderoski would not join the Association . We find that 86 The petition is described fully in section B above and in footnote 5. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent used Wojcik to obtain information concerning Cenderoski's activities with respect to the two labor organizations. Finally, due to Dietz's persistence, Cenderoski agreed to be the last employee to sign the petition and when Dietz informed Cen- deroski that he was the last one, Cenderoski signed the petition.37 Cenderoski was discharged on November 25, 1937. On that day, at about 2 a. m., Cenderoski went to the lavatory which was located in the dressing room. Although it was not Cenderoski's lunch period, a group of employees from another department were eating their lunches in the room at the time. Some of these employees were smoking. Cenderoski picked up a cigarette stub and, as he was smoking it, Dietz and Lyons, an assistant foreman, entered the dress- ing room. When Dietz observed Cenderoski smoking, he called it to Lyons' attention and then instructed Cenderoski to punch his card "and go home." The next day Cenderoski reported for work, but Dietz instructed him to return the following day. On the day there- alfter, when Cenderoski reported for work, the timekeeper told him that he was discharged. The circumstances under which Cenderoski's discharge was effected convince us that the respondent discharged him because of his reluctance in joining the Association and of his affiliation with the United. The record establishes that Dietz was opposed to the United and favored the Association. He was active in soliciting member- ship for the Association, and used coercive methods to compel the employees, including Cenderoski, to join it. Wojcik had warned Cenderoski to join the Association and had been told by Cenderoski that he did not desire to join because he was a member of the United. Later Wojcik informed Dietz that Cenderoski would not join the Association. We believe that Dietz resented Cenderoski's attitude and, when he saw him smoking, decided to use this occasion as an excuse for discharging him. The respondent contends that the immediate cause for Cenderoski's discharge was his smoking in violation of a plant rule but that an antecedent cause existed because of his past absences from work with- out permission. We cannot accept these contentions. The record shows that smoking was prohibited in the respondent's plant except in the dressing room. At the time Cenderoski was discharged, signs were posted in the plant which read "smoking permitted in the dressing room." Sometime after Cenderoski's discharge the words "during the lunch hour" were added to these signs. At the time of Cenderoski's discharge, he was smoking in the dressing room and, therefore, was not violating any of the respondent's rules. With respect to Cenderoski's unexcused absences, toward the close of the hearing the respondent sought to introduce into evidence cer- ^ See footnote 15. The record does not disclose the date on which Cenderoski signed the petition. THE VAN IDERSTINE COMPANY 791 taro of Cenderoski's time cards for the purpose of showing that Cenderoski was irregular in his attendance at the plant. The Trial Examiner had these cards marked for identification but refused to admit them in evidence upon the ground that no defense had been raised during the hearing that Cenderoski was discharged for irregu- larity in his attendance at the plant.33 The respondent then made an offer to prove by Cenderoski's_ time cards, and by other proof, that during the period from April 3, 1937, to the date of his discharge, Cenderoski was absent without permission on 11 different working days, in addition to 2 full weeks. In his Intermediate Report the Trial Examiner, in reviewing his reason for the exclusion of this evidence, stated that the offer "was obviously an afterthought." While we: agree with the Trial Examiner concerning the weight to be accorded the evidence, we are of the opinion that it is relevant and material and that he erred in excluding it. We hereby admit the time cards in evidence and deem proved the matter covered by the offer of proof. Although cause for Cenderoski's discharge may have existed because of his absences from work without permission, as asserted by the respondent, we are satisfied upon all the evidence that it was not the actual cause for his discharge.39 We find that. the respondent discharged Zigmund Cenderoski on November 25, 1937, in order to encourage membership in the Association and to dis- courage membership in the United and thereby and by other acts and conduct set forth in this section, including the respondent's attempt through Koch to induce Hunter to spy on United members and report to it, has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. At the time of his discharge, on November 25, 1937, Cenderoski was earning 45 cents an hour and averaged about 45 hours a week. He desires reinstatement. 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- as Although Dietz, who was Cenderoski 's foreman , was employed by the respondent at the time of the hearing, he was not called by the respondent to explain Cenderoski's dis- charge or to contradict Cenderoski's testimony concerning it. However, the respondent's answer merely denied the allegations of the complaint with respect to the discriminatory nature of Cenderoski 's discharge and pleaded no affirmative defense. While proof of the presence of proper causes at the time of discharge may have relevancy and circumstantial bearing in explaining what otherwise might appear as a dis- criminatory discharge , such proof is not conclusive . The issue is whether such causes In fact induced the discharge or whether they are but a justification of it in retrospect. Matter of Kelly-Springfield Tire Company and United Rubber Workers of America, Local No. 26, et al., 6 N . L. R. B. 325 , enforced in the Kelly-Sprin gfield Tire Company v . National Labor Relations Board, 97 F. (2d) 1007 (C. C. A. 4th , 1.938). See also Alisteel Products Manufacturing Company ( Inc.) and International Association of Machinists, Local 1308, 16 N. L. R. B. 72. 247384-40-vol. 17-51 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent described in Section I above, have a close, intimate, and- s 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 We have found that the respondent has dominated and interfered with the formation of the Association, and has contributed aid and support to it. The respondent's unfair labor practices have rendered the Association incapable of functioning as a free representative of the respondent's employees for the purposes of collective bargaining. Therefore we shall order the respondent to withdraw recognition from and to disestablish the Association as collective bargaining representative for any of its employees.40 We have found that the respondent has discriminated in regard to the hire and tenure of employment of Philip Jackson and Zigmund Cenderoski. Accordingly, we will order the respondent to offer each of these employees reinstatement to his former position with the respondent, and to make each of them whole for any loss suffered by reason of the discrimination by paying to each of them a sum of money equal to that which they normally would have earned as wages from the date of their discharges on December 29, 1937, and November 25, 1937, respectively, to the date of such offer of rein- statement, less their net earnings 41 during said period. We shall likewise order the respondent to take certain further affirmative action which we deem necessary to effectuate the purposes and policy of the Act, and to cease and desist from its unfair labor practices. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Mine Workers of America, District No. 50, affiliated with the Committee for Industrial Organization, and The Van 4O See Matter of Pennsylvania Greyhound Lines, Inc., Greyhound Management Company, Corporations and Local Division No. JOGS of the Amalgamated Association of Street, Electric Rdilwasj and Motor Coach Employees of America , 303 U. S. 261; American Manufacturing Company v. National Labor Relations Board, 106 F. ( 2d) 61 (C. C. A. 2). 41 By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board , incurred by such employee in connection with obtaining work and working elsewhere than for the respondent , which would not have been incurred but for his un- lawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of'America, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal, or other work-relief projects are not considered as earnings, but, as provided in the Order below, shall be deducted from the sum due the employee; and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county , municipal, or other government or governments which supplied the funds for said work-relief projects. THE VAN IDERSTINE COMPANY 793 Iderstine Employees' Association, an unaffiliated organization, 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 The Van Iderstine Employees' Association and by con- tributing support thereto, 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-- ntent of Zigmund Cenderoski , thereby encouraging membership in the Association and discouraging membership in the United, the respondent engaged in and is engaging in an unfair labor practice, within the meaning of Section 8 (3) of the Act. 4. By discriminating in regard to the hire and tenure of employ- ment of Philip Jackson, thereby discouraging membership in the United, the respondent engaged in and is engaging in an unfair labor practice, within the meaning of Section 8 (3) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by 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. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7. By discharging Edward Crum , the respondent has not engaged in unfair labor practices 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 the respond- ent, The Van Iderstine Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of The Van Iderstine Employees' Association, or with the formation or administration of any other labor organization of its employees, and from contributing support to The Van Iderstine Employees' Associa- tion, or to any other labor organization of its employees; (b) Discouraging or encouraging membership in any labor organ- ization of its employees, by discharging or refusing to reinstate any of its employees or in any manner discriminating in regard to their hire and tenure of employment or any term or condition of employ- ment ; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from The Van Iderstine Employees' Association as a representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, and completely disestablish The Van Iderstine Em- ployees' Association as such representative; (b) Offer to Philip Jackson and Zigmund Cenderoski immediate and full reinstatement to the positions which they formerly held with the respondent on December 29 and November 25, 1937, respec- tively, without prejudice to their seniority and other rights and privileges; (c) Make whole the said Philip Jackson and Zigmund Cenderoski for any loss of pay they may have suffered by reason of the respond- ent's discrimination in regard to the tenure of their employment by payment to them of a sum of money equal to that which they would normally have earned as wages during the period from Decem- ber 29, 1937, and November 25, 1937, the date of their discharges, respectively, to the date of such offer of reinstatement, less their net earnings during said period; deducting, however, from the amount otherwise due to the said employees, monies received-by said em- ployees during the 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 govern- ments which supplied the funds for said work-relief projects; (d) Post immediately, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees in conspicuous places in its plant, stating that the respond- ent 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), (c), and (d) of this Order; (e) Notify the Regional Director for the Second 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 complaint with respect to Edward Crum, be, and they hereby are, dismissed.