Newberry Lumber & Chemical Co.

In the Matter of NEWBERRY LUMBER & CHEMICAL COMPANY 1 and TIM- BER & SAWMILL WORKERS UNION, LOCAL No. 15, INTERNATIONAL WOODWORKERS of AMERICA, AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION Case No. C-1069.-Decided November 17, 1939 Lumber Industryi-Interference, Restraint, and Coercion: anti-union state- ments ; vigilante activities : violence directed against persons and property of union members and sympathizers-Companiy-Donrrnrated Union: domination of and interference with formation and administration : participation of super- visory employees ; disestablished as agency for collective bargaining-Discrim- ination : discharges, for union membership and activity"; failure to report to work because of intimidation as equivalent to discharge-Reisistatenrent Or- dered: seven employees discharged and refused reinstatement to former posi- tions ; one employee, to former or substantially equivalent employment-Back Pay: awarded-Procedure: alleged inability to employ counsel: no necessity for. Mr. Morris L. Foyer, for the Board. Mr. Phillip S. Hamilton, of Newberry, Mich., for the Company. Mr. Malcolm A. Hoffmann, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by the Timber and Sawmill Workers Union, Local No. 15, International Woodworkers of America, affiliated with the Committee for Industrial Organiza- tion, herein called Local No. 15, the National Labor Relations Board, herein called the Board, by Nathaniel S. Clark, Regional Director for the Twelfth Region (Milwaukee, Wisconsin), issued its complaint dated October 29, 1938, against Newberry Lumber & Chemical Com- pany, Newberry, Michigan, 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 Re- lations Act, 49 Stat. 449, herein called the Act. 1 Incorrectly designated as Newberry Lumber & Chemical Co. in the complaint. 17 N. L. R. B., No. 70. 795 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleged in substance that the respondent had domi- nated and interfered with the formation and administration of the independent Industrial Union of Newberry, herein called the Inde- pendent, and contributed support thereto; had discharged and refused to reinstate eight of its employees thereby discouraging union mem- bership and activity; had instituted and participated in vigilante activities in order to discourage union activities; and had, by these and other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint and accompanying notice of hearing were duly served on the respondent. On November 4, 1938, the respondent filed its answer traversing material allegations of the complaint. Pursuant to notice, a hearing was held at Newberry, Michigan, on November 7, 9, 10, and 12, 1938, before R. N. Denham, the Trial Examiner duly designated by the Board. The Board, represented by counsel, and the respondent, represented by its treasurer and plant manager,' participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. On November 25, 1938, the Trial Examiner filed his Intermediate Report, finding that the respondent had engaged in unfair labor practices within the meaning of Section 8 ( 1), (2), and (3) and Section 2 (6) and (7) of the Act, and recommending that the re- spondent cease and desist from such unfair labor practices; dis- establish and withdraw recognition from the Independent; offer reinstatement with back pay to seven employees; and place on a pre- ferred list for reemployment one other employee to whom back pay was to be given. The respondent thereafter filed exceptions to the Intermediate Report, and a brief in support thereof. The Board has reviewed the exceptions to the Intermediate Report and, save as consistent with the findings, conclusions, and order hereinafter set forth, 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 Delaware corporation, maintains its principal office and plant in Newberry, Michigan, and there produces lumber, pig iron, methanol, acetate of lime, and other wood byproducts. In addition to its plant at Newberry, the respondent maintains timber camps in Alger, Schoolcraft, Chippewa, and Luce counties in north- 2 Phillip S . Hamilton entered an appearance of record on behalf of the respondent but participated only to the extent of cross-examining one witness. NEWBERRY LUMBER & CHEMICAL COMPANY 797 -ern Michigan, and sales agencies in New York City and Grand Rapids, Michigan. The respondent owns and operates a railroad, -tracks of which interchange with those of an interstate carrier by railroad, over which most of the respondent's products are shipped. In 1937 the respondent's sales totaled $1,022,622.44. Of this amount $784,765.37 represented shipments to destinations outside of the State .of Michigan. Raw materials used by the respondent consist chiefly of iron ore, saw logs, and chemical wood, substantially all of which are obtained within the State of Michigan. The respondent in its answer stated that it was financially unable to employ counsel for the hearing or to summon witnesses.3 Begin- ning in 1935 the respondent underwent a reorganization pursuant -to the provisions of the then Section 77B of the Bankruptcy Act' In November of 1937 the plan of reorganization was confirmed by the District Court,5 and included a provision for a loan of $315,000 which was obtained from the Reconstruction Finance Corporation. Unsecured creditors were paid in full. The respondent's balance sheet as of September 30, 1938, reveals current assets, in cash and inventories, amounting to $540,671 and total liabilities of $310,- 462.78. Among its extensive properties, the value of timber lands is listed at over $700,000. The respondent's capital stock has a net book value of $1,693,986.75 after depreciation reserves of $1,283,- '084.84. We do not credit the claim that the respondent was finan- cially unable to engage counsel or summon witnesses . In any case, it was not necessary that the respondent be represented by counsel. The respondent was in fact represented by an officer, as are many .unions in Board proceedings. The respondent ordinarily employs approximately 325 men at its Newberry plant but after April 1, 1938, only about 100 men were so employed pending the completion of a new plant. II. TFIE ORGANIZATIONS INVOLVED Timber & Sawmill Workers Union, Local No. 15 of International Woodworkers of America, hereinafter called Local 15, is a labor organization affiliated with the Committee for Industrial Organiza- tion, hereinafter called the C. I. O.e Local 15 admits to membership lumberjacks, workers on lumber railroads, mill employees, and those engaged in the handling or processing of wood products and byprod- 8 The respondent's answer and other pleadings were drawn by John E. Tracey, its secre- tary, and a professor of law at Michigan University. 4 30 Stat. 541 , as added, 48 Stat. 912; as amended 49 Stat . 664, 49 Stat. 965. 8In the course of the reorganization , during the period of which substantially all of the alleged unfair labor practices took place, Phillip S. Hamilton served as trustee in bankruptcy. ° Now the Congress of Industrial Organizations. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ucts throughout the upper Michigan peninsula. Local 15 is an or- ganization formed to succeed Lumber and Sawmill Workers, Local No. 2530, United Brotherhood of Carpenters & Joiners, affiliated with the American Federation of Labor, and hereinafter called Local 2530. Independent Industrial Union of Newberry is an unaffiliated labor organization admitting employees of the respondent to its membership. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion On March 5, 1937, Local 2530 began an organizational drive in the upper Michigan peninsula. Within a few months, strikes at mills and camps spread throughout the territory surrounding New- berry. This activity culminated in the negotiation by Local. 2530 of approximately 65 collective bargaining agreements covering em- ployees in this area. The first of the respondent's Newberry em- ployees to join Local 2530 was Matt Ahonen, who did so on March 26. Seven other members were recruited among the respondent's Newberry employees between March 26 and June 1. On several occasions during this period Ahonen, Frederick Sayles, Victor Ander- son, Gust Koivu, and Oscar Maki, all employees at the Newberry plant, talked about union activities with Foreman John Johnson .and with Albert Rahn, supervisor of the respondent's loaders. In several instances, Johnson and Rahn took occasion to disparage unions in general, and referred to them as "graft" organizations. On May 13 Foreman Johnson engaged, Ahonen in a conversation about a strike at a nearby town. Ahonen told Johnson that he had joined Local 2530. He was discharged the following morning.' At a later date Ahonen was told by Charles Pajanen, foreman of the respondent's woods railroad, that on June 4, 1937, Hamilton had issued instruc- tions to Pajanen to discharge any union men working under him. Near the end of May 1937, Local 2530 established strike and relief headquarters at a building in Newberry known as the Workers Hall. Thereafter its organizational drive in the vicinity of Newberry was intensified and a strike committee, among other activities, distributed union literature at the homes of the respondent's mill employees. On May 24, 1937, all of the lumberjacks at the respondent's Shingle- ton lumber camp went on strike. On May 28 all of the lumberjacks at its lumber camp known as Camp Number 9 also struck. On June 3 about 100 union members and sympathizers, the majority of whom were strikers from the respondent's two logging camps, gathered See Section III, C, below. NEWBEERY LUMBER & CHEMICAL COMPANY 799 .in Newberry to attend a strike benefit dance to be held that night at the Workers Hall. The same day several of the respondent's -employees requested Paul Moran, chairman of Local 2530's strike committee, to visit the respondent's plant in order to discuss with other employees the possibility of a strike. It was agreed that on the following morning the committee should visit the plant for this purpose. About 6 a. in. on June 4, 1937, the same group of about 100 men who had gathered the previous day at Newberry, left the Workers Hall and marched to the respondent's plant. The men, who wore ribbons bearing the designation "strike connnittee," were unarmed and approached the plant peaceably, marching two abreast. Phillip S. Hamilton, the respondent's treasurer and plant manager, who is also president of the Village of Newberry, had in the mean- while learned and had informed the local sheriff that the strike com- mittee was coming to the plant. Both he and Superintendent Elmer Johnson arrived at the plant at about 6 a. in., before the arrival of the strikers and 2 hours prior to the regular opening time. At this time the company fire whistle blew, although ordinarily it is blown only in case of fire. On June 3 there was talk among the employees in the plant to the effect that the blowing of the whistle would be the signal for them to gather at the plant to drive away the strikers. About the time the plant fire whistle blew, Foreman James Burn- sides came into the cast-house where night-shift employees were still working and exhorted the men, "Come on gang, let's chase the strik- ers out." Shortly after the whistle blew a crowd of about 300 per- sons assembled outside the mill, including the local sheriff, Plant Manager Hamilton, Superintendent Elmer Johnson, Foremen Ra- daska, Westman, Ford, Fancett, and Whitmarsh, and the group of night-shift employees led by Foreman Burnsides. Members of this crowd were generously armed with clubs, icon bars, gate handles, rubber hose, hose couplings, and iron bolts. As the column of strikers neared this group, the sheriff halted them with the admonition that they were on private property, and that trouble would ensue unless they left. Moran, leader of the strik- ers, replied that all his men desired was an opportunity to talk with the respondent's employees to ascertain if they wished to vote to join the strike. Moran and the sheriff then agreed that the strik- ers should withdraw and later send a committee back to talk with the employees. Thereupon the sheriff took Moran by the arm and led him about 50 feet down the road away from the plant, as the other strikers followed. At this juncture, the sheriff dropped Moran's arm and stepped aside. Foreman Frank Whitmarsh immediately 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shouted, "Let's go," and swung a club in the air. The marching strikers were then set upon and brutally attacked. One of the marchers named Joseph Kist stumbled and fell. An- other marcher, Edward Evans, turned to help Kist, but was beaten off with a club. Evans last saw Kist rising to his knees only to be pounded to the ground again by Foreman Whitmarsh, who wielded a club and was assisted by an unidentified person. Kist died soon after." When David Maki, an employee and Local 2530 member,, came to the plant on hearing the fire whistle he was knocked to the ground as Foreman Adolph Westman shouted, "There is one of the union men...." Numerous other union members or sympathizers were injured and beaten at the time. No arrests were made. None of the respondent's foremen, agents, or employees were disciplined for their participation in these events. No damage was done to the respondent's property. As a result of this violence, a number of the marchers were driven out of town; others, closely pursued by the attacking mob, took refuge at the Workers Hall. The mob, led in part by Foremen Radaska, Fancett, and Westman, thereupon evicted them from the Hall and proceeded to demolish the interior of the structure. Fore- man Radaska, who, broke in the door of the Hall with an iron bar, and Fancett, who smashed several windows, were among the first to enter the building. As a result of this activity the interior of the Hall was completely wrecked and the Hall rendered useless as a meeting place. In addition, Local 2530 records in the Hall were confiscated. As each man was evicted from the Hall he was struck on the head with a rock by Ted Johnson, son of Foreman John Johnson. Fol- lowing this treatment, the beaten men were bodily loaded on a truck commandeered from a striker and driven out of town in the company of other union members and sympathizers who had been rounded up in other parts of Newberry. Among those engaged in corralling the latter group was Foreman Westman. About 9 a. m., an hour after work ordinarily commenced at the plant, some cars and a truck drew up at the home of the local justice of peace, James V. Kinsey. Men from the truck seized Kinsey, told him that his name had appeared in the union records captured that morning, loaded him onto the truck where Foreman Radaska was seated, and drove to the plant. En route it was decided that Kinsey should be dumped into one of the respondent's tar tanks; but this plan fell through when the chemical-department foreman pointed s The local coroner found that Kist died of natural causes . The coroner's report was not introduced into evidence , but the respondent's exceptions state : "It was found . . . that the cause of death was heart failure doubtless caused by unusual exertion." NEWBERRY LUMBER & CHEMICAL COMPANY 801 out the possible fatal effects of such an immersion. Instead Kinsey was smeared with cup grease. At the plant the respondent's wood superintendent, Ralph Biers, witnessed the maltreating of Kinsey but took no steps to protect him. Kinsey subsequently was carted away in a truck and dumped in a nearby gravel pit. During the course of the mob violence, six members of Local 2530 who reported to work at the regular hour were discharged by Super- intendent Johnson. These men were gathered in a shack at the plant awaiting the commencement of operations when Johnson en- tered and told them : "We don't need you. You fellows go home." The men at all times since have been refused reinstatement. Hamilton, the respondent's treasurer and plant manager, generally denied that the respondent was in any way responsible for the events of June 4. He described the riot as "spontaneous," stating that there was "a big roar and everybody started," whereupon the sheriff lost control of the situation. Hamilton alleged that at this stage in the proceedings he went home and had his breakfast. He disclaimed knowledge of any of the events transpiring on June 4 after the out- break of violence. During his testimony Hamilton asserted that prior to June 4 he had no knowledge of any union activity in the vicinity of Newberry and that the men marching to the plant were identified to him only by a "pink ribbon" on their coats marked "striker." He admitted, however, that on May 24 he was told by Woods Superintendent Biers that the employees at the respondent's lumber camp at Shingleton had left their work, and that on May 28 he was informed by Foreman Lloyd Cook of Camp Number 9 that the lumberjacks there had left their employment after the camp had been visited by strikers. He also knew on May 24 that the employees at the nearby plant of Cleve- land Cliffs Mining Company had gone on strike. Although he read local newspapers he denied ever seeing anything in them about the organization of the timber industry. As has already been noted, the respondent's foreman, John Johnson, was informed by Matt Ahonen on May 13 that the respondent's plant was being organized. On June 3 Hamilton knew of the advent of the strikers and notified the sheriff who deputized several men to protect the respondent's prem- ises. In view of these facts we deem Hamilton's protestation of ignorance of union activity to be unworthy of credence. While Hamilton himself did not actively participate in the mob violence of June 4, the circumstances justify the conclusion that he acquiesced and consented to the participation of the respondent's foremen in such activities. In this connection, we note that the mob attacking the union men was assembled outside of the respondent's plant by the blowing of the respondent's fire whistle ; that on June 3 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was understood that the blowing of the whistle should be the signal to gather at the plant to repel the union members and sym- pathizers; that Foreman Burnsides led a group of employees out of the plant to join the mob; that a number of foremen were leaders of the mob; and that Hamilton and Superintendent Johnson were present and witnessed the activities of the mob. In addition, a con- siderable part of the mob activity was carried on after working hours had commenced at the plant; and Kinsey actually was maltreated at the plant in the presence of Woods Superintendent Biers. Even had Hamilton and Superintendents Biers and Johnson not given their tacit approval to the unlawful activity of June 4, the respondent cannot avoid responsibility for the acts of its foremen, who were leaders of the mob. As already noted, no disciplinary action was ever taken against these foremen. We find that the respondent is responsible for the snob violence of June 4, 1937, and for the anti-union acts of its foremen in con- nection therewith. By the incitement and encouragement of such mob violence, by the anti-union conduct of its supervisory employees on June 4, and by the anti-union statements of its foremen prior thereto, the respondent has interfered with, coerced, and restrained its employees in the exercise of their rights guaranteed in Section 7 of the Act. B. Domination of and interference with the formation and admin- istration of the Independent Indw.strial Union Following the violence of June 4, activity on behalf of Local 2530 subsided. On August 30, however, a referendum was taken among its members, which resulted in a decision to transfer their affiliation to Timber and Sawmill Workers Union, International Woodworkers of America, C. I. O. This transfer was shortly there- after consummated and Local 2530 then became and was known as Local 15, Timber and Sawmill Workers Union, International Wood- workers of America. The transfer of affiliation was followed by a vigorous membership drive among the respondent's employees. Coincidental with this resumption of union activity, various em- ployees, including leaders of the rioting on June 4, undertook to form the Independent. The exact genesis of the Independent is not clear. It appears, however, that activity on its behalf was carried on in the plant during working hours, and that supervisory employees interested themselves in its welfare. On one occasion during working hours in October of 1937, Cecil Schograft, an employee in the mill, went to the lumberyard and obtained the signatures of a number of yard NEWBERRY LUMBER & CHEMICAL COMPANY 803 workers to a membership petition for the Independent . Similarly Clarence Johnson, an employee in the powerhouse , solicited mould- ing-shop employees during working hours to join the Independent. The powerhouse and moulding shop are more than a hundred feet apart. Another employee was advised by Tub Nelson, a truck driver in the respondent's employ, to join the Independent in order to protect his job. At about this time the Independent held its first meeting at the Community Building in Newberry . Prior thereto Orville Puckett was urged by Newton Ford, his foreman , to attend the meeting, which he did. Among those present at the meeting were Foreman Ford and Superintendent Johnson. The meeting was addressed by a local attorney. Early in 1938 Charles Clair, Ted Johnson ,9 Clarence Johnson, and Foreman Ford informed Hamilton that they were officers of the Independent , and that they expected from time to time to confer with him about conditions in the plant . Again in March, Ted and Clarence Johnson and several others , called on Hamilton, requested recognition of the Independent as bargaining agent for the em= ployees, and submitted a memorandum requesting certain improve- ments in working conditions . No action was taken on these requests since production operations in the plant were severely curtailed shortly thereafter. Details of the actual organization of the Independent are not clear. None of the witnesses at the hearing knew whether the Independent had any constitution or bylaws or whether any dues were required of its members . Despite these obscurities, however, it is apparent that the respondent's anti-union bias, well demonstrated in the events of June 4, was responsible in large part for the existence of the Independent. In this connection attention may be called to the fol- lowing testimony of Orville Puckett, as to why he joined the Inde- pendent: Q. Well, what do you think you were signing when Cecil Schograft asked you to sign? A. Either sign or lose my job , I figures; that is the reason why I signed it. In addition, Foreman Ford and Ted Johnson, leaders in the riot- ing, were prominent in the affairs of the Independent , while Superin- tendent Johnson lent the weight of his presence to its initial meeting. In view of all the circumstances we are convinced that the respond- ent is responsible for the growth of the Independent. We find that the respondent has dominated and interfered with the formation and administration of the Independent, and has contrib- 9 Son of Foreman John Johnson and a leading participant in the violence of June 4. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uted support thereto, and thereby has interfered with, restrained, and coerced its employees in the exercise of their right to self- organi- zation, and to form, join, and assist labor organizations. C. The discharges and refusals to reinstate Hatt Ahonen, first employed in 1910, worked in the planing mill from 1932 until his discharge. During slack periods when the plan- ing mill was not operating, he worked as a lumber loader. He joined Local 2530 on March 26, 1937, and on several occasions thereafter discussed unions with his foreman, John Johnson, and with Albert Rahn, supervisor of the loaders, and a scaler in the lumberyard. Both Johnson and Rahn disparaged unions, remarking that they were "graft" organizations designed to appropriate the workers' money. On May 13, 1937, Johnson engaged Ahonen in a conversation dur- ing the course of which Alionen stated that the Lumber and Saw- mill Workers Union had started organizing in Michigan and that he had joined or was going to join it 10 Johnson abruptly ended the conversation. About 5 minutes before closing time that day, John- son asked Ahonen to work overtime, which Ahonen refused to do. On reporting for work the next day Ahonen was instructed to see Superintendent Elmer Johnson, who told him to go home, stating, "I am through with you." No reason was given for the discharge. On the morning of June 4 Ahonen, when near the Workers Hall, was pointed out by Foreman Westman, who stated, "There is a union man; put him in the truck and hit him." Ahonen was forced on a truck and driven out of town. Hamilton testified that he had ordered Ahonen's discharge because Superintendent Johnson had complained about his work. Johnson did not testify as to Ahonen's alleged incompetence, and Ahonen never was advised that his work was unsatisfactory. Hamilton admitted never having reprimanded Alionen and never having in- vestigated the quality of his work. Hamilton further claimed that Alionen was discharged because of his refusal to work overtime on May 13. On at least three occasions in 1936, however, Ahonen had refused to work overtime without being disciplined,1' while three of his fellow employees each had with impunity refused to work over- time on several occasions during 1937. In 1937 Ahonen worked overtime upon request on at least six occasions prior to May 13. On that day Ahonen's working partner, Arvo Juhola, also refused to work overtime but was not discharged. We have. no doubt that 11 As noted above, Ahonen in fact joined Local 2530 on March 26, 1937. 11 In 1936 Ahonen was asked to work overtime on at least 10 occasions. NEWBERRY LUMBER & CHEMICAL COMPANY 805 Ahorien was not discharged because his work was unsatisfactory or because of a failure to work overtime on May 13, 1937. . Ahonen's discharge took place shortly after his foreman learned of his interest in Local 2530 . Previously this foreman had expressed hostility toward unions . On June 4 Ahonen was identified as a union member by Foreman Westman and as a result was maltreated by the mob. Viewing these facts in the light of the respondent's implausible explanation of Ahonen 's discharge, and Ahonen's long service record, we are convinced that such discharge resulted from Ahonen 's union sympathies. We find that by discharging Matt Ahonen on May 14, 1937, the respondent discriminated in regard to his hire and tenure of employ- ment, thereby discouraging membership in Local 2530 and interfering. with, restraining , and coercing its employees in the exercise of the rights guaranteed them by Section 7 'of the Act. Frederick Sayles, Oscar Maki, Gust Koivu, Frank Heikkila , David Hakkala, Victor Anderson, and Thomas Patrick. All of these men, except Anderson were discharged in a group on the morning of June 4, 1937. As noted below , Anderson did not report for work on this day but was refused employment on or about June 11. At the time of the discharges , Sayles had been in the respondent's employ for 25 years ; Maki for 7 years; Koivu for 25 years; Heikkila for 10 years; Hakkala for 7 years; Anderson for 24 years ; and Patrick for 10 years. Prior to June 4, 1937, Sayles , Maki, Koivu, Hakkala and Anderson were employed as pilers and loaders of lumber ; Heikkila worked as a carpenter in addition to being a piler and loader; Pat- rick was a tie peeler. All of these men had joined Local 2530 prior to June 1. It does not appear that there were any other union mem- bers in the respondent's employ. The respondent , in its brief, asserts that these seven men, together with Ahonen, constituted the only persons in Newberry who aided the "invading mob" of strikers on June 4. As noted above,l2 the discharge of Sayles , Maki, Koivu, Heikkila, Hakkala, and Patrick by Superintendent Johnson took place in con- junction with the rioting and violence directed against members of Local 2530 and its sympathizers. Sayles, on returning from the plant after his discharge , was stopped by Foreman Radaska and seven other men, who lifted him from the ground and were about to put him on a truck because he was a "unionist ," when he was released upon the intercession of a friend. Anderson did not report to work on June 4 because, having witnessed the violence in progress, he feared being attacked because of his known union sympathies. In- " See Section III A, above. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stead he left Newberry and did not return for several days. Although Anderson was not present at the time of the discharge of the others named above, we shall treat with him as if in fact dis- charged at the same time, since his failure to report to work was the result of the respondent's unfair labor practices. All seven discharged employees applied for reinstatement either to Superintendent Johnson or to Hamilton. On June 5 Johnson told Sayles, "There is no work for you"; about 2 weeks later Maki was told by Johnson "Nothing doing." Johnson also told Koivu there was nothing he could do about reemploying him. Hamilton told Heikkila he would "look into the matter." After being re- ferred to Johnson by Hamilton, Hakkala repeatedly requested re- employment without success. About the middle of June, Anderson and Patrick were told by Johnson that the question of their rein- statement was "up to the men." In the spring of 1938, 7 or 8 months after his discharge, Patrick was told by Johnson to "wait awhile." Johnson's evasiveness in this in'taiice' is illumined by an incident taking place at approximately the same time. In January of 1938, Ralph Ray Lobdell, a member ofLocal 15, asked Woods Superintendent Biers for a job laboring in the woods. Biers hired Lobdell and instructed him to report for work "at' Camp Number 9 as a teanmster. After Lobdell's arrival at the caanp, Biers and Foreman Lloyd Cook summoned him to the office. Because of the warmth in the shanty Lobdell removed his jacket, revealing a C. I. O. button pinned to his suspenders. Biers simply looked at Lobdell and told him to "go back." On Lobdell's protest, Biers told him, "The way things are, and the way things looks, we can't use you." When Lobdell pointed to his C. I. O. button and inquired if it was the cause of his summary dismissal, Biers admitted that it was. In explaining the discharge of the seven men Hamilton testified that on June 3, 1937, he was told by Superintendent Johnson that the presence of these men was objectionable to the other employees in the plant. Hamilton could assign no reason for this hostile feel- ing, but thought that possibly the seven union members "had too many privileges." He could not state just what "privileges" he had in mind. According to Hamilton, he was told by Johnson on the morning of June 4, 1937, that "a group of miscellaneous citizens from uptown" were conning to the plant after these seven men. Hamilton claimed that he advised Johnson to warn the men, and that the men went home after Johnson had done so. Hamilton ex- plained the refusal to reinstate all eight discharged union members, including Ahonen, on the ground that during the second week of June the other employees had voted against their reinstatement. All NEWBERRY LUMBER & CHEMICAL C01\IPANY 807 eight discharged employees were included in this vote, he alleged, because it was "common knowledge" that all wished to be rein- stated. Hamilton denied that the respondent had ceded to the em- ployees its right to hire and discharge, and stated that no other votes ever were taken respecting lay-offs and discharges. We do not credit Hamilton's claim that he denied reinstatement to the union members solely because of the wishes of other employees 13 The circumstances of the discharge. of the union men, the instructions given Foreman Pajanen on June 4 to discharge all union men under his supervision, the denial of employment to Lobdell because of his C. I. O. membership, all taken in conjunction with the role of the respondent's supervisory employees in the violence on June 4, lead us to the conclusion that the employees here involved were dis- charged as part of the respondent's' purpose to defeat organization. of its employees by Local 2530. We find that the respondent by discharging Frederick Sayles,. Oscar Maki, Gust Koivu, Frank Heikkila, David Hakkala, Victor Anderson, and Thomas Patrick on June 4, 1937, discriminated against them in regard to their hire and tenure of employment, thereby discouraging membership in Local 2530 and in Local 15. We further find that by thereafter refusing to reinstate these men, the respondent discriminated against them with regard to their hire and tenure of employment, thereby discouraging membership in Local 2530 and Local 15. By the aforesaid discharges and refusals to reinstate, the respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of ,the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and. substantial relation to trade, traffic , and commerce among the sev- eral States , and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent by the encouragement of and participation in mob violence directed against union members and 3 Even were we to credit this claim , our decision would not be affected thereby. If the- sole reason for the discharges and refusals to reinstate was the fact that they were desired by employees antagonistic to the Union, the respondent's conduct would not be justified. Matter of TV. F. & John Barnes Company and United Automobile Workers of America, Local Union No. 4,32, 12 N. L. R. B. 1028. The exertion of economic pressure upon an em- ployer does not excuse an unfair labor practice . National Labor Relations Board v. Star- Publishing Company, 97 F. (2d) 465 (C. C. A. 9). 247384-40-vol. 17-52 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sympathizers and their property, and by other acts, has interfered with, restrained, and coerced its employees in the exercise of their rights to self-organization guaranteed in Section 7 of the Act. We shall therefore order the respondent to refrain from such interfer- ence 14 and to take certain affirmative action which we deem neces- sary to effectuate the policies of the Act. We have found that the respondent has dominated and inter- fered with the formation and administration of the Independent and has contributed support to it. Under these circumstances, the In- dependent cannot and does not offer to the respondent's employees, the free representation for collective bargaining which is guaranteed by the Act. We shall, therefore, order the respondent to withdraw from the Independent all recognition as representative of the re- spondent's employees for the purpose of collective bargaining, and to disestablish it as such representative. We have found that the respondent discriminatorily discharged and thereafter refused to reinstate Matt Ahonen, Frederick Sayles, Oscar Maki, Gust Koivu, Frank Heikkila, David Hakkala, Thomas Patrick, and Victor Anderson. Although Anderson did not report to work on June 4, 1937, because of fear of personal harm, had he done so it is clear that he would have been discharged with the others. Anderson was included among the group allegedly voted against by the respondent's employees, and was denied reinstatement for the same alleged reason as the others. We have previously held that the departure from a plant of an employee compelled to leave "under compulsions that constituted unfair labor practices" is the equivalent of a discriminatory discharge 15 Anderson did not report for work solely as a consequence of the violence for which the respondent is responsible. His termination of employment on June 4 therefore resulted from the respondent's unlawful conduct and his status is not different from that of the Local 2530 members actually instructed to leave the plant on that day. We shall order the respondent to offer to Matt Ahonen, Frederick Sayles, Oscar Maki, Gust Koivu, Frank Heikkila, David Hakkala, and Victor Anderson immediate and full reinstatement to their former positions without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they have suf- fered by reason of the discrimination against theln, by payment to each of them of a sum equal to the amount which he normally would 14 See Matter of Ford Motor Company and International Union, United Automobile Work- ers of America, 14 N. L. R. B. 346. 15 Matter of Sterling Corset Co., Inc. and Universal Brassiere & Justrite Corset Co., Inc. and International Ladies Garment Workers' Union, Local 85, 9 N. L. R. B. 858. NEWW'BERRY LUMBER R CHEMICAL COMPANY 809 have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 16 during said period. The respondent's plant shut down on April 1, 1938, as a result, of curtailment of operations. It is the respondent's practice during such a shut-down to employ its pilers and mill workers as lumber loaders and to lay off the men normally working as loaders. Since April 1, 1938, the respondent has continuously employed loaders at its plant. Thus Ahonen, Sayles, Maki, Koivu, Heikkila, Hakkala, and Anderson normally would have been entitled to employment by the respondent subsequent to April 1, 1938, had they not been discriminatorily discharged. Thomas Patrick was a tie peeler. The respondent has made no ties since April 1, 1938, and it is not shown that Patrick would have been employed subsequent to that date. Since we have found that the respondent has not made ties from April 1, 1938, to the time of the hearing, we shall order the respondent to offer Patrick employ- ment in his former or in a substantially equivalent position as soon as such employment becomes available, in accordance with respondent's usual method of reemployment after a shut-down, without discrim- ination against him because of his union activities, and before other persons are hired for such work. We shall order the respondent to make Patrick whole for any loss of pay he has suffered by reason of the discrimination against him by payment to him of a sum equal to the amount which he normally would have earned as wages in the respondent's employ, less his net earnings, 'from the date of his dis- charge until the date he is offered reemployment, if, as outlined above, he is entitled to employment at the present time. Should there now be no work available for him, Patrick will be entitled to compensatory back pay from the time of the initial discrimination against him to April 1, 1938, and also for any other periods during which the respondent fails or has failed to employ him in a position to which he is entitled as set forth above. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : "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 or Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440. Monies received for work performed upon Federal, State , county, municipal , or other work-relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate decal agency of the Federal, State, county , municipal, or other government or governments which supplied the funds for said work-relief projects. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Timber & Sawmill Workers Union, Local No. 15, International 'Woodworkers of America, Lumber and Sawmill Workers Union, Local No. 2530, United Brotherhood of Carpenters and Joiners of America; and Independent Industrial Union of Newberry are labor organizations within the meaning of Section 2 (5) of the Act. 2. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (1) of the Act. 3. The respondent, by dominating and interfering with the for- mation and administration, of Independent Industrial Union of. Newberry, and by contributing support to said organization, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 4. The respondent, by discriminating in regard to the hire and tenure of employment of Matt Ahonen, Frederick Sayler, Oscar Maki, Gust Kiovu, Frank Heikkila, David Hakkala, Thomas Patrick, and Victor Anderson, thereby discouraging membership in Lumber and Sawmill Workers Union, Local 2530, and in its suc- cessor, Timber & Sawmill Workers Union, Local No. 15, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 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, Newberry Lumber & Chemical Company, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Timber & Sawmill Workers Union, Local No. 15, international Woodworkers of America, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment ; (b) From in any manner dominating or interfering with the administration of Independent Industrial Union of Newberry, or the formation or administration of any other labor organization of its employees, and contributing financial or other support to Inde- NEWBERRY LUMBER & CHEMICAL COMPANY 811 pendent Industrial Union of Newberry, or to any other labor organ- ization of its employees; (c) Assaulting, beating, encouraging violence against, or in any manner interfering with, restraining, or intimidating, directly or indirectly, members of Local 2530, or its successor, Local 15; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right 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 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.) Offer to Matt Ahonen, Frederick Sayles, Oscar Maki, Gust Koivu, Frank Heikkila, David Hakkala, and Victor Anderson, im- nmediate and full reinstatement to their former positions, without prejudice to their seniority and other rights and privileges; . (b) Offer to Thomas Patrick, without prejudice to his seniority and other rights and privileges, employment in his former or in a substantially equivalent position, if such employment is now avail- able for him in accordance with the respondent's usual method of reemployment following lay-offs or shut-downs, and if no such em- ployment is now available, offer him such employment in accordance with such usual method as soon as it becomes available and before any other persons are hired for such work; (c) Make whole the persons named in paragraph 2 (a) for any loss of pay they have suffered by reason of the respondent's .dis- crimination in regard to their hire and tenure of employment, by payment to them, respectively, of a sum of money equal to that which each would have earned as wages during the period from the date of such discrimination against hiin to the date of offer of reinstate- ment, less his net earnings during that period ; deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee 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) Make whole Thomas Patrick for any loss of pay he has suf- fered by reason of the respondent's discrimination in regard to his hire and tenure of employment, by payment to him of a sum of money equal to that which he would have earned as wages during the period from the date of such discrimination against him to April 1, 1938, less his net earnings during that period, and by the further 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD payment to him of sums of money equal to those which he would have earned as wages in the respondent's employ in any periods subsequent to April ' 1, 1938, during which in accordance with the respondent's usual method of reemployment following lay-offs or shut-downs he would have obtained employment, less his net earn- ings during such periods; deducting from such sums, however, monies received by Patrick during any of said periods 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; (e) Withdraw all recognition from Independent Industrial Union of Newberry, as a representative of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish said Independent Industrial Union of Newberry as such representative; (f) 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 throughout its plant, stating that the respondent will cease and desist in the manner set forth in para- graph 1 of this Order, and take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), and (e), and that the respondent's employees are free to become or remain members of Timber & Saw- mill Workers. Union, Local No. 15, International Woodworkers of America, and that the respondent will not discriminate against any employee because of membership or activity in that organization; (g) Notify the Regional Director for the Twelfth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.