Electric Vacuum Cleaner Co., Inc.

In the Matter of ELECTRIC VACUUM CLEANER COMPANY, INC. and UNITED ELECTRICAL & RADIO WORKERS OF AMERICA, LOCAL 720 In the Matter of ELECTRIC VACUUM CLEANER COMPANY, INC. and UNITED ELECTRICAL & RADIO WORKERS OF AMERICA, LOCAL 720 Cases Nos. C-R66 and R-3.53, respectively.Decided December 01, 1939 Electric Vacuum Cleaner Manufacturing Industry-Interference, Restraint, and Coercion: employer assisting one of two rival labor organizations : employees, not covered by closed-shop contract applicable only to new employees, coerced to join and discharged for refusal to join favored organization; plant closed to prevent disaffections from favored organization ; plant reopened under misrepre- sentation as to applicability to old employees of closed-shop contract; execution of completely closed-shop contract with favored labor organization as part of campaign of illegal assistance to such organization; threat of strike, no justifica- tion for illegal conduct of respondent-Remedial Order: special form of : respond- ent not to require membership in favored organization as condition of employment until such organization certified by the Board as exclusive represent- ative; respondent to cease giving effect to any part of contract with favored organization if and when another organization is certified by the Board-Dis- crimination: charges of, sustained as to 19 old employees: never covered by valid closed-shop contract : refusal of employment held to have been immediately effected by reopening plant with notice that only members of favored labor organization would be employed ; charges of sustained as to five new employees, although covered by prior closed-shop contract: prior contract held to have been abandoned in favor of completely closed-shop contract made with assisted labor organization ; prior contract held not to afford, justification for refusal to employ since no notice of existence given; charges of dismissed as to five employees, in absence of any evidence-Closed-Shop Contract: agreement to require new em- ployees to become members of labor organization within two weeks after employ- ment held not to affect old employees; subsequent agreement for closed-shop contract with assisted organization, executed as part of employer's campaign of assistance to favored organization; employer ordered to cease giving effect to; effect of unfair labor practices preventing majority shift prior to execution of completely closed-shop contract ; execution of completely closed-shop contract held abandonment of prior contract ; earlier contract held not revived by declaration superseding contract invalid-Collective Bargaining: charges of failure to bargain collectively dismissed ; controversy as to appropriate unit not resolved where no majority shown on basis of either contention-Investigation of Representatives: controversy concerning appropriate unit; in view of motion to reopen record for further evidence and lapse of time since filing of petition, proceedings dismissed without prejudice. Mr. Harry L. Lodish, for the Board. 18 N. L. R. B., No. 75. 591 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. L. C. Spieth and Mr. H. A. Spring, of Cleveland, Ohio, for the respondent. Mr. James B. Carey, of New York City, and Mr. Sam. H. Griff, of Cleveland, Ohio, for the United. Mr. Joseph A. Padway, of Washington, D. C., Mr. Edwin F. Woodle and Mr. Bernard Wachtel, of Cleveland Ohio, for the A. F. of L. Affiliates. Mr. John H. Orgill, of Cleveland, Ohio, for the Cleveland Federa- tion of Labor. Miss Margaret B. Bennett and Mr. Isadore Polier, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On April 22,1937, United Electrical and Radio Workers of America, herein called the United, affiliated with the Committee for Industrial Organization,' herein called the C. I. 0., filed with the Regional Di- rector for the Eighth Region (Cleveland, Ohio) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of production and maintenance employees of Electric Vac- uum Cleaner Company, Inc., Cleveland, Ohio, herein called the re- spondent, excluding clerical and supervisory employees, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On the same day, the United filed with the Regional Director charges alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of the Act.2 On May 6, 1937, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations- Series 1, as amended, ordered an investigation and authorized ' the Regional Director to conduct it and to provide an appropriate hearing 1 Now the Congress of Industrial Organizations. 2 As hereinafter more fully set forth , a labor organization was formed among the em- ployees of the respondent between March 17, and 19, 1937, officers having been elected on the latter date, to which a charter as United Electrical & Radio Workers of America, Local 720 was granted by the United on or about April 1, 1937. The record discloses that the petition and charges signed by the United , were filed on behalf of United Elec- trical & Radio Workers of America , Local 720, and that all parties were so advised by the complaint , the amended complaint , the notices of hearing, and the proceedings had during the hearing upon the amended complaint and the petition . We shall refer to United Electrical & Radio Workers of America, Local 720, as the United except where a separate designation is necessary for clarity. ELECTRIC VACUUM CLEANER COMPANY, NO. 593 upon due notice. On May 11, 1937; the Board, acting pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, ordered a consolidation of the two cases for the purposes of hearing. On May 21, 1937, the Board, by the Regional Director, issued its complaint against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. A motion to make the complaint more definite and certain having been filed by the respondent, an amended complaint was filed, on May 27, 1937. A copy of the complaint, ac- companied by a notice of hearing on the consolidated cases, and a copy of the amended complaint, accompanied by an amended notice of hearing on the consolidated cases, were duly served upon the respond- ent and the United. Notice of hearing, and amended notice of hear- ing on the consolidated cases were duly served upon International Molders Union of North America, Local No. 430; Pattern Makers Association of Cleveland and Vicinity; Metal Polishers International Union, Local No. 3; International Association of Machinists, District No. 54; and Federal Labor Union No. 18907; herein jointly called the A. F. of L. Affiliates, all affiliated with the American Federation of Labor, herein called the A. F. of L. Thereafter notices of post- ponement of hearing on the consolidated cases were duly served upon the respondent, the United, and the A. F. of L. Affiliates. The complaint, as amended, charged in substance (1) that the respondent refused to bargain collectively with the United as the exclusive representative of the employees ;n an appropriate bargain- ing unit composed of all employees in the production and maintenance departments, exclusive of clerical and supervisory employees; (2) that the respondent in March 1937, and at various times thereafter interfered with, restrained, and coerced its employees in their right to self-organization, and particularly interfered with, restrained, and coerced its employees by threatening and acquiescing in threats to discharge employees who refused to join labor organizations chosen by the respondent, by uttering and publishing and permitting to be uttered and published statements, advertisements, and declarations of intentions to close its; plant, by closing its plant on March 19, 1937, by refusing on April 5, 1937, to reinstate a large number of employees, by failing or refusing from and after April 5, 1937, to recall to employment 28 named employees because they had engaged in con- certed activities for the purposes of collective bargaining and other mutual aid and protection; and (3) that the respondent had dis- criminated in regard to the hire and tenure of the aforesaid 28 employees for the reasons aforesaid and to discourage membership in the United. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 4, 1937, the respondent filed its answer, which admitted the interstate character of its business and the appropriateness of the unit for collective bargaining set forth in the complaint, but denied the alleged unfair labor practices and stated certain affirmative matter. By way of affirmative defense the respondent alleged (1) that on June 22, 1935, the respondent entered into a 1-year contract with the A. F. of L. Affiliates, which then represented a majority of its employees, recognizing said A. F. of L. Affiliates as exclusive representatives for collective bargaining, and as part of said contract notified its employees that attempted interference with said contract would result in discharge, that employees not then members of the A. F. of L. Affiliates would not be required to become members, but that in the future only members of the A. F. of L. Affiliates would be employed; (2) that on July 6, 1936, a contract, substantially identical with the contract of June 22, 1935, was entered into between the respondent and the A. F. of L. Affiliates, which then also repre- sented a majority of its employees, the contract to be effective as of June 24, 1936, and to run for a year; (3) that on March 20, 1937, the A. F. of L. Affiliates requested the respondent to close its plant tempo- rarily and that it accordingly did so; (4) that the plant remained closed until April 5, 1937, when it was reopened pursuant to a notice published by the respondent and set 'forth in its. answer; (5) that after negotiations between the respondent and the A. F. of L. Affiliates during the period April 5, 1937, to May 20, 1937, and after a majority of the respondent's employees had designated the A. F. of L. Affiliates as representative for collective bargaining and approved such con- tract, the respondent and the A. F. of L. Affiliates on May 20, 1937, entered into contract which included a closed-shop agreement. Pursuant to notice of postponement a hearing on both the petition and the complaint was held in Cleveland, Ohio, on June 10, 11, 15, 16, 17 and 18, 1937, before William P. Ringer, the Trial Examiner duly designated by the Board. At the hearing the A. F. of L. Affilia- ates and the Cleveland Federation of Labor were permitted to inter- vene, both with respect to the hearing on the petition and with respect to the hearing on the complaint. The Board, the respondent, the United, the A. F. of L. Affiliates, and the Cleveland Federation of Labor were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded to all the parties. At the end of the case concerning the unfair labor practices, the respondent moved to dismiss the complaint, which motion was denied by the Trial Examiner. At the same time the Trial Examiner granted a motion by counsel for the Board to amend the complaint to conform to the proof with respect to variations not involving surprise or ma- terial changes. At the conclusion of the hearing the A. F. of L. ELECTRIC VACUUM CLEANER COMPANY, NO. 595 Affiliates moved that the petition be dismissed, which motion was denied. These rulings by the Trial Examiner are hereby affirmed. During the course of the hearing, the Trial Examiner made several other rulings on motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. After the close of the hearing briefs were filed by the respective counsel for the Board, the respondent, the A. F. of L. Affiliates and the Cleveland Federation of Labor. On November 1, 1937, both cases were transferred to and continued before the Board pursuant to Ar- ticle III, Section 10 (c) (2), and Article II, Section 37, of said Rules and Regulations. On July 7, 1938, the Board duly issued its Findings of Fact, Conclusions of Law, Order, and Direction of Election.5 On July 16, 1938, the respondent filed exceptions to said Findings of Fact, Conclusions of Law, and Order. On August 4, 1938, the A. F. of L. Affiliates filed objections to said Findings of Fact, Conclusions of Law, Order, and Direction of Election, and moved that the same be amended. The Board duly considered said exceptions, objections and motions, and on August 23, 1938, overruled said exceptions and objections, and denied said motions. On March 16, 1939, the Board, acting on its own motion, pursuant to Sections 9 (c) and 10 (d) of the Act, and Article III, Sections 8 and 10 (c) (2), and Article II, Sections 37 and 38, of said Rules and Regu- lations, duly notified the A. F. of L. Affiliates, the Cleveland Federa- tion of Labor, the respondent, and the United, that on April 6, 1939, or as soon thereafter as convenient, the Board, unless sufficient cause to the contrary should have appeared, would vacate and set aside its Findings of Fact, Conclusions of Law, Order, and Direction of Elec- tion, issued July 7, 1938, for the purpose of further proceedings before the Board. All parties were granted, but none exercised, the right to file objections and arguments, and to apply for oral argument. On April 11, 1939, the Board duly ordered the Findings of Fact, Conclu- sions of Law, Order. and Direction of Election vacated and set aside. On June 21, 1939, pursuant to Article II, Section 38 (c), and Article III, Sections 8 and 10 (c), of said Rules and Regulations, the Board issued an order directing that Proposed Findings of Fact, Proposed Conclusions of Law, a Proposed Order, and a Proposed Direction of Election be issued, and that the parties have the right, within 20 days from the receipt thereof, to file exceptions thereto, to request oral argument before the Board, and to request permission to file a brief with the Board. Copies of this Order, together with copies of the Proposed Findings of Fact, Proposed Conclusions of Law, Proposed 3 8 N. L. R . B. 112. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order, and Proposed Direction of Election, duly issued by the Board on June 21, 1939, were duly served upon the parties. Thereafter the respondent filed exceptions to the Proposed Findings of Fact, Pro- posed Conclusions of Law, and Proposed Order; and the A. F. of L. Affiliates filed exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, Proposed Order, and Proposed Direction of Elec- tion. The respondent and the A. F. of L. Affiliates requested oral argument before the Board in support of their exceptions. Pursuant to notice served upon all parties, a hearing was held before the Board in Washington, D. C., on September 14, 1939, for the pur- pose of oral argument. The respondent, the United and the A. F. of L. Affiliates were represented at the hearing; all participated in the argu- ment; and the Polishers Union, one of the A. F. of L. Affiliates, filed a brief, which we have considered. The Board has considered the exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, Proposed Order, and Proposed Direction of Election, and the brief in support of the exceptions, and in so far as the exceptions are inconsistent with the Findings of Fact, Conclusions of Law, Order, and Direction of Election set forth below, finds no merit in them. Upon the entire record in the consolidated cases, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Electric Vacuum Cleaner Company, Inc., a New York corporation, manufactures, sells, and distributes electric vacuum cleaners. It has its principal office and place of business at Cleveland, Ohio, and branches in about 100 cities in the United States and Canada, and its trade-mark is registered with the United States Patent Office for use in interstate commerce. Respondent controls Premier Vacuum Cleaner Co., Ltd., of Toronto, and in turn one-third of its own stock is held by General Electric Company. About 75 per cent of the raw materials used by the respondent are obtained outside of the State of Ohio, and about 90 per cent of its finished products are shipped out of Ohio. In the year 1936 it pro- duced over 200,000 units. In 1935 and 1936 respondent employed ap- proximately 800 persons, excluding office workers and clerical and supervisory employees. According to the pay rolls, the number so employed had increased to approximately 900 by the first quarter of 1937, and by May 20, 1937, had further increased to approximately 1100. ELECTRIC VACUUM GLEANER COMPANY, INC. 597 II. THE ORGANIZATIONS INVOLVED United Electrical and Radio Workers of America, Local 720, herein called the United, is a labor organization affiliated with the C. I. 0., admitting to its membership all production and maintenances employ- ees of the respondent, excluding clerical and supervisory employees.4 Metal Polishers, Buffers, Platers and Helpers, International Union, Local No. 3, herein called the Polishers Union, is a labor organization affiliated with the A. F. of L., admitting to its membership all metal polishers, buffers, and platers, and their helpers, employed by the respondent. International Association of Machinists,' District No. 54, herein called the Machinists Union, is a labor organization affiliated with the A. F. of L., admitting to its membership all machinists employed by the respondent. International Molders Union of North America, Local No. 430, herein called the Molders Union, is a labor organization affiliated with the A. F. of L., admitting to its membership all molders employed by the respondent. Pattern Makers Association of Cleveland and Vicinity, herein called the Pattern Makers Association, is a labor organization affiliated with the A. F. of L., admitting to its membership all pattern makers employed by the respondent. Federal Labor Union No. 18907, herein called the Federal Union, is a labor organization affiliated with the A. F. of L., admitting to its membership all production and maintenance employees of the re- spondent, except clerical and supervisory employees and employees who are eligible for membership in any of the above-mentioned unions affiliated with the A. F. of L. III. THE UNFAIR LABOR PRACTICES A. Interference, coercion, and restraint (1) The respondent's labor relations prior to March 1937 In 1934 the Machinists Union,5 succeeded in signing up and obtain- ing partial payment of initiation fees by a considerable number of the respondent's employees. Organizational efforts were not pressed further. By March 1935 most of those who had enrolled had been dropped for non-payment of dues, and few, if any, of the respond- ent's employees were members of the Machinists Union. Meanwhile, in the first part of 1934, most of the polishers in re- spondent's employ were organized in the Polishers Union; and all of 4 See footnote 2, supra. 'Apparently none of the other A. F. of L. Affiliates r^^ticipated in this campaign. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the polishers had joined by March 1935, at which time a strike was called by the Mechanics Educational Society, another labor organiza- tion, hereinafter referred to as the M. E. S. A. During 1934 a shop committee chosen by the polishers, demanded and secured recognition of the Polishers Union by the respondent as representative for collective bargaining for the polishers. The com- mittee also adjusted wages and grievances concerning working condi- tions, but no agreement was entered into by the respondent. There was no testimony that any contract was made between the respondent and the Polishers Union, providing for wages, hours, or working conditions for polishers, and such testimony as there was to the effect that a closed shop was agreed upon is unconvincing and, in part, inconsistent with the undisputed facts. R. B. Wilson, executive vice president of the company, testified that prior to 1935 there was such a closed-shop contract "for years and years," but he did not know "for how many years back" it had existed, admitted it did not have "a beginning or ending time," and finally ad- mitted there was no written agreement. Moreover, although Wilson testified that during this period, the people who were employed in the polishing department were employed through the Polishers Union, William Behrse, chairman of the polishers committee in 1934, and thereafter a member of the committee, testified without contradiction, that only a few of the polishers were members of the Polishers Union in 1932 and 1933; and W. E. Wilson, Leonard Trask, and Edward Wil- son, polishers called as witnesses by the intervenors, testified that they had worked for the respondent from 1925, 1929, and 1933, respectively, but had not joined the union until 1934. ' Ray Muehlhoffer,. business agent of the Polishers Union, contra- dicted Wilson by placing the earliest efforts at collective bargaining on behalf of the polishers as occurring in 1934. Muehlhoffer testified that in 1934, while he was an employee member of the polishers shop com- mittee, the polishers "demanded collective bargaining rights" on the ground that it then represented a majority of the polishers. He lim- ited himself, however, to the statement that, "It was agreed at that time that our organization would represent the Polishing Room." Muehl- hoffer also testified that during negotiations in June 1935 between the A. F. of L. Affiliates and the respondent, "the organizations were asking for an entirely closed shop. I think the reason for asking that was that we had already established that condition." But by "condition" we understand only that Muehlhoffer referred only to the fact that at the time all polishers were members of the Polishers Union, and did not purport to state that the respondent had made any agreement to that effect. ELECTRIC VACUUM CLEANER COMPANY, INC'. 599 On the other hand Behrse, who was certainly in a position to know, categorically denied that the respondent made any closed-shop agree- ment with the Polishers Union.' He was corroborated by Arthur Kruse, another polisher and Howard Lowrance, a welder working in the polishing department, both employed by the respondent since 1929, and both of whom testified they had never heard of any closed-shop agreement. We find that in March 1935 all polishers, though by no means all persons employed in the polishing department, were members of the Polishers Union; membership in other A. F. of L. affiliates was limited to, at most, a few members of the Machinists Union ; no collective agree- ments existed between the respondent and its employees or their repre- sentatives, though the Polishers Union had, for something less than a year, been recognized as the bargaining agent of the polishers. Beginning about October 1934, M. E. S. A., had begun to organize the respondent's employees, except those employed as polishers. In March 1935 M. E. S. A., which meanwhile had enrolled some em- ployees as members, called a strike to secure a wage increase. The M. E. S. A. strike continued for about 10 weeks. Negotiations with the respondent developed into a series of deadlocks. Finally, a group of the strikers asked the A. F. of L. officials to negotiate as their representatives. The A. F. of L. officials declined on the ground that the Polishers Union was the only A. F. of L. organization in a position to represent any of the employees, but offered to undertake negotiations with the management if shown that a majority of the employees were willing to become members of the appropriate craft unions of the A. F. of L. and, in cases where there was no appropriate craft union, an A. F. of L. Federal Union. The group which had appealed for aid shortly succeeded in signing up 176 strikers. The A. F. of L. officials declined to enter into nego- tiations on behalf of such a minority but, upon assurances that a majority could be obtained, held an organizational meeting in the A. F. of L. Metal Trades Hall, which a large number of the em- ployees attended. A proposed contract was submitted to the meeting and after discussion it was voted to approve such an agreement and to return to work if the respondent would sign. The A. F. of L. officials then entered into negotiations with the respondent, stating that they represented a majority of the employees. The respondent insisted that, because of the claims made by M. E. S. A., the A. F. 9 Behrse not only testified that there was no "agreement at all" respecting a closed shop but also denied that membership in the Polishers Union was a condition of employ- ment, though new men were solicited by the committee. We conclude that the somewhat confused testimony of W. E . Wilson, a polisher , and John Fox , assistant foreman of the polishing department, as to a closed -shop contract related to the alleged agreement made between the respondent and the A. F. of L. Affiliates in June 1935 ( see infra). 283029-41-vol. 18-::9 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of L. Affiliates should produce proof that .a. majority of the employees had become members. This the A. F. of L. Affiliates were unable to do at that time, but the negotiations proceeded upon their promise that the proof would be forthcoming. On June 22, 1935, immediately after membership cards for 608 of the then approximately 799 employees were presented to the respond- ent and checked, the respondent and the A. F. of L. Affiliates entered into a written contract for 1 year, which provided for seniority, an 8-hour day and a 40-hour week. The plant reopened on the following Monday and the employees returned to work. In the course of the negotiations with the respondent, the A. F. of L. officials demanded a completely closed-shop agreement. The respondent took the position that it would not be fair to its employees, many of whom had been working there for years, to require them to join an organization, but made the counterproposal that all em- ployees hired thereafter should be required after a work-probation period of 2 weeks to become members of the appropriate A. F. of L. union. The counterproposal was accepted but was not incorporated into the written agreement. On July 6, 1936, the written agreement was renewed with one minor change in its provisions, to be effective as of June 24, 1936, and to run until June 23, 1937. The A. F. of L. Affiliates, who were again required to prove their majority, presented membership cards of 771 of the approximately 809 employees. Comparison of the July 1936 pay roll with the June 1935 pay roll shows that approximately 409 of those who had been employed June 22, 1935, (whom we will refer to as the old employees) were still employed, and that the other approxi- mately 100 persons had been hired subsequent to June 22, 1935. In negotiating the 1936 contract, the A. F. of L. Affiliates, whose membership now included all but approximately 38 of the respond- ent's employees, renewed their demand for a closed-shop contract but accepted instead an oral renewal of the previous agreement relating to new employees. It is contended by the respondent that the oral agreements were not limited in their application to persons hired subsequently (whom we will refer to as the new employees). It is claimed that under the oral agreements, old employees who were members of the A. F. of L. Affiliates at the time they were entered into were required to remain members in good standing and that other old employees, though under no obligation to join the A. F. of L. Affiliates, were required upon becoming members to maintain such membership. It is further con- tended that the employees were notified of the terms of the oral agree- ments. We find none of these contentions sustained by the evidence. ELECTRIC VACUUM CLEANER COMPANY, INC. 601 We are satisfied that the oral agreements related only to new employ- ees,' and that the employees were never notified of their existence. Muehlhoffer and Ralph Gordon, business agents of the Machinists Union, the only representatives of the A. F. of L. Affiliates who testi- fied to the 1935 negotiations, merely stated that a demand was made for a completely closed-shop contract, that it was rejected, that a proposal was then made that new employees be required to become members and that an agreement was reached upon that basis. Paulus, the respondent's superintendent, who stated that he was familiar with the June 1935 contract, testified that there was no requirement as to old employees, and, that the agreement simply was that "the new people coming in were to join the union." On June 12, 1936, approximately a week before the expiration of the 1935 contract, the respondent's president, Julius Tuteur, wrote to the Director of the Board's Regional Office at Cleveland, with whom the respondent had had some conversations. The letter, after reciting that respondent was operating under the 1935 contract and that a copy thereof was in the Director's possession, added, apparently thereby disclosing for the first time to the Director the existence of any further agreement, "We further wish to advise you, in confidence, that we said at the time we signed the written agreement with these unions, orally, that each new employee would be required to become a member of the A. F. of L. unions within 2 weeks after date of employment." a R. B. Wilson, who signed both the 1935 and 1936 contracts on behalf of the respondent testified with respect to the oral agreement that "from the time of our first entering into an agreement with the Ameri- can Federation of Labor, it was understood with us that every em- ployee, coming into our shop, would be required at the end of a 2-weeks' period to either join the Federation of Labor or leave." Muehlhoffer, the only union representative who testified as to the negotiation of the 1936 contract,° stated that, "In 1936, we again entered into an agreement that, as our relationship on a verbal basis had been satisfactory, we were willing to continue with the verbal agreement, or part of it, but it was insisted again that some of the employees in that plant must come into our organization." R. B. Wilson, however, testified that the oral agreement of 1935 was merely renewed in 1936 4 We so stated in our Proposed Findings of Fact ; the A. F. of L. Affiliates took no exception thereto and at the oral argument before the Board did not question the correct- ness of such a finding. 9 The letter of June 12, 1936, was offered in evidence to corroborate the testimony that an oral agreement had been made. It, however , reinforces the conclusion we would have drawn independently from the evidence; that the oral agreement was by its terms limited to new employees ; that non-incorporation of the oral agreement in written contracts was deliberate ; and that employees were not notified of its existence. O John Toth , business representative for the Machinists Union testified that, when he began his duties in the latter part of 1936, Gordon merely informed him that there was an oral agreement that new employees were to become "members of the respective craft organizations." 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that prior to 1937 the respondent did not know whether new em- ployees had joined the A. F. of L. Affiliates. That the oral agreements did not relate to old employees is further shown by the experience of Harold A. Keehl, one of the old employees who joined one of the A. F. of L. Affiliates in the early part of 1936. Later in the year, when he had fallen behind in his dues for 6 months, Keehl was called to the plant office where he was asked by R. W. Waterbury, the respondent's accountant, why he,had not paid his dues. Keehl answered that he was short of funds, and asked point-blank, "Do I have to belong to the Union as long as it is not a closed shop ?" Waterbury, who though the respondent's accountant, actively handled the respondent's labor relations along with R. B. Wilson and George R. Paulus, general superintendent, answered, "Well, I don't want to discuss that. We have an agreement and the only thing I can tell you, the best thing to do is to pay your dues." 10 Waterbury did not deny the conversation. Had there been any agreement that old em- ployees remain members in good standing in the A. F. of L. Affiliates, it is reasonable to believe that Keehl would have been told of its existence on this occasion. The respondent in its brief submitted after the hearing, places con- siderable reliance upon the testimony of R. B. Wilson that it was announced on the reopening of the plant in 1935, and that employees were thereafter notified by a notice posted on the bulletin board, that they "would be considered as working against the interests of the company and as such subject to discharge" if they "did anything to disturb the peaceful and friendly relationship" between the respondent and the A. F. of L. Affiliates with whom it had just contracted. Irre- spective of what the respondent might then or thereafter have deemed "to disturb the peaceable and friendly relationship," 11 the caveat did not bring the old employees within the terms of the oral agreement. It did not even give notice to new employees of the existence of any agreement which required that they become members of the A. F. of L. Affiliates. To establish that employees were notified of the oral agreement, 11 general employees were called as witnesses by the intervenors. Harry Denner, the only new employee among the 11, testified, how- ever, that though he was hired about July 1, 1935, nothing was ever said to him about any requirement that he join a union, and he did not become a member of the A. F. of L. Affiliates until April 1937. Matt Denmore who had been president of M. E. S. A. local, testified he "knew" when he joined Machinists Union in August 15, 1935, that "new" men "were supposed to be in the union." M..C. Parks, who had been an active member of the M. E. S. A. shop committee, and who 10 Waterbury and the shop steward arranged for Keehl to pay his arrears in instalments. n Cf. Section III A (2), infra. ELECTRIC VACUUM CLEANER COMPANY, INC. 603 also joined the Machinists Union in August 1935, merely testified that there was such a "general understanding in the shop." Leonard Trask, who testified that he had participated in the 1935 negotiations, dis- credited himself by testifying that it was a closed-shop agreement whereby "all the employees in the plant ... were to be members" and that it was so understood among the employees, and he also contra- dicted other old employees by stating that. there were "no discussions" of the agreement. The testimony of the other seven old employees was substantially the same; none of them indicated a source of knowl- edge other than general plant gossip and rumors; two of them, W. E. Wilson, a polisher, and John Fox, an assistant foreman in the polish- ing department, "heard" or "understood" that the oral agreement required all employees to be members of the A. F. of L. Affiliates, though W. E. Wilson later modified his testimony to give an equally imaginative version of the agreement : that it was a closed-shop con- tract as to polishers but required only new employees in other jobs to become members of the A. F. of L. Affiliates. Notice to employees of the terms of the oral agreement was sought also to be shown by the testimony of R. B. Wilson, Paulus, and Gordon. Wilson testified that each foreman did his own hiring and advised new employees at the time of employment that they "would have to join the American Federation of Labor within 2 weeks or would be discharged." Paulus testified that in 1935 he instructed each foreman "to tell every man when he employed him, that he was required to join the Union within 3 weeks from the time he started" and that he checked up on his foremen "at almost regular intervals, asking if they had followed those instructions." Gordon testified that in 1935 it was "the understanding that foremen would so advise new employees." In 1937 Gordon again took charge of the affairs of the Machinists Union at the respondent's plant. According to him, he did so in order to bring to the respondent's attention the failure of recently hired employees to become members of the Machinists Union ; secured per- mission for one representative of the Machinists Union to talk to the men in the plant; and had Toth, another business representative of the Machinists Union, go through the plant with the shop committee for that purpose. Gordon testified that on this occasion the new men "doubted the custom" and "were called into the respondent's office. with all the employees so there could be a verification of the established precedent," 12 and that, when the new employees nevertheless denied knowledge of the oral agreement, they were contradicted by the foremen. 12 According to Gordon 's testimony "the established precedent " to be thus verified was "the understanding that all employees had to join the Union." This, of course, Is at variance with the contention that at these conferences in the respondent 's office only new employees were asked to become members of the A. F. of L. Affiliates . See Section III A (2), infra. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are satisfied, from the evidence introduced by the respondent and intervenors themselves, that prior to 1937 new employees were not notified of the oral agreement. The testimony that the foremen notified the new men of the agreement, or that they were instructed to do so cannot be reconciled' with the fact that, as late as June 12, 1936, the respondent expressly stated in a letter that it wished the existence of the agreement to be kept secret. We are unable to accept Gordon's explanation of his version of why the new employees were called to the office or what then transpired. He testified that "the agreement was explained to them and invariably the fellows would say : `Well, we are sorry we didn't know anything about it"'-yet when he was asked whether he was present, Gordon answered, "I believe I was, yes." We also are unable to believe his statement that although the foremen had advised new employees, when they were hired, that the respondent had an agreement with the A. F. of L. Affiliates which required them to become members within 2 weeks, that although such notice was repeated by the business representative of the Machinists Union in the presence of a shop committee, workers remained so incredulous that it was necessary that there be a further verification of the established custom," by confrontation by other employees and by foremen. Finally, if the new employees had been notified of the oral agree- ment, it is not unreasonable to expect that some of them would have been called as witnesses 13 or that the foremen alleged to have notified them would have been called. Neither were called, although five new employees 14 called as witnesses by the Board had testified that they had not been given notice of the agreement. (2) Interference, coercion, and restraint in March, April, and May 1937 In March 1937 employees working in the machine shop were called into the respondent's office where they were spoken to by Julius Tuteur, R. B. Wilson, Paulus, Waterbury, and the officials of the A. F. of L. We have referred to Gordon's testimony that new and old employees were called into the office so that the new employees who denied knowl- edge of the oral agreement might be confronted by their foremen, and so that the agreement might be "explained" to all employees. Toth, who according to Gordon rounded up the employees, did not mention the alleged confrontations; nor for that matter did anyone 13 The pay rolls in evidence show at as late as May 20, 1937 , of the approximately 1100 persons then employed by the respondent, approximately 519 were new employees, and that of the 519, approximately 58 had been hired during the term of 1935 contract, and approximately another 186 had been hired before the events of March 1937 which resulted in the shutting down of the plant. R. B. Wilson testified that the number employed May 20, 1937, in non-supervisory and non-clerical jobs was approximately 1032. '4 Two of the five, James Mitchell and Rudolph Rummel, were still employed by the respondent. ELECTRIC VACUUM CLEANER COMPANY, INC. 605 else. Toth testified that, on these occasions, Paulus merely told the employees that the company had an agreement whereby the new em- ployees were required to join the Machinists Union but explained that old employees need not. Moreover Toth admitted that he did not know whether the men to whom Paulus spoke were new or old em- ployees, and that on one occasion, when seven men were called in nothing was stated at the conference to indicate that there was a difference between old and new employees. Waterbury testified that old employees were summoned to the office "to be sure they understood exactly our contract." Like Toth, he ventured no explanation as to why this was thought necessary or de- sirable, was uncertain whether any new employees were called in, and professed to be unable to remember whether any of the employees signed union cards in the office. Paulus testified that the groups called in were from the machine shop, and that they "were old men who had been there a long time, men I felt I knew very well." He stated that they were called in because the officials of the Machinists Union had asked for his "assist- ance" in signing up new employees. According to Paulus, he, Water- bury and Toth explained the contract to the old employees and asked them to aid in getting the new employees to join the Machinists Union. Paulus did not testify that any new employees were called to the office, admitted that on one visit to the office five of the employees signed cards, and also admitted that. Edward Ramsey, an old employee, was discharged when he refused to sign. On that occasion, Paulus testi- fied, there were present with him not only Toth and Gordon, business agents of the Machinists Union, but also Muehlhoffer, business agent of the Polishers Union, and Lenahan, Secretary of the Cleveland Federation of Labor, and that it was Lenahan who asked that Ramsey be discharged. R. B. Wilson, who also admitted that Ramsey was discharged be- cause of his refusal to join the Machinists Union,' recalled that Mc- Kinnon, general organizer for the A. F. of L., was also present at the time. Wilson did not purport to explain why the men were called to the office, except to say that he warned them that "any employee of ours who did anything to disturb the friendly relationship existing be- tween our company and the American Federation of Labor would be considered as operating against the best interests and subject to dis- missal." What this warning was intended to mean to employees and what it undoubtedly conveyed to them is to be gathered from a consideration of what was happening in the machine shop meanwhile. "The circumstances with respect to Ramsey 's discharge are more fully considered below. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wilson admitted that about this time 16 Muehlhoffer, business agent of the Polishers Union, and Newman and Rhinehart, members of the polishers committee, advised him "there was some agitation in the machine shop," that he told them that they were "unduly alarmed" and that "we would proceed to investigate the matter." Calling the employees to the office was obviously Wilson's idea of an investigation. And the import of the conferences that followed is evident when it is noted that "the agitation in the machine shop" was by then an organ- ized movement among the employees to sign up members for United. Although allegedly about a hundred new employees had been hired in the machine shop since July 1936 and not joined the A. F. of L. Af- filiates, that obviously was not the cause of the occurrences of March 1937. Indeed, Gordon's testimony that the Machinists Union sought out the management at this time to obtain permission to solicit new members at their work was transparently untrue in view of the fact that the A. F. of L. Affiliates had had that privilege since 1935. What was at issue was the possible defection of all employees to. United. Otherwise, for example, there is no way to account for the admitted presence of Muehlhoffer, business agent of the Polishers Union, Lena- han, Secretary of the Cleveland Federation of Labor, and McKinnon, general organizer of the A. F. of L., in the office when employees from the machine shop, were called in, and Lenahan's admitted role on those occasions. This fear of United first manifested itself in the treatment of Edward Rericha, several days before the first group of employees were called to the office. Rericha, a member of the Polishers Union, had been employed by the respondent as a polisher for 11 years. On several occasions prior to March 11, he discussed the C. I. O. with other men in the plant and suggested that if they "would all belong together" (obviously referring to their belonging to one -union rather than the several A. F. of L. organizations), "we would get better results." When Rericha came to work on March 11, he found his time card withdrawn and when he asked the reason was referred to Rhine- hart, of the polishers committee, who sent him to Muehlhoffer. When he went to the union's office he was accused of talking against the union and of being a member of the C. I. O. for the past 2 months. It appears that he was formally tried for delinquency in dues but, because of the protests of his fellow polishers, those charges, too, were dropped and he was told to return to work March 22. 17 About March 15 Theodore Vitosky, employed in the machine shop, objected to Toth's efforts to sign up a new employee who had not is Wilson fixed the occasion as "On the morning of Thursday, March 18th, I believe was the date . . See infra. 17 Rericha was admittedly late in his dues but had arranged with the secretary of the Union to make payment on pay day , March 12. ELE'C'TRIC VACUUM CLEANEiR COMPANY, INC. 607 been promised a steady job, remarking, "It looks like a racket." Toth answered he "didn't have to take that" and obtained Vitosky's name from the timekeeper. The next day Vitosky and four other employees were sent to the office by Sam Wagner, general foreman of the machine shop. Of the five employees, Vitosky and at least one other, Elmer Lejinsky, were old employees.," In the office they found Paulus, Waterbury, Toth and some other persons whom Vitosky did not recog- nize. Before .they left the office, Vitosky and his companions had all signed union cards. As we have pointed out the respondent offered no explanation for this. We accept Vitosky's testimony that they signed because Paulus asked them to and refused, to allow them time to consider the matter. On March 16 Paulus was seen in the machine shop, stopping at machine after machine, and signalling the representatives of the Machinists Union to come over. When Edward Koutnik, employed in that department, came to work at 11 o'clock that morning, several hours after the shift began, he found the shop in confusion and was approached by a number of employees who told him that the "A. F. of L. organizers are down here and they are trying to make everybody sign up." Later in the day, Koutnik and Howard Low- rance, a welder in the polishing department who was a member of the United, agreed that Lowrance would arrange for a meeting with a representative of United and Koutnik would pass around word of the meeting. The next afternoon, after work, Scott, a United organizer met with about 60 employees. They signed cards and re- ceived others which they took into the plant the next morning and began to sign up other employees. On the morning of March 17, Clyde H. Boyes, a subforeman, and himself an old employee, was sent to the office, together with six old employees in the automatic department of the machine shop.19 Boyes testified that McKinnon, (general organizer for the A. F.. of L.) and Toth, in the presence of Paulus, Julius Tuteur and four or five others whom he did not recognize tried to get them to sign cards but that after a dispute over initiation fees they returned to work without signing. About 2 o'clock that afternoon Boyes and some of the auto- matic men were recalled to the office. This time, Paulus said he thought they were intelligent men who would want to hold their jobs is Vitosky could not identify by name two of the men who went with him to the office. One, whom he called "Peter Jacobs," does not appear under that designation on the pay roll. The pay rolls , however, do show an "Elmer Ledinsky" (and no one else with a similar name) who must be "Lejinsky," and show him as still in the machine shop as late as May 20, 1937. 19 Boyes named as his companions, Patrick Barrett , Ed Cauley , Jim Crenie, Ross Green, Andy Hegedus, and Louis Young. The pay rolls show all of them were old employees in the machine shop. "Cranie" appears as "Cromie," Ross Green sometimes appears as "Ross. Greene" or "C. R. Greene" (though with the same chock number) on the pay rolls. All were still employed as late as May 20, 1937. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and could use their influence on the other employees. Boyes testified that Waterbury then told them "they wanted an answer soon" because the Polishers Union had threatened to strike if the employees in the machine shop did not sign up, and added that this would result in their being "out on the street." Waterbury denied making such a statement but neither he nor anyone else denied that this was the second time in one day that these employees had been called to the office. Nor was there any denial of Boyes' testimony that he and some of the same men were called in again on March 18. No one can believe that they were summoned the second and third time for the purpose of being informed as to the existence of the oral agreement. We find Boyes' testimony as to this and the previous visits convincing. On the third occasion Paulus, Wilson, Waterbury, Lenahan, McKinnon and several others were present. Lenahan asked the automatic men to sign a card and when they walked out again without complying Lenahan told Wilson "they should be discharged." Waterbury's warning on the afternoon of March 17 of a strike by the Polishers Union followed only a few hours after Muehlhoffer had proposed a strike to the polishers committee because the men in the machine shop were "joining C. I. 0." Behrse, one of the com- mittee, testified that when no decision was reached Muehlhoffer took Newman and Rhinehart, the other two members of the committee, to the office; that on their return Newman, who was chairman of the committee, reported that they had proposed a strike to Wilson, but that the latter had said "it was not necessary, that it was nothing serious about it, but he was going to make them join the American Federation of Labor Union, and if they don't he would fire one or two so the rest of them will join." Though hearsay, this testimony as to the threat being made to Wilson is satisfactorily corroborated by Boyes' testimony as to Waterbury's warning. Wilson, we have noted, admitted the visit by Muehlhoffer and the committee. He denied, however, that a strike was threatened or that he had made the statement imputed to him. His denial is not persuasive. He ad- mitted warning those called to the office that if they "did anything to disturb the friendly relationship" with the A. F. of L. Affiliates they "would be subject to dismissal," he gave no explanation of why, after the visit by Muehlhoffer and the committee, Boyes and the other automatic men were twice recalled to the office, and he admitted that on March 18 Ramsey was discharged for refusing to sign a card in the office. Edward Ramsey, together with "Vargo" or "'Lefty' Fargo," Kiss and "a fellow from the Automatic room" (who seems to have been Louis Young) were sent to the office by Sam Wagner, the general foreman, about 2 o'clock in the afternoon on March 18. Ramsey, ELECTRIC VACUUM CLEANER COMPANY, INC. 609 Vargo and Kiss were old employees (as was Young). 20 In the office Lenahan acted as spokesman for a group which included Waterbury, Toth, Paulus, Gordon and Muehlhoffer. Ramsey testified that Lena- han said the A. F. of L. "had a contract with the firm and the boys would have to sign up," 21 that all but Ramsey signed and returned to work; that Ramsey persisted in refusing to sign; that Lenahan then told him he was fired, whereupon, Ramsey went back to the machine shop. No one denied Ramsey's testimony as to what happened to him personally; on the contrary, both Wilson and Paulus admitted that this was what had happened. Nor was there any direct denial made of Ramsey's testimony so far as it related to Vargo, Kiss, and the "fellow from the automatic room." We see no reason to doubt that portion of Ramsey's testimony and find the facts to be as stated by him. We are further impressed by the failure of the respondent or intervenor to call as a witness, as to what happened in the office, a single fellow employee named by Vitosky, Boyes or Ramsey, or for that matter, any other employee, old or new. As we have pointed out Ramsey was told in the respondent's office by Lenahan in the presence of Paulus, the respondent's superintend- ent, that he was "fired." Lenahan also ordered him to "step out into the other room." This Ramsey did, waited a few minutes in the next room watching the other men sign up, and then returned to his de- partment. Under the circumstances, the silence of Paulus, who was in charge of hiring and discharge, was reasonably regarded by Ram- sey as indicating that Lenahan acted with the acquiescence and ap- proval of the respondent. Nor may the incident be brushed aside, as suggested by the A. F. of L. Affiliates at the oral argument before the Board, on the ground that while Lenahan "had no right" to tell Ramsey that he was discharged, Lenahan "was pulling a legitimate bluff." The record leaves no doubt that Lenahan's purported exercise of authority on behalf of the respondent was coercive because it was understood by Ramsey to be, and the respondent knew it would be understood to be, the action of the respondent. Moreover, it is un- necessary to determine whether under principles of agency Ramsey's discharge was effected instanter upon Lenahan's declaration. The contention of the respondent that "it fairly appears that no one was discharged," is not, in any event, supported by the record. Paulus ad- mitted that he-sent for Wagner, Ramsey's foreman and told him that Ramsey "was fired." Further, Wilson flatly testified that Ramsey 20 We have already referred to Louis Young. See footnote 16, supra. The pay rolls show only one "Vargo" (and no "Fargo" in the machine shop ). The "Vargo," "Frank Vargo." was an old employee. The pay rolls also show only one "Kiss ," "Gus Kiss," and show he was an old employee . Both Vargo and Kiss were still employed as late as May 20. 1937. 21 Cf. footnote 12, supra. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was discharged by his foreman as the result of the request of the A. F. of L. The further contention is made that the respondent, shortly after he left the office, realized that Ramsey was an old employee and should not, therefore, have'been discharged; that Paulus at once sent for Ramsey to notify him that he had not been discharged; but that Ramsey "refused to return to the office to be given this word." Mean- while, the men in the machine shop on hearing of Ramsey's discharge sat down, Ramsey joining in the sit-down. According to the re- spondent Ramsey's refusal to return to the office is to be explained on the ground he was "excited and (not) interested enough to return to the office," and that the men in the machine shop persisted in the sit-down after Paulus had told them to go home and return in the morning, simply because they "had made up their minds to sit and this they proceeded to do arbitrarily, without justification and in violation of their agreement." The A. F. of L. Affiliates advance another explanation for Ramsey's refusal to return to the office, it being their contention that the strike had no relation to Ramsey's discharge, but was a deliberate step in the organizational campaign of the United. At the oral argument, the respondent and the A. F. of L. Affiliates, for the first time, advanced the further contention that the strikers committed acts of violence and wantonly destroyed the respondent's property. The respondent and the A. F. of L. Affili- ates rely upon the facts thus asserted to explain and justify the con- duct of the respondent following the termination of the sit-down on March 19. Further, the claim that the discharge of Ramsey was the result of an error, and was sought to be corrected immediately, is urged to support the contention that the respondent had engaged in no unfair labor practices prior to the strike. We shall review the course of events immediately preceding the strike, and then consider the-further contentions with respect to the cause of the strike and its conduct. The claim with respect to Ramsey's discharge is stated as follows in the brief submitted by the respondent to the Trial Examiner after the hearing : 22 There is no testimony as to what occurred immediately after Ramsey left the meeting with Lenahan. There must have been some discussion, for Paulus then realized that Ramsey, being an old employee, should not be discharged for failure to join the union, and so Paulus testified (p. 695), and Ramsey testified, Paulus sent for Ramsey to notify him that he. had not been dis- 22 The position of the A . F. of L. Affiliates was stated as follows at the oral argument before the Board : "It turned out that Ramsey was an old employee-preceding when the agreement of 1935 was made. That was discovered almost instantly, and a messenger was then sent to tell him that don 't apply to you ; a.nd he says 'I won't come.' " ELECTRIC VACUUM CLEANER COMPANY, INC. 611 charged, but Ramsey refused to return to the office to be given this word and in the meantime the sit-down had started. The claim that Paulus or Ramsey so testified completely misstates the record. Paulus' testimony as to the events following Ramsey's departure from the office is as follows : . Q. Was there anything said at that meeting about Ramsey being discharged? A. Yes, sir. Q. Who said that and what happened? A. Mr. Lenahan, requested that we discharge that man. Q. What was done about Lenahan's request? A. I sent for the foreman of the Tool Room or the foreman of the Machine Shop and told him that he should discharge that man. Q. Now, about what time was that? A. I would say two o'clock in the afternoon. Q. Now, after, as you say, Ramsey had been notified of his discharge, what if anything did you do? A. I notified the foreman of the Machine Shop, and that is all I did do at the time. Q. After that, what wa's done? A. After that, the foreman of the Machine Shop came in and told me that the men were sitting down in the Machine Shop. Q. Did you send for Ramsey at that time? A. We sent for Ramsey then and called him back again and he refused to come in. Q. What was the purpose in calling Ramsey back? A. We wanted to tell Mr. Ramsey that we did not want to discharge him, we reconsidered it. Q. And he refused to return? A. Sir? Q. He refused to return? A. Yes, sir. Q. Did you go down to the shop after you learned of the sit-down? A. Yes; I went into the factory. It was about three o'clock or three-thirty that I went into the factory. Q. Did you say anything to the men at that time? A. They were standing around in different groups, and I pat- ted them on the back and told the men that I thought they should go home and come back to work in the,morning. Q. What did you say at that time about anybody having been discharged? A. I didn't say anything. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Did you make the statement to any of the men that Cawley 23 had not been discharged? A. No; I mentioned no names about anybody being discharged. I mentioned no names. Q. There has been some testimony here that at that time you made the statement in effect: "Forget about any discharge and go home and come back to work in the morning"; do you remember making that statement? 24 A. I didn't make that statement. The only thing said was that they should go home and come back in the morning. I didn't say anything about any discharge.25 Ramsey testified that he was given no reason for the request to return to the office and that no one thereafter told him that he was not dis- charged, and we find that the facts are as stated by him. It is to be noted that Paulus did not testify that he decided to recall Ramsey to the office because it had been discovered that Ramsey was an old employee and, therefore, not properly discharged. Moreover, Paulus did not testify that he instructed Wagner to advise Ramsey that the reason for his recall to the office was to withdraw the dis- charge. Indeed, it is apparent that Paulus' testimony that it had been decided to withdraw the discharge is not to be credited in view of his admission that, during his subsequent visit to the machine shop, he made no statement either to Ramsey or the other strikers that the dis- charge had been reconsidered. The record clearly discloses that Ramsey's discharge was not the result of any mistake. Not only is there no evidence that it was, but it affirmatively appears that it was not. Ramsey was not an employee on the border-line between old and new employees. He had been in the respondent's employ for over 7 years. It is inconceivable that Paulus and Waterbury thought he was a new employee. Moreover, it clearly appears from Paulus' testimony that he was under. no mis- apprehension. He admitted that the men called in from the machine shop "were old men who had been there a long time, men I knew very well." Furthermore, Vitosky, who on March 16 had been compelled to sign a card in the presence of Paulus and Waterbury, had been in the respondent's employ for almost 9 years; and Boyes, a subforeman who three times on March 17 and 18 and been solicited in the presence of Paulus and Waterbury to sign a card, and on the last occasion, shortly before Ramsey's discharge, had been threatened by Lenahan with discharge, had been in the respondent's employ for 12 years. It 23 Obviously a typographical error ; the reference is plainly to Ramsey. m The reference is to the testimony of Koutnik, who was clearly in error. u The testimony quoted appears at pp. 595-597 of the record . Subsequently Paulus admitted that after Ramsey had left the office, he, Paulus notified Wagner that Ramsey "was fired." ELECTRIC VACUUM CLEANER COMPANY, INC. 613 is patent that Ramsey was not recalled because of any discovery that he was an old employee but because his discharge had been immediately followed by a strike. The record is clear, and we find, that beginning on March 16, the respondent set out to forestall the organization of its employees by the United, and to compel them to sign up in the A. F. of L. Affiliates. As_ we have pointed out above, prior to March 1936 employees were not advised of the existence of the oral agreement. The record fails to show the name of a single new employee among the persons called into the office on March 16, 17, and 18, and the circumstances set forth above lead us to conclude that the new employees were not called in, and quite understandably so. The concern of the respondent was not over the failure of some new employees to join the A. F. of L. Affiliates, but with the possibility of disaffection by the approximately 630 old employees who constituted more than two-thirds of the 932 persons on the pay roll, and none of whom were covered by the oral agreement and whose affiliation with the United would not only constitute that organization the representative of a majority of the employees but obviously would have swung, or at least been most likely to turn, the new employees to the United. Faced with this situation the respond- ent summoned the old employees to the office and there sought to, and in many instances was able to, coerce them into joining the A. F. of L. Affiliates. Its action was plainly an interference with the right guar- anteed its employees by Section 7 of the Act. Only by virtue of the proviso contained in Section 8 (3) of the Act 26 was the respondent entitled prior to March 1937, to require new employees to join the A. F. of L. Affiliates. That right it then had because of the provisions of the agreement made in 1935, and renewed in 1936 when the A. F. of L. Affiliates represented a ma- jority of the employees and had not been assisted by any unfair labor practice by respondent. However, the rights of old employees guaranteed by Section 7 of the Act were unaffected by the agree- ment. The agreement placed no limitation upon their right to be- come members of the United and to encourage other old employees to become members, or to,decline to join, or to drop their membership in the A. F. of L. Affiliates, or to persuade other old employees to do so. Nor did the agreement inhibit old employees from urging such action upon new employees. Of course new employees who forsook or refused to join the A. F. of L. Affiliates after being advised of the oral agreement could be discharged pursuant thereto. But it 26 The proviso clause of Section 8 ( 3) reads : "Provided , That nothing in this Act .. . shall preclude an employer from making an agreement with a labor organization (not established , maintained , or assisted by any action defined in this Act as an unfair labor practice ) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in Section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made." 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not follow that the respondent was entitled to interfere with the efforts of old employees to induce new employees to join the United or to change their affiliation from the A. F. of L. Affiliates. The agreement did not purport to give the respondent any such right.27 Moreover, the proviso does not permit imposition of the penalty in a case where no notice has been given of the existence of the agree- ment. The proviso in permitting the employer "to require member- ship" in a labor organization manifestly implies that the employee shall be advised that the employer's action is taken pursuant to an agreement. Otherwise employees would have no means of knowing whether they were being illegally discriminated against, or whether the employer was simply enforcing a valid obligation. The proviso was hardly intended to permit equivocal employer conduct, so likely to precipitate industrial conflict over what employees, in view of the employer's silence, quite reasonably would conclude was an inter- ference with rights guaranteed to them by Section 7 of the Act. The respondent's conduct, manifestly illegal on March 16, 1937, did not become permissible action on March 17, because the A. F. of L. Affiliates threatened to strike unless the employees in the machine shop joined those organizations; the threat afforded no justification for the continuance of the flagrant interference with the rights of employees.28 We have referred above to the contention of the respondent that the employees in the machine shop went on strike "arbitrarily" and "without justification" and to the contention of the A. F. of L. Affiliates that the strike was part of the plan of the United to organize the plant. The record, however, shows that the strike was the direct result of the respondent's illegal action, that it was decided upon only after the threat by Lenahan on March 18 to Boyes and the other automatic men that they "should be discharged" for refusing to join the A. F. of L. Affiliates, and that it was finally precipitated by the discharge of Ramsey. The record further establishes that the strike was a defensive measure and not an organizational tactic; that it was terminated at once upon the respondent agreeing that the illegal conduct of the past few days would cease. Finally, the record leaves no doubt that such violence and destruction of property as occurred, and there was little of either, is to be attributed to the A. F. of L. Affiliates. As we have pointed out above, a group of approximately 60 em- ployees met with Scott, the United organizer, on the afternoon of March 17, signed cards, and received others to be used in soliciting 27 Whether an agreement purporting to give the employer such a right would be invalid under the Act, we find it unnecessary to decide in the instant case. 28 Cf. Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82. 4 N. L. R. B. 498, enforced in National Labor Relations Board v. Star Publishing Company. 97 F. (2d ) 465 (C. C. A. 9th, 1938). ELECTRIC VACUUM CLEANER COMPANY, SNC'. 615 members. There was no discussion of a strike, and the strike the next day was a complete surprise to Scott. The calling of a strike was first discussed by the men in the machine shop after Boyes and the other automatic men reported the threat made by Lenahan in the presence of Paulus and Waterbury. When Ramsey and his group were called to the office the men in the machine shop agreed that they would strike if any discharges followed. The record is unclear only as to whether the strike followed immediately after Ramsey returned from the office or whether confirmation of the discharge through Wagner intervened. That the strike was caused by Ramsey's dis- charge is plain, and the contention to the contrary is in the teeth of Wilson's admission that the respondent knew it to be the cause. Wilson testified that "The reason was that an employee [later identi- fied by him as Ramsey] had been discharged at quitting time, a few minutes before, and as a demonstration about that the employees you have referred to [i. e. the employees in the machine shop] stayed overnight." 29 The strike by the employees in the machine shop was not conducted as an organizational strike. No attempt was made to prevent the operation of the other departments. While employees in some of the other departments on hearing of the strike quit work, the shift ended shortly after the strike began, and employees in the other depart- ments left the plant; the men on the next shift worked except in the machine shop. During the evening some of the strikers asked em- ployees in the plating department to join in the strike. This led to a heated argument with Muehlhof£er, business agent of the Polishers Union, which included employees in the plating department, and Rhinehart, a member of the polishers committee. When the matter came to the attention of Koutnik, one of the leaders of the strike, Koutnik took the position that since the employees in the plating de- partment were represented by the Polishers Union, and had been ordered to work by their representatives, the strikers should not seek to involve them in the strike; and the solicitation ceased at once. The strike remained limited to the machine shop, the employ- ees in which were the persons who had been subjected to the respond- ent's illegal action. Indeed, there is no evidence that any employee in the machine shop wished to work but was prevented from doing so by the strike, although the pay rolls in evidence show that many of them were still employed by the respondent at the time of the hear- ing and therefore available as witnesses. The strike by the employees in the machine shop was clearly a defensive step, and the claim of the respondent that the men struck 48 Later in his examination Wilson was asked whether " as a result" of Ramsey's dis- charge "the employees protested by a sit-down." His answer was "Yes." 283029-41-vol. 18 40 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "arbitrarily, without justification and in violation of their agreement" is manifestly without merit. The action of the respondent which caused the strike was illegal, and was, moreover, action approved, and there can be little doubt, instigated by the A. F. of L. Affiliates. The claim now made that the employees in the machine shop had avail- able and should have resorted to the procedure provided in the con- tract for settlement of grievances by negotiations between the respondent and the A. F. of L. Affiliates flouts common sense.30 Whether the strike constituted a trespass upon the respondent's property it is unnecessary to decide, although we note that the respondent at no time ordered the men to leave the plant. None of the strikers were denied reemployment by the respondent because of their participation in the strike.31 Nor, as we shall point out, are the respondent's actions subsequent to the termination of the strike to be attributed thereto. Apparently in an attempt to establish such a causal connection between the strike and the respondent's actions after its termination, the respondent and the A. F. of L. Affiliates urged at the oral argument before the Board that the strike was violently conducted and involved the wanton destruction of property by the United. The contention has, as we have stated, no foundation in the record. Neither the respondent nor the A. F. of L..Affiliates called any witnesses to establish such acts on the part of the strikers, nor sought to elicit such evidence by cross-examination of the wit- nesses called by the Board. From the uncontradicted testimony it appears that the only violence occurred on the morning of March 19; that at that time McKinnon, general organizer of the A. F. of L., came into the machine shop and ordered the strikers to leave; that McKin- non immediately attempted to bring in 30 or 40 men, who obviously were not employees in the shop since the employees were already there on strike; that one of the 30 or 40 men sought smashed through the glass door with a blackjack, hardly an instrument carried by an employee; that the strikers prevented these men from entering the room ; and that then the strikers were showered with bricks and other objects "from outside the factory." There is no evidence that McKin- non acted under any authority from the respondent, or that he made any such representation to the strikers. Such violence and property damage as occurred was, therefore, plainly attributable to the A. F. of L. Affiliates. Indeed there is no evidence that the respondent, which had never ordered the men from the plant, deemed it necessary to invoke the protection of the police. On the contrary the appeal to the police was made on behalf of the strikers. 30 Cf. In the Matter of Kelley's Creek Colliery Co. and International Union, Progressive Mine Workers of America, 17 N. L. R. B. 506. 91 Indeed Ramsey, who Joined in the strike and remained in the plant until it was ter. minated, was among those reemployed . See footnote 42, infra. ELECTRIC VACUUM CLEANDR COMPANY, INC. 617 On the morning of March 19, Scott, who had learned of the strike, went to the East Cleveland police station to invoke the assistance of Chief of Police Corlett. The latter had acted as an intermediary in 1935, and the first contract between the respondent and the A. F. of L. Affiliates had been signed in his office. Scott appealed to Corlett to intervene in the situation and attempt to make "some kind of arrange- ment to get these man back who were discharged 32 and a peaceful settlement." Corlett agreed to undertake a settlement, and later in the day advised Scott that he had communicated with the respondent, and suggested that Scott prepare an agreement which he would pre- sent to the respondent. An agreement was prepared, but Corlett returned and informed Scott that his proposal was not acceptable to the respondent. Scott then prepared the following proposal: I hereby authorize Chief of Police Corlett to act with the Elec- tric Vacuum Company. We agree to go back to work with the reinstating of the two men discharged yesterday,33 with the understanding that the employees shall have the right to join any Union of their own free will. Under these terms we agree to go back to work peacefully. WALTER E. SCOTT, District Organizer. Corlett returned to the plant with the revised proposal, telephoned Scott who had remained at the police station, and informed him that both Wilson and Lenahan had agreed thereto, but that the men in the machine shop insisted upon proof that Scott had authorized the settlement. At Corlett's suggestion, Scott came to the plant, and in the presence of Corlett and Paulus addressed the strikers, and ex- plained that under the settlement they would return to work on Monday, which was the next workday. Scott made his statement about 2 o'clock in the afternoon, and the strikers immediately left the plant. Although the respondent urges that there is no "compe- tent or substantial evidence to support a finding" that the respond- ent was a party to the settlement of the strike, or that it was adjusted with. the understanding that "the employees shall have the right to join any Union of their own free will," Wilson testified as follows: Chief Corlett came to us from Mr. Scott and stated that if we would agree to take back two employees who had been dis- charged-one only had been discharged, but there were two men- tioned in this particular transaction, who the second one was I don't know-if those people would be taken back without dis- 32 Scott had apparently been erroneously informed that two employees were discharged. This accounts for his reference to "these men . . . that were discharged." Not even the respondent was clear as to how many had been discharged. sa See footnote 32, supra. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crimination, the plant would open up, and we said that we have no objection, to refer the matter to the American Federation of Labor, who stated that they had no objection, and on that agree- ment the plant was evacuated. It is apparent from Wilson's testimony that the respondent was a party to the settlement agreement, as were the A. F. of L. Affiliates. There is no suggestion in Wilson's testimony that the settlement was upon any other basis than that proposed by Scott, and reported to him by Corlett to have been concurred in by Wilson and Lenahan. Lenahan was not called as a witness. Wilson who was the first wit- ness in the case, gave the testimony set forth above upon his first appearance on the stand. Later the,testimony with respect to Cor- lett's reports, and the redrafted proposal itself were added to the record. Subsequently Wilson was called as a witness by the respond- ent and did not deny any part of Corlett's reports. That the reports accurately set forth the facts is fully corroborated by the circum- stances above set forth, and particularly by the absence of any con- tradiction by Wilson or Lenahan, and by the fact that Corlett otherwise would hardly have requested Scott to come to the plant to reaffirm the final proposal. We find that the respondent agreed to the reinstatement of Ramsey and the resumption of work with the right of employees to join the union of their own choosing. At the oral argument before the Board counsel for the A. F. of L. Affiliates urged that the termination of the strike was secured only because they sacrificed their rights under the oral agreement. As stated by counsel, "If the A. F. of L. had said `No, we are going to stand on our rights and the new men must join' . . . there never would have been a termination of that sit-down." 34 The contention rests upon mere assertion. The employees had no knowledge of the oral agreement, and the conduct of the strikers indicates no dispo- sition to disregard any rights of the A. F. of L. Affiliates in the premises. Indeed their conduct with respect to the employees in the plating department indicates the contrary. Moreover, there is no evidence that the respondent or the A. F. of L. Affiliates ever suggested that the strike be terminated under an arrangement whereby new employees would join the A. F. of L. Affiliates, and the reason for their failure to do so is explainable by the fact, to which we have adverted above, that they were concerned about the u Fully stated , the contention was that "If the A. F. of L . had said No, we are going to stand on our rights and the new men must join;' and we may seek a closed shop con- tract, there never would have been a termination of that sit -down." As pointed out below, such a contract would have been invalid by reason of the actions of the respondent during the week of March 19. Consequently the threat that such a contract would be made would have been tantamount to a threat that the respondent would continue to inter- fere with, restrain, and coerce its employees in the exercise of the rights guaranteed them in Section 7 of the Act. ELECTRIC VACUUM CLEANIOR COMPANY, INC. 619 old and not the new employees. The contention now advanced for the first time is sheer speculation and has no support in the record. Indeed it is squarely in conflict with the equally untenable claim of the respondent that the strike settlement did not provide that em- ployees might join the union of their own choice. On March 20, the respondent inserted an advertisement in a news- paper tersely announcing the closing of the plant on March 22 "as a result of" a letter received from the Cleveland Federation of Labor and the A. F. of L. Affiliates. The letter, dated March 20, stated that, "As the bargaining agent for your employees we request you to temporarily close your plant, pending present negotiations with you relative to matters covered by our contract with you." No testimony was offered to explain the reference to "pending present negotiations"; and under the circumstances it must have been a refer- ence to negotiations prior to March 20. Wilson testified that when the plant was evacuated on the after- noon of March 19, the respondent expected to resume operations on its next regular workday, Monday, March 22, and that the first in- timation that he had that there was any question about it was a conference in the "late afternoon" on Saturday, March 20, at the office of the respondent's attorney, at which he, Tuteur, the respond- ent's president, and seven or eight A. F. of L. officials were present. The conference, Wilson testified, followed the receipt of the letter dated March 20. But this fails to account for either the reference in the letter to "pending present negotiations," or the publication, of the letter in a newspaper on March 20. The conference must have occurred not later than March 19. This is borne out by Wilson's testimony as to what occurred at the conference. Wilson testified that he, Julius Tuteur, Muehlhoffer and six or seven other representatives of the A. F. of L. were present at the conference and that the A. F. of L. representatives "asked us to close our plant while they might go over the situation and get their lines in order." Wilson testified that he did not know what led to the request "other than very obviously there was a group within the plant that was causing the dissention within the ranks," that though the respondent did not consider "there was any great proportion" of dissenters, they "knew there was a group that was trying, as reported to us at least, to proselyte members of another organization with whom we had a contract." At the conference, according to Wilson, the A. F. of L. officials "said it was an acute situation in our plant and we must close Monday morning or they would not appear for work Monday morning." What the A. F. of L. proposed to do after the shut-down, Wilson testified, was not discussed. The A. F. of L. Affili- ates urge, however, that they demanded the closing of the plant 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of the strike, which, as we have stated above, they claim was an organizational tactic of the United and, therefore, likely to recur. As we have already pointed out there is no proof that such was the purpose of the strike, or that the A. F. of L. Affiliates so regarded it. The contention that the strike was the reason for the demand that the plant be shut down is equally without support in the record. None of the representatives of the A. F. of L. Affiliates called as witnesses testified as to the negotiations with the respondent with respect to the shutting of its plant, nor did Wilson testify that any such reason was assigned. The reason for the demand by the A. F. of L. Affiliates is plain, and was communicated to the respond- ent. The A. F. of L. Affiliates were concerned, and demanded a shut- down, simply because "there was a group that was trying . . . to proselyte members" of the A. F. of L. Affiliates and the A. F. of L. Affiliates were determined to prevent further proselyting. The threat of a strike was not made by the A. F. of L. for the first time after the sit-down. It had been made as early as March 17 because the men in the machine shop were "joining the C. I. 0." and now was renewed for the same reason. We have stated above that the original threat furnished no justification for the respondent's action in coercing its employees to join the A. F. of L. Affiliates. The repetition of the threat did not justify it in shutting the plant in order to prevent its employees from exercising their right to self-organization. In its brief the respondent in seeking to justify the shut-down urged that: Respondent had no choice in the matter, ... because Ameri- can Federation of Labor, under its contract, was the bargaining agent for its employees... . The contract with the A. F. of L. Affiliates afforded no basis for interfering with the right of its old employees, who constituted a large majority of all of its employees, to form, join or assist a labor organization of their own choosing.35 The contract no more -entitled the respondent to shut down the plant in order to prevent these employees from "joining the C. I. 0." than it excused the respondent's prior action in coercing them to join the A. F. of L. Affiliates. The notice of the shut-down was, under the circumstances that preceded its publication, tantamount to a statement that the respond- ent, again at the instance of the A. F. of L. Affiliates, was taking action to prevent the organization of the United. The publication of the notice was itself, therefore, an interference with the rights of its em- ployees under the Act, and the shut-down was a lock-out to restrain the exercise of those rights. 3 See discussion supra. ELECTRIC VACUUM CLEANER COMPANY, INC. 621 About 4 o'clock in the afternoon of March 19 a meeting of the United was held in the Post Office building in East Cleveland, at which a large number of employees attended.36 Officers were elected and apparently it was voted to apply for a charter; an application for a charter vas received by the national organization about March 21, and a charter issued about April 1.37 The membership cards in A. F. of L. Affiliates, which the employees had signed in July 1936, provided that the employee thereby designated the appropriate A. F. of L. Affiliate as representative for collective bargaining, and further provided that: The full power and authority to act for the undersigned as described herein supersedes any power or authority heretofore given to any person or organization to represent me and shall remain in full force and effect for one year from date and there- after, subject to thirty (30) days written notice of my desire to withdraw such power and authority to act for me in the matters referred to herein. On March 28 a meeting of the United was held, again attended by a, large number of persons, for the purpose of securing formal resigna- tions from the A. F. of L. Affiliates, which might be presented in a body. On Friday, April 2, 1937, United mailed a letter to the respondent stating that a majority of the respondent's employees had resigned from the A. F. of L. Affiliates and were members of United ; that United represented the majority "as to settlement of grievances arising under the existing contract" 38 and were ready to return to work under its terms; and that all grievances arising under the con- tract which affected members of United would thereafter be handled by the United committee signing the letter. Wilson testified that because the office was closed over the week end, the letter was not received until Monday, April 5, a few minutes after the plant had reopened under arrangement with the A. F. of L. Affiliates. Wilson did nothing about the letter other than to send it to counsel for the respondent. We are satisfied that the arrangement under which the plant was reopened on April 5 was exactly set forth in a notice published by the respondent in the newspapers on April 3 and 4, 1937, directed to the respondent's employees. The notice stated that on July 6, 1936, the respondent, at the employees' request, had entered into a contract 36 Scott estimated there were about 550 persons present . There was no testimony as to whether the meeting came to the attention of the A. F. of L. Affiliates. It would seem likely that it did and it may have precipitated the demand for a shut -down. However, we make no finding on the point. S4 The organization was chartered as United Electrical & Radio Workers of America, Local 720. 38 The "existing contract" obviously meant the written contract of June 1936. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the A. F. of L. Affiliates recognizing them as the employees' duly chosen agents for collective bargaining; that, thereafter, until June 23, 1937, it was agreed that the respondent employ only persons affiliated with the A. F. of L. Affiliates; and that, after conferences with the employees' agents, it was at their request resuming opera- tions April 5, 1937, but only those employees who were members of the crafts under contract with the respondent would be employed. Attempt was made to explain by the testimony of Wilson, Gordon, Toth, and Muehlhoffer that it had been agreed between the respond- ent and the A. F. of L. Affiliates on April 3, before the notice was published, that old employees were not to be required to show that they were in good standing with the A. F. of L. Affiliates in order to return to work; that in fact no such requirement was imposed except by the Polishers Union ; and that even as to employees within the jurisdiction of the Polishers Union respondent was ignorant of this deviation from the terms of the agreement. We are entirely unable to credit this testimony. Wilson admitted that he had refused to allow two employees to return to work on April 5 because they did not have clearance cards from the A. F. of L. Affiliates '39 that he knew of other similar cases, and that the agreement was that the A. F. of L. Affiliates should have the final decision as to who would receive a card. Muehlhoffer summed up the agreement made on April 3 as providing that "all the people who go back in there to work the following Monday would carry a card issued by the respective organizations." He also testified that "The entire responsibility of who was to go back in was turned over to the A. F. of L. Unions." Wilson de- scribed the agreement in almost the same words. Muehlhoffer also admitted that even before the plant was reopened the Polishers Union had decided that their members who had become officers or committeemen in United would not be given clearance cards. Muehlhoffer, Gordon, and Toth testified that all of the A. F. of L. Affiliates, except the Polishers Union, gave a clearance card to all who applied, but none of them specifically denied the testimony of witnesses called by the Board who told in detail of cards being refused them, testimony which unlike the general statements' by Muehlhoffer, Gordon, and Toth, is quite convincing. Muehlhoffer testified that the respondent was not advised that some employees were refused cards. But it is clear, even from Wil- son's own testimony, that the respondent expected that cards would be refused to some. Wilson admitted that simultaneously with the reopening of the plant on April 5 the respondent began hiring per- ^ The clearance cards, captioned "Authorization For Representation ," declared that the employee designated the A . F. of L . Unions as his representative for collective bargaining for 1 year, and were witnessed by the official issuing it. ELECTRIC VACUUM CLEANER COMPANY, INC. 623 sons it had never previously employed, although no additional employees were needed for normal operations. Furthermore, if the respondent had not expected the A. F. of L. Affiliates to refuse cards to some employees, Wilson would hardly have "left word at the out- side office that I was in no position to discuss matters with any individual and [such individuals] should go through the routine channels. Moreover, it was established by uncontradicted testimony that Julius Tuteur'40 the respondent's president, in the presence of Paulus and Wilson, as well as Frank Ledasil, representative of the Federal Union, was advised by Mitchell France, an old employee, and a member of that union, that he had been refused admittance to the plant on April 9 on the ground that he had no card; and that Tuteur himself had stated that France would have to obtain a card. Sim- ilarly it was shown that William H. Fogarty and Frederick Frank, old employees, told Paulus of their unsuccessful efforts to obtain a card, only to be advised that a card was essential. The A. F. of L. Affiliates which had again conferred with the respondent during the week of March 21, circulated to their members on March 31, the following notice : To employees of Electric Vacuum Company : Representatives of A. F. of L. organizations having a work- ing agreement with the Electric Vacuum Company have endeav- ored to clear up the situation that resulted in the closing of the plant. Conferences have been held with representatives of the Company and it is now our opinion that the real solution to the problem is proper enforcement of the present agreement, and that no one be allowed to resume work unless affiliated with these organizations. We are interested in having the plant reopen Monday, April 5th, and in order to get a definite expression from the member- ship a Special meeting will be held, Friday April 2nd at 2 P. M. 1000 Walnut Ave., * * We urge all members to attend this meeting so operations may be resumed Monday morning. The meeting was held on April 2, and the employees present voted to return to work on April 5. Gordon testified that we called a general meeting for the membership and again the matter was broached that if they had stuck to strictly closed 40 Although France referred to "John" Tuteur, he indicated that he was not certain of the surname , and clearly showed that he referred to respondent 's president by describing the Tuteur to whom he had spoken as "The older Tuteur." 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shop, we wouldn't have had any trouble at all because fourteen or fifteen people out there started this rumpus and the group was disgusted for their interference and losing them, and we were definitely instructed to tell the management that the group was going to work only under strictly closed shop conditions, and most of the conferences were on that subject. Gordon further testified that at a conference with the respondent on the following day, we asked the management that the group wanted a strictly closed shop, and after them discussing the matter a while, it was agreed to let the matter lay for a while until after we got under opera- tions and then we could go to work and get the closed. shop through as to the wishes of the body. Gordon was not a credible witness. We have referred above to his account of the conferences with the machine-shop employees in the respondent's offices on.March 16, 17, and 18. His version of the meet- ing of April 2 and the conference of April 3 is equally implausibl• If the A. F. of L. Affiliates had consulted "the wishes of the body" on April 2, there would have been no occasion for deferring the demand for a closed shop until the sentiment of the members was ascertained. Moreover, Toth, Gordon's associate, admitted that the notice published by the respondent on April 3, had been prepared and agreed upon prior to the conference held that morning. Fur- thermore, the notice of the meeting issued by the A. F. of L. Affiliates on March 31, and the notice of reopening of the plant published by the respondent on April 3 contain exactly the same misrepresentation as to the agreement between the respondent and the A. F. of L. Affiliates. Both misrepresented that the contract entered into in 1936 provided for a closed shop. Nor may the misrepresentations be regarded as "inadvertent." 41 Admittedly the respondent's notice was not published until finally approved at the conference on April 3 at the office of counsel for the respondent; and it was on its face a carefully worded statement. We have no doubt, and we find, that both notices were part and parcel of a single plan devised and exe- cuted by the respondent and the A. F. of L. Affiliates to liquidate the United activities among the respondent's employees, and to do so without risking the reaction that might follow upon an announce- ment that the respondent and the A. F. of L. Affiliates had decided to do so by entering into and enforcing a closed-shop agreement. The notice published by the respondent unquestionably misrepre- sented to the employees the terms of the oral agreement of 1936; 41 At the oral argument before the Board counsel for the A. P. of L. Affiliates admitted that the notice published by the respondent on April 3 misrepresented that the agreement entered into in 1936 was a closed-shop contract, but sought to excuse the misrepresenta- tion as "inadvertent." ELECTRIC VACiJTJIVI CLEANER COMPANY, INC. 625 and the misrepresentation was obviously a deliberate attempt to give the semblance of legality to the respondent's conduct immediately prior to the shut-down, to justify the shut-down itself, and to conceal the fact that the closed-shop agreement set forth in the notice was of recent and consequently tainted origin. There hardly could have been devised a stratagem more calculated to aid the A. F. of L. Affiliates to retain and regain their members, and to cut the ground from under the employees who had sought to organize a United group. Not only did the notice present an ultimatum, the respond- ent thereby also concealed from its employees that what was involved was their legally protected right to make a choice of representatives without thereby risking discharge. In substance, though not in form, the arrangement effected between the respondent and the A. F. of L. Affiliates on or about April 3, 1937, was an abandonment of the oral agreement as insufficient to meet the exigencies of the situation and its replacement by a closed-shop agreement. This, the A. F. of L. Affiliates conceded at the oral argument before the Board, was the case. They contended, how- ever, that such an agreement was entirely valid. The contention, however, was rested upon a number of claims which we have found without merit. Thus it is the position of the A. F. of L. Affiliates that prior to April 3, the respondent had engaged in no unfair labor practices, except the allegedly accidental discharge of Ramsey ; that the respondent had been subjected to a sit-down strike called as an organizational tactic by the United and conducted by it with violence and destruction of property; that while the United was legally en- titled to solicit members of the A. F. of L. Affiliates it had indicated a plan to cause defections by violent and unlawful means. Upon this view of the facts the A. F. of L. Affiliates contend further that they were authorized to enter into the closed-shop agreement since they had been designated as collective bargaining representatives by a majority of employees in July 1936 by membership cards which stated that such designation was for a period of 1 year, "and there- after subject to thirty (30) days notice of desire to withdraw," and it is urged such designation must be presumed to have continued in effect until April 1937 in the absence of proof of notice of with- drawal. As we have pointed out above the afore-mentioned con- tentions with respect to the actions of the respondent and the United are entirely at variance with the facts. There is, consequently, not. here presented the question whether during the term of a contract between a labor organization and an employer and within the period for which the labor organization had been designated as collective bargaining representative by a majority of employees, a supple- mentary closed-shop agreement may validly be made to prevent de- 626' DECISIONS OF NATIONAL LABOR RELATIONS BOARD fections from such labor organization . The situation here presented is one where during the time preceding the making of such a supple- mentary agreement the respondent at the instance of the A. F. of L. Affiliates, had flagrantly interfered with, coerced, and restrained its employees in their right to join and assist the United , and had coerced them to affiliate with the A. F. of L. Affiliates . By reason of such unfair labor practices by the respondent immediately antecedent to the supplementary closed-shop agreement, the new agreement was unquestionably illegal and void, and its publication and application constituted interference with the rights of its employees under the Act. In fact, the arrangement of April 3, 1937 , was merely another act of the same character as the previous interference , restraint, and coercion, and differed only in the irrelevant element of formality. The Act does not, however, permit illegality to become transmuted into legality by the embodiment of unfair labor practices in an agree- ment. That device affords neither an estoppel nor a franchise. Section 8 (3) of the Act carefully negatives such a possibility- by excluding from permissible agreements imposing union membership as a condition of employment , an agreement entered into between employers and labor organizations which have been established, maintained, or assisted by unfair labor practices . And here there had been such assistance, persistent and solicited, if not demanded, by the A. F. of L. Affiliates. The contention that the A . F. of L. Affiliates must be presumed to have represented a majority of the respondent 's employees on April 3, is obviously beside the point. Section 8 (3) of the Act precludes the execution of a closed -shop with a labor organization established, maintained or assisted by unfair labor practices , irrespective of whether it has or has not been designated as collective bargaining agent by a majority of the employees. Accordingly it is unnecessary to determine whether, in the absence of the respondent 's unfair labor practices , the A. F. of L . Affiliates would be presumed to have con- tinued to be, on April 3, the bargaining agent designated by a majority of the respondent 's employees. Moreover, having solicited the unfair labor practices which effectively impaired, if they did not completely destroy, the possibility of free choice of their bar- gaining agent by the respondent's employees, the A. F. of L. Affiliates, like the respondent , are in no position to invoke a rule of presump- tion which has for its purpose the determination of whether at a particular time of labor organization remains the freely designated representative of employees. By May 20, 1937 , the respondent had filled all the jobs that existed on March 22 and had increased its working force to approximately ELEC'TRIC VACUUM CLEANER COMPANY, INC. 627 1100 employees. According to the pay rolls, approximately 583 of that number were employees who had been with the respondent prior to June 1935, when the first oral agreement was made. As we have stated, employees who resumed their jobs after April 5, 1937, had been required to obtain clearance cards. Gordon testified that on May 20, 1937, there were no old employees who were not mem- bers of the A. F. of L. Affiliates and that substantially all other employees had joined. On May 20, 1937, a new agreement was entered into between A. F. of L. Affiliates providing for recognition of the A. F. of L. Affiliates as the bargaining agents for all of the respondent's em- ployees, and for a completely closed shop. This agreement, which by its terms ran for 1 year, and thereafter from year to year unless notice of termination was given 30 days before the end of the annual period, was individually approved by the large majority of the em- ployees at a meeting of the A. F. of L. Affiliates held for that special purpose before the contract was' executed. But what we have said with respect to the agreement of April 3, 1937, is entirely applicable to the contract of May 20, 1937. In the intervening period the re- spondent had merely continued its unfair labor practices under the guise of performance of a closed-shop agreement which had no validity. Manifestly under such circumstances the majority of the A. F. of L. Affiliates and the purported referendum are irrelevant. We find that by the various activities set forth above, the respond- ent, during the period beginning in March 1937 and continuing through May 20, 1937, aided in the organizational activities of the A. F. of L. Affiliates and hindered and impeded the organizational activities of United, and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discriminations as to tenure of employment The complaint alleges that the respondent, on or about April 5, 1937, and at all times thereafter, failed and refused to recall 28 employees. No evidence was offered with respect to four of those named, Frank Erzen, Austin Ballard, Frank Hunek and William Krall. As to them the complaint will therefore be dismissed with- out prejudice.42 As to each of the remaining 24 the allegations of the complaint are sustained. 42 Ramsey, who was discharged on March 18 and reinstated on March 19, was excluded from the plant when it reopened on April 5 because he had no clearance card . When he sought one the same day he was told his place was filled . He was successful in obtaining a card on April 21 and was given back his job the following day. The complaint sought no recovery for the employment lost by him between April 5 and ADriI 22. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nineteen of the twenty-four employees as to. whom we hold dis- crimination proven were old employees. In their case it is, of course, unnecessary to review the evidence as to the various occasions when they were refused employment because they had not obtained clear- ance cards, or when they were refused clearance cards, or when, after they had obtained clearance cards, they were refused employment allegedly because their jobs meanwhile had been filled by persons hired for the first time on or after April 5, 1937. We have pointed out in Section III A (2) above that these employees Were never affected by the oral agreements,43 and that the agreement of April 3, 1937, furnished no justification for requiring them to be members in good standing of the A. F. of L. Affiliates as a condition of returning to work.44 We have also pointed out in Section III A (2) above that pursuant to. the latter agreement employment was given only to those who complied with that condition and that the places of those who did not were filled by persons hired to replace them. The old employees were not required to go through the meaning- less gesture of asking to be taken back. without a clearance card; and they were within their rights in not applying for a clearance card. The refusal of employment to them was a fact immediate upon the reopening of the plant, and because the respondent never withdrew the conditions improperly imposed, the refusal was a continuing one. Obviously there is no merit in the contention made by the respond- ent in its brief that in such a casei an employer may plead as a de- fense that an employee tardily applied for reemployment under the illegal condition and was rejected becausq his place had been mean- while filled by one never employed before. From and after April 5, 1937, these employees were in the same position as any employee avow- edly discharged because of his union activities45 That thereafter such an employee obtains reemployment by accepting conditions which the employer had no right to impose merely ends the direct consequence of loss of wages and requires only that that circumstance be taken into account in determining the remedy for. the unfair labor practice. We accordingly find that respondent has at all times failed and refused to recall to employment the following persons employed " Indeed, three of the old employees , John Kern, Nicholas Kozma , and Edward Kern, were never members of the A. F. of L . Affiliates. 44 It is unnecessary. to decide whether application for and acceptance of a clearance card constituted becoming a member of the A. F . of L. Affiliates in the technical sense. We will assume such was its effect, or that in any case the condition was one that could be imposed , pursuant to the proviso clause of Section 8 ( 3), by agreement between an em- ployer and a labor organization which then represented a majority of the employees and had not been established , maintained or assisted by unfair labor practices. ae As we have recently stated, "To condition 'employment unlawfully upon membership in a particular union . . . Is equivalent to an outright discharge of those employees who refuse to accept the condition ." Matter of Mason Manufacturing Company and United Furniture Workers of Atrerica, Local No. 576, 15 N . L. R. B. 295. ELECTRIC VACUUM CLEANER COOMPANY, INC. 629 by respondent when the plant was shut down on March 22, 1937: William Behrse, Steve Dragosa, William H. Fogarty, Mitchell France, Frederick Frank, John Kern, Edward Koutnik, Nicholas Kozma, Arthur Kruse, Howard Lowrance, Joseph Macho, John Masters, Alfred Meissner, George Onda, Edward Rericha,46 Mike Smith, Arthur Troyan, and Theodore Vitosky. We also find that respond- ent failed and refused to recall to employment, except for the period from April 26, 1937, until May 10, 1937, Harold Keehl, employed by respondent when. the plant was shut down on March 22, 1937. Keehl's reemployment during this brief period seems quite acci- dental. He obtained a clearance card on April 9, 1937, returned to work on April 14, was notified by his foreman that he would have to secure the approval of Ledasil of the Federal Union; he did not do so, but returned to the plant on April 26 and worked until May 10 when his foreman told him that there was a notice for him to see Ledasil and pay up his dues in order to hold his job. When he was unable to do so at once, Ledasil refused to accept any postponement in payment and'said he would be notified when he might present his case to the Union, but he never received such notice. We are satis- fied that Keehl's brief period of reemployment was merely a tempo- rary oversight on the part of the respondent and presents nothing essentially different from the other cases. As stated above, we find that the charge of discrimination also sustained with respect to five new employees. What has been said by us as to the status of old employees on and after April 5, 1937, is no less applicable to them. True, prior to April 3, 1937, they might, after notice of the oral agreement, have been refused employ- ment unless they became or remained members in good standing in the A. F. of L. Affiliates. True also, where a valid agreement is replaced by an invalid one, the earlier agreement may retain its vitality for its original term. But we have found that on April 3, 1937, not only was a new agreement made but the earlier oral agree- ment was mutually abandoned by the respondent and the A. F. of L. Affiliates as useless for their purposes, because of the rise of the United, and the fact that the majority of the respondent's employees were subject thereunder to no restraint against their becoming mem- bers of United and terminating their membership in the A. F. of L. Affiliates. Moreover, we find that the oral agreement is irrelevant to the issue of discrimination since its existence was never brought to the notice of the new employees. The only notice they were given was of the agreement of April 3, 1937, an agreement which they were entitled to disregard. Certainly it cannot be said that they were 46 Rericha , we have noted, was not allowed to work after March 11, but had been di- rected to return to his job on March 22. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD somehow to divine from such a notice the existence of an antecedent valid oral agreement relating to new employees only. We have pointed out in Section III A (2) above that an employer may not even, pursuant to a valid agreement, threaten an employee with discharge for failure to join a labor organization unless the em- ployee is advised of the existence of the agreement.47 We see no reason to distinguish the case where the employer shuts down its plant and on reopening, without giving notice of the existence of an agreement, requires membership in a labor organization as a condition for returning to work. Accordingly we find that the new employees were within their rights in not applying for a clearance card, that by virtue of the notices published on April 3 and 4, 1937 they were refused employ- ment on 'the reopening of the plant and that the refusal was a continuing one. We accordingly find that the respondent has at all times failed and refused to recall to employment Leo Pierret, Jewell Smith, .and Joseph Washko, employed by the respondent when the plant was shut down on March 22, 1937; and has failed and refused to recall to employment until May 19 and 24, 1937, respectively, James Mitchell and Rudolph Rummell, employed by the respondent when the plant was shut down on March 22, 1937, and who have since May 19 and 24, 1937, respectively, been given employment by the respondent at their former jobs. On the basis of the foregoing, we find that the respondent, in refusing and failing to recall the aforesaid persons to employment except upon condition that they secure approval of the A. F. of L. Affiliates, has discriminated against said employees with respect to hire and tenure of employment in order to discourage membership in the United and encourage membership in the A. F. of L. Affiliates, and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. The respondent contends that it is, or should be, absolved of the charge of discrimination by reason of an agreement made on April 7, 1937, between the United and the A. F. of L. Affiliates whereby the latter agreed to issue clearance cards to all employees who be- came members. Though disclaiming any part in this agreement, the respondent claims the benefit thereof but urges that it is not chargeable with the immediate breach thereof by the A. F. of L. Affiliates, of which we find it had knowledge. Even if the agree- ment had been one to which the respondent were a party, or had been one which it had thereafter in some manner adopted, it is clear that the agreement would not affect the power of the United to file, and of the Board to accept, the charges in the present proceed- 47 See discussion, supra. ELECTRIC VACUUM CLEANER COMPANY, INC. 631 ings, or lead the Board, as a matter of discretion, to withhold action on the respondent's unfair labor practices. The Board was not a party to the agreement. Hence it is clear that, since Section 10 (a) of the Act makes exclusive the power of the Board to prevent per- sons from engaging in unfair labor practices affecting commerce, even an agreement binding a labor organization not to file charges of unfair labor practices with the Board, would not be binding upon the Board or in any manner affect the validity of charges filed with the Board 48 The agreement in the instant case, moreover, did not purport to be, and was in no sense an agreement by the United not to file charges with the Board; on the contrary, it was no more than an attempt to secure employment for those of its adherents who were willing to comply with a condition which we have found was unlawfully imposed by the ,respondent. Indeed, the respondent, having misrepresented the facts with respect to the closed-shop agree- ment and thereby concealed its illegality, is hardly in a position to urge any argument of estoppel. Furthermore, the agreement of April 7 having been breached by refusals of the A. F. of L. Affiliates to issue clearance cards, the agreement affords no reason why the Board should not act upon the charges filed by the United.4° Finally, in the instant case, to give to the agreement of April 7 the effect now urged by the respondent, would be to sanction the continuance of the respondent's unfair labor practices, since, as we have pointed out above, the closed-shop agreements of April 3, and May 20, 1937, were merely the embodiment and formalization thereof. It is clear, therefore, that an order should issue that such unfair labor practices shall cease.50 We have pointed out in Section III A (2) above, that at the time of the shut-down on March 22, 1937, the respondent's employees were working on a 40-hour week, and were entitled to seniority, and that these conditions were continued by the contract of May 20, 1937. We have also pointed out that 2 of the 24 employees as to whom the charges of discrimination were sustained were reemployed by the respondent. Of these two, Mitchell was earning 57 cents an hour and Rummell 54 cents an hour at the time of the shut-down on March 22, 1937. Neither of them earned anything from April 5, 1937, to the date of his reemployment. The following employees were unemployed at the time of the hearing and had had no employment since the plant was shut down on March 22, 1937, at which time their hourly pay was at the rate 8 Matter of General Motors Corporation and Delco -Remy Corporation and International Union United Automobile Workers of America, Local No. 146, 14 N. L. R. B. 113. 49 Cf. Matter of Harry A. Half, doing business as The Half Manufacturing Company and International Ladies Garment Workers Union, 16 N. L. R. B. 667, and cases cited in footnote 9 therein. 60 See Section V, infra. 283029-41-vol. 18-41 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indicated after their names: France, 58 cents; Koutnik, 73 cents; Kozma, 62 cents; Jewell Smith, 43 cents; Mike Smith, 60 cents; and Vitosky, 62 cents. Keehl and Pierret had been earning 58 and 56 cents an hour, re- spectively, at the time of the shut-down. Since then, except for Keehl's temporary recall by the respondent from April 26 until May 10, 1937, they had worked only at odd jobs, from which Pierret had earned $8 and Keehl an unstated amount, which together with relief he had received, totaled approximately $90. Fogarty who had received 58 cents an hour prior to the' shut-down had been unemployed until May 31, 1937, when he obtained a part- time job at which he had earned approximately $20.90 at the time of the hearing. At the time of the hearing Dragosa and Macho had temporary jobs from which they had earned approximately $230 and $154.85, respectively, since the closing of the plant, at which time their hourly rate had been $105. Washko also had a temporary job at the time of the hearing and had had odd jobs. The amount of his earnings does not appear. Prior to the shuting of the plant his hourly rate had been 57 cents. At the time of the hearing Frank, Kern, Kruse, Masters, Meissner, and Troyan were employed. All but Kern, however, testified that they did not know whether their new jobs were permanent, and Kern stated that he believed his was temporary. Both Frank and Kern had been employed by respondent for 5 years, and were receiving 58 cents an hour before the shut-down. Frank did not obtain em- ployment until May 25, 1937; his new job worked a 9-hour day; in it he had earned $67.20. Kern obtained other employment for the first time on April 28, 1937; and had earned on an average of $i25 a week in his new job. Kruse, Masters, Meissner, and Troyan were receiving $1.05 an hour when the plant was shut down. Kruse has been employed by respondent for 7 years; Masters for 14 years; Meissner for 8 years; and Troyan for 3 years. Kruse was unem- ployed until June 5, 1937, and had earned $30 since, at the daily rate of $5. Masters had obtained employment at least twice prior to the hearing. Altogether he had earned approximately $145, of which approximately $45 had been earned at a job obtained on June 9, 1937, at.which he averaged about $7.50 a day. Meissner first secured work May 18, 1937, and had earned $85 at the new job, which paid less than he had received when employed by respondent. Troyan, like Mas- ters had obtained employment at least twice since the shut-down; none of the jobs paid as high a rate as he had received at respondent's, and his earnings for 8 pay periods prior to the hearing totaled only $204.03. ELECTRIC VACUUM CLEANER COMPANY, INC. 633 Rericha had been employed by respondent for 11 years and had re- ceived an hourly rate of $1.05. He had obtained a job for the first time on June 11, 1937. His earnings do not appear. C. The alleged refusal to bargain No evidence of refusal to bargain was offered except the dispatch by United of the letter dated April 2 which we have summarized in connection with Section III A (2) above. In that connection we have also pointed out that the letter was not shown to have been received prior to the reopening of the plant on April 5, 1937, and that no answer was ever sent. The respondent's continued insistence upon membership in the A. F. of L. Affiliates as a condition of return to work was, however, at least equivalent to a categorical rejection of the demand set forth in the letter. There was put in evidence a list of 543 names prepared by March 26, 1937, purportedly, from signed application cards of United. The list was prepared in connection with the meeting, referred to in Section III A (2) above, called by United to secure a declaration by those who had been members of the A. F. of L. Affiliates that they wished to sever such affiliation. Not more than 300 of those attend- ing the meeting indicated such a wish. The evidence does not show how many others were present but did not speak up though they were members of the A. F. of L. Affiliates, or how many of those present had never become members of A. F. of L. Affiliates before joining the United. Comparison of the list of March 26, 1937, with the 923 names on respondent's pay roll for the week preceding the shut-down of the plant indicates at least that approximately 500 of the 543 names correspond with those on the pay roll. However, the purpose for which the meeting of March 26, 1937, was held, indicates the United representatives felt employees had not understood that by signing application cards in United they thereby disavowed the right of the A. F. of L. Affiliates to represent them. In any event it is unneces- sary to decide whether that inference should be drawn from the fact of the meeting, or whether it is overcome by any other evidence,51 since the evidence as to the preparation of the list itself is not sufficient to authenticate it as having been prepared from the application cards. Lowrance, financial secretary and treasurer of the United local organized among respondent's employees, testified that he had received 623 signed application cards of United. He testified that 50 of the cards had disappeared from United's office and submitted 51 The United application card stated that the applicant authorized and requested United "to represent me for the purposes of collective bargaining in regard to wages, hours and working conditions for a period of one year." 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the remaining 573 cards for confidential inspection of the Trial Examiner. Apparently the 623 cards represented an increment of 80 cards at some time since March 26, 1937. Lowrance, however, indicated no personal knowledge as to whether all the cards bore the names of the respondent's employees, and, in view of what we have found with respect to the list of March 26, 1937, we cannot say such was the case. Since United was unwilling to permit inspec- tion of the cards by the respondent or the A. F. of L. Affiliates, they were refused admission in evidence. The list put in evidence does not establish that the United on or about April 5, 1937, represented a majority of the respondent's em- ployees in a unit consisting of all employees in the production and maintenance departments, exclusive of clerical and supervisory em- ployees, which unit is alleged in the complaint, and admitted in the respondent's answer, to constitute an appropriate unit. Nor does the record include evidence which would enable us to determine whether the United on April 5, 1937, represented a majority of the respondent's employees in any of the five units which the A. F. of L. Affiliates urge that the record shows exist and each of which they claim con- stitutes an appropriate unit .52 We will, therefore, dismiss the allega- tions of the amended complaint that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Sections III A (2) and III B above, occurring in connection with the opera- tions of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It is essential in order to effectuate the purposes and policies of the Act that the respondent be ordered to cease and desist from the un- fair labor practices in which we have found it to have engaged, and in aid of such order and as a means for removing and avoiding the consequences of such practices, that the respondent be directed to take certain affirmative action, more particularly described below. We have found that on April 3, 1937, the respondent entered into an agreement, supplementary to a written agreement made on July 6, 1936, which provided for hours and general working conditions. 12 The A. F. of L. Affiliates contend that the production and maintenance employees Within their respective jurisdictions constitute five separate units. ELECTRIC VACUUM CLEANER COMPANY, INC. 635 We have found that said supplementary agreement provided that membership in the A. F. of L. Affiliates would be a condition of con- tinued employment by the respondent of persons then in its employ and a condition of employment of persons thereafter employed by the respondent. We have found that by reason of assistance there- tofore rendered to said A. F. of L. Affiliates by various unfair labor practices set forth above, said supplementary agreement was not within the proviso clause of Section 8 (3) of the Act. We accord- ingly found that said supplementary agreement, the respondent's publication thereof and actions in accordance therewith, constituted interference, restraint, and coercion of the respondent's employees in the exercise of the rights guaranteed under the Act. We have ac- cordingly found that the respondent by making said supplementary agreement, publishing the same, and acting in accordance with its terms at all times until May 20, 1937, further assisted said A. F. of L. Affiliates by unfair labor practices. We have further found that on May 20, 1937, the respondent entered into a superseding agreement with the A. F. of L. Affiliates which incorporated the terms of said supple- mentary agreement. We have found that by reason of the assistance theretofore rendered to said A. F. of L. Affiliates by the respondent by the various unfair labor practices set forth above, including the supplementary agreement of April 3, 1937, the respondent's publica- tion thereof and actions in accordance therewith, the provisions of said agreement of May 20, 1937, providing that employment by the respondent should be conditioned upon membership in said A. F. of L. Affiliates was not an agreement which was within said proviso clause of Section 8 (3) of the Act. We accordingly found that said agree- ment constituted interference, restraint, and coercion of the respond- ent's employees in the exercise of their said rights. It is plain that under these circumstances to render our cease and desist order effec- tive it is necessary that the respondent be specifically directed to cease giving effect to so much of said agreement of May 20, 1937, as imposes said condition of employment, and to any agreement which may now be in effect, in so far as such agreement requires as a con- dition of employment membership in said A. F. of L. Affiliates. We have pointed out that by reason of the respondent's inter- ference, restraint, and coercion its employees have not been free at any time since April 3, 1937, to exercise freely their right to designate or select representatives for collective bargaining. Yet, by its terms, the agreement of May 20, 1937, has renewed itself for a second, and now for a third year. To permit the renewal provision of a contract entered into under such circumstances to have force and effect even if another labor organization were hereafter designated by the em- ployees as their representative would itself serve only to interfere 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with, restrain, and coerce employees from designating such other labor organization. While under the special circumstances of the present case, we shall not require the respondent to disavow alto- gether the agreement of May 20, 1937, in order to permit an un- fettered choice by employees of their representatives, we do find it unquestionably necessary, so as to remove the effect of the respond- ent's interference, coercion, and restraint, since March 1937, to re- quire that the respondent, if, as, and when another labor organization shall have been certified by the Board as the exclusive representative of its employees for the purposes of collective bargaining, shall cease and desist from giving any effect to said agreement and to any ex- tension, renewal, modification, or supplement thereof, or to any super- seding contract which may now be in effect. We have also found that respondent discriminated, within the meaning of the Act, in regard to hire and tenure of employment of William Behrse, Steve Dragosa, William H. Fogarty, Mitchell France, Frederick Frank, Harold Keehl, John Kern, Edward Kout- nik, Nicholas Kozma, Arthur Kruse, Howard Lowrance, Joseph Macho, John Masters, Alfred Meissner, James Mitchell, George Onda, Lee Pierret, Edward Rericha, Rudolph Rummell, Jewell Smith, Mike Smith, Arthur Troyan, Theodore Vitosky, and George Washko, by failing and refusing to recall said persons to employment on April 5, 1937, or at any time thereafter, except that Mitchell was recalled to employment on May 19, 1937, and Rummell on May 24, 1937, and Keehl was temporarily called to reemployment from April 26 until May 10, 1937. Accordingly we shall order the respondent to make these employees whole for any loss of pay they have suffered by reason of said failure and refusal to recall them to employment,53 by payment to each of them of a sum of money equal to the amount he would normally have earned as wages from April 5, 1937, to the date of reinstatement or placement on a preferential list as herein- after provided, less, his net earnings 54 during said period.55 How- ever, since we, on our own motion, gave notice on March 16, 1939, Is The circumstances that Rummell was ill for a period of 2 or 3 weeks between April 5 and May 24 , 1937 will, of course, be taken into account in determining his loss of pay during said period. 54 By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 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 de- ducted 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. m This is the same affirmative action as was ordered by the Board on July 7, 1938, with respect to said employees. ELECTRIC VACUUM CLEANER COMPANY, INC. 637 of intention to vacate, and on April 11, 1939, vacated the decision and order issued by the Board on July 7, 1938, the respondent will be relieved from paying said employees back pay with respect to the period from March 16, 1939, to the date of our present order. The employees whom we shall order made whole other than Mitchell and Rummell shall be reinstated by the respondent in the manner set forth below. We are of the opinion that the usual remedy in such cases is here necessary to effectuate the purposes and policies of the Act. Accordingly, we shall order the respondent to offer these employees reinstatement to their former 56 or substantially equivalent positions. All, or such number as may be necessary, of the employees hired by the respondent after March 19, 1937, and not in the employ of the respondent on March 19, 1937, shall be dismissed to provide employment for those to be offered, reinstate- ment. If thereupon, despite such reduction in force, there is not sufficient employment immediately available for the employees pres- ently employed by the respondent, excluding those so dismissed, and the employees to be offered reinstatement, all available positions shall be distributed among the employees presently employed, except those so dismissed, and the employees to be offered reinstatement, in accord- ance with the respondent's usual method of reducing its force, with- out , discrimination against any employee because of his union affiliation and activities, following such a system of seniority or other procedure to such extent as has heretofore been applied in the con- duct of the respondent's business. In making such distribution the employees to be offered reinstatement shall be considered as entitled to the seniority and other rights and privileges which would have been theirs had the respondent not failed and refused to recall them to employment on April 5, 1937. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a prefer- ential list with priority determined among them by such system of seniority or other procedure as has been heretofore followed by the respondent, and' shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions, as such employment becomes available and before other persons are hired for such work. . THE REPRESENTATION CASE As we have pointed out in Section III C above, the United contends that all of the production and maintenance employees at the re- spondent's plant, excluding supervisory and clerical employees con- ea By former position is meant the respective positions held on March 19, 1937. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stitute an appropriate unit, whereas the A. F. of L. Affiliates urge that the production and maintenance employees within their respective jurisdiction constitute five separate units. The A. F. of L. Affiliates have asked that the record be reopened so as to permit them to ad- duce additional evidence upon the question of the appropriate unit. In view, however, of the length of time that has elapsed since the filing of the petition and the holding of the hearing thereon, we shall deny the application, but will dismiss the representation proceedings without prejudice to the filing of a new petition by either the United or the A. F. of L. Affiliates. Upon the basis of the foregoing findings of fact and the entire record in the proceeding, the Board makes the following : CONCLusIONs OF LAW 1. International Molders Union of North America, Local No. 430; Pattern Makers Association of Cleveland and Vicinity; Metal Pol- ishers International Union, Local No. 3; International Association of Machinists, District No. 54; Federal Labor Union No. 18907; and United Electrical & Radio Workers of America are labor organiza- tions within the meaning of Section 2 (5) of the Act. 2. The respondent, by discriminating in regard to the hire and tenure of employment of William Behrse, Steve Dragosa, William H. Fogarty , Mitchell France, Frederick Frank , Harold Keehl, John Kern, Edward Koutnik, Nicholas Kozma, Arthur Kruse, Howard Lowrance, Joseph Macho, John Masters, Alfred Meissner, James Mitchell, George Onda, Leo Pierret, Edward Rericha, Rudolph Rum- mell, Jewell Smith , Mike Smith, Arthur Troyan, Theodore Vitosky, and George Washko, thereby encouraging membership in the first five labor organizations mentioned in paragraph 1 above, and dis- couraging membership in United Electrical & Radio Workers of America, has engaged in and is engaging' in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. 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 and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. ELECTRIC VACUUM CLEANER COMPANY, INC. 639 ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Electric Vacuum Cleaner Company, Inc., and its officers, successors, and assigns, shall : 1. Cease and desist : (a) From discouraging membership in United Electrical & Radio Workers of America or any other labor organization by refusing to reinstate, or otherwise discriminating against its employees in regard to hire and tenure of employment, or any term or condition of employment; . (b) From encouraging membership in International Molders Union of North America, Local No. 430; Pattern Makers Association of Cleveland and Vicinity; Metal Polishers International Union, Local No. 3; International Association of Machinists, District No. 54; Federal Labor Union No. 18907; or any other labor organization by discharging, refusing to reinstate, or otherwise discriminating against its employees in regard to hire or tenure of employment, or any term or condition of employment; (c) From giving any effect to the provisions of paragraph (c) of Article III of the agreement dated May 20, 1937, with the labor organizations designated by name in paragraph 1 (b) of this Order, that : "The Employer 67 agrees to employ only members of the Unions 88 in good standing in their respective Unions, and should the employer require more employees than those now employed, the Employer will secure such employees through the Unions. If, how- ever, the Unions are unable to furnish such employees, the employer may secure them elsewhere, it being understood, however, that such employees so secured shall become members of the Union," or to any agreement which may now be in effect, in so far as such agree- ment requires as a condition of employment membership in the labor organization, or any of them, designated by name in para- graph 1 (b) of this Order; (d) From giving any effect to said agreement dated May 20, 1937, or to any extension, renewal, modification, or supplement thereof, or to any superseding agreement which may now be in effect, if, as and when any labor organization other than the labor organizations designated by name in paragraph 1 (b) of this Order shall here- after be certified by the National Labor Relations Board as the exclusive representative of its employees for the purposes of collective bargaining; 87 I. e., respondent, Electric Vacuum Cleaner Company, Inc. 08 I. e., the labor organizations designated by name in paragraph 1 (b) of this Order. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) From in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organiza- tion, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual. aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to William Behrse, Steve Dragosa, William H. Fogarty, Mitchell France, Frederick Frank, Harold Keehl, John Kern, Edward Koutnik, Nicholas Kozma, Arthur Kruse, Howard Low- rance, Joseph Macho, John Masters, Alfred Meissner, George Onda, Leo Pierret, Edward Rericha, Jewell Smith, Mike Smith, Arthur Troyan, Theodore Vitosky, and George Washko, reinstatement to their former or substantially equivalent positions with the respond- ent, without prejudice to their seniority and other rights and privi- leges, dismissing, if necessary, all of the employees presently working for the respondent who were hired since March 19, 1937, and not in its employ on March 19, 1937, in the manner set forth in the section entitled, "The remedy," above; and place those employees for whom employment is not immediately available upon a preferential list and offer them employment as it becomes available, in the manner set forth in said section; (b) Make whole the following named employees for any loss of pay they have suffered by reason of failure or refusal to recall them to employment on April 5, 1937, and thereafter, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from April 5, 1937, to March 16, 1939, and from the date of this Order to the date of his reinstatement or placement on a preferential list pursuant to paragraph 2 (a) of this Order, less his net earnings during said period; deducting, however, from the amount otherwise due to each such employee, monies re- ceived by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or govern- ments which supplied the funds for said work-relief projects: Wil- liam Behrse, Steve Dragosa, William H. Fogarty, Mitchell France, Frederick Frank, John Kern, Edward Kotnik, Nicholas Kozma, Arthur Kruse, Howard Lowrance, Joseph Macho, John Masters, Alfred Meissner, George Onda, Leo Pierret, Edward Rericha, Jewell Smith, Mike Smith, Arthur Troyan, Theodore Vitosky, and George Washko ; ELECTRIC VACUUM CLEANER COMPANY, INC. 641 (c) Make whole Harold Keehl for any loss of pay he may have suffered by reason of failure or refusal to recall him to employment on April 5, 1937, and thereafter, except temporarily from April 26 until May 10, 1937, by paying him a sum of money equal to the amount which he normally would have earned as wages from April 5 to April 26, 1937, and from May 10, 1937, to March 16, 1939, and from the date of this Order to his reinstatement or placement on a preferential list pursuant to paragraph 2 (a) of this Order, less his net earnings during said periods; deducting, however, from the amount otherwise due him, monies received by him during 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, munici- pal, or other government or governments which supplied the funds for said work-relief projects; (d) Make whole James Mitchell and Rudolph Rummell for any loss of pay they may have suffered by reason of refusal or failure to recall them to employment on April 5, 1937, and thereafter until May 19 and 24, 1937, respectively, by payment to each of them a sum of money equal to the amount which he normally would have earned as wages from April 5 to May 19, 1937, in the case of James Mitchell and from April 5 to May 24, 1937, in the case of Rudolph Rummell, less his net earnings during said period; deducting, how- ever, from the amount otherwise due each of them monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for such work-relief projects; (e) Immediately post notices in conspicuous places throughout its plant, and maintain such notices for a period of sixty (60) consecu- tive days, from the date of such posting stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), (c), (d), and (e) and that it will take the affirmative action set forth in 2 (a), (b), (c), and (d) of this Order; (f) Notify the Regional Director for the Eighth Region, Cleve- land, Ohio, in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT Is FURTHER o1mmwD that the complaint, in so far as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Frank Erzen, Austin Ballard, Frank Hunek, and William Krall, within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed without prejudice. . 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AND IT IS HEREBY FURTHER ORDERED that the complaint, in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act, be, and it hereby is, dismissed. AND IT IS HEREBY FURTHER ORDERED that the petition for investiga- tion and certification of representatives filed herein, be, and it hereby is, dismissed without prejudice. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.