Theurer Wagon Works, Inc..

In the Matter of THEURER WAGON WORKS, INC. and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCALS 259 AND 374 Case No. C-563.-Decided December 08, 1939 Automobile Body Building Industry-Interference, Restraint, and Coercion: expressed opposition to "outside" labor organization ; expressed preference for "local" unaffiliated labor organization ; employer •held elections to determine employees' choice of representative ; discrediting union and union leaders ; engendering fear of loss of employment for union membership or activity; denial of right to be represented by "outside" representatives ; persuading employees to resign from union ; effort to break strike by soliciting or inducing individual strikers to return to work ; anti-union activity by supervisory employees during working hours and on company property ; circulation of anti-union statements and petitions among employees-Company-Dominated Union: domination of and interference with formation and administration ; organization activity in plant ; soliciting members on compay time and property ; responsibility of respondent for union activity of its supervisory employees ; encouragement of inside and discouragement of outside labor organization- Unit Appropriate for. Collective Bargaining : all employees at two plants , includ- ing working foremen, maintenance men, porters , chauffeurs , night watchmen, and shipping and stockroom clerks, but excluding executives , clerical and office employees, employees with the right to hire and discharge , and salesmen ; no controversy as to ; labor policies at both plants same ; collective bargaining relations with respondent-Representatives : proof of choice : comparison pay roll with union list and cards-Collective Bargaining : recognition of union : an essential prerequisite to collective bargaining ; cannot be withdrawn or questioned according to whim ; negotiation in good faith : meeting with repre- sentatives but with no bona fide intent to reach an agreement ; employer's duty to negotiate in good faith in an effort to make an agreement ; employer's duty to enter into a signed agreement ; employer ordered to bargain with union ; enter into a signed agreement , if understanding is reached-Strike: prolonged by respondent 's unfair labor practices-Discrimination : non-reinstatement following strike ; retention of strikebreakers ; refusal to reinstate strikers to former positions ; delayed reinstatements ; hiring new employees in preference to striking employees ; charges of, not sustained as to 19 persons-Employee Status: independent contractor ; lay-off prior to strike-Regular and Sub- stantially Equivalent Employment : factors considered-Reinstatement Ordered: employees refused reinstatement ; application for reinstatement not prerequisite to order requiring, in view of employer 's conduct ; special forms of : displace- ment of employees hired after prolongation of strike ; preferential list, to be followed in further reinstatement-Back P'ay: awarded ; as to one employee, from date of refusal to reinstate to date of offer of reinstatement ; as to re- maining employees who were discriminated against, no indicia to determine order of reinstatement : lump sum computed consisting of earnings paid by 18 N. L. R. B., No. 97. 837 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer to certain new employees whose positions could have been filled by striking employees ; distributed among discriminated employees in proportion to former wages from date of general refusal to reinstate to date of rein- statement or placement on preferential list, although immediate employment for all unavailable. Mr. John T. McCann, for the Board. Lipton & Nachby, by Mr. Samuel R. Nachby, of New York City, for the respondent. Mr. Samuel L. Rothbard, of Newark, N. J., and Mr. Albert Fisher, of New York City, for the U. A. W. A. Mr. Arnold R. Cutler, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges duly filed by International Union, United Automobile Workers of America, Locals 259 and 374, herein called the U. A. W. A., the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint dated December 13, 1937, against Theurer Wagon Works, Inc., New York City, herein called the re- spondent, alleging that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notices of hearing, were duly served upon the respondent, upon the U. A. W. A., and upon the Custom Built Commercial Body Builders, Inc., herein called the Body Builders, a labor organization alleged in the complaint to be dominated by the respondent. The complaint, as amended at the hearing, alleged in substance (1) that the respondent refused to bargain collectively with the U. A. W. A. as the exclusive representative of its employees at the New York and New Jersey plants of the respondent although the U. A. W. A. represented a majority of the employees within an appro- priate unit; (2) that the respondent's refusal to bargain caused its employees in both plants to go out on strike on or about May 12, 1937, and that on or about July 16, 1937, on which date the strike ended, the respondent discriminatorily refused to reinstate 97 of its striking employees; (3) that the respondent, by its officers and agents, initiated,- formed, sponsored, dominated, and interfered with the Body Builders, and contributed support thereto; and (4) that the respondent by the THEUR'ER WAGON WORKS, IN.COIRPORA'TED 839 foregoing and other acts, interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The answer of the respondent denied the material averments of the complaint, as amended. After several postponements, notices of which were duly served upon the respondent, the U. A. W. A., and the Body Builders, the hearing opened in New York City on January 27, 1938, before Martin Raphael, the Trial Examiner duly designated by the Board. The hearing was closed on February 28, 1938. The Board, the respondent, and the U. A. W. A. were represented by counsel and participated in the hearing. The Body Builders was not represented although its counsel appeared as a witness for the Board. . Full opportunity to be heard, to examine and cross -examine witnesses, and to introduce evi- dence bearing on the issues was afforded to all parties. During the hearing, the respondent made numerous motions to dismiss the complaint and to strike certain testimony from the record. Except as to certain of these motions and parts thereof, which the Trial Examiner denied at the hearing , ruling on these motions and certain other motions was reserved . In his Intermediate Report the Trial Examiner granted a motion to dismiss the complaint as to a group of 18 employees who had been reinstated by the respondent, and denied the other motions. At the close of the Board's case and again at the close of the hearing, counsel for the Board moved that the pleadings be conformed to the proof. These motions were granted by the Trial Examiner. The Trial Examiner made a number of rul- ings on other motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. On April 22, 1938, the Trial Examiner filed his Intermediate Re- port, copies of which were duly served upon the respondent and the U. A. W. A. He found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and ( 5) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom , disestablish and refuse to deal with or recognize the Body Builders, bargain collectively with the U. A. W. A., and offer 79 employees reinstatement to their former positions with back pay. Thereafter the respondent filed exceptions to the Intermediate Re- port and to various rulings of the Trial Examiner. Pursuant to notice, duly served upon the respondent and the U. A. W. A., a hearing was held before the Board on November 17, 1938, in Washington, D. C., for the purpose of oral argument . The respondent and the U. A. W. A. were represented by counsel and participated in the oral argument. 283029-41-vol. 18--54 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to permission granted by the Board, the respondent sub- mitted a brief. The Board has reviewed the exceptions of the re- spondent to the findings, conclusions, recommendations, and rulings of the Trial Examiner and, save for those exceptions which are con- sistent with the findings, conclusions, and order set forth below, finds them to be'without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a New York corporation having its principal office and place of business in New York City. It operates two plants, one in New York City and the other in North Bergen, New Jersey. It is engaged in repairing and building commercial bodies for motor trucks, trailers, and wagons, and in assembling cooling units used for food trucks. For the period from June 1 to December 1, 1937, the respondent purchased for its New York plant about $7,858 worth of materials of which 70 per cent were shipped to the New York plant from outside the State of New York. For the same period the respondent pur- chased for its New Jersey plant about $63,422 worth of materials of which 49 per cent were shipped to the New Jersey plant from outside the State of New Jersey. During the same period the respondent did $260,206 worth of busi- ness at both plants. Twenty-eight per cent of this total volume rep- resented products finished at the. New Jersey plant and shipped outside the State of New Jersey. Only a fraction of 1 per cent of this volume represented products finished at the New York plant and shipped outside the State of New York. Generally the repair work done at each plant is performed on equipment shipped from the State in which the plant is located, except that the overflow repair work at the New 'York plant, representing from 1 to 2 per cent of the total repair work received there,, is shipped to the New Jersey plant and then returned to the New York plant for delivery to the owners. II. THE ORGANIZATIONS INVOLVED Locals 259 and 374, International Union, United Automobile Workers of America, are labor organizations affiliated with the Com- mittee for Industrial Organization, herein called the C. I. 0., admit- ting to membership all employees at the respondent's New York I Now the Congress of Industrial Organizations. THEURER WAGON WORKS, INCORPORATED 841 plant and New Jersey plant, respectively, including working foremen, maintenance men, porters, chauffeurs, night watchmen, and shipping and stockroom clerks, and excluding clerical and office employees, executives, salesmen, and employees with the right to hire and discharge. Custom Built Commercial Body Builders, Inc., is a labor organiza- tion without any outside affiliation. It admits to membership only employees of the respondent at the New York and New Jersey plants, exclusive of executives. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion On March 15, 1937, a number of the employees at the respondent's New Jersey plant signed a petition requesting an increase in wages and improvements in working conditions and submitted it to John Theurer, president and treasurer of the respondent, at the New Jersey office. During the lunch hour that day Theurer addressed the em- ployees at the New Jersey plant. Directing his remarks to the peti- tion which had been presented, he denounced the employees as foreigners, Communists, and radicals and stated that he was "going to hire all American citizens in this plant." When some of the em- ployees stated that the petition constituted only a plea motivated by the high cost of living, Theurer answered that he considered it a demand, and that he was going to operate the plant to suit himself. On the following day Theurer approached some of the employees individually and asked them why they had signed the petition. A few days later the employees sent a committee to Theurer to discuss the petition. The respondent permitted only one of the committee members, Luke Durbin, to see him. Theurer told Durbin that he would grant wage increases on a merit basis only and that he would "run the plant as he saw fit." At the same time, however, he offered a wage increase to Durbin, who refused to accept it because it might be misunderstood by the other employees. When Durbin told Theurer that if he did not take advantage of this opportunity to confer with his employees "the C. I. O. might come along later," Theurer replied that "the men would not pay dues to join an organization like that." Following the failure of the respondent to consider their requests, the employees decided to seek outside assistance. A committee of the employees thereupon communicated with the U. A. W. A., which began an organization drive among the respondent's employees at both plants. The employees at the New York plant were solicited for membership in Local 259, which had jurisdiction over employees 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at similar plants in New York City and the employees in the New Jersey plant were enlisted as members of Local 148.2 On March 31, 1937, the U. A. W. A. sent letters to all the em- ployers in the commercial body building industry within the New York area, requesting each employer to meet with the U. A. W. A. for the purposes of collective bargaining. Many of these employers advised the U. A. W. A. to confer with The Vehicle Body Associa- tion Incorporated of Metropolitan New York, herein called the Asso- ciation, an organization composed of various employers in the afore- said industry within the New York area. The Association advised the U. A. W. A. of its desire to negotiate, but took no further action. As a result, about April 28 the employees of some 17 of the approxi- mately 60 employers within the New York area and the employees of about 7 employers in adjacent New Jersey, went on strike. Almost simultaneously representatives of the Association and the U. A. W. A. met and arranged a conference to discuss wages, hours of employ- ment, and working conditions. At the same time the U. A. W. A. carried on an organization demonstration in front of the respondent's New York plant during which pickets paraded with U. A. W. A. placards and distributed circulars and application cards. This dem- onstration was terminated by the U. A. W. A. at the request of the respondent in consideration for its promise that it too would meet and confer with the U. A. W. A. On the morning of May 1, prior to its meeting with the U. A. W. A., the respondent "decided to have the men vote in both plants to determine how they felt about negotiations with any union, so that [the respondent] would be in a position to know how to talk with the union delegation." At each of the plants the respondent's managerial officials conducted a ballot among the employees to de- termine their preference for an inside or an outside union. At the New York plant Nachby, the attorney for the respondent, in the presence of its officials, told the employees, "You can joint an outside union, if you want; or you can get together and-, appoint a committee of your own, with whom we will talk, without any outside inter- ference." 3 Despite testimony to the contrary, it is clear that the respondent meant, and the employees understood the term "outside union" to mean, the U. A. W. A. At each of the plants a majority of the respondent's employees voted in favor of the outside union. At Theurer's suggestion the employees also elected a shop committee at each plant. Several days later Theurer called the members of the shop com- mittees at both plants to lunch with him, Diehl, and Nachby at a 2 Thereafter Local 374 was chartered with jurisdiction over the employees of the New Jersey plant. 8 Italics supplied. THE'URRR WAGON WORKS, IN.CO11S'0RAT] D 843 restaurant in New York. Theurer arranged this meeting because, according to Nachby's testimony, "a number of men had come to him [Theurer] and stated that they did not have a proper oppor- tunity to vote [at the May 1 elections] as they really wanted, because a number of men had been looking over their shoulders and in addi- ' tion to that they did not know what was meant by an outside union." The respondent's representatives thereupon proceeded to give their explanation of the differences between the two types of unions. They stated that the employees would benefit more by an inside union, for whereas in an outside union the employees paid large dues while the union officials had good jobs, in an inside union the employees could keep the money among themselves. They then advised the com- mittee members that even though the employees had signed member- ship applications with the U. A. W. A. they could resign if they wished. The respondent's representatives then asked the committee members to return to the plants, "explain the situation to the men," urge them to cast another ballot, and then "inform" the respondent "what they wanted." Although the respondent in part called this meeting because a "number" of employees had complained about the May 1 elections, at the hearing Diehl could name only one such employee who had so complained. At the termination of the conference, shortly before the close of the working day, the members of the shop committees returned to the plants. It does not appear that the committee took action at the New York plant. At the New Jersey plant, however, the committee mem- bers went to their respective departments and called the employees to a meeting. After all the employees had assembled, a shop committee member explained that the respondent "wanted another vote" on their desires regarding an inside or outside union. When the employees protested against voting again, another committee member persuaded them to vote by a show of hands. In this election all the employees, amid cheers, voted for an outside organization. By May 7 more than 90 per cent of the employees in the body building industry had gone on strike, although the respondent's em- ployees continued to work. On that day the U. A. W. A. and the Association held a conference which representatives of the respondent attended as members of the Association. The parties discussed vari- ous proposals and, although no agreement was reached, they agreed to meet again on May 12. Meanwhile the respondent's employees, more than a majority of whom had become members of the U. A. W. A., met independently and embarked upon a course of action separate from though parallel to that of the U. A. W. A. At each of the respondent's plants the employees submitted a contract, similar to the one which the U. A. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. A. had previously submitted to the Association and the respond- ent, and requested a reply by May 12. At the New York plant a U. A. W. A. representative endeavored to present the contract to Theurer, but he refused to accept it, stating that "he would not deal with outsiders." The U . A. W. A. representative "said he represented the Union [and that it] was his job to present the contract," but Theurer refused to accept the contract from him, saying , "I don't know who you are. I have nothing to do with you. If my men want to give me a proposal , or contract, I will accept it from them ... You are not an employee of our organization here, and I do not see why I should have to accept anything from you." When the union representative insisted that it was his job to present the con- tract, Diehl told him, "As long as Mr. Theurer is not in the mood to accept it from you, what is the harm of having you pass it on to our men." Accordingly the union representative handed the contract to a U. A. W. A. employee who then gave the contract to Theurer. On the morning of May 12 a committee of the employees at the New Jersey plant approached Theurer for his reply regarding the contract . Theurer told the committee that it should communicate with his attorney and that he did not have anything to do with the matter. When the committee stated that the employees might vote to strike, Theurer replied, "You go on strike, and you are going to walk the streets." Theurer's threat, that the employees who struck would walk the streets , was not denied. Theurer testified that he, told the committee that no answer had been promised them and fur- ther that the Association was to meet with the U. A. W. A. that after- noon. During the noon hour the U. A. W. A. employees at both plants, after being informed about this conference, voted to strike and thereupon walked out. It is clear that the respondent , through its agent, the Association, had in fact, as noted above , agreed to meet with the U. A. W. A. later that afternoon . In addition , either earlier that morning or the night before, Nachby had told the U. A. W. A. employee who had a few days previously given Theurer the contract at the New York plant, that the Association was going to submit a definite wage scale at the meeting to be held that afternoon . We are of the opinion that the employees at the respondent 's plants called the strike pri- marily to join the other 'striking employees in the body building industry. In addition to the above , there is evidence that about May 6 a fore- man advised an employee during working hours that the U. A. W. A. was "no good," that it was only interested in the money from his dues, that the respondent would close its plants before yielding to THEURER WAGON WORKS, INCORPORATED 845 the U. A. W. A., and that the employees had better give up the idea of a union as Theurer knew everything that went on at the meetings. During the strike Theurer and Diehl called three of the most active U. A. W. A. employees from picket duty into the plant and tried to persuade them to send the strikers back to work and then discuss the contract. When they refused, Theurer called them Communists and radicals and told them, "You will never have an outside union come into this shop.". Theurer again enumerated the benefits of an inside union and threatened that anyone "who went out on strike out of his shops would not work there any more." B. Conclusions The foregoing findings clearly show that the respondent was op- posed to the organization of its employees and made every effort to offset their attempts to form the U. A. W. A. Theurer's speech to the employees of the New Jersey plant on March 15, 1937, fore- shadowed the hostility which the U. A. W. A. was to encounter. Following the initial collective action of the employees, the respond- ent sought to discourage its employees from exercising their rights under the Act when Theurer called them foreigners, Communists, and radicals, and threatened them with the loss of their jobs by stating that he would "hire all American citizens" at his plant and that he would operate it as he saw fit. He approached the employees in- dividually to impress upon them his disapproval of such collective action. The elections which the respondent held at its plants constituted not only an attempt to ascertain the strength of the union but also served as a pretext to influence the employees to form an inside union "without any outside interference." 4 The respondent, while urging the support of an inside union, sought to intimidate its employees against membership in the U. A. W. A. by discrediting it and its officials and advising withdrawal from its membership. Theurer also discouraged affiliation with the U. A. W. A. when he refused to deal with the U. A. W. A. representative because he was an "out- sider." After the employees went on strike the respondent sought to destroy the free organization of its employees by continuing its anti- union threats and intimidations. We find that by the foregoing acts the respondent interfered with, restrained, and coerced its employees in the exercise of the right to 4 The Board has elsewhere expressed its disapproval of such employer elections. See Matter of The Heller Brothers Company of Neaocomerstown and International Brother- hood of Blacksmiths, Drop Forgers, and Helpers, 7 N. L. R. B. 646; Matter of Harter Corporation and International Assn. of Machinists, 8 N. L. R. B. 391, enf'd as mod., Harter Corporation Y.. N. L. R. B., 102 F. ( 2d) 989 (C. C. A. 6). 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. C. Domination of and interference with the Body Builders When, following the first collective action of the employees, one of the employees told Theurer that they might join the C. I. 0., he retorted that such a thing was unlikely. When it became evident that they desired to affiliate with the C. I. 0., the respondent sought, by praising the benefits of an inside union, by deprecating the value of outside unions, and by advising the members to resign from the U. A. W. A., to persuade the employees to maintain their labor organization as an "inside union." It was following these efforts of the respondent and during the negotiations with the U. A. W. A. that the Body Builders was formed. Three employees, John Hamp- ton, James McDonough, and Frederick Roehr, took an active part in its formation. Each of them occupied a position superior to that of other employees. Roehr, one employee testified, was the electrical foreman, under whom there were about four employees. Theurer, when asked whether Roehr was a foreman, replied, "Well, he was. He is a foreman and was a foreman . . . I would not say he is much of a foreman." Theurer testified that Roehr also. attended certain meet- ings of the respondent's foremen. It appears from the record that Roehr was a working foreman. As such, although he was eligible to membership in the U. A. W. A.,5 he could not under the Act use his supervisory status to interfere with the organization of the employees. "Supervisory employees, although eligible for membership in com- peting labor organizations, are forbidden by the Act, in their capacity as the employer's agents, to interfere in the selection of employee bar- gaining representatives . . . It is perfectly consistent for supervisory employees to belong to labor organizations and yet be prohibited from conduct permitted non-supervisory employees." 6 Hampton and McDonough were salesmen. We recognize that sales- men ordinarily have no supervisory authority. In the instant case, however, because the respondent's products are custom built accord- ing to special specifications, the salesmen perform supervisory func- tions. In order to insure compliance with the specifications of a ° See Section III, D, 1, below ° Matter of Tennessee Copper Company and A. F. of L. Federal Union No. 21164, 9 N. L. R. B. 117. THEURER WAGON WORKS, INfiOiRPORAT1D 847 particular product, it is necessary that the salesman who secured the order therefor maintain continual supervision over its construction.' Although Theurer denied that the salesmen were obligated to main- tain such supervision, he admitted that they "may do that." Two employees testified that Hampton and McDonough gave orders with respect to the performance of work. During 1.936 Hampton earned commissions amounting to about $10,000. In its brief, the respond- ent stated, "It seems ridiculous to believe that a man of John Hamp- ton's caliber, earning approximately $10,000 a year, apparently a high pressure salesman, would suddenly fraternize with and take into his confidence an active striker and divulge to this active striker that John Theurer, President of the respondent company, was respon- sible for the organization of the [Body Builders]." It is equally amazing that a man of Hampton's "caliber" should on his own initia- tive, suddenly take all interest in aiding the employees to form a labor organization for the purposes of collective bargaining. Although neither Hampton nor McDonough had the power to hire and discharge employees, it is evident that in addition to their actual supervisory powers, their relations to the management were such as reasonably to convey to the employees that they voiced the policy and wishes of the respondent." Hampton stated that he first conceived the idea of the Body Builders on the second day of the strike because he was "losing business, and seeing a lot of outsiders come in and dictate to the men inside." How- ever, no steps were taken toward its formation until June 15, when simultaneously with Hampton's interview with an attorney regarding the formation of the Body Builders, the respondent, in the midst of its negotiations with the U. A. W. A., insisted that a Board election be held among its employees to determine whether the U. A. W. A. repre- sented its employees .9 ' See the following examination of Hampton by counsel for the Board : A. (By HAMPTON .) And, of course, in our business-a salesman in our business has to follow his own job all the way through to make sure they are all correct. Q. You still do follow your own jobs through the plant, is that correct. A. Absolutely, I do, yes. Q. And where you find that they are not being built according to specifications, you register a complaint , is that so? A. That is right. See Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. R . B. 621, enf'd , International Association of Machinists, Tool and Die Makers Lodge No. 35, Affiliated with the International Associa- tion of Machinists and Production Lodge No. 1200, Affiliated with the International Asso- ciation of Machinists v. N. L. R. B., 110 F. (2d) 29 (C. A., D. C.) ; Matter of Ameri- can Manufacturing Company; Company Union of the American Manufacturing Company; The Collective Bargaining Committee of the Brooklyn Plant of the American Manufac- turing Company and Textile Workers' Organizing Committee, C. I. 0., 5 N. L. R. B. 443, enf'd, N. L. R. B. v. American Manufacturing Co., 106 F. ( 2d) 61 (C. C. A. 2) ; Matter of Cupples Company, a corporation and Matchworkers' Federal Labor Union No. 20927, affiliated with A. F. of L., 10 N. L. R. B. 168, enf 'd as mod., Guppies Company Manufac- turers v. N. L. R. B., 106 F. (2d) 100 (C. C. A. 8). O The election , conducted under the supervision of the Regional Director, is discussed in Section III, D, below. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the day before the election Hampton and McDonough appeared at the plants with petitions for membership in the Body Builders. For several days thereafter they, with several other employees, circulated the petitions among the employees at work and on the picket line. Other strikers were approached at their homes. All the employees who remained at work became members of the Body Builders, whose organizers circulated freely through the plants during the working hours. The activity of these organizers in the plants proceeded with- out objection from any of the foremen, who, Hampton testified, "were heartily in favor of" the Body Builders. Hampton told the strikers "that the boss would recognize [the Body Builders] . . . but he will never recognize the C. I. 0.," and that the sooner they joined the inside union, the sooner they would return to work. Hampton also told Henry Zaice, an employee, that he, Hampton, had spoken to Theurer about the Body Builders before expending any funds for it and that "Theurer said go ahead and whatever you do I will stand behind it." Although Theurer denied speaking to Hampton regarding the forma- tion of the Body Builders, this conversation was not denied by Hamp- ton and we accept Zaice's testimony as true. Hampton unsuccessfully endeavored to have the Board election postponed. Nevertheless the organizing efforts of the Body Builders continued for the next 2 or 3 months. Hampton testified that Theurer was not aware of the activity carried on by this organization during working hours. Elsewhere Hampton testified that eventually Theurer was apprised of the circulation of the petitions but that he did "not know whether [Theurer] did or [did] not" object. We find that the respondent was aware of the Body Builders' activities during working hours. On June 25 Hampton sent to each of the respondent's employees a letter falsely imputing the cause of the strike to the disagreement between the Committee for Industrial Organization and the American Federation of Labor, urging membership in the Body Builders, and enclosing an application card together with a separate yellow slip containing the following message : I was to a meeting of Auto Union 317 and they announced on the floor that the strike in the truck body is not legal, that Mr. Wells, who is a Vice-President of the International, told Alberts of Local 259 that he had no right to call the men out, and not to expect any kind of help from them in any way, but get the men back to work. 259 is broke. Report this to the rest of the shops, and to the pickets at all the shops. Yours for the ending of strike, A AUTO WORKER. THETJRER WAGON WORICS, INOO'RPORA'TED 849 Five days later Hampton sent another letter to all the employees, again urging them to join the Body Builders, stating that it was not a company union, and concluding, "Join the March Back to Work .. . Yours for working as real Americans should." Hampton also spoke to the strikers and was instrumental in persuading some of them to return to work. Hampton, McDonough, and Roehr, as the original trustees, had first incorporated the Body Builders on June 16, 1937. However, it was not until July 12 that the first meeting of the organization was held. Hampton presided over this meeting, which was held during the noon hour outside the plant and lasted about 20 minutes. During that time the permanent officers were'elected and the constitution and bylaws were read and adopted. Hampton and McDonough were elected members of the executive committee, comprised of three mem- bers, and Roehr was elected president. Thereafter the notices pertain- ing to the Body Builders appeared regularly on the bulletin boards of the plants. Since its organization the Body. Builders has neither taken up any grievances nor attempted to bargain collectively with the respondent. Although its constitution and bylaws provide for collective bargain- ing, Hampton testified that it was his "personal opinion" that if a man felt aggrieved he should himself go to the employer to adjust his difficulties. Although the Body Builders had circulated a petition requesting recognition as the collective bargaining representative of the employees, it was never presented to the respondent. According to Hampton,.the executive committee had decided to wait until after the charges brought by the U. A. W. A. had been disposed of and furthermore the "men were lucky . . . to have their jobs . . . with- out making demands on the company." When the respondent was first confronted with the collective action of its employees it forcefully expressed its opposition. Thereafter, when it found that the employees could not be dissuaded from organ- izing, it sought to divert their organizational efforts into channels more acceptable to the respondent 10 When its. urgings and other anti-union activities failed to induce the employees to form the inside union, in the face of the clear evidence that the employees desired representation by the U. A. W. A., the respondent, through the direct activity of three employees, sponsored and encouraged the formation of the Body Builders. We have found that these three employees were supervisors. But whatever their official position, it is evident 10 Cf. Matter of Texas Mining of Smelting Company and International Union of Mine, Mill of Smelter Workers, Local No. 412, 13 N. L. R. B. 1163; Matter of Gutman of Com- pany and National Leather Workers Association, Local 43, 18 N. L. R. B. 64. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they acted in fact in behalf of the respondent, and that through them the respondent brought pressure to bear upon its employees which was intended to and did deprive them of their free and inde- pendent choice." We are satisfied that the respondent exercised con- trol over these three employees, directed their actions in the formation of the Body Builders, permitted the use of the respondent's property during working hours to further the growth of their labor organiza- tion, and ratified the action of the Body Builders in breaking the strike. Upon the basis of the foregoing facts, we find that the respondent dominated and interfered with the formation and administration of the Body Builders, and contributed support to it, and that it thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that all the respondent's employees at the New York and New Jersey plants, including working foremen, maintenance men, porters, chauffeurs, night watchmen, and shipping and stock- room clerks, but excluding executives, clerical and office employees, employees with the right to hire and discharge, and salesmen, con- stitute a unit appropriate for the purposes of collective bargaining. The answer neither admits nor denies this allegation of the complaint. The labor policies at both plants are the same and the bargaining hereinafter described proceeded on the basis of such a unit without objection from the respondent. We find that all the respondent's employees at the New York and New Jersey plants, including working foremen, maintenance men, porters, chauffeurs, night watchmen, and shipping and stockroom clerks, but excluding executives, clerical and office employees,' em- ployees with the right to hire and discharge, and salesmen, constitute a unit appropriate for the purposes of collective bargaining and that such unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and oth- erwise effectuates the policies of the Act.12 "Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 1,59, 8 N. L. R. B. 621, enf'd , International Association of Machinists, Tool and Die Makers Lodge No. 35 , Affiliated with the International Associa- tion of Machinists and Production Lodge No. 1200, Affiliated with the International Asso- ciation of Machinists v. N. L. R. It., 110 F. (2d) 29 (C. A., D. C.). " See Matter of Todd Shipyards Corporation, Robins Dry Dock and Repair Co., and Tietfen and Lang Dry Dock Co. and Industrial Union of Marine and Shipbuilding Workers of America, 5 N. L. R. B. 20. T,*H URE;R WAGON WORKS, IN.COiRPORATED 851 2. Representation by the U. A. W. A. of a majority in the appropriate unit Lists prepared from the records of the respondent and containing the names of its employees on its pay rolls of both plants as of May 12, 1937, were introduced in evidence. These lists contain the names of 282 employees within the appropriate unit. Pursuant to stipulation of the parties there was also introduced in evidence, in lieu of the U. A. W. A. records, a list containing the names and dates of payment of initiation fees of 159 U. A. W. A. members. It was further stipulated that the U. A. W. A. assistant financial secretary, who appeared at the hearing, would testify that the list was an accurate copy of the U. A. W. A. records, that the individuals named thereon were employees of the respondent up to the time of the strike, that they joined the U. A. W. A. and paid their initiation fees on the dates appearing therein, and that they were still members of the U. A. W. A. at the time of the hearing. The respondent con-. tended that such stipulations do not admit the truth of the facts. However, as counsel for the respondent stated that he did not desire to cross-examine the U. A. W. A. assistant financial secretary, the facts contained in the stipulations remain uncontradicted. We have compared the U. A. W. A. list with the pay-roll lists of May 12 and find that all but 7, or a total of 152, of the names appearing on the U. A. W. A. list also appear upon the May 12 pay rolls. Of the 152 persons named, 147 became members of the U. A. W. A. between May 4 and 7, 1937. - In addition there were introduced in evidence 82 U. A. W. A. application cards which were signed between April 30 and June 30. After counsel for the Board and the respondent compared these cards with the May 12 pay rolls, counsel for the respondent conceded that all the persons whose names appeared on the cards except one 13 were em- ployees of the respondent on May 12 and that the signatures on the cards were genuine except as to 1214 Thereafter testimony was intro- duced that the signatures of 616 of the 12 were in fact signed by them or their agents. Consequently the signatures appearing on 75 of the 82 cards are genuine or duly authorized and represent persons who were employees of the respondent on May 12. Of the 75 cards, 50 were signed between April 30 and May 7. Thus on May 7, 1937, 197 employees of the 282 employees within the appropriate unit had 13 Titus Novesky ; see Section III, E. 14 Adelbert Beretvas, Anton Capellmann, Saul Castille, Jacob (Jakob) Eisen, George Gozher (Gozner), John Mockoviak, Andy Orell, Frank Rura, Joseph Schoonejans, John Schounot, Ludwig ( Louis ) Seidman , Hugh Van Buerden (Van Beurden). 15 Anton Capellmann , Jacob ( Jakob ) Eisen, George Gozher ( Gozner), John Mockoviak, Joseph Schoonejans , Ludwig (Louis ) Seidman. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorized the U. A. W. A. to represent them for the purposes of col- lective bargaining. We find that on May 7, 1937, and at all times thereafter, the U. A. W. A. was the duly designated representative of a majority of the employees in the appropriate unit and that, pursuant to Section 9 (a) of the Act, it was the exclusive representative of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain Between May 12 and 21, 1937, the U. A. W. A. and the Association held a series of conferences at which they discussed the various offers and counteroffers made by each of them, but reached no agreement. Finally, dissatisfied with the lack of progress of these discussions, due in part to the disagreement among the Association members them- selves, a group of 16 employers began to negotiate independently with the U. A. W. A. On May 28 these employers successfully concluded an agreement with the U. A. W. A. Thereafter, almost all the em- ployers in the New York and New Jersey area executed similar agree- ments. The respondent and about six other employers, however, refused to accept such contracts. By May 26 the negotiations between the Association and the U. A. W. A. had ceased and were not there- after resumed. The U. A. W. A. negotiating committee at the respondent's plant, following the cessation of negotiations through the Association, com- municated with the respondent regarding direct negotiations with it, but was advised to see Nachby. A few days later the committee met with Nachby at his office and presented him with a proposed contract. On June 15 the representatives of the U. A. W. A. and the respondent held a conference at the Regional Office of the Board. The U. A. W. A. had come to the conference "with one purpose, ... and that is to get an agreement." Nachby, however, questioned whether the U. A. W. A. actually represented the respondent's employees and re- quested that an election be conducted by the Board. In view of the duration of the strike, the number of the respondent's employees who were out on strike, and the negotiations which had been conducted until then, the U. A. W. A. contended that an election was unnecessary. It finally gave its consent, however, and an election was conducted under the supervision of the Regional Director. Of 262 voting, 215 registered their choice of the U. A. W. A. as their bargaining representative. Following the Board election another conference was held between the U. A. W. A. and the respondent, at which the U. A. W. A. T'HEURER WAGON WORKS, IN00RPORATED 853 submitted a copy of an agreement similar to the one which had been signed by the other employers in the industry. It provided for a closed shop, arbitration of disputes, prohibition against soliciting or campaigning on shop premises, a guarantee against discrimination for union activity or membership, seniority in lay-offs, a 40-hour, 5-day week, a minimum wage scale including time and a quarter for overtime, a guarantee against strikes or lock-outs, and a 10-percent wage increase for those already receiving the minimum. The agree- ment further provided that the wage rates and all other conditions were to be the same for all employers with whom agreements would be made in the New York area. Except for two sections of the contract, it appears that at least some accord was reached with respect to each of its provisions. Nachby made suggestions to modify the arbitration provision and to provide against intimidation or coercion of employees by the U. A. W. A. in addition to the guarantee against discrimination for union membership or activity. As to other pro- visions, Nachby stated that they were either satisfactory or that they would probably meet with the approval of the respondent subject to certain subsequent modifications. The U. A. W. A. representatives agreed to modify their demands to meet the respondent's suggestions. According to Nachby, when the union committee left his office that day, the "two things still left open" related to the closed shop and Saturday work. On July 1, 1937, the respondent obtained a temporary injunction in the New Jersey courts restraining the U. A. W. A. and certain of its members from picketing the New Jersey plant. As a result, all picketing soon ceased. Shortly thereafter, the efforts of the respondent to break the strike began to take effect and many of the strikers began to return to work is On July 10 a conference was held at the respondent's New York plant. At this meeting the U. A. W. A. agreed to all of the respond- ent's previously proposed modifications of the contract as well as a modification of the seniority provision, a change in the 40-hour week to provide for Saturday work, and a new wage scale classifica- tion, to be determined later. There is some testimony that the U. A. W. A. was willing to waive the_ closed-shop provision, although Nachby testified that this matter was to be taken back to the U. A. W. A. members for consideration. However, Theurer made it clear to the U. A. W. A. representatives that "[the respondent] would under no conditions sign any contract," that he "was an American citizen and he would run his shop as he saw fit," and further, that "he did not see any reason why he should sign a contract" as "the men were coming back." 16 See Section III, C. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 13 the parties held a conference at the Regional Office of the Board. Nachby testified that one Shatzow represented the Board at this conference , that he "looked at the agreement, Board's Exhibit 9, and I told him that all of the provisions had been agreed upon with the exception of the [closed shop] paragraph, and he thereupon turned to . . . Mr. Fisher [who was one of the U. A. W. A. repre- sentatives], and questioned him as to why the Union had consented to the various changes," that he, Shatzow , told the "Union that they should not accept several of the changes ," that he raised so many questions with regard to all the paragraphs of the proposed agree- ment that at the conclusion of the conference Theurer and Nachby did not know what parts of the agreement were or were not accept- able to the U. A. W. A. The testimony of Theurer was similar to Nachby's. Fisher denied that Shatzow had offered the objections as claimed by Nachby and his denial is supported by the record. It does not appear that the "various changes" were ever reduced to writing. Except as to one change proposed by the U. A. W. A . and a few penciled notes, the "various changes" were neither incorporated in Board Exhibit No. 9, nor in any of the other proposed drafts of contracts contained in the record. From Nachby's own testimony, it is difficult to conceive how Shatzow could have raised the objections claimed by Nachby upon looking at the agreement . Upon all the evidence, we resolve the testimony in favor of Fisher. The U. A. W. A. contends, and its contention is supported in the record, that at that meeting the U. A. W. A. offered to waive all its prior demands and made only two requests , namely, a written contract recognizing the U. A. W. A. as the sole collective bargain- ing agent for the respondent's employees and the reinstatement of the strikers to their former positions. The respondent took the position that it would reinstate the strikers when it could, but would not dis- charge any strikebreakers . It also took the position that there was nothing in the Act which required it to continue to recognize the the U. A. W. A. as the sole collective bargaining agent, simply because "some time ago there was an election conducted by the Board, and at that time you had a majority." Further, Nachby stated, there was nothing in the Act "which says that we have to sign a written contract in which we state we will recognize the Union as the sole collective bargaining agency"; that even if the U. A. W. A. and the respondent had agreed upon all the terms of a contract, "he wouldn't say whether [the respondent] would or would not sign a contract." By July 15 the employees, having concluded that the "strike was getting pretty bad" and that "it was no use fighting any longer," sent a committee that day to see Theurer about, terminating the strike THEURER WAGON WORKS, INCORPORATED 855 and "getting the men's jobs back." The respondent refused to recede from its prior position regarding the reinstatement of strikers and refused to discharge any of the new employees hired after the strike began. Theurer promised only to employ men "we had work for at that particular time. " The U. A. W. A. committee was unable to obtain any other agreement. The following day, acting on the order of the U. A. W. A., the strike was ended and the employees began to apply for work. During the latter part of July and in early August, two other con- ferences were held, but nothing was accomplished at either of them. The final conference was held on August 31 , 1937. At this meeting the respondent again refused to discharge any of the employees hired during the strike in order to reinstate the strikers . In addition the respondent's representatives refused to reinstate several employees alleging that they were drunkards or the like. Nesin, one of the U. A. W. A. representatives , thereupon stated that the additional reasons given by the respondent for refusing to reinstate the employ- ees had never theretofore been offered by it and that its doing so was an insult to the intelligence of the U. A. W. A. representatives. Nesin further stated that the respondent's "whole attitude towards collective bargaining was phoney, that [it] never said at any time that [it] would sign any kind of an agreement" but instead empha- sized "that the law did not require [it] to sign." Nesin also told Nachby and Theurer that their conduct at the conferences indicated that they were "unprincipled," "arrogant," and "impudent." Nachby and Theurer, who contended that Nesin made these statements be- cause of some minor provocation, broke off the negotiations forthwith and left, Theurer saying, "I don't intend to stand by and be insulted." 4. Conclusions The course of negotiations described above reveals unmistakably that since June 15, 1937, the respondent has sought to avoid its obli- gation to bargain collectively with the U. A. W. A. At the May 1 elections held by the respondent it was made abundantly clear to the respondent that the employees desired to be represented by the U. A. W. A. That the U. A. W. A. represented a majority of the employees was confirmed by the fact that all but a small group of employees in each plant joined the strike which occurred some.2 weeks later. In the negotiations which followed, the respondent dealt with the Union as the sole collective bargaining agent of its employees. However, on June 15, after a protracted period of negotiating, during which the respondent had accorded the U. A. W. A. due recognition , the respondent suddenly saw fit to challenge the seem- 283029-41-vol. 18-55 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ingly unquestioned majority representation of the U. A. W. A. At that time most of the employees were still on strike. No acts had occurred to indicate that the employees had withdrawn from the U. A. W. A. or become affiliated with any other labor organization. It is clear that the sole purpose of the respondent in challenging the U. A. W. A. majority was to suspend the negotiations sufficiently to enable the Body Builders to be formed. Thereafter, however, the respondent used the Body Builders as an effective instrument to break the strike and destroy the U. A. W. A. At the conference following the Board election, which the U. A. W. A. won by a convincing majority, the parties reached a substantial agreement. Despite the fact that a mutual accord was then close at hand, the respondent opened a vigorous campaign to break the strike and to impugn and discredit the U. A. W. A. and its leaders. Within the following 2 weeks the respondent used every means ,at its disposal to this end. Through the mails it sent anti-union liter- ature to the employees and it approached the employees personally. Successful in its effort to break the strike, and with the employees returning to, work, the respondent could no longer "see any reason" for signing a contract. It refused to sign an agreement according the U. A. W. A. sole bargaining rights and announced that even if all the terms of a contract were agreed upon it would not sign.17 Thereafter, the employees went back to work in accordance with the respondent's previously announced terms. Although we do not con- done the conduct of the U. A. W. A. representative at the last con- ference, whatever the provocation, it is clear that the respondent's refusal to bargain had been made manifest. We have found that several times during the course of the negotia- tions the respondent modified its position with respect to the sole collective bargaining rights which it had granted to the U. A. W. A. We have repeatedly held that to meet with union representatives and to discuss terms does not satisfy the requirements of the Act if union recognition is withheld.18 The corollary of this principle fol- lows, that to meet with union representatives and to discuss terms similarly does not satisfy the requirements of the Act if, as in this 17 The testimony of the U. A. W. A. witnesses with respect to the refusal of the re- spondent to sign any contract is corroborated by Nachby's following testimony : At one of the- meetings . . . towards the latter part . . . where the question of signing an agreement came up, and at that time I mentioned that I did not think that Mr. Theurer would sign any agreement but that it was my suggestion that if he did take that position and if we did arrive at all of, the terms of an agreement , that the terms be set down in writing , so that there would be no ambiguity, and that that memorandum be witnessed by anyone that the Union wanted , other than Mr. Theurer. 18Matteir of The Griswold Manufacturing Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1197, 6 N. L. R . B. 298, enf'd, N. L. R. B . v. Griswold Manufacturing Co., 106 F. ( 2d) 713 (C. C. A. 3). THEURER WAGON WORKS, IN,OORPORATED 857 case, union recognition is granted and then withdrawn or questioned according to whim. We have also found that the respondent refused to enter into a signed agreement, whether it applied only to recognition of the U. A. W. A. as sole collective bargaining agent for its employees or whether the parties were successful in reaching an agreement relating to all the matters at issue. Such a refusal was only calculated further to undermine and damage the prestige of the U. A. W. A. as the bargaining agent in the respondent's plants.19 Under substantially similar circumstances we have held : We cannot find any justification for saying that while the re- spondent was obligated to. embody terms in some sort of an agreement, it was privileged to withhold a signed statement .. . We regard it as well settled that collective bargaining in good faith requires a willingness to consummate the negotiations, if successful, by entering into some sort of an agreement. And we hold that under circumstances such as are presented here, it is the employer's obligation to accede to a request that understand- ings reached be embodied in a signed agreement . . . We take judicial notice of the fact that today thousands of employers have accorded unions their right to normal contractual relation- ships, and that, as is shown by the record, the signed collective bargaining agreement is the prevailing practice. From the view- point of harmonious and cooperative labor relations, as well as of sensible business practice, the importance of embodying under- standings in signed agreements is obvious. Whether there may be, in some future case, circumstances indicating that the em- ployer there involved may under the Act decline to, embody un- derstandings in a signed agreement, we need not here decide.20 The respondent's domination of and interference with the forma- tion and administration of the Body Builders, its organization of the back-to-work movement, its tactics regarding union recognition, its refusal to sign an agreement under any circumstances, and its con- tinuance of other unfair labor practices which interfered with,' re- strained, and coerced its employees in the exercise of their right to self-organization, all of which were simultaneously carried on during the attempted negotiations, clearly indicate that the respondent did 19 Matter of Western Felt Works, a corporation and Textile Workers Organizing Com- mittee, Western Felt Local, 10 N. L. R. B. 407. 20 Matter of Inland Steel Company and Steel Workers' Organizing Committee and Amal- gamated Association of Iron, Steel, and Tin. Workers of North America, Lodge Nos. 64, 1010, and 1101, 9 N. L. R. B. 783; see also Matter of Fort Wayne Corrugated Paper Com- pany and Local No. 182, International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, 14 N. L. R. B. 1. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not at any time, on and after June 15, 1937, intend in good faith to bargain collectively with the U. A. W. A.21 We find that on June 15, 1937, and thereafter, the respondent re- fused to bargain collectively with the U. A. W. A. as the representa- tive of its employees in respect to rates of pay, wages, hours of employment, and other conditions of employment. We also find that the respondent, by refusing to bargain collectively with the U. A. W. A. as the representative of its employees in respect to rates of pay, wages, hours of employment, and other conditions of employment, on and after June 15, 1937, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. We further find that the above refusal to bargain collectively and the other activities of the respondent described above which inter- fered with the exercise by the employees of the rights granted by the Act were primary and continuing factors in the prolongation of the strike. E. The refusals to reinstate The complaint, as amended, alleges that on or about July 16, 1937, and at all times thereafter, the respondent refused to reinstate to employment at its New York and New Jersey plants 97 employees who participated in the strike, for the reason that they joined and assisted the U. A. W. A. and engaged in other concerted activities for the purpose of collective bargaining. It further alleges that by such refusal to reinstate these employees, the respondent discriminated against them in regard to their hire and tenure of employment in vio- lation of Section 8 (3) of the Act. These allegations are denied by the respondent. As we have above described, on July 15, 1937, in an effort to ter- minate the strike, the U. A. W. A. sent a committee to the respondent to request the reinstatement of all the respondent's employees still on strike. . The respondent refused to discharge any of the new em- ployees hired after the strike began and agreed only to employ men for whom there was work at the time. We find that the U. A. W. A. committee thereby made an application for reinstatement on behalf 21 Matter of National Licorice Company and Bakery and Confectionery Workers Inter- national Union of America, Local Union 405, Greater New York and Vicinity, 7 N. L. R. B. 537, enf'd as mod., N. L. R. B. v. National Licorice Company, 104 F. (2d) 655 (C. C. A. 2) ; Matter of American Manufacturing Company; Company Union of the American Man- ufacturing Company; The Collective Bargaining Committee of the Brooklyn Plant of the American Manufacturing Company and Textile Workers' Organizing Committee, C. 1. 0., 5 N. L. R. B. 443, enf'd, N. L. It. B. V. American Manufacturing Co., 106 F. (2d) 61 (C. C. A. 2). T'HETJRER WAGON WORKS, INOORPORA'TED 859 of all such employees.22 In addition, on the following and succeeding days applications for reinstatement were made by many of the em- ployees individually. Some of the 97 employees did not make indi- vidual applications for reinstatement. In view of the general appli- cation made on July 15 and in view of the respondent's position which indicated that new employees would not be discharged to make room for the striking employees, subsequent individual applications would have availed the employees nothing. It cannot be said that because some of the employees did not make individual applications to go to work they were not refused employment. That would "place a penalty on them for not doing what they knew would have proved fruitless in the doing."'23 Twenty-two of the 97 employees were reinstated by the respondent at various dates prior to the close of the hearing. Two of the 22 were reinstated before July 15, 1937.24 As these two employees were reem- ployed prior to the U. A. W. A. application and the termination of the strike, the respondent did not discriminate against them as to their hire or tenure of employment. Accordingly, we shall order that the allegations of the complaint, so far as they pertain to these two, listed in Appendix E, shall be dismissed. Of the remaining 20, each of whom is listed in Appendix A together with the date of his reinstate- ment, 16 were reinstated at various dates after July 15, 1937, but prior to the hearing, while 4 were reinstated during the hearing. Exclud- ing the 2 employees who were reinstated prior to July 15, 1937, there remain for our consideration the alleged discriminations relating to the delay in the reinstatement of the 20 and the failure to reinstate the remaining 75 of the 97 strikers, all of whom are listed in Appendix B. Prior to the strike of May 12 the respondent employed 299 em- ployees. Following the strike the number of employees dropped to 55. As a result of the various above-described activities carried on by the respondent many of the employees began to return to work. By July 14, 1937, the total number of employees rose to 128. In the week following the termination of the strike the number of the re- spondent's employees reached a total of 163. By October 13, 1937, and thereafter until the hearing, the respondent employed a total of approximately 216 employees. 22 Matter of Western Felt Works, a corporation and Temtile Workers Organizing Com- mittee, Western Felt Local, 10 N. L. R. B. 407. 23 Matter of Carlisle Lumber Company and Lumber & Sawmill Workers Union, Local 2511, 2 N. L. R. B. 248, enf'd, N. L. R. B. v. Carlisle Lumber Company, 94 F. (2d) 138 (C. C. A. 9 ), cert . denied, 304 U. S. 575; Matter of Denver Automobile Dealers Association, et al. and Capitol Automotive Lodge No. 606, International Association of Machinists, 10 N. L. R. B. 1173. 2+ H. Martin was reinstated on May 28, 1937 , and S. Odrobina , on June 30, 1937. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the strike the respondent has hired 70 new employees.26 Of this number 65 were hired on or after June 15, 1937.28 A table of the 65 new employees, indicating as to each of them, his name, the date of his employment, the type of work performed by him, and the dura- tion of his employment, follows. It will be noted from the table that the employment of 27 of the 65 terminated prior to the hearing whereas 38 are presently employed. Table of New Employees No. Name Type of work Date of hire Employ- ment termi- nated 1 Allen, H --------------------- Painter apprentice______________________________ 10-18-37 12- 6-37 2 Borngesser, R________________ Stockroom and body assembler apprentice--__-_ 8-30-37 (1) 3 Borngasser. Jr., W_____-_--__ Woodworker apprentice------------------------- 6-21-37 9- 3-37 4 Borngasser, Sr., W____-_---__ Porter and watchman--------------------------- 6-22-37 (1) 5 Bruno, F --------------------- Checker ----------------------------------------- 7- 6-37 (1) 6 Catrini, V____________________ Painter apprentice------------------------------ 6-23-37 (1) 7 Clark, B -------------------- Porter and watchman --_-_-_ -____-__- 6-23-37 8-11-37 8 Cleary,J -------------------- Painter apprentice------------------------------ 6-15-37 11-12-37 9 Day, F ----------------------- Painter helper----------------------------------- 6-22-37 (1) 10 Ebber, W-------------------- Washer ----------------------------------------- 10-16-37 (1 ) 11 Feeley, J--------------------- Stockroom clerk--------------------------------- 9-13-37 (1) 12 Fisher, W-------------------- Body assembler--------------------------------- 6-17-37 (1) 13 Fuchs, B--------------------- Blacksmith finisher_____________________________ 12-13-37 (1) 14 Cannon, J___________________ Painter apprentice ------------------------------ 6-18-37 8-30-37 15 Oilronan, M_________________ Blacksmith helper------------------------------ 9 8-37 (1) 16 Hakalahti, M---------------- Fender repairs---------------------------------- 10-22-37 10-28-37 17 Hammond, H---------------- Painter apprentice______________________________ 10- 4-37 (1) 18 Hayden, W------------------ Woodworker helper_____________________________ 10-22-37 10-27-37 19 Horlin, A -------------------- Painter apprentice______________________________ 10- 4-37 11-12-37 20 Huenick, A__________________ Building alterations_____________________________ 6-17-37 7-15-37 21 Inzina, D____________________ Painter helper----------------------------------- 10- 4-37 10-23-37 22 Jacikoff, S-------------------- Woodworker ------------------------------------ 8-25-37 C) 23 Johnson, E------------------- Assembling completed jobs---------------------- 10- 7-37 (1) 24 Kalita, A-------------------- Painter helper ----------------------------------- 10-18-37 10-27-37 25 Kier, S ----------------------- Millhand helper--------------------------------- 1-24-38 (1) 26 Kluge, A --------------------- Painter helper__________________________________ 6-19-37 (1) 27 Koeppel, J------------------- Body assembler apprentice______________________ 10- 7-37 (I ) 28 Kosits, J--------------------- Blacksmith finisher_____________________________ 9-22-37 (1) 29 Kratz, R--------------------- Finisher apprentice----------------------------- 10-18-37 10-22-37 30 Kucharski, S----------------- Maintenance ------------------------------------ 8- 3-37 (1) 31 Kurtz, A --------------------- Blacksmith finisher helper______________________ 6-24-37 (1) 32 Lampert, M_________________ Body assembler-------------------------------- 10- 4-37 (1) 33 Lawless, T------------------ Woodworker apprentice_________________________ 10-11-37 10-15-37 34 Linn, J----------------------- Fender apprentice_______________________________ 8-30-37 9-18-37 35 Long, F ---------------------- Porter and watchman___________________________ 11- 5-37 (1) 36 Malato, C-------------------- Painter apprentice------------------------------ 10-29-37 (1) 37 Malloy, M------------------- Porter ------------------------------------------- 10-25-37 11-17-37 38 Mason, E-------------------- Stockroom clerk_________________________________ 9-20-37 1 39 Mason, G -------------------- Maintenance helper_____________________________ 9-20-37 40 Mattson, E__________________ Body assembler apprentice______________________ 9- 7-37 O 41 McCarthy, C________________ Painter apprentice______________________________ 10- 6-37 (1) 42 McPherson, D_______________ Striping finisher--------------------------------- 10-29-37 11-26-37 43 Merker, W------------------ Painter ----------------------------------------- 10-22-37 P) 44 Michl, Jos___________________ Woodworker helper_____________________________ 9- 8-37 (i) 45 Miller, 0 -------------------- Painter helper___________________________________ 10-18-37 (1) 46 Missbach, J__________________ Trimmer's helper_______________________________ 1-29-38 (1) 47 Monico, D ------------------- Stockroom clerk apprentice ___________________•__ 12-14-37 (1) 48 Morquadt, P_________________ Blacksmith finisher_____________________________ 6-17-37 (1) 49 Moyer, J--------------------- Stockroom clerk apprentice_____________________ 7-17-37 8-18-37 50 Palle, A ---------------------- Porter and watchman___________________________ 10- 4-37 10-23-37 51 Podesta, L------------------- Porter and watchman___________________________ 7- 2-37 7-22-37 52 Polcha, 0____________________ Blacksmith finisher----------------------------- 10-15-37 (1) 53 Posser, J--------------------- Blacksmith finisher----------------------------- 9- 7-37 (1) See footnotes at end of table. 25 The term "new employees" as used herein includes those persons hired by the respond- ent after May 12, 1937, who, in so far as the record shows , had never previously been employed by the respondent . It also includes three persons who, although previously employed by the respondent, had last been employed prior to 1936 and no longer retained their employee status. 26 One of the 70, who was hired after June 15, 1937 , was an office worker and accord- ingly has not been included among the 65. THEURER WAGON WORKS, INiCO}RPORA'TED Table of New Employees-Continued 861 No. Name Type of work Date of hire Employ- ment termi- nated 54 Radek, 0 -------------------- Apprentice-------------------------------------- 9-29-37 1- 7-38 55 Rodrigues, 0----------------- Finisher apprentice ----------------------------- 10-11-37 10-16-37 56 Roehrer, E------------------- Woodworker apprentice ------------------------- 6-21-37 8- 7-37 67 Schaefer, 0------------------- Painter helper----------------------------------- 10-26-37 (') 58 Schran , H-------------------- Body assembler helper ---- ---------------------- 9- 8-37 (1) 59 Smith, W ------------------ Painter----------------------------------------- 10-21-37 (') 60 Stemmler, A----------------- Woodworker helper----------------------------- 10-19-37 (1) 61 Suter, T --------------------- Laborer----------------------------------------- 2- 5-38 (2 62 Thieme , W------------------ Chauffeur--------------------------------------- 6-18-37 (') 63 Trickel , A------------------- Fender repairs ---------------------------------- 12-15-37 1-17-38 64 Wagner, F------------------- Body assembler apprentice---------------------- 9- 8-37 (1) 65 Wong, 0 --------------------- Woodworker------------------------------------ 7-13-37 7-17-37 I Where no date or other indication appears the employee is still employed. 2 The exact date does not appear. Under Section 2 (3) of the Act, the strikers remained employees of the respondent. As we have frequently held, where, as here, a strike has been caused or prolonged by the respondent's unfair labor practices, the striking employees are entitled to their former positions upon making application therefor.21 Thus, 95 28 of the 97 striking employees were entitled to reinstatement to their former positions on and after July 15, 1937, and the respondent, except for good cause shown, was required to discharge persons hired after the strike was prolonged by reason of the respondent's unfair labor practices'29 if necessary to effectuate such reinstatement. The respondent contends that since the strike the nature of its business has changed and its operations have decreased. It contends that for these reasons and other specific reasons it delayed the rein- statement of 20, and failed to reinstate the remaining 75, of the 95 striking employees. In the absence of other considerations, the re- spondent's refusal, on July 15, 1937, to displace employees hired after the prolongation of the strike and its hiring of new employees thereafter, constituted a violation of the Act within the meaning of Section 8 (3).30 The relevant inquiry is whether the 65 positions filled by new employees after June 15, 1937, the date of the refusal 27 Matter of Jeffery-DeWitt Insulator Company and Local No. 455, United Brick and Clay Workers of America, 1 N. L. R. B. 618, enf'd, Jeffery-DeWitt Insulator Company v. N. L. R. B., 91 F. (2d) 134 (C. C. A. 4), cert. denied , 302 U S. 731; Matter of Remy ington Rand, Inc. and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L. R. B. 626, enf'd, N. L. R. B. v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2), cert. denied, 304 U. S. 576, 585; Matter of Western Felt Works, a corporation and Textile Workers Organizing Committee, Western Felt Local, 10 N. L. R. B. 407; Matter of Los Angeles Brick & Clay Products Co. and Alberhill Clay Products Workers' Union No. 373, 11 N. L. R. B. 750. 28 As described above, although 20 of the, 95 striking employees were reemployed, their reinstatements were delayed. 29As found above, on and after June 15 , 1937, the respondent refused to bargain col- lectively with the U. A. W. A., which unfair labor practices prolonged the strike. S0 Matter of Western Felt Works, a corporation and Textile Workers Organizing Com- mittee, Western Felt Local, 10 N. L. R. B. 407. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to. bargain, could have been filled by the 95 strikers. Accordingly we turn to a consideration of the reasons advanced by the respondent. I Among the 95 strikers there were at least 3 painters,31 Sakir, Turos, and Zapotocky, 2 painter helpers, Koenig and Voyvodich,32 and 2 painter apprentices, Pavlu and Van Clief. These men had been in the employ of the respondent for periods ranging from 2 to 6 years, except for the apprentices who had been employed for about 6 to 8 months. The respondent contended that it refused to reinstate these employees because no work was available for them. The respondent made other specific and additional contentions with respect to Sakir, and Koenig. The respondent contended that Sakir's "work was never of late of any great satisfaction," 33 that his "foreman was always after him on complaints", that he "missed half of" his work and "forgot some of it," and that he was "careless and shiftless." However, on cross- examination, Theurer also testified that Sakir was a "steady man" and that his work was "fair" and "passable." The record does not disclose that, when Sakir applied for reinstatement, any mention was made by the respondent of his unsatisfactory work. It appears from Theurer's own testimony on cross-examination, that Sakir was not incompetent. Further, according to Theurer, his work had be- come unsatisfactory only during the period immediately preceding the strike. Sakir had worked as a painter for 25 years. He had been employed by the respondent for the past 5 years. We find it difficult to believe that one with such experience, who had worked satisfactorily for the respondent for 5 years, should suddenly have become incompe- tent. Further, even if Sakir's asserted incompetence were deemed established, the respondent's failure to discharge or discipline him for his inefficiency prior to the U. A. W. A. strike indicates that such reason "was culled ex post facto to screen its true motive" 34 for the refusal to reinstate him after the strike ended. It is evident that this 81 Under the general category of painters there are painters, helpers, and apprentices. The respondent contended that there are other subdivisions , as plasterers , inside painters, gear cleaners or gear punks , and various classifications of apprentices . In reality, plas- terers are painters or their work is done by painters; inside painters and certain appren- tices appear to be helpers ; and gear cleaners , gear punks , and gear punks apprentices are apprentices. 32 It appears that Voyvodich was a helper as his pay was similar to that paid to helpers. sa Italics supplied. a' See Matter of Highway Trailer Company and United Automobile Workers of America, Local No . 135, etc., 3 N. L. R. B . 591, enf'd, N. L. R. B. v. Highway Trailer Company, 95 F. (2d ) 1012 (C. C. A. 7) ; Matter of Montgomery Ward & Company and Reuben Litzenberger, et al., 9 N . L. R. B. 538, enf'd as mod., Montgomery Ward & Co., Inc. v. N. L. R. B., 107 F. ( 2d) 555 (C. C. A. 7). THIJURRR WAGON WORK'S, IN.GORS'ORATED 863 reason was a mere pretext to conceal the fact that Sakir was refused reinstatement because of his union membership and activities. Koenig had been employed by the respondent for approximately 51/2 years. At various times he had worked as a painter's helper, a chauffeur, and a miscellaneous employee. His last position, according to Theurer, was that of a painter's helper. Theurer testified that Koenig was "very incompetent," that his work was "not very" satis- factory, and that he had been discharged and rehired several times. During his testimony, when asked to state what Koenig had done that was not satisfactory, Theurer merely replied, "Quite a number of things." Two incidents of alleged incompetence appear in the record. One related to the loss of certain hinges, valued at $15, from a case which Koenig had trucked from one of the respondent's plants to the other. Koenig testified that the hinges "must have bounced off the truck" unnoticed, as there "was a heavy storm that night," and "I had all I could do to see ahead of me without behind to see if any- thing would fall off." On the other occasion, Koenig had momen- tarily parked a customer's truck to open the respondent' s garage doors. Due to a defective emergency brake, about which Koenig had been unaware, the truck, under its own momentum, crashed into the building, causing damage amounting to $49. On each occasion Koenig, who earned $20 per week, had paid the costs under threat of discharge. It appears that whatever fault may have attached to Koenig in each of these incidents was subsequently condoned by the respondent. At the time of the strike, Koenig was regularly employed by the respond- ent. We are convinced that, as in Sakir's case, the respondent's claim of incompetence was a mere pretext to conceal the fact that Koenig was refused reinstatement because of his union membership and activities. The respondent offered no convincing evidence that the above paint- ers, painter helpers, and painter apprentices could not have performed the work for which the new painters, painter helpers, and painter apprentices were employed. In fact, the record discloses that one of these new employees had been performing the work of one 35 of this group of strikers since September 1937. Accordingly we consider the respondent's contentions with respect to these strikers to be without merit. Among the 95 was one painter foreman, Zaice. ' He had been em- ployed in the respondent's painting department for about 11 years. For 9 months prior to the strike he had worked as a foreman with some 30 men under his supervision. He joined the strike on May 14 and later joined the Union .3' The respondent contended that Zaice as Sakir. se As described above, the strike was called on 1\Iay 32, 1937 . Zaice, along with other foremen who did not join the strike, engaged in numerous duties of non -supervisory employees during the strike. Thus for 2 days Zaice engaged in regular production opera- 864 DECISIONS OP NATIONAL LABOR RELATIONS BOARD had been appointed foreman for a trial period and that, on May 12, the day of the strike, after a trial period similar in length to his predecessor's, he was found unsatisfactory because, although a ca- pable worker, he could not "handle men properly." As proof that the refusal to reinstate Zaice to his former position was not dis- criminatory, Theurer testified that Russo,37 the foreman appointed in Zaice's stead, was also an employee who had gone on strike and had picketed the plants. During his period as a foreman Zaice received three increases, his wages rising from $36.50. to $42 per week. The last increase was given him about 2 months prior to the strike. We do not believe that the respondent would have granted these increases to Zaice unless it had been satisfied with his work. During the strike, Theurer told Zaice that the employees had no business going out on strike, that "As far as foremen's job, that is out." When Zaice applied for reinstatement after the strike terminated Theurer told him that he, Theurer, was ashamed of Zaice "for stick- ing with that bunch of Communists and C. I. O. guys that can never do anything for you, they cannot get your job back." We reject the respondent's contention that Zaice was demoted before he joined the strike on May 14. Upon the basis of the entire record it is clear that the reasons offered at the hearing were mere pretexts to conceal the fact that Zaice was demoted after May 14, 1937, and refused rein- statement to his former position because of his membership in and activity for the U. A. W. A. Russo was reinstated on July 14, 1937. Zaice could have been reinstated to his former position on July 15, 1937. Among the 95 strikers there were at least 4 blacksmith finishers, Gozher, Ott, Svetics, and Treusc/i,.and 2 blacksmith helpers, Sadlon and Sohtettino. These men had been in the employ of the respondent for periods varying from 1 to 71/z years. With the exception of Sadlon, the only reason advanced for the refusal to reinstate these employees was that work was not available for them. Although Theurer testified that Treusch had engaged in a fist fight with an- other employee while at work some 3 months prior to the strike, the respondent did not contend that he was refused reinstatement therefor. As to Sadlon, the respondent contended that because his work was poor and not "very satisfactory" and because his eyesight was bad, he had been recommended for dismissal at the time that the strike commenced. For these reasons, Theurer testified, he did not reinstate Sadlon to his former position, but as he, Theurer, con- tions. As Zaice was permitted to become a member of the U. A. W. A., it is evident that he was a working foreman. 37 Also spelled Rousso in the record. THEURER WAGON WORK'S, INCORPORATED 865 sidered Sadlon an "honorable chap," "if there was any place where I could put him back, I would." On each of the occasions that Sadlon had applied for reinstatement he was told that there was "no work for him in his line." The record does not show that the respondent ever told him that he was refused reinstatement to his former position because of incompetency. At no time was he told that he would not be reinstated to his former position. Even if Sadlon's asserted incompetence were deemed established, as in the case of Sakir, in view of the fact that Sadlon was not discharged or disciplined prior to the strike and further was not apprised of his purported incompetence when he applied for reinstatement, we find that the respondent's reasons were mere pretexts to conceal the fact that he was refused reinstatement because of his union membership and activities.38 The respondent offered no convincing evidence that the above blacksmith finishers and blacksmith helpers could not have per- formed the work for which the new blacksmith finishers and black- smith helpers were employed. Accordingly we consider the re- spondent's contentions with respect to these strikers to be without merit. Among the 95 there were at least 4 woodworkers,39 Behn, Brandies, Alfred Cole, and Foelsl, and 1 woodworker helper, Casagrande. These men had been in the employ of the respondent for periods varying from 2 to 15 years. The respondent contended that they were not reinstated because there was no work available for them. In addition, Theurer testified that Behn could not be reinstated because the respondent had orders only for light bodies whereas Behn's experience was confined to heavy bodies. The record dis- closes that Behn in fact had constructed light bodies as well as heavy bodies. Although Casagrande had not been an efficient work- er initially, more recently he "was doing fairly well" as a helper. The respondent did not consider Casagrande's former inefficiency a bar to his reinstatement. The respondent offered no convincing evidence that the above woodworkers and woodworker helper could not have performed the work for which the new woodworkers and woodworker helpers were employed. Accordingly, we consider the respondent's conten- tions with respect to these strikers to be without merit. sH After the strike was terminated, Sadlon received, but refused an offer to be reinstated as a porter. As the offer was not one of substantially equivalent employment, the re- spondent's duty to reinstate him continued . Matter of Kuehne Manufacturing Company and Local No. 1791, United Brotherhood of Carpenters and Joiners of America, 7 N. L. R. B. 304. 39 There are four categories of woodworkers , namely, lay-out men , woodworkers , helpers, and apprentices. The respondent contended that there are other categories, as body assemblers, helpers , and apprentices . It appears from the record that actually body assemblers and woodworkers and their further subdivisions are the same. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At least 1 of the 95 strikers, Pacailler, had been employed by the respondent as a chauffeur. Theurer testified that Pacailler's work as chauffeur consisted "mainly" in moving trailers, and as there was not enough trailer work to employ one worker continuously, it was being done by another former chauffeur as part of his work. How- ever, a new chauffeur was employed after June 15, 1937, and is still employed. The record does not disclose that Pacailler, who had had considerable experience as a chauffeur, and who had been em- ployed in this position by the respondent for approximately 3 years, could not have performed the work for which the new chauffeur was employed. Another of the 95, Wirsching, had been employed in the respond- ent's paint department for approximately 8 years, being last em- ployed there as a clerk. Theurer testified that no one had been em- ployed in Wirsching's place, that "I haven't anything for him to do to-day," and that there was a "man that takes care of a small part of [that] work and he has been there for 39 years." Three new stockroom clerks were employed after June 15, 1937. The record does not disclose that Wirsching's experience as a clerk in the paint department would not have qualified him as a clerk in the stock- room in preference to the new employees. At least 1 of the 95 strikers, Callen, had worked as a porter and watchman. He had been employed by the respondent for approxi- mately 1 or 2 months. The respondent had, not reinstated Callen because "there was no one needed" as one of the new employees was satisfactory. The record does not disclose that Callen could not have performed the work for which the new porters and watchmen were hired. Another of the 95, Mankowski, the respondent contended, per- formed the work of a watchman and related duties. He had been employed by the respondent as a woodworker for 61/2 years. For 2 weeks to 3 months prior to the strike, however, he had been engaged in the yard as a watchman, also performing other tasks as cleaning the yard and removing iron parts from burned bodies. The re- spondent contended that prior to the period in question it had de- moted Mankowski because his work had become unsatisfactory on account of his nervousness and bad eyesight. Mankowski's foreman had complained about his work. Prior to his demotion, Theurer had explained to Mankowski why the demotion was necessary. Although it is not entirely free from doubt that he was demoted, as his salary was not decreased and the record is in conflict as to whether his hours of work were increased, upon all the facts we find that Mankowski was last employed as a porter and watchman. Theurer testified that he could not reinstate Mankowski to the posi- tion of porter and watchman because the gate which he had watched THEUJRER WAGON WORKS, INCORPORATED 867 had been closed. However, the record does not disclose that Man- kowski could not have performed the work for which the new porters and watchmen were employed. At least 1 of the 95 striking employees, Bonnano, had worked in the respondent's trimming department . He had been employed there for 11/2 to 3 years. During his term of employment his wages had been increased from $12 to $18.70 per week. Bonnano testified that although he was first hired as an apprentice, he was last employed as a helper. Theurer testified that Bonnano was still an apprentice despite his length of service. One new employee was hired in the trimming department.. Theurer at various times testified that such new employee was a trimmer, a trimmer's helper , and a "trimmers apprentice or helper ." Despite Theurer's attempt to fix a definite category for Bonnano , Theurer was not at all certain of the classi- fication into which the new employee should be placed. The record does not establish that Bonnano and the new employee occupied different classifications. In fact, it discloses that the new employee did "about the same type of work" that Bonnano had done. Fur- ther, Bonnano was the more experienced employee . Whereas Bon- nano had worked in the trimming department during his entire employment with the respondent, the new employee had not en- gaged in such work for a considerable period of time. The new employee "had worked in the men's uniform industry , a good many years" and had not done any trimming work "for a number of years." The respondent contended that Bonnano's work "was not so satis- factory," that he was a "clock watcher," that he "would quit before time and would steal off in a corner and smoke," and that he was "just about at the end of his rope ." The respondent does not ex- plain why in the face of such objections it increased Bonnano's pay by more than 50 per cent. Bonnano had never been discharged or disciplined prior to the strike. As in the case of Sakir, it is clear that the reasons now offered by the respondent are mere pretexts to conceal the fact that Bonnano was refused reinstatement because of his union membership and activities . We find the respondent's contentions with respect to Bonnano to be without merit. All the employees hereinabove discussed , 24 in number, are listed in Appendix C. II Among the 95 strikers there were 2 decalcomania workers, Gobich and Noe,40 2 sheet-metal workers, Durbin and Sacclaris, 2 sheet-metal 40 After the strike was terminated, Noe received but refused an offer to be reinstated as an apprentice in the tinsmith's shop at a beginner 's salary. As the offer was not one of substantially equivalent employment, the respondent's duty to reinstate him con- tinued. See Matter of Kuehne Manufacturing Company and Local No. 1791, United Brotherhood of Carpenters and Joiners of America, 7 N. L. R. B. 304. 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD helpers or apprentices , Mayer and Moedebeck , 1 welder, Pasqua, and 1 electrician's helper, Devone. Up to the time of the hearing the re- spondent had not hired any new employees to perform the work previously done by them . Also two, Larini and Ritchik, were wood- workers who constructed wooden floors in bodies prior to the strike. The record does not show that any new employees were hired subse- quent to June 15, 1937 , to perform their work , although some of the new employees did do such work occasionally . An additional two, Duranik and Leeseman, were finishers who had been engaged in wagon repair work prior to the strike . The respondent contended that they were unable to do the work for which the new blacksmith finishers were hired . The record does not show that any new em- ployees were hired subsequent to June 15, 1937, to perform their work. Accordingly we find that the respondent has not discriminated with regard to the hire and tenure of employment of these strikers. Although no new employees were hired in the places of the above strikers, we shall consider the respondent's separate contentions re- lating to them in view of their status as employees whose work has ceased as the consequence of a labor dispute prolonged by reason of the respondent's unfair labor practices.41 Theurer testified that during the strike Pasqua, who had returned to the plant to obtain his tools, had been "quite insulting and abusive." Theurer merely "laughed it off," and told Pasqua to "forget it," which "he did, and that was the end of it." However, when about a month later Pasqua applied for reinstatement , Theurer replied that in view of the, prior incident he, Theurer , was astonished to see Pasqua apply for reinstatement. Theurer thereupon told Pasqua to "step out and not let me see [you] again." There is some conflict in the record as to whether Pasqua was in fact insulting and abusive at the time in question . Although we do not condone Pasqua's conduct, upon the entire record and in view of Theurer's condonation of the incident immediately after it occurred , we find that it should not constitute a bar to his future reinstatement. The respondent contended that Devone was not.an employee. He was laid off on May 7, 1937 , and was not working at the time of the strike. Devone testified that the respondent told him to return to work on May 12. Theurer testified , "Possibly he was told to come back in a few weeks, but I doubt it very much because his type of work was completed ." It is clear that Devone had not been dis- charged. The mere circumstance that he was not physically engaged in work at the time of the strike does not affect his employment status under the Act. 42 41 See section entitled "The Remedy," infra. 44 Matter of Kuehno Manufacturing Company and Local No. 1791, United Brotherhood of Carpenters and Joiners of America, 7 N. L. R. B. 304. THEURER WAGON WORKS, INCORPORATED 869 Theurer testified that on prior occasions in the past Larini had been "sent home to adjust his debts"' and had been discharged for drinking, although subsequently reinstated on each occasion. At the hearing, Theurer, when asked whether he would employ Larini at the present time, testified, "If I had work, I may fall again and help him out once more. I would say that I would not." Larini denied that he had ever been intoxicated at work. Admitting his prior instances of intoxication or failure to pay his debts, it is clear that Larini was nevertheless thereafter reemployed by the respondent and was so em- ployed prior to the strike. Although the respondent thereby con- doned the past activities of Larini, it now proposes to use them as a reason for refusing him reinstatement. In view of the record and the surrounding circumstances we find that Larini should not be barred from future reinstatement. In its brief the respondent contended that it offered reemployment to Larini. However, the alleged offers, which were made after the strike terminated, were vague and indefi- nite. Thus one of the respondent's foremen told Larini, "I could use you." On another occasion Larini was told to "hang around for a couple days . . . If you hang around a little more you will have your position back in a couple days." We find that these proposals to reinstate do not constitute offers within the meaning of the Act. Duranik's work, Theurer testified, was "not very". satisfactory. However, the respondent did not indicate that it would refuse to reinstate him for this reason. In the case of Leeseman, who had been in its employ for 12 years, the respondent contended that he had been several times discharged in the past and that at times his work had not been satisfactory. However, the respondent did not take the position that his past deficiencies constituted a bar to his reinstatement. The employees hereinabove discussed, 12 in number, are listed in Appendix D. III Of the 95 strikers, the respondent contended that 2, Novesky and Ross, did not retain the status of employees at the time of the strike. Novesky had not worked for the respondent for approximately 9 months prior to the strike due to an ailment. His illness had pre- viously compelled him to absent himself from work. At that time his foreman had told him, "if that is going to go like this, you cannot work here." Upon all the evidence, we find that at the time of the strike Novesky did not retain the status of an employee. Ross had done pictorial and lettering work for the respondent for a period of 6 years. At the hearing counsel for the respondent moved to dismiss the complaint in so far as it applied to Ross on the 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ground that he was an independent contractor. It appears from the record that the respondent did'not exercise control over Ross in the execution of his work. Other. factors, taken in conjunction with this absence of control, tend to support the contention that Ross was an independent contractor. Thus, he worked not only for the respond- ent but for other employers, only giving preference to work of the respondent because it gave him more work than any of the other employers. He did not work during fixed hours, and, although, as noted below, he estimated the cost of some of his work in accordance with the probable time required for completion, he did not punch a time clock as did the ordinary employees. He worked whatever hours he pleased, at times from early in the morning until late at night, as well as on Sundays and holidays. Although Ross received a fixed amount for lettering, this was not true with respect to his pictorial work, for which, on each job, he submitted an estimate in advance based upon the probable time required for completion, and then bargained with the respondent as to the price that the respond- ent was to pay for it. Upon completing a job he submitted a bill therefor to the respondent. His bills contained his own letterhead. Upon all the evidence we find that Ross was an independent con- tractor and not an employee of the respondent. Accordingly, we shall order that the allegations of the complaint, as amended, so far as they pertain to Novesky and Ross, be dismissed. The above persons are listed in Appendix E. IV Of the 95 strikers, there remain 57 about whom there was no rele- vant testimony except as to 4. Of these 57, the afore-mentioned 4 and 16 others, listed in Appendix A, were reinstated prior to the close of the hearing. As to the remaining 37 who were not reinstated, although the respondent had it in its power to make such proof, if it could, it made no showing that they could not have been reinstated.43 Of the above four who were reinstated prior to the close of the hearing, three, Canova, Johnson,44 and Praskac, were sheet-metal workers or welders. The record discloses that no new employees who could perform their work had been employed prior to their 43 Matter of Western Felt Works, a corporation and Textile, Workers Organizing Com- mittee, Western Felt Local, 10 N. L. R. B. 407 ; cf. Montgomery Ward & Co ., Inc. v. N. L. R. B., November 7, 1939 (C. C. A. 7), enf'g as mod ., Matter of Montgomery Ward & Company and Reuben Litzenherger, et al., 9 N. L. R . B. 539. *+ Johnson, after his reinstatement, ceased working because of a physical disability. As the respondent reinstated him once , we do not feel that it will effectuate the policies of the . Act to require the respondent again to offer him reinstatement . See Matter of Precision Castings Company, Inc. and Iron Molders Union of North America, Local 80, 8 N. L. R. B. 879. THEURERR WAGON WORKS, INCOiBPORATED 871 reinstatement. The fourth, Juretic, was a blacksmith finisher. The record does not disclose that he could not have performed the work for which new blacksmith finishers had been employed. Similarly, as to the remaining 16 employees listed in Appendix A, although the respondent had it in its power to make such proof, if it could, it made no showing that they could not have been reinstated sooner. Accordingly, we find without merit the respondent's contentions that the 37 could not have been reinstated and that the employees listed in Appendix A, except Canova, Johnson, and Praskac, could not have been reinstated sooner. Except as to Canova, Johnson, and Praskac, who are listed in Appendix E, the above employees are listed in Appendix C. We also find that the respondent has not discriminated with regard to the hire and tenure of employment of Canova, Johnson, and Praskac. The respondent also contended that during the period under con- sideration it had learned that some of the striking employees had been employed elsewhere. It does not appear that any of such em- ployees had received other regular and substantially equivalent em- ployment. Accordingly, the respondent's employer relationship to such employees remained unchanged and its duty to reinstate them continued. We find that the respondent, by refusing to reinstate or to reinstate sooner the employees listed in Appendix C, discriminated in regard to their hire and tenure of employment, thereby discouraging mem- bership in the U. A. W. A. and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act.45 Independently of the foregoing, we find from the record that the actual reason for the respondent's refusal to reinstate or to reinstate sooner the employees listed in Appendix C lay in its desire to punish them for their concerted activity and thereby discourage membership in the U. A. W. A. This is clear from the circumstances surrounding the application of some of the strikers for reinstatement. Theurer refused to reinstate one employee because he was a member of the U. A. W. A. and remarked that he was surprised that the em- ployee had continued "with that bunch of Communists and C. I. 0. guys that can never do anything for you, they can never get your job back. I have no sympathy for you at all." To other individual 45 Matter of Black Diamond Steamship Corporation and Marine Engineers' Beneficial Association, Local No. 33, 3 N. L. R. B. 84, enf'd , Black Diamond Steamship Corp. v. N. L. R. B., 94 F. (2d) 875 (C. C. A. 2), cert. denied , 304 U. S. 579; Matter of McKaig- Hatch, Inc. and Amalgamated Association of Iron, Steel, and Tin Workers of North America. Local No. 1139, 10 N. L. R. B. 33; Matter of Western Felt Works, a corpora- tion and Textile Workers Organizing Committee , Western Felt Local, 10 N. L. R. B. 407; Matter of Denver Automobile Dealers Association , a corporation, et al. and Capital Automotive Lodge No. 606, International Association of Machinists, 10 N. L. R. B. 1173. 283029-41-vol. 18 56 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikers who applied for reinstatement, Theurer refused their applica- tions with the following statements : "Strike has spoiled business. You should not have walked out." "After all the C. I. O. has misled you and you were one of the men who went out with them." "You fellows put me in a very bad shape . . . I ain't got no job for you." "You have made an awful mess. You might as well take your tools out. There is no work for you." Other statements attributed to Theurer are : "Why did you go out? Do you know, you neglected your duty? . . . The C. I. O. is not running my business, or the Labor Board either." "[I do] not care for the Wagner Act and [I run my] business [myself]." Theurer did not deny making the above state- ments. In addition, Theurer made other statements disparaging the Board and the Regional Director and denying that the Act could afford the striking employees any relief. We find that the respondent, by refusing to reinstate or to reinstate sooner the employees listed in Appendix C, discriminated in regard to their hire and tenure of employment, thereby discouraging member- ship in the U. A. W. A. and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the Body Builders and has contributed support to it. In order to effectuate the policies of the Act and free the employees of the respondent from such domination and interference, and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed them by the Act, we will order the respondent to refuse to recognize the Body Builders as the representative of the respondent's employees for the purpose of dealing with the respondent concerning rates of pay, wages, hours of employment, and other conditions of employment. THEURER WAGON WORKS, INCORPORATED 873 We will also order the respondent to bargain collectively with the U. A. W. A., upon request, and, if understandings are reached, to embody such understandings in a signed agreement upon request. We have found that the respondent discriminated against all the employees listed in Appendix C in respect to their hire and tenure of employment in violation of Section 8 (3) of the Act. For this reason and, independently thereof, for the reason that the strike was prolonged by the respondent's unfair labor practices including its refusal to bargain collectively with the U. A. W. A., the employees listed in Appendices C and D are entitled to reinstatement, unless they have already been reinstated. Since application for reinstate- ment was previously made by them or in their behalf, it will be un- necessary for them to apply again. Accordingly we shall order the respondent to offer all the employees listed in Appendices C and D, who have not been reinstated, immediate reinstatement to their former or substantially equivalent positions.46 The offers of reinstatement shall be without prejudice to seniority and other rights and privileges. The reinstatement of such employees, except Zaice, shall be effected in the following manner: All new employees hired after June 15, 1937, the date after which the strike was prolonged by reason of the unfair labor practices, shall, if necessary to provide employment for those to be offered -reinstatement, be dismissed. If, thereupon, by reason of a reduction in force there is not sufficient employment im- mediately available for those to be offered reinstatement, all available positions shall be distributed among the remaining employees in ac- cordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has theretofore been applied in the conduct of the respondent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equiva- lent positions, as such employment becomes available and before other persons are hired for such work. In cases where we have found that a certain employee was dis- criminated against, we have ordinarily ordered the offending employer to make him whole with back pay, this being an amount equal to the amount he would have earned with the employer from the date of the discrimination to the date of reinstatement pursuant to our order, +e As noted above, at the time of the hearing there was no work available for the employees listed in Appendix D. If at the time of the Order, there has been no change in this respect with regard to any of such employees, they will be placed on the prefer- ential list hereinafter described. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD less net earnings 47 during the same period. The objective is to restore the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination. Our order in the present case is designed to achieve the same objective, but the peculiar factual situa- tion here presents certain difficulties in fashioning our remedy so as to restore the status quo. Thus, although prior to the strike the re- spondent employed 299 employees, at the time of the hearing it em- ployed only approximately 216 employees. Consequently, even had the respondent acted lawfully in restaffing its force, there is no cer- tainty that all the claimants found to have been discriminated against would have returned to work, since there were presumably at all times fewer jobs open than striking employees available. It is fair to assume, on the other hand, that some 65 of the 95 employees would have been reinstated or reinstated sooner than they were. Except as to Zaice, the record neither discloses which of the employees would have been so reinstated nor the dates on which such reinstatements would have occurred. Excluding Zaice, we could, of course, order the respondent to de- termine which of the employees against whom it discriminated it would have taken back after July 15, 1937, had it acted legally. Back pay would then be due to those of such claimants who would have been reinstated or reinstated sooner and nothing would be due to those whom the respondent now decides would not have been rein- stated during the past 21/2 years. In the light of the entire record, we do not believe that it would effectuate the purposes of the Act thus to permit the determination of the back pay due to rest almost wholly within the discretion of the respondent, with no objective standards by which a third party could test their determination. We reject this method, and turn to a solution which seems better cal- culated to serve the purposes of the Act 48 A lump sum shall be computed, consisting of all wages, salaries, and other earnings paid out by the respondent since July 15, 1937, the date of the application for reinstatement, to the 65 new employees 47 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 the unlawful refusal to reinstate him and the consequent necessity of his seeking employment else- where . 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, enf'd, N. L. R. B. v. Crossett Lumber Company, 102 F. (2d) 1003 (C. C. A. 8). Monies received for work performed upon Federal, State, County, municipal, or other work-relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employees, 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. 48 Cf. Matter of Eagle-Picher Mining & Smelting Company, a corporation and Eagle- Picher Lead Company, a corporation and International Union of Mine, Mill & Smelter Workers, Locals Nos. 15, 17, 107, 108, and 111, 16 N. L. R. B. 727; Matter of Jefferson Lake Oil Co., Inc. and Sulphur Workers Union No. 21195, 16 N. L. R. B. 355. T'HEURER WAGON WORKS, INGOtRPORATED 875 whose positions we have found could have been filled by the striking employees, up to the date on which the respondent complies with our Order reinstating or placing on a preferential list the employees listed in Appendix C. The lump sum shall consist of all such monies so paid to such persons during the period set forth in the preceding sentence. We shall then order that such lump sum shall be divided among all the employees listed in Appendix C, except Zaice. Each of such employees shall receive an amount proportionate to the wages paid him prior to the strike, computed from July 15, 1937, to the date of his reinstatement or placement on a preferential list, less his net earnings during said period. We have found that Zaice was refused reinstatement to a specific position, namely, that of foreman in the respondent's painting depart- ment. Accordingly, we shall order the respondent to offer Zaice immediate and full reinstatement to his former position with the respondent as foreman of the painting department without prejudice to his seniority and other rights and privileges. We shall also order the respondent to make him whole for any loss of pay he has suffered by reason of the respondent's illegal acts against him by payment to him of it sum of money equal to the amount which he normally would have earned as wages from the date of the discrimina- tion, namely, the date on which he should have been reinstated, July 15, 1937, to the date of the offer of reinstatement, less his net earnings during said period. In order to effectuate the purposes of the Act, we shall also order that Russo, the employee who had been appointed as foreman in Zaice's stead on July 14, 1937, shall be rein- stated to the position which he held prior to the strike, or one sub- stantially equivalent thereto, in the manner hereinabove provided for the employees listed in Appendices C and D, without prejudice to his seniority and other rights and privileges. As to the remaining employees to be offered reinstatement, listed in Appendix D, our Order will provide that each of such employees whom the respondent fails, within 5 days after the date of the Order, to offer to reinstate or place on a preferential list, in violation of the Order, shall be entitled to payment of a sum of money equal to that which he would normally have received as wages during the period from 5 days after the date of the Order to the date of the offer. of em- ployment or placement upon the preferential list as set forth above. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the.following : CONCLUSIONS OF LAW 1. International Union, United Automobile Workers of America, Locals 259 and 374, and Custom Built Commercial Body Builders, 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and ad- ministration of Custom Built Commercial Body Builders, Inc., and by contributing support to said organization, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. All the respondent's employees, including working foremen, maintenance men, porters, chauffeurs, night watchmen, and shipping and stockroom clerks, but excluding executives, clerical and office employees, employees with the right to hire and discharge, and sales- men, constitute a unit appropriate for the purposes of collective bar- gaining, within the meaning of Section 9 (b) of the Act. 4. International Union, United Automobile Workers of America, Locals 259 and 374, are and at all times since May 7, 1937, have been the exclusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing on June 15, 1937, and at all times thereafter, to bargain collectively with International Union, United Automobile Workers of America, Locals 259 and 374', as the exclusive represent- ative of all its employees in such unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. By discriminating in regard to the hire and tenure of employ- ment of all the employees listed in Appendix C, thereby discouraging membership in International Union, United Automobile Workers of America, Locals 259, and 374, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor, practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 9. The respondent has not discriminated in regard to the hire and tenure of employment of the employees listed in Appendices D and E, and has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, with regard to them. 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 T'HEURER WAGON WORKS, INiGOiRPORATED 877 Act, the National Labor Relations Board hereby orders that the re- spondent, Theurer Wagon Works, Inc., and its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of Custom Built Commercial Body Builders, Inc., or with the formation or administration of any other labor organization of its employees, and from contributing support to said Custom Built Com- mercial Body Builders, Inc., or to any other labor organization of its employees ; (b) Discouraging membership in International Union, United Au- tomobile Workers of America, Locals' 259 and 374, or any other labor organization of its employees by discriminating in regard to hire or tenure of employment or any term or condition of employment; (c) Refusing to bargain collectively with International Union, United Automobile Workers of America, Locals 259 and 374, as the exclusive representative of all the respondent's employees, including working foremen, maintenance men, porters, chauffeurs, night watch- men, and shipping and stockroom clerks, but excluding executives, clerical and office employees, employees with the right to hire and discharge, and salesmen; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act- (a) Refuse to recognize Custom Built Commercial Body-Builders, Inc., as the representative of any of its employees for the purposes of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (b) Upon request, bargain collectively with International Union, United Automobile Workers of America, Locals 259 and 374, as the exclusive representative of all the respondent's employees, including working foremen, maintenance men, porters, chauffeurs, night watch- men, and shipping and stockroom clerks, but excluding executives, clerical and office employees, employees with the right to hire and dis- charge, and salesmen, and if any understandings are reached, embody such understandings, upon request, in a signed agreement; (c) Offer to Zaice immediate and full reinstatement to his former position of foreman of the respondent's painting department, without prejudice to his seniority or other rights and privileges; and make 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him whole for any loss of pay he may have suffered by reason of the respondent's discriminatory refusal to reinstate him by payment to him of a sum of money equal to the amount which he would normally have earned as wages from the date of his discrimination, July 15, 1937, to the date of the offer of reinstatement, less his net earnings during that period ; provided, however, that the respondent shall de- duct from the amount otherwise due to him, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Offer to the employees listed in Appendices C and D, including Russo, but excluding Zaice and those who have been previously re- instated, immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner set forth in the section entitled "Remedy," placing those employees for whom employment is not im- mediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (e) Make whole each of the persons listed in Appendix C for any loss of pay he may have suffered by reason of the respondent's discrimination against him as to his hire and tenure of employment, in the manner set forth in the section entitled "Remedy," less his net earnings during said period; provided, however, that the re- spondent shall deduct from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (f) Make whole the employees listed in Appendix D for any loss of pay they may suffer by reason of any failure, within five (5) days after the date of this Order, to offer to reinstate or place them upon the preferential list, by payment to each of them, respectively, of a sum of money equal to that which each normally would have earned as wages during the period from five (5) days after the date of this Order to the date of the offer of employment or placement upon the preferential list described in the "Remedy," less his net earnings during said period ; provided, however, that the respondent shall deduct from the amount otherwise due to each of the said employees, monies received by said employees during said period for work performed upon Federal, State, county, municipal, or other THEIURER WAGON WORKS, INCORPORATED 879 work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government, or governments which supplied the funds for said work-relief projects; (g) Post immediately, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, notices in conspicuous places throughout its New York and New Jersey plants, stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), (c), and (d) and that it will take the affirmative action set forth in 2 (a), (b) (c), (d), (e), and (f) of this Order, that its employees are free to become or remain members of Inter- national Union, United Automobile Workers of America, Locals 259 and 374, and that it will not discriminate against any employee be- cause of membership or activity in that organization; (h) Notify the Regional Director for the Second Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges, with regard to the employees listed in Appendices D and E, that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. APPENDIX A4° Date of reinstatement 1. Baumann, G---------------------- . September 20, 1937 2. Block, M-------------------------- August 28, 1937 3. Canova, A. J______________________ February 24, 1938 4. Eckhoff, Louis____________________ August 30, 19.37 5. Ettore, Tua_______________________ October 15, 1937 6. Heilman, Jacob -------------------- October 19, 1937 7. Johnson, O------------------------ February 18, 1938 8. Juretic, Simon____________________ February 24, 1938 9. Klepers, J------------------------ . July 28, 1937 10. Londregan, E_____________________ July 26, 1937 11. Markovitz, Peter ------------------ October 5, 1937 12. Praskac, Paul --------------------- February 26, 1938 13. Rura, Frank ----------------------- July 20, 1937 14. Schenck, F________________________ January 25, 1938 15. Seniow, Paul_____________________ October 22, 1937 16. Strolin, A------------------------- October 4, 1937 17. Takass, L------------------------- August 3, 1937 18. Van Beurden, Hugh --------------- August 10, 1937 19. Vogt, Joseph ------- --------------- January 28, 1938 20. Weigele, William------------------ September 27, 1937 49 The spellings of many of the names appearing in the Appendices varied in the record. 880 DECISIONS OF 1. Behn, Frank 2. Behrmann, H. 3. Bierman, Otto 4. Bonnano, Joseph 5. Brandies, George 6. Callen, Edward 7. Carey, W. 8. Casagrande, Oreste 9. Caviek, C. 10. Cole, A. 11. Cole, Alfred 12. Curry, W. A. 13. Curry, Wm. 14. Devone, James 15. Dorr, W. 16. Duranik, M. 17. Durbin, Luke 18. Faverie, August 19. Ferraris, A. 29. Foelsl, Anton 21. Foerst, A. 22. Fuchs, F. 23. Gobich, Dan 24. Gozher, George 25. Granavich, Paul 26. Hinch, John 27. Kallesser 28. Karle, E. 29. Karle, R. 30. Kepple, Frank 31. Klein, R. 32. Koenig, Rudolph 33. Kronenbitter, F. 34. Kuntz, W. 35. Larini, Claude 36. Leeseman, Christ 37. Maikisch, Chris 38. Maikisch, P. NATIONAL LABOR RELATIONS BOARD APPENDIX B 39. Mankowski, Stanley 40. Mayer, Raymond 41. Mazick, P. 42. McCarthy, Wm. 43. Messerschmidt, A. 44. Moedebeck, Fred 45. Noe, Joseph 46. Novesky, Titus 47. Ott, Carl 48. Pacailler, Clarence A. 49. Pasqua, Nick 50. Pavlu, Frank 51. Plutchok, Jack 52. Ritchik, N. 53. Ross, L. William 54. Rye, S. 55. Sacclaris, Peter 56. Sadlon, Samuel 57. Sakir, John 58. Sampson 59. Saurecropf, Steve 60. Scarperi, L. 61. Schaefer, H. 62. Schettino, James 63. Schneider, Frank 64. Schuler, J. 65.. Skibowski, A. 66. Stomberger, N. 67. Svetics, Joseph 68. Treusch, John 69. Turos, F. 70. Van Clief, Steven 71. Voyvodich, Christ 72. Wilhelm, C. 73. Wirsching, Armin 74. Zaice, Henry 75. Zapotocky, Connie THEURER WAGON WORKS, INCORPORATED 881 1. Baumann, G. 2. Behn, Frank 3. Behrmann, H. 4. Bierman, Otto 5. Block, M. 6. Bonnano, Joseph 7. Brandies, George 8. Callen, Edward 9. Carey, W. 10. Casagrande, Oreste 11. Caviek, C. 12. Cole, A. 13. Cole, Alfred 14. Curry, W. A. 15. Curry, Wm. 16. Dorr, W. 17. Eckhoff, Louis 18. Ettore, Tua 19. Faverie, August 20. Ferraris, A. 21. Foelsl, Anton 22. Foerst, A. 23. Fuchs, F. 24. Gozher, George 25. Granavich, Paul 26. Heilman, Jakob 27. Hinch, John 28. Juretic, Simon 29. Kallesser 30. Karle, E. 31. Karle, R. 32. Kepple, Frank 33. Klein, R. 34. Klepers, J. 35. Koenig, Rudolph 36. Kronenbitter, F. 37. Kuntz, W. 38. Londregan, E. 39. Maikisch, Chris APPENDIX C 40. Maikisch, P. 41. Mankowski, Stanley 42. Markovitz, Peter 43. Mazick, P. 44. McCarthy, Wm. 45. Messerschmidt, A. 46. Ott, Carl 47. Pacailler, Clarence A. 48. Pavlu, Frank 49. Plutchok, Jack 50. Rura, Frank 51. Rye, S. 52. Sadlon, Samuel 53. Sakir, John 54. Sampson 55. Saurecropf, Steve 56. Scarperi, L. 57. Schaefer, H. 58. Schenck, F. 59. Schettino, James 60. Schneider, Frank 61. Schuler, J. 62. Seniow, Paul 63. Skibowski, A. 64. Stomberger, N. 65. Strolin, A. 66. Svetics, Joseph 67. Takass, L. 68. Treusch, John 69. Turos, F. 70. Van Beurden, Hugh 71. Van Clief, Steven 72. Vogt, Joseph 73. Voyvodich, Christ 74. Weigele, William 75. Wilhelm, C. 76. Wirsching, Armin 77. Zaice, Henry 78. Zapotocky, Connie 882 DECISIONS OF 1. Devone, James 2. Duranik, M. 3. Durbin, Luke 4. Gobich, Dan 5. Larini, Claude 6. Leeseman, Christ 1. Canova, A. J. 2. Johnson, O. 3. Martin, H. 4. Novesky, Titus NATIONAL LABOR RELATIONS BOARD APPENDIX D 7. Mayer, Raymond 8. Moedebeck, Fred 9. Noe, Joseph 10. Pasqua, Nick 11. Ritchik, N. 12. Sacclaris, Peter. APPENDIX E 5. Odrobina, S. 6. Praskac, Paul 7. Ross, L. William MR. WILLIAM M. LmsERsoN took no part in the consideration of the above Decision and Order.