Ansley Radio Corp.

In the Matter of ANSLEY RADIO CORPORATION and LOCAL 1221 UNITED ELECTRICAL & RADIO WORKERS OF AMERICA, C. I. 0. In the Matter of ANSLEY RADIO CORPORATION and UNITED ELECTRICAL & RADIO WORKERS OF AMERICA Cases Nos. C-535 and R-798, respectively.Decided December 29, 1939 Radio and Phonograph Manufacturing Industry-Interference, Restraint, and Coercion-Discrimination: charges of, sustained : discharge of two employees for attempting to induce fellow employees to change union affiliation ; valid closed- shop contract no justification for discharge of employees advocating defection from union with which contract is made, inasmuch as discharged employees were members of contracting union when discharged and neither they nor contracting union represented otherwise to employer; mere advocacy of change of affiliation from union having closed-shop contract to rival union, not a representation to employer of termination of membership in contracting union ; avoidance of possible disruption of labor relations of employer under closed-shop contract with contracting union, no justification for discharge of employees advocating defection from union ; discharge of employee members of contracting union for advocacy of change in affiliation among fellow employees, not justified by valid closed-shop contract, even though such advocacy constitutes ground for expulsion under constitution of contracting union ; discrimination found although em- ployees allegedly discriminatorily discharged were discriminatorily laid off; charges of, dismissed, two Board members disagreeing and third concurring in dismissal: notification to employer by union newly formed by majority of employees in unit covered by valid closed-shop contract, that employees had formed such union, and request for bargaining by such union, sufficient basis for assumption by employer that majority no longer were members of contracting union ; failure of such notification to name individual employees immaterial ; Madden: lay-off of all employees covered by valid closed-shop contract upon formation of rival union by substantial majority in unit, no discriminatory lock-out since purpose of employer was to avoid necessity for compliance with imminent request of contracting union for displacement of such majority who apparently ceased being members, and to permit such employees opportunity to determine their course of action without having jobs filled by others; Smith: lay-off of all employees in unit covered by valid closed-shop contract, upon majority of employees designating rival union as their bargaining representa- tive and indicating their withdrawal from contracting union, a discriminatory lock-out irrespective of honest belief of employer that through lay-off employees were given a respite against enforcement of closed-shop provision, inasmuch as closed-shop provision was inoperative upon designation of new statutory repre- sentative; charges of, dismissed, two Board members disagreeing and third concurring in dismissal : announcement by employer that laid-off employees covered by closed-shop contract will not be reinstated unless they are members of contracting union, equivalent, if such condition is illegal, to a mass discharge 18 N. L. it. B., No. 108. 1028 ANS'LEY RADIO 'CORPO'RATION 1029 of or refusal to reinstate all such employees regardless of availability of positions for immediate reinstatement; Madden: discharge of or refusal to reinstate employees who voluntarily withdraw in a body from membership in contracting union and designated a rival union as their bargaining representative, such discharge or refusal being carried out by employer in pursuance of request of contracting union for enforcement of closed-shop provision otherwise valid and after notice to discharged employees of employer's intent to enforce, no unfair labor practice in view of proviso clause of Section 8 (3), even though discharged employees constituted a majority of employees in appropriate bargaining unit covered by closed-shop provision; Smith: such discharge or refusal to reinstate, an unfair labor practice not protected by proviso clause of Section 8 (3), since closed-shop provision previously became inoperative upon designation of new statutory representative by majority of employees in appropriate bargaining unit covered by provision-Closed-shop Contract: provision of collective contract that employer "agrees to call upon the Union for any help he may require," not subject to construction as providing for a closed shop; doubtful that such pro- vision may be construed as agreement by employer to require new employees to be members of contracting union ; collective contract which fails to contain provision for a closed shop will be treated by Board in unfair labor practice proceeding as if reformed to include such term, it being shown by clear and convincing proof that parties agreed upon term but through mutual mistake or inadvertence omitted it from contract, and all employees affected having had timely knowledge thereof ; closed-shop contract with union not established, main- tained, or assisted by unfair labor practice, and constituting exclusive bargaining representative of employees in appropriate bargaining unit covered by closed-shop provision when made, valid under proviso clause of Section 8 (3) ; valid closed- shop contract not voided because of unfair labor practices occurring subsequent to making of contract and constituting assistance to contracting union, where assistance did not materially affect self-organization or collective bargaining beyond restraint inherent in operation of contract; closed-shop provision not construed to require abstention by employees from talk and advocacy of change in affiliation from contracting union to rival union as a condition of employment ; letter of contracting union to employer interpreted as request for enforcement of closed-shop provision of contract ; employer statement to committee repre- senting employees who withdrew from union having closed-shop contract, inter- preted as notice to employees of intent to enforce closed shop; discharge of employee members of union having closed-shop contract, for advocacy of change in affiliation, as not being justified by contract, see above ; lay-off of all employees covered by closed-shop contract to prevent immediate displacement under closed- shop provision of majority of employees who apparently changed their union affiliation, as a discriminatory lock-out, see above-Closed-shop Contract-Effect of Change of Affiliation of Majority Covered by: Madden : provision for closed shop in collective contract validly made and of reasonable duration legally enforcible at request of contracting union despite withdrawal from union of substantial majority of employee members in appropriate bargaining unit covered by closed-shop provision and their designation of another union as their statutory representative ; Smith: provision for closed shop validly agreed upon becomes inoperative upon designation of new statutory representative by majority of employees in appropriate bargaining unit covered by closed-shop provision- Evidence: presumption that union which obtained majority of votes in consent election did not lose its majority designation in 6 days intervening between election and making of closed-shop contract, although in that period employees were removed from appropriate unit in which election was held in sufficient 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD number to destroy majority representation if they were among those who voted for union ; union signing collective contract is contracting party although a different union is named as party in introductory paragraph of contract ; closed- shop provision shows contracting union acted as exclusive representative despite recital that it acted for itself and its members ; members of union having closed- shop contract with their employer, participated with substantial majority of fellow employees in group venture to set up competing labor organization through which they requested collective bargaining , failed to register their lay -off with contracting union in accordance with its requirements, and, in most cases, refused to pay dues to contracting union, of all of which actions union necessarily would, and did , have knowledge , thereby voluntarily withdrew from said contracting union ; naming local chapter of national union in complaint when national union was the organization involved , held immaterial variance-Unit Appro- priate for Collective Bargaining : all production employees , excluding foremen, truck drivers, shipping-department employees, outside salesmen , salesmen at store, office employees , and engineers ; no controversy as to-Reinstatement Ordered: of employees who, after their discriminatory discharge , withdrew from union having valid closed -shop contract ; of employees who, in connection with picketing, were involved in acts of violence not directed towards seizure of respondent 's property, or resulting in -conviction of employees to be reinstated, or constituting violation of any injunction-Back Pay: ordered-Remedial Order: special form of; reinstatment subject to any valid closed-shop contract outstanding-Investigation of Representatives : petition for dismissed. Mr. Mark Lauter, for the Board. Rogers, Ramsay & Hoge, by Mr. Clifton Cooper, of New York City, for the respondent. Mr. Frank Shreiner and Mr. David Scribner, of New York City, for the United and the U. E. R. M. W. Mr. William Karlin and Mr. Leo Greenfield, of New York City, and Mr. Isaac Lobe Strauss, of Baltimore, Md., for the Brotherhood. Mr. George Turitz, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by Local 1221 of United Electrical & Radio Workers of America, herein called the United, since succeeded by Local 1206 of United Electrical, Radio & Machine Workers of America, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New. York City) issued a complaint dated October 15, 1937, against Ansley Radio ' The record shows that Local 1206 of United Electrical , Radio & Machine Workers of America "now includes the Ansley plant." It is evident that Local 1206 is the successor to Local 1221 chartered by United Electrical & Radio Workers of America. See footnote 2, infra. ANSLEY RADIO 'CORPORATION 1031 Corporation , New York City, herein called the respondent, alleging that the respondent had engaged in and was engaging in certain unfair labor practices affecting commerce, within the meaning of Section 8 ( 1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the com- plaint, accompanied by notice of a hearing thereon to be held Novem- ber 1, 1937, together with a copy of the charge , was duly served upon the respondent, upon United Electrical & Radio Workers of America, now known as United Electrical Radio & Machine Workers of America, herein called the U. E. R. M . W.,2 and upon Radio Factory Workers' Union , Local B-1010 of the International Brotherhood of Electrical Workers, herein called the Brotherhood ,3 a labor organiza- tion claiming an interest in these proceedings . At the hearing the complaint was amended in certain respects. On October 5, 1937, the U. E. R. M. W. filed with the Regional Director a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On October 11, 1937, the Board, acting pursuant to Section 9 (c) of the Act and Article II, Section 3, Article III, Section 10 (c) (2 ), and Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Di- rector to conduct it and to provide for an appropriate hearing upon due notice, and further ordered that for the purposes of hearing the two cases be consolidated and that one record of the hearing be made. Notice of a hearing on the petition to be held at the same time and place as the hearing on the complaint was duly served upon the re- spondent, upon the U. E. R. M. W., and upon the Brotherhood. With respect to the unfair labor practices the complaint, as amended, so far as here material, alleged in substance that : ( 1) on or about May 24, 1937, the respondent discharged James Garry and Morris Bailey,4 two employees at its plant , because they favored and assisted the United 5 and attempted to induce other employees to join that 'On or about November 1, 1937, the name of United Electrical & Radio Workers of America was changed to United Electrical , Radio & Machine Workers of America. s The Brotherhood also is referred to in the record as "Radio Union , Local B-1010 of the International Brotherhood of Electrical Workers," "Local B-1010 of the International Brotherhood of Electrical Workers," "International Brotherhood of Electrical Workers," "I. B. E. W.," "A. F. of L.," and other similar names. * Referred to in the record at times as Baley. The complaint, as amended, referred to the United as the labor organization thus favored and assisted. The proof showed that the organization in question was the U. E. R. M. W., which later authorized the formation of the United as a constituent local. This variance is immaterial . See Matter of Panther-Panto Rubber Co., Inc. and United Rubber Workers of America, Local No. 156, 11 N . L. R. B., 1261, 1270 ; Matter of Carrollton Metal Products Company and Amalgamated Association of Iron, Steel , & Tin Workers of North America, Local No. 1571 , 6 N. L. R . B. 569, 576. 283029-41-vol. 18-66 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization and to disassociate themselves from International Brotherhood of Electrical Workers, a labor organization; (2) on or about May 28, 1937, the respondent locked out 21 named employees,6 including Garry and Bailey, because they joined and assisted the United and engaged with other employees in concerted activities for the purpose of collective bargaining; (3) the respondent has refused and refuses to reinstate the employees so discharged and locked out, and each of them; (4) from May 8, 1937, to the present the respondent urged, persuaded, and warned its employees at said plant to refrain from becoming or remaining members of the United,7 and threatened them with reprisals if they became or remained members thereof and did not become and remain members of International Brotherhood of Electrical Workers; and (5) by other acts the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. On or about October 25, 1937, the respondent filed its answer in which it denied all the material allegations of the complaint. The answer affirmatively alleged that in a consent election held under the supervision of the Board in October 1936 the Brotherhood was desig- nated as exclusive collective bargaining representative by a majority of the respondent's production employees; that immediately thereafter all the respondent's production employees who were not members of the Brotherhood joined that organization; that thereafter the re- spondent bargained collectively with the Brotherhood and on October 29, 1936, entered into a written contract with it, providing, among other things, for membership in the Brotherhood as a condition of employment of all production employees in the respondent's plant; that 8. Since said contract was executed, and continuously there- after, it has been acted upon by the parties thereto and by all of respondent's production employees as a valid and binding agreement, and is now in all respects in full force and effect. 9. Upon the execution of said agreement and during all the times thereafter until the present time, both respondent and said Union, and all of respondent's production employees, both indi- vidually and collectively, construed and performed said agree- The names of these persons, besides Garry and Bailey , are : Rudolph Anderson, Theo- dore Byman , Elinar Carlson, John Erickson , Reuben Hincula, Runar Holm , Ben Jacobs, Arthur Kaivisto, Vernon Lindbloom, John Mancuso , Genfrid Nissen , Ben Richmond, Leo Rutkin, Jack Schraier, Herbert Schwartz, William Triller, Louis Wohlmuth , Edward Wolfe, and John Zaviski. The complaint named Edward Wolfe as Edward Wolse, and Theodore Byman as Theodore Hyman. At the hearing the complaint was amended to set forth correctly the names of these individuals. Runar Holm , as appears from the evidence, was incorrectly referred to in the complaint as Rimar Holm , and John Erickson as John Ericson. 7 See footnote 5, supra. ANSLEY RADPO C'ORPO'RATION, 1033 ment as a closed shop contract within the meaning of Section 8 (3) of the National Labor Relations Act, in that membership in said Union, in fact, became and now is a condition of employment for all production workers in respondent's factory, and since the execution of said contract respondent has employed only members of said Union; that in May 1937 the respondent laid off all its production employees, including those named in the complaint, because of a slack season in its business, and did so with the permission of the Brotherhood and in accordance with the terms of the above-mentioned contract; that the respondent since has reemployed such of the laid-off employees as continued to be members of the Brotherhood; that the employees mentioned in the complaint ceased to be Brotherhood members after their lay-off and before any reemployment occurred, and, therefore, under the terms of the contract were not eligible for reemployment. The respondent's answer further set forth that prior to their respective lay-offs, each of the employees mentioned in the complaint had been "guilty of one or more of the acts prohibited in Section Sixth of said contract, to wit, sabotage, inefficiency, repeated tardiness, drunken- ness, or wilful violation of company rules," 8 by reason whereof each became and was ineligible for reemployment even though he retained or resumed membership in the Brotherhood. At the hearing the answer was amended to admit the allegations of the complaint relating to the jurisdiction of the Board as to the subject matter. On January 13, 1938, the Brotherhood filed its answer to the com- plaint in which it denied all material averments thereof. The answer alleged that the Brotherhood was and is the exclusive collective bar- gaining representative of "the workers and employees" of the respond- ent for purposes of collective bargaining, and that the United is not and never was such representative. The answer set forth facts similar to those alleged in the answer of the respondent, above mentioned, regarding the consent election and the contract of October 29, 1936, and further alleged that such contract terminated on November 2, 1937, and that since then a new agreement for a period of 1 year was entered into by the respondent and the Brotherhood which provided, among other things, that membership in the Brotherhood was to be a condition of employment for production employees of the respond- ent. The answer also alleged that the contract of October 29 and the new contract were "just, equitable, fair and right and fully adapted in their terms and conditions to promote, protect and secure all proper, material and just rights of" the respondent's production employees. Pursuant to notice a consolidated hearing in the two cases was held at New York City from January 13 to 26, 1938, before William 8 See footnote 51, infra. 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seagle, the Trial Examiner duly designated by the Board. The Board, the respondent, the U. E. R. M. W., and the United were represented by counsel and participated in the hearing. At the be- ginning of the hearing the Brotherhood moved for leave to intervene in the proceedings, which motion the Trial Examiner granted, sub- ject, however, to the limitation that the intervention relate only to the validity and interpretation of the contracts between the Brother- hood and the respondent involved herein. Despite this initial ruling the Brotherhood thereafter was accorded wide latitude in its par- ticipation in the hearing, and it raised no objection in its exceptions to the Intermediate Report or at the oral argument before the Board, mentioned below, that the scope of its intervention had been im- properly or unduly limited. Full opportunity to, be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. The Brotherhood moved that the Trial Examiner disqualify himself from hearing the cases because of asserted prior expressions by the Trial Examiner on the issues and because of alleged prejudice toward the Brotherhood. The respondent moved that the representation case be severed and heard separately from the complaint case, on the ' ground that the Trial Examiner could not act in an investigatory and judicial capa- city at the same hearing. These motions were denied by the Trial Examiner. The respondent and the Brotherhood made several mo- tions to dismiss the complaint, as amended, and to withhold the tak- ing of testimony, and certain motions to dismiss the petition, which the Trial Examiner also denied. He reserved decision on certain other motions of the respondent and the Brotherhood to dismiss the petition. He granted a motion to strike from the complaint, as amended, the name of Einar Carlson, and at the close of the hearing granted a motion by counsel for the Board to conform the pleadings to the proof with respect to immaterial variances in names, dates, and places. During the course of the hearing the Trial Examiner made various other rulings, including rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings of the Trial Examiner, and, except, where inconsistent with the find- ings, conclusions, and order below, finds that no prejudicial error was committed. The rulings, thus limited, are hereby affirmed. The motions to dismiss the petition, on which ruling was reserved by the Trial Examiner, are hereby granted for reasons appearing below. On or about April 13, 1938, the Trial Examiner filed his Inter- mediate Report, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and de- ANSLEY RADIO CORPORATION 1035 sist from its unfair labor practices; that the allegations of the com- plaint, as amended, regarding John Mancuso, Theodore Byman, and John Zaviski 9 be dismissed, on the ground that these persons had not appeared to testify concerning the alleged discrimination of the re- spondent against them; that the respondent reinstate with back pay to their former positions James Garry and Morris Bailey and the other of the respondent's employees named in the complaint, as amended, except those as to whom the allegations were recommended to be dismissed ; and that it take certain other action to remedy the situation brought about by the unfair labor practices which he found. On April 23, 1938, the respondent and the Brotherhood each filed exceptions to the Intermediate Report, and the respondent requested oral argument before the Board. On May 24, 1938, pursuant to notice, a hearing was held before the Board in Washington, D. C., for the purposes of oral argument. The respondent, the United, the U. E. R. M. W., and the Brotherhood were present at the hearing and participated in the oral argument. The respondent and the Brotherhood also submitted briefs in support of their respective positions. We sustain the exceptions of the respondent and of the Brotherhood to the Trial Examiner's Intermediate Report to the extent hereinafter indicated. 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 in New York City. It is engaged in the manufacture and sale of radios, phonographs, and radio-phonograph combinations. It operates a plant, warehouse, and retail store in New. York City. These proceedings concern only production workers employed at this plant. Unless otherwise indicated all employees mentioned herein- after are and were non-supervisory production employees. The principal materials and parts used by,the respondent in the course of production at the New York plant are plywood, radio chassis, phonograph motors, automatic record changers, and phono- graph pick-up crystal units. During the period from January 1 to September 1, 1937, it purchased $104,327 worth of such materials and parts, about 20 per cent of which were purchased and brought to the plant from outside of the State of New York. During the same period the gross sales of the respondent's finished products amounted to $154,260, of which $25,173 worth, or 161/2 per cent, were The Trial Examiner included Einar Carlson among those with respect to whom the allegations were recommended to be dismissed . However, as above stated , Carlson's name already had been stricken from the complaint , as amended. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sold and shipped by the respondent from the plant to points outside of the State of New York. The respondent and the Brotherhood stipulated and agreed at the hearing that for the purposes of these proceedings the respondent is engaged in commerce among the several States, within the meaning of the Act. On May 21, 1937, the respondent employed 27 production em- ployees in its New York plant, excluding supervisory employees. II. THE ORGANIZATIONS INVOLVED Local 1221 of United Electrical & Radio Workers of America was a labor organization chartered by United Electrical & Radio Workers of America, a labor organization now known as United Electrical, Radio & Machine Workers of America, affiliated with the Committee for Industrial Organization.- Local 1221 admitted to membership all production employees of the respondent. It was succeeded by Local 1206 of United Electricals Radio & Machine Workers of America. The U. E. R. M. W. admitted and admits to membership all production employees of the respondent. Radio Factory Workers' Union, Local B-1010 of the International Brotherhood of Electrical Workers, is a labor organization chartered as a local of and by International Brotherhood of Electrical Work- ers, a labor organization affiliated with the American Federation of Labor. The Brotherhood admitted and admits to its membership all production employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Organization of the respondent's plant by the Brotherhood in the fall of 1936 From the' middle of October until the early part of November 1936 the Brotherhood conducted a campaign for members among the re- spondent's production employees."' On October 23, 1936, pursuant to written agreement and consent of the respondent, the Brotherhood, and the Board, an election by secret ballot was held under the super- vision of the Acting Regional Director for the Second Region among these employees to determine whether or not they desired to be rep- resented by the Brotherhood for purposes of collective bargaining with the respondent in respect to wages, hours of employment, and other working conditions. The results of the election were 47 to 16 in favor of the Brotherhood, that is, a majority of the respondent's production employees selected and designated the Brotherhood their 10 Now the Congress of Industrial Organizations. 11 The categories of employees included within the term "production employees" are discussed in Section III, D, infra. ANSLEY RADIO CORPORATION 1037 collective bargaining agency. Thereafter, on October 29, 1936, the respondent and the Brotherhood executed a written contract, more fully discussed below, providing for wages, hours of employment, and other working conditions of the respondent's production employ- ees. The contract by its terms was to remain in force for a period of 1 year. By November 6, 1936, all these workers, save one, joined the Brotherhood and designated it their collective bargaining repre- sentative, and the one who did not join terminated his employment with the respondent on or about that date. B. The discriminatory discharges of Garry and Bailey on May 24, 1937 In the spring of 1937 disagreement arose within the ranks of the Brotherhood over the conduct of its affairs. Garry and Bailey, two of the respondent's employees mentioned in the complaint, as amended, and one Rosenthal, another employee, were leaders among the members of the dissident faction employed at the respondent's plant. Garry and Bailey distributed to employees inside the plant in the presence of foremen copies of a monthly newspaper, The Radio Progressive, which the dissident group began to publish in April. They also collected funds for this venture inside the plant from the employees. We are satisfied and find that the president of the respondent, Ansley, and accordingly the respondent, had knowl- edge of the publication of this newspaper as well as of its contents for a considerable period prior to May 24, 1937. Ansley testified that he "saw some copies of that paper," that he "glanced" at copies thereof "probably during April," and that he "supposed it was some sort of internal scrap in that union." We also find that the re- spondent knew that this newspaper was published in behalf of a dissident faction 12 and knew that the two employees were assisting in its circulation. The newspaper in question was severely critical of actions and policies of the Brotherhood and devoted considerable space to a demand that shop chairmen in the various shops organized by the Brotherhood be elected by the workers themselves and not be appointed by the Brotherhood officials. Among other things, atten- tion was called to achievements of the Committee for Industrial Organization, the parent affiliate of the U. E. R. M. W., in securing better working conditions for employees, and to alleged unfair acts of the Brotherhood itself which the U. E. R. M, W. had had to meet in organizing radio workers in New York City and the vicinity. On April 28 Rosenthal's employment terminated. He had been shop chairman of the Brotherhood at the respondent's plant. On May 10, 16 or 17 of the respondent's employees met outside the plant 12A reading of the newspaper above would indicate this. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and decided not to pay dues to the Brotherhood unless permitted by that organization to elect their own shop chairman to succeed Rosen- thal. This precipitated a visit at the plant on May 21 of several Brotherhood officials for the purpose of collecting dues from the em- ployees. The respondent through one of its foremen notified all employees of the presence of the Brotherhood officials and of the purpose of their visit. Thereupon the employees were requested by the Brotherhood officials in the presence of a foreman and another supervisor to pay their dues. There is no claim or showing that dues ever had previously been collected in such fashion at the respondent's plant. A majority of the employees, including Garry and Bailey, refused to pay. About a week previous it had become apparent to the respondent's employees that their desire to select their own shop chairman would not be met by the Brotherhood. At that time Garry began to talk with his fellow workers about the Committee for In- dustrial Organization. He pointed out that that organization "was beginning to organize the radio and electrical industry throughout the country," and expressed the opinion that sooner or later all radio workers would be affiliated with that union. He had such a discussion with substantially all the plant employees. Similarly, Bailey for several weeks prior to the visit of the Brotherhood officials held daily conversations with employees during the lunch hour at the plant in which he "would talk about the C. I. 0.13 and the fact we weren't getting,any satisfaction from the I. B. E. W." 14 Three days after the incident regarding the collection of dues, the respondent dismissed Garry and Bailey from its employment. The two men were told by their foreman that they were being laid off because of lack of work. Garry protested to Riechers,15 a supervisory official, that his lay-off violated his seniority rights and was contrary to the provisions of the October 29 contract 16 This protest was un- availing. Shortly thereafter Foreman Steianson told one employee who had been present when Garry made his protest that Garry and Bailey were laid off "because they were nothing else but agitators and Communists." He made a similar statement to at least one other employee. In discussing the matter with Foreman Carlson, Steian- son said that the two employees "were working for the C. I. O.," 17 and that they were "agitators" and "Communists." At the hearing the respondent contended that it laid off Garry and Bailey on May 24 because of slack work and, chiefly, because it sus- pected that these persons were causing a slowing down of production 1s This referred to the Committee for Industrial Organization and the U. E . It. M. W. '* See footnote 3, supra. 15 Also referred to in the record as Rickets , Rickers, and Reichers. 19 See footnote 51, infra. 17 This referred to the Committee for Industrial Organization. ANS'LEY RADIO 'CORPO'RATION 1039 by all plant employees 16 Certain other reasons also were advanced by the respondent at the hearing, but these clearly are without sup- port in the record and require no further mention. We are not per- suaded that an alleged decrease in available work caused the dismis- sal of the two employees on May 24. Both men concededly were senior to other employees in point of service, and, assuming that busi- ness was slack, were entitled under the contract of October 29 to retain their positions.19 At the hearing Ansley sought to explain that "It was with the permission of the union that we departed from the seniority rights called for in the contract in the case of those two men." However, that the respondent properly might have ignored seniority rights if the dismissal was for lawful cause other than slack work obviously does not show that the respondent would be justified in ignoring these rights if mere slack work was the cause. The version concerning a conversation with Ansley given at the hearing by Beedie, the business agent of the Brotherhood, in which the per- mission of the Brotherhood allegedly was obtained discloses no assent by the Brotherhood to a disregarding of seniority rights, if, indeed, the Brotherhood lawfully could have, given such assent. We are satisfied, and find, that the Brotherhood did not consent to a depriva- tion of seniority rights with respect to a lay-off for slack work. Nor are we convinced that Garry and Bailey were dismissed because of a suspicion or belief that they were the cause of a decrease in the productivity of the plant employees. Ansley, the principal witness in support of this contention, testified that the respondent's "labor ' cost for the . . . two or three months [prior to May 24] had been altogether out of proportion with everything before that. It was almost three times the previous cost of labor in proportion to the material sold"; 20 that in this period "during working hours whenever the foreman would leave the room, as soon as he would return he would find all the men gathered together in a group in the middle of the room around Garry and Bailey, and as soon as he came in they . . . [would] all scatter back to their work again"; that Ansley saw this occur several times and called it to the attention of the foreman who apparently had not pre- viously noticed the occurrence; that upon Ansley's direction the foreman asked the employees "to pay attention to their work dur- 1s Ansley testified, "There were two reasons. The fact that the work was getting very slow, and the reason we laid them off instead of the others was because we suspected them of this, what might be called sabotage activity in the shop." He further testified to having informed the business agent of the Brotherhood, one Beedie, that "the men in the shop in all of the departments were getting less than. half the work out that they had been doing previously . 19 See footnote 51, infra. 20 Ansley apparently meant "in proportion to the selling price .of the material produced during the period." since material sold need not have been confined to material produced during the period. 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing working hours"; that the respondent never made inquiry of the employees about the reason for their alleged slowing down in production; that "it was very evident [to the respondent] that [Garry and Bailey] . . . were the leaders in whatever it was that was holding up the work in the shop"; that "we suspected them of being the cause of this slowing up of the work, but we had no definite proof of that, so we laid them off . . . to see whether that cleared up the situation"; and that the respondent never discussed with Garry or Bailey prior to their dismissal their alleged leader- ship in causing the supposed slowing-down of work. Ansley fur- ther stated that in a conversation had with Beedie 27 a few days before May 24 he took the position that "it seemed quite evident that there was a concerted effort on the part of the employees [in all plant departments] to hold up this work, and that it also seemed evident that Bailey and Garry were the leaders of this activity. We are unable to accept Ansley's testimony as warranting or reasonably supporting a finding that a plant-wide decrease in pro- ductivity for 2 or 3 months of such character as supposedly led to a dismissal of the two employees for experimental reasons in fact occurred. Nor do we believe, for grounds sufficiently hereinafter appearing, that the respondent actually then thought that such was the fact. That the respondent's labor costs trebled, if they did, could be attributable to many factors arising in the operation -of the respondent's business apart from a decline in the production rate of its employees. Ansley's testimony regarding the occurrence of conversations among employees when foremen were not present, we feel, greatly exaggerated the extent and effect of what conver- sations did occur during working hours. One of the respondent's witnesses testified on cross-examination that no conversations of the kind asserted took place.22 In further support of its contention that u Beedie testified to having received complaints about work from Ansley beginning in November after the October 29 contract was signed . On the other hand Ansley testified that the employees worked satisfactorily until March 1937, and that he first complained of their work to Beedie in April 1937. We are of the opinion that the complaints to Beedie by Ansley were the customary complaints between a union and employer where such a relationship as here is involved exists, that the complaints did not concern a situation which it is contended brought about the dismissals of Garry and Bailey. 22 The witness, Downey, testified : Q. Prior to May 28, 1937, did men ever gather together for the purpose of talking about the union in the shop? A. Yes, sir. Q. Did that occur during working hours? A. No, not during working hours. Q. Never? A. At times a couple of men would sort of get together for maybe a minute or so, while the foreman was not there, and disperse. Q. Was the foreman watching them at any time? A. No, but nobody is going to leave their job, a bunch of men, and start to hold a meeting that would jeopardize their own jobs. ANSLEY RADIO CORPORATION 1041 productivity substantially decreased, the respondent sought to show that Garry and Bailey themselves had been inefficient, that they had been deliberately slow in their work, had attempted to persuade employees to slow down, and had committed other acts of sabotage.23 The testimony of the two men is to the contrary. We are of the opinion that the record does not establish either such facts or the respondent's contention.- We find that Garry and Bailey were efficient workmen and did not commit the acts so charged and other- wise alleged. We have been impressed throughout with the fact that had a condition obtained among the employees at the respond- ent's plant in which a plant-wide decrease in productivity occurred so extensive as to increase substantially labor costs and so per- sistent as to endure for 2 or 3 months, the respondent would have taken more prompt and appropriate means to meet the situation than it here has shown were pursued. Since the record fails to establish that a decrease did occur and since we are satisfied that the respondent prior to May 24 did not actually believe that it had occurred, we cannot find upon this record that Garry and Bailey were dismissed as suspected leaders in a "concerted effort" to bring about a decrease or as persons who otherwise were believed to be the cause or were the cause of a decrease. Upon the foregoing facts, in the light of the entire record, we are convinced that the respondent dismissed Garry and Bailey for the reason that as leaders of the members of the dissident faction at the plant they cane to favor and assist a competing labor organization, the U. E. R. M. W.,25 and attempted to induce the other plant em- ployees to join that organization and to disassociate themselves from the Brotherhood unless the requests which had been made of the .Brotherhood were met. It is plain to us that the two men, particu- larly following the Brotherhood's refusal to permit the respondent's employees to select their own shop chairman, began to advocate among their fellow workers a change in affiliation from the Brother- hood to the U. E. R. M. W. as a means for retaining the benefits of unionization and at the same time avoiding the dissatisfaction which the plant employees apparently had experienced because of the actions and policies of the Brotherhood. We have no doubt that the re- 23 Ansley admitted at the hearing that the respondent had no evidence prior to May 24 warranting a discharge of Garry or Bailey for sabotage. 24 Much of the respondent's testimony shows a misconstruction of ordinary occurrences. Thus, the witness Shores testified that Garry told him "not to go so fast and take things easy." On cross-examination it appeared that the statement had been made in connection with certain "rush jobs." He also stated that he "could not say for sure" that Garry made similar statements to others. The witness testified to observing Garry carry four radio sets from one floor to another and trip and drop them. When asked if the accident appeared deliberate the witness stated, "I would say due to carelessness. I would not say it was deliberate." 15 See footnote 5, supra. 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent was well informed throughout April and May of the "internal scrap" of the Brotherhood, that it was aware of Garry and Bailey's leadership among the dissidents at the plant , and that it knew of the two employees ' talk and advocacy of change in affilia- tion. The refusal of a majority of the plant employees on May 21 to pay dues brought the entire issue to the fore, in so far as the respondent's employees were concerned, and made manifest to the respondent as well as to others interested the imminence of a defec- tion to the U. E. R. M. W. We are satisfied that it was to prevent such a defection by a substantial number or majority of its employees and to avoid the difficulties it believed would result from an interrup- tion of its relations with the Brotherhood that the respondent selected for dismissal and dismissed the two employees who had led the dissident group and had spoken of the U. E. R. M . W. as a way out. The effect of such dismissal necessarily would be, as the respond- ent intended, to encourage continued membership in the Brotherhood and to discourage a defection to the U. E. R. M. W. Equally, the respondent's action would interfere with , restrain, and coerce the plant employees in a matter of self-organization and with regard to their forming, joining, and assisting a labor organization other than the Brotherhood and their engaging in concerted activities for mutual aid and protection. If the dismissal of employees for such talk and advocacy of a change in affiliation from one labor organization to another, such a dismissal having the effects mentioned , constitutes an unfair labor practice under the Act, the respondent clearly was not privileged to engage in this practice as a means of avoiding a possible disturbance to its relations with the Brotherhood. However, the issue is raised whether the respondent 26 may justify its dismissal of Garry and Bailey as permissive conduct under the proviso clause of Section 8 (3) of the Act.27 We think not. Assuming that the then existing contract of October 29 between the respondent and the Brotherhood validly provided that the respondent was to require membership in the Brotherhood as a condition of employment of all production workers employed by it, a matter hereinafter considered '211 there is no contention nor do we find that the contract contained any provision R6 What inference might be drawn from the circumstances of the case that the Brother- hood officials instigated the dismissal must defer to the direct testimony of the respondent and the Brotherhood's witnesses to the contrary. 27 The proviso to Section 8 (3) of the Act is as follows : Provided, That nothing in this Act . shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require as a condi- tion of employment membership therein, if such labor organization is the represent- ative of the employees as provided in Section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made. 21 See Section III, D, infra. ANS'LIfY RADIO CORPORATION 1043 that the respondent was to require abstention from talk and advocacy of change in affiliation from the Brotherhood to a rival labor organi- zation as a condition of employment. A contract to require union membership as a condition of employment should not be freely interpreted to condition livelihood on any other fact or circumstance. Since the respondent had no contract requiring it to dismiss Garry and Bailey for such talk and advocacy, their dismissal, if otherwise in contravention of the Act, could not be justified under the proviso clause.29 Nor do we believe, if the contract of October 29 was a closed-shop agreement, that the respondent could justify the dismissal under the proviso clause on the ground that Garry and Bailey were not members of the Brotherhood on May 24. At the time of the dismissal both men were members of the Brotherhood and were not members of any other labor organization. Although the constitution of the International Brotherhood of Electrical Workers, the parent organiza- tion of the Brotherhood, subjects members of the Brotherhood to suspension or expulsion if they advocate defection to another labor organization,30 Garry and Bailey in fact were not suspended or expelled from the Brotherhood nor were, their respective member- ships in the Brotherhood otherwise terminated by the Brotherhood prior to May 24 for that or for any other reason. Furthermore, the respondent did not believe, nor did the Brotherhood inform it, that such was the case. The record does not show that before that date the two men by withdrawal or resignation, or by other formal or informal act, terminated their memberships in the Brotherhood. It is not shown that either employee previous to his dismissal manifested or represented to the respondent or generally assumed the position that he had terminated his status as a Brotherhood member and that the respondent could rely thereon as a fact.31 Discussing another labor organization with fellow employees and advocacy of change of 29 See Matter of Williams Coal Company and United Mine Workers of America, District No. 28, 11 N. L. R. B. 579, 614-615. It is unnecessary for us to consider whether under the proviso clause of Section 8 (3) an employer, in pursuance of a closed-shop contract, may on his own initiative lawfully take action affecting the employment of an employee who is not a member of the contracting labor organization. 31 The constitution of the International Brotherhood of Electrical Workers provides as follows : ARTICLa XXVIII . Misconduct, Offenses and Penalties .. . Sac. 2. Any member may be penalized for committing any one or more of the following offenses : . . . (5) Advocating or attempting to bring about a withdrawal from the I. B. E. W. of any L. U. [Local Union] or of any member or group of members. . . . (9) Working in the interest of any organization or cause which is detrimental to-or opposed to-the I. B. E. W. Any member convicted of any one or more of the above named offenses may be assessed or suspended, or both-or expelled . . . See footnote 45, infra. a' Cf. Matter of M. d J. Tracy, Inc. and Inland Boatman's Union, 12 N. L. R. B. 916. 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affiliation to that organization were not acts necessarily indicative of a termination of current membership in the Brotherhood. We take notice that conduct of this character recurs, and that dissidents are not by that fact alone adjudged to have terminated their mem- bership.II2 Since Garry and Bailey were members of the Brotherhood at thw time of their dismissal, and the Brotherhood did not notify the respondent otherwise, and since these employees did not by action upon which the respondent could rely represent to the respondent that they were not members, the respondent could not excuse its action against them on the ground that the contract of October 29 provided for a closed shop and the two men were not members. We find that the respondent on May 24, 1937, discriminated in regard to the hire and tenure of employment of James Garry and Morris Bailey, and each of them, because they favored and assisted the U. E. R. M. W. and attempted to induce other employees to: join that organization and to disassociate themselves from the Brother- hood, thereby encouraging membership in the Brotherhood and dis- couraging membership in any other labor organization, including the U. E. R. M. W., and that by such discrimination the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Some question has arisen as to whether the two employees were merely laid off or in fact discharged. That issue is without substance, for in either event the respondent discriminated in regard to hire and tenure of employment, within the meaning of the Act.33 Upon the circumstances presented, especially the purposes which induced the dismissal, we are of the opinion, and find, that the respondent intended to rid itself permanently of the two men and, accordingly, that it discharged them. At the time of the dismissal, each of the two employees was being compensated by the respondent at the rate of 48 cents an hour, Garry for work as a wireman, Bailey for work as in assembler and wireman. Since the dismissal Garry has had no other employment ; Bailey worked as a draftsman for 2 months but was then laid off. Both men desire reinstatement to their former positions with the respondent. C. The lay-off of May 18, 1937 On May 24, 1937 , shortly after the close of the working day, the United was organized by certain of the plant employees as a local =This is true quite apart from the fact that many employees hold memberships in competing labor organizations. 83 Matter of Precision Castings Company, Inc. and Iron Molders Union of North America, Local 80, 8 N. L. R. B. 879, 890 ; Matter of Servel Inc. and United Electrical, Radio and Machine Workers of America, Local No. 1002, 11 N. L. R. B. 1295, 1330. ANSLEY RADIO 'CORPORATION 1045 of the U. E. R. M. W. Fifteen of the respondent's production workers, together with Garry and Bailey '34 composed its initial membership. They elected officers of the new organization. and .desig- nated--the' U. E. R. M. W. and the United their representative for collective bargaining with the respondent in regard to wages, hours of service, and other working conditions. The 15 employees 'consti- tuted a majority of the respondent's 24 production employees, excluding supervisors, then at work in the plant.35 On May 25 four more of the respondent's production workers became members of the United, and on May 26 another one joined. On May 26 the United, acting through Carey, the president of the U. E. R. M. W., notified the respondent in writing 33 that a majority of the respondent's employees had "formed a local union" of the U. E. R. M. W. The names of these employees were not mentioned. The respondent was requested to arrange a conference with a com- mittee of the United "to discuss wages, hours, and working conditions, and for the purpose of reaching an agreement in accordance with the Wagner Law." Upon receipt of this notification and request the respondent through Ansley promptly informed the Brotherhood of the situation which had developed. Ansley then went to the Regional Office of the Sec- ond Region and sought the advice of members of the Board's staff. He was joined there by Beedie. Ansley stated to a staff member that the respondent was perplexed by the situation in which it found itself, that it had an outstanding closed-shop contract- with the Brotherhood covering all production employees at the plant, but a majority of these employees were now members of the United and desired to be represented by that organization and not by the Broth- erhood for purposes of collective bargaining. The staff member told Ansley that the Board could not aid the respondent in de- termining what course it should pursue ; that the matter required legal advice and assistance. It was pointed out that the Brotherhood, the United, and the employees themselves, as well as the respondent, had interests which conceivably might be affected. Thereafter and on May 26 the respondent replied in writing to the United's re- quest for a conference. It adverted to the conversation which Ansley had had in the Regional Office as confirming its "impres- sion" that the contract of October 29 was binding upon the respondent 84 Despite their discharge , Garry and Bailey were employees , within the meaning of Sec- tion 2 ( 3) of the Act. However, we have excluded them in all computations relating to representation since their inclusion or exclusion is unimportant to a decision of the issues presented. Cf. Matter of Seattle Post-Intelligencer Department of Hearst Publications, Inc. and Seattle Newspaper Guild, Local No. 82, 9 N. L. R. B. 1262, 1283-1284. 85 Garry and Bailey are not included , nor is one Swedlow whose employment had there- tofore been terminated. 81 This was a letter dated May 25. 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the employees, and suggested that the United consult with the staff member before taking any further action.'? On May 28 the respondent laid off all its production employees. We find that the respondent did not intend to nor did it then discharge any of these persons, and that they continued to be employees of the respondent. Each was told by his foreman to see the Brotherhood. However, none of the production employees who had joined the United, except one Lowney and one Shores, did so.-,' On June 2 the Brotherhood by letters of that date to Garry, Bailey, and 10 of the production employees gave written notice to each of these persons that he was "suspended pending trial, from all rights, privileges, and membership in [the Brotherhood] . . . by unanimous decision of the Executive Board of the . . . [Brotherhood]"; that a trial would be held by the Brotherhood to determine whether he had violated the constitution of the organization; and that meanwhile he was "prohibited; from working in any union shop under contract with the I. B. E. W." The respondent contends that its lay-off of May 28 was occasioned by a decrease in the volume of its sales, alleged financial distress in the conduct of its business, and the asserted lower productivity of its employees heretofore discussed. We agree with the Trial Ex- aminer that none of these explanations has substantial support in the record.39 Hereinafter, we find that the agreement of October 29 provided that the respondent would require membership in the Brotherhood as a condition of employment of all production workers at the plant.411 What has been set forth above shows that the respondent considered this provision to be in force at and after the time when the large majority of its production workers formed and joined the United. The visit of Ansley to the Regional Office 2 days before the lay-off establishes that the respondent also believed that there then was strong likelihood of an immediate demand being made by the Broth- erhood under the closed-shop agreement for a replacement of all these employees with Brotherhood members. Under the circum- stances presented, we are satisfied that the respondent laid off the production workers on May 28 in the belief that thereby it would 37 This proceeding involves no charge that the respondent refused to bargain collectively with the United or with any other labor organization, within the meaning of Section 8 (5) of the Act. 39 The 18 production employees referred to are all those named in the complaint, exclud- ing Garry and Bailey. 30 while a decrease in sales commencing in May and continuing through August 1937 occurred, and while a lay-off of some production employees might have resulted therefrom, we do not believe that the decrease adequately explains the lay-off of all production workers. 110 See Section III, D, infra. The Trial Examiner found the contract not to be for a closed shop. ANSLEY RADIO CORPORATION 1047 avert any such immediate replacement, and that its employees would be afforded an interim for deliberation and action. The notification of May 26 which the respondent received from the United required its immediate meeting of the issue. Irrespective of whether those who joined the United were or were not then members of the Broth- erhood the respondent could assume from the notification that they no longer were members, at least to the extent that such an assump- tion entered into its decision to lay off all the production workers.41 It is not relevant that the notification failed to name the employees who had joined the United or that the respondent did not on May 28 know their identity, if such was the case, for the respondent was informed by their representative of the fact that a substantial num- ber, a majority, of its employees had affiliated themselves with the United. I am of the opinion that the lay-off was not a discriminatory act in regard to hire and tenure of employment, or terms and conditions of employment, to encourage membership in the Brotherhood or dis- courage it in the United, within the meaning of Section 8 (3) ; that it was not an infringement of the right of self-organization or of other rights guaranteed in Section 7, within. the meaning of Section 8 (1). The closed-shop provision of the agreement of October 29 was, in my opinion as more fully stated below, operative when the lay-off occurred. The respondent's assumption at that time that the Brotherhood shortly would call upon it to replace substantially its entire working force with new employees who were Brotherhood members was founded on the contract and was a reasonable one for it to make. For the respondent to act as it did in order to delay a displacement and permit its employees to take what action they wished without having their jobs meanwhile filled by others, con- travened no provision of the statute. What encouragement or dis- couragement of membership in a labor organization thereafter may have occurred must be attributed to the force of the closed-shop agreement, not the respondent's action. Mr. Edwin S. Smith takes the position that upon the foregoing facts found by the Board the lay-off constituted an unfair labor prac- tice under the Act. He has stated his position in a separate opinion. Mr. William M. Leiserson is of the view as set forth in his separate opinion that the entire proceedings should be dismissed. Under these circumstances we will dismiss the complaint, as amended, in so far as it alleges that the respondent locked out the employees therein 41 The formation of the United, the above request for collective bargaining through the United, and certain other subsequent acts by those engaging therein, as establishing a with- drawal from the Brotherhood, are dealt with hereinafter. Cf..Matter of United Fruit Com- pany and International Longshoremen and Warehousemen's Union, District No. 3, Local No. 901, affiliated with the C. I. 0., 12 N. L. R. B. 404. 283029-41-vol. 18---67 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD named, or any of them, because they joined or assisted the United or engaged with other employees in concerted activities for the pur- poses of collective bargaining. D. The refusal on and after June 10, 1937, to reinstate all laid-off employees who terminated their status as Brotherhood members On June 7, 1937, the Brotherhood wrote the respondent, in part, as follows : A group of your former employees have voluntarily of their own free will withdrawn themselves and resigned from Local B1010 I. B. E. W. and are no longer bound by the terms and conditions of the union contract covering working conditions in your factory and are therefore no longer eligible for employment in your factory. As soon as you are in a position to resume operations we request that you notify this office of all help required even to existing old loyal help who will be notified to return to work by this office. If there are one or two employees that you think are O. K. these should also be notified to report to this office where they will be required to repudiate any association with outside organizations. We are ready to supply workers ready and willing to work honorably under the terms of our existing agreement.. In view of rumors coming from the resigned employees it would be advisable to refer them to this office if they should ever appear at your office. Appended to the foregoing letter was a list of names of 11 persons therein referred to as the "former employees . . . no longer eligible for employment." Nine of these were employees who had been laid off on May 28; the other two were Garry and Bailey. All were members of the United. On June 8 the respondent notified the Brotherhood that it was resuming operations in its production departments and that it needed production workers. Thereupon, on that day the Brother- hood communicated with some 10 of the laid-off employees, evidently persons not named in the above list, notifying them that they were to report to the office of the Brotherhood for immediate work.42 Several members of the United received this notice. On June 10 the respondent began reinstating and hiring production workers. i3 i 42 The communication did not state where they were to work , but it obviously referred to work at the plant of the respondent. 43 Some hiring may have been done before June 10, but the matter is irrelevant to the issues here presented. ANSLEY RADIO CORPORATION 1049 On June 11 a skeleton force was at work, comprising three employees who had been laid off on May 28, and four others who were not in the respondent's employ on that date. All of these persons obtained their reinstatement or employment through the Brotherhood and were Brotherhood members. Two of the three old employees were required by the Brotherhood before returning to work to execute a written statement in which they repudiated any support given the U. E. R. M. W., reaffirmed their loyalty to the Brotherhood, and pledged obedience to its laws and constitution. The third, Downey, was the appointed shop chairman. On June 10 the United, acting through a committee composed of Garry and four of the laid-off employees, conferred with the .re- spondent regarding the resumption of production. The respondent informed the committee that it was compelled to employ its pro- duction workers "through Local B-1010," that it could do nothing about reinstating laid-off employees who were members of the United, and that its "hands were tied in the matter." The committee re- plied that in that case the old employees who were refused reem- ployment would consider themselves locked out and would picket the plant. From June 10 until the fall of 1937 the United carried on such picketing. Subsequent to June 10 the respondent gradually increased its pro- duction force until by November 12, 1937, the number of production employees at the plant was 47. All these workers were Brother- hood members and obtained their employment through the Brother- hood. Except for three more old employees who executed a repudiation statement, that is, except for six old employees altogether, none of those who obtained work had been employed at the plant on May 28. In reinstating and employing persons the respondent followed the procedure of notifying the Brotherhood of what help it needed, and then giving employment to the workers furnished it by the Brotherhood. At least 15 of the employees laid off on May 28 and who theretofore joined the United were never recalled to work or reinstated or employed by the respondent .41 The record shows that the status of the afore-mentioned 15 persons as Brotherhood members terminated prior to June 7. While none " The number of persons laid off on May 28 who theretofore had joined the United was 20. As above stated, on June 11 two of these employees, they being members of the Brotherhood , were reinstated by the respondent . At the hearing it was stipulated, in effect, that all the remaining employees who appeared at the hearing had not been recalled to work. Fifteen of the eighteen remaining employees did so appear . These 15 are all the persons named in the complaint, as amended, excluding Garry, Bailey, Carlson, and the three persons as to whom the Trial Examiner recommended that the complaint , as amended, be dismissed. 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was ever expelled or suspended 45 all these persons by their various acts must be deemed voluntarily to have withdrawn from and to have indicated their withdrawal to the Brotherhood. Participation in the group venture of the substantial majority of the production workers to set up a competing labor organization, a matter of which the Brotherhood necessarily would and did have knowledge; request- ing collective bargaining through the rival organization, a matter of which the Brotherhood also would and did have knowledge; failure of each of the 15 to register his lay-off of May 28 with the Brother- hood in accordance with union requirements; and refusing in the instance of 13 of the 15 to pay to the Brotherhood the monthly dues accruing in May 46 manifest under the circumstances involved a withdrawal communicated to the Brotherhood. In turn, the Brother- hood prior to and after June 7, as shown, among other things, by its above letter of that date and the procedure it thereafter followed in furnishing the respondent with workers, considered all laid-off employees who joined the United, including the above 15, as having withdrawn from the Brotherhood unless they repudiated their affiliation with the United and were reinstated to Brotherhood membership.47 None of the 15 ever ceased being a member of the United. We find that on June 10, 1937, when operations in its produc- tion departments were resumed, the respondent enforced as a condi- tion of employment of all production employees a requirement that they be members of the Brotherhood. In accordance therewith the respondent on June 10 and at all times thereafter failed and refused to recall to work and reinstate and employ the 15 above-mentioned persons, for the reason that they and each of them were not members of the Brotherhood. It is immaterial whether the respondent knew or did not know the identity of each non-member among the 15. In the notification of May 26 given the respondent by the United these employees, along with others, informed the respondent that a majority of the production workers had formed a rival labor organi- zation and were seeking a collective contract through it. In the 45 The Constitution of the International Brotherhood of Electrical workers provides (Art. XXVIII ) for a "fair and impartial trial" before the executive board of the local union sitting as a trial board, of any member charged with violation of the constitution or laws of the organization . It is not altogether clear, but apparently under the constitution joining a competing labor organization constitutes a violation thereof. An appeal from the trial board's decision lies to certain International officers, the Executive Council, and finally to the International convention . It does not appear that the executive board of the Brotherhood had authority pending such a trial to issue, as it did, the suspension notice of June 2. i0 All 15 refused to pay the June and subsequent dues. 41 While the Brotherhood in the above -mentioned letter of June 2 gave notice to certain employees that it intended to conduct ouster proceedings against them , the evidence shows that such proceedings were never begun and that the Brotherhood on or about June 7 elected to treat all employees who joined the United as withdrawing from the Brotherhood. ANSLEY RADIO CORPORATION 1051 absence of any other controlling fact or circumstance an employer, irrespective of his knowledge of individual affiliation, may rely upon action taken in a body by a majority of his employees to form an opposition union and to request collective bargaining with it, as a representation by all those who in fact are its members that they have ceased being members of the union they are opposing. This is especially true where, as with the 15 persons, such employees have actually terminated their membership in the union opposed. At no time prior to the resumption of production did the re- spondent discharge any of its laid-off employees. Hence on June 10, all were employees of the respondent. However, if on that date the enforcement of the condition requiring membership in the Brother- hood contravened the Act, such enforcement was equivalent to a mass discharge of or refusal to reinstate or employ all laid-off em- ployees, including the above-mentioned 15, who were not members of the Brotherhood and who were unwilling to affiliate themselves with that organization.411 From this viewpoint it would be imma- terial whether, because of the extended period after June 10 required to reinstate and employ production employees, some or all of the laid- off employees who were not members of the Brotherhood would in any event have received no work on June 10. There is no contention that positions would never have been available in the ordinary course of resumed operations, and in the light of the showing that by November 12, 41 new production employees were at work we may infer and we find that save for the enforcement of the condition all such employees, including the 15, would have been recalled to work. Certain contentions by the respondent that the 15 would not have been reinstated because of inefficiency and other reasons are un- founded, and impress us as afterthoughts. We have repeatedly held that requiring membership in a particular labor organization as a condition of employment constitutes an unfair labor practice, within the meaning of Section R (1) and (3) of the Act,49 unless the imposition and enforcement of the condition are excused by the proviso clause of Section 8 (3).59 The respondent Qs Cf. N. L. R. B. v. Mackay Radio d Telegraph Co., 304 17. S. 333, rvs'g 92 F. (2d) 761 C. C. A. 9) and enf'g Matter of Mackay Radio A Telegraph Company, a Corporation, and American Radio Telegraphists' Association, San Francesco Local No. 3, 1 N. L. It. B. 201 also Matter of Williams Coal Company and United Mine Workers of America, District No. 23, 11 N. L. It. B. 579, 653-4 ; Matter of Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N. L. It. B. 1252, 1269; Matter of Jacob A. Hunkele, etc. and Local No. 40 United Laundry Workers Union, 7 N. L. R. B. 1276, 1288. 49 See Matter of Williams Coal Company and United Mine Workers of America, District No. 23, 11 N. L. It. B. 579, and cases there cited. a See Matter of ill. 0 J. Tracy, Inc. and Inland Iloatmcn's Union, 12 N. L. It. B. 916; Matter of United Fruit Company and International Longshoremen and Warehousemen's Union, District # 3, Local #901, affiliated with C. I. 0., 12 N . L. R. B. 404. See footnote 27, supra. 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contends that because of its contract of October 29 its enforcement of such a condition was permitted under the terms of the proviso. The provisions of the agreement of October 29, excluding those relating to wages, hours of employment, arbitration, and similar matters, are set forth in the footnote.51 At the time of the making of the agreement the Brotherhood was not a labor organization estab- lished, maintained, or assisted, in so far as the respondent's employees were concerned, by any action of the respondent defined in the Act 61 The agreement , except for matters thus excluded , is as follows : AGREEMENT Agreement entered into this day between Ansley Radio Corporation 240 W. 23 St., New York City, N. Y., hereinafter designated as the Employer and the Radio Factory Workers' Union Local 18609 , American Federation of Labor, hereinafter designated as the Union for and in behalf of the said Union, and for and in behalf of its members , thereof now employed and hereafter employed by the Employer and collectively designated herein as the Employees. WITNESSETH: Whereas, the parties hereto desire to establish a standard of conditions under which the Employees shall work for the Employer during the term of this agree- ment, and desire to regulate the mutual relations between the parties hereto with the view of securing harmonious cooperation between them and settling disputes. Now, therefore , in consideration of the sum of one ($1 . 00) Dollar each to the other in hand paid, the receipt whereof is hereby mutually acknowledged, and in consideration of the premises and the mutual promises hereinafter set forth, and all good and valuable consideration passing between the parties , said parties agree to and with each other as follows First. The Union hereby agrees that its members employed by the Employer will work for the Employer upon terms and conditions set forth in this agreement. Second. The Employer agrees to call upon the Union for any help he may require and the Union agrees to supply the workers required within 24 hours after request is made for them. If they are not so supplied by the Union the Employer may obtain such Workers elsewhere, in which event such new workers shall be given a working card by the Union . Such new Employees shall be on a trial period of two weeks. Third. The Employer consents that there shall be at all times in the shop of the Employer , a Shop Chairman appointed by the Union at a regular shop meeting called by the Union Representatives . This Shop Chairman is to act as a repre- sentative of the employees in their dealings with the Union Employer. Sixth. The Employer has the right to discharge Employees for good cause. For purposes of this agreement good cause may be defined as, Sabotage, Inefficiency, Repeated Tardiness , Drunkenness , Wilful violation of company rules. Prior to the discharge of an Employee , the Shop Chairman shall be notified for purposes of record and the Shop Chairman shall be given an opportunity of discussing the prospective discharge with the Employer. Before discharging a Shop Chairman written notification shall be sent the Union and the matter shall be taken up be- tween the Union Representative and the Employer. - Tenth. If the Employer shall suspend work during the slow season upon resump- tion of work re-employment shall be given to Employees who were laid off at the end of the preceding season before engaging any new help . Providing such old help is available. On the resumption of work after a suspension , if there should be one, the shop chairman shall be the first to be re-employed . If the work on which the Shop Chairman is employed ceases , the Shop Chairman shall ' be put at other work available, provided he is capable of performing such work. I Twelfth. At all times work shall be distributed as equitably as possible. In the event when work becomes so slack and it is impossible to divide work by means of ANSLEY RADIO -CORPO'RATION 1053 as or constituting thereunder an unfair labor practice. Moreover, when the contract was executed the Brotherhood had been and was the exclusive representative for the purposes of collective bargaining with the respondent in respect to rates of pay, hours of service, and other working conditions, of all the employees within an appropriate collective bargaining unit covered by the contract when made. In the consent election held on October 23, heretofore mentioned, a ballot was taken of the respondent's production employees 52 to de- termine whether or not they wished • to be represented by the Brother- hood for purposes of collective bargaining. Excluded from partici- pation in the election were any and all foremen, truck drivers, shipping-department employees, outside salesmen, salesmen at the store, office employees, and engineers. At the hearing the parties stipulated and agreed in effect that all production employees exclud- ing foremen, truck drivers, shipping-department employees, outside salesmen, salesmen at the store, office employees, and engineers, con- stituted an appropriate collective bargaining unit. We see no reason for finding the unit thus stipulated to by the parties to be inappro- priate, and accordingly we find that the production employees of the respondent, exclusive of the employees mentioned, constituted at the time of the making of the contract of October 29 and at all times material herein a unit appropriate for purposes of collective bargain- ing, within the meaning of Section 9 (a) of the Act, and that said unit insured to the employees the full benefit of their right to self- organization and to collective bargaining and otherwise effectuated the policies of the Act. In the consent election held all employees eligible to vote therein, 33 in number, cast ballots. As stated hereto- fore, 17 voted for the Brotherhood.53 Accordingly, in that election "stagger system" and the Employer is thereby compelled to "lay off" Employees such Employees shall be laid-off by seniority rights. Such workers laid-off shall be rehired, if available, by seniority rights, and engaged before any new help is hired. Nineteenth. This agreement shall be binding upon the parties hereto and upon any corporation or copartnership or other firm which succeeds to the business of this Employer and which is controlled by substantially the same financial interests which are now interested in the Employer's firm. This agreement shall be binding upon the Employer or any successor firm in any State of the United States. In witness whereof we hereto set our hands and affix our seals this day 29th Oct. 1936 New York City. This agreement shall commence on 2nd Day of Nov. 1936 and expire on 2nd day of Nov. 1937. ANSLEY RADIO CORP. By ARTHUR C. ANSLEY (Signed) WILLIAM BEEDIE (Signed) For Radio Factory Workers' Union B1010 International Brotherhood of Electrical Workers, 5 East 19th St., N. Y. C., N. Y. 63 The production employees consisted of workers in the following classifications : wire- men, assemblers, testers, helpers in the mechanical and cabinet departments, and cabinet machine hands. 14 See footnote 3, supra. 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a majority of the employees within an appropriate collective bar- gaining unit designated the Brotherhood their representative for purposes of collective bargaining, and, as provided in Section 9 (a) of the Act, the Brotherhood by virtue thereof became the exclusive representative of all the employees in such unit for purposes of col- lective bargaining. Although the record shows that during the 6 days intervening between the consent election and the execution of the contract three employees within the appropriate unit were pro- moted to the position of foreman, we do not find this fact sufficient to destroy the presumption of the Brotherhood's continued majority representation. In any event, under the circumstances involved the respondent at the time the contract was made could rely on a continu- ation of the status of the Brotherhood as exclusive bargaining rep- resentative of the production employees. The contract of October 29 covered by name all the employees then within the appropriate collective bargaining unit. The respondent and the Brotherhood contend that the agreement of October 29, properly construed, provided that for the duration thereof the respondent require membership in the Brotherhood as a condition of employment of all production workers employed in the plant on or after the effective date thereof, November 2, 1936.14 Clearly the respondent, if it intended on October 29 to impose such a condition, could have done so without violating the Act, provided an agreement was made with the Brotherhood to that effect.55 The question presented, accordingly, is whether the agreement embodied in and evidenced by the signed instrument of that date is such an agreement. There is no showing that any other contract, written or oral, was made by the parties, except one in September 1937. We are of the opinion that the written agreement of October 29 is not subject to the construction advanced by the respondent and the Brotherhood in so far as it is claimed that the respondent thereby became obligated to require production workers in its employ on November 2, 1936, to be and remain members of the Brotherhood. Plainly no such undertaking is contained therein. Moreover, we entertain grave doubt of the soundness of the claimed construction in so far as it assumes a further promise by the respondent to require new or additional production workers hired on or after November 2, 1936, to be members of the Brotherhood. Paragraph "Second" of the agreement, in providing that the respondent "call upon the Union for any help he may require" before obtaining workers else- where, properly refers only to a preferential hiring on and after "Garry, Bailey, and 11 of the 15 above-mentioned employees were in the respondent's employ on November 2, 1936. The remaining four were hired thereafter. ss See cases cited in footnote 50, supra. ANSLEY RADIO CORPORATION 1055 November 2 of new or additional workers through the offices of the Brotherhood.58 However, at the hearing clear and convincing proof was adduced establishing that the respondent and the Brotherhood mutually in- tended and agreed in the agreement which was reached on October 29 and which they supposed was fully expressed in the instrument then executed that the respondent require of all production workers in its employ on or after November 2, 1936, membership in the Brotherhood as a condition of employment. The two persons who engaged in the negotiations and signed the instrument on behalf of the parties, Beedie and Ansley, testified unequivocally that such was always the intent, agreement, and supposition of the respondent and the Brotherhood. Their testimony in this respect is strongly corrob- orated by several circumstances. On the evening of October 23, 1936, after the results of the consent election conducted earlier that day were known, a meeting was held by the Brotherhood for the respond- ent's production employees in the course of which an announcement was made to some 20 employees assembled that the Brotherhood would negotiate a closed-shop contract with the respondent. A few days later and before the execution of the agreement Ansley visited the Regional Office of the Second Region and informed a staff member that the Brotherhood had requested a closed-shop agreement with the respondent. Following some discussion concerning the desir- ability of such an undertaking Ansley stated that the respondent would enter into the requested agreement. At this time a general understanding prevailed among the production employees to the effect that the agreement then being negotiated would provide for a closed shop. Some of the workers who had voted against the Broth- erhood in the election asked their foremen if they would be compelled to become members. From the replies which they received they un- derstood that "if the shop was under A. F. of L. contract, that the contract would state that we would all have to belong to the union, and there could not be some union members and some non-union members." The record shows that within a week after the agree- ment was executed all production employees, except one, had become members of the Brotherhood, and the one who did not left his em- ployment. On November 5, 1936, Beedie wrote to the Regional Of- fice stating among other things that "The union has succeeded in maintaining closed shop union agreement." . Until the formation of the United neither the respondent, the Brotherhood, nor any of the production employees at any time acted inconsistently with the existence of an outstanding closed-shop agreement. 56 See Matter of Pilot Radio Corporation and United Electrical & Radio Workers of America, 14 N. L. R. B. 1084, and footnote 20. Presumably those hired through the Brotherhood ordinarily would be Brotherhood members. 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are convinced from the foregoing, and find, that all production workers employed by the respondent on November 2, 1936, then knew and understood that the agreement of October 29 required member- ship in the Brotherhood as a condition of employment. Of the 15 afore-mentioned persons who never were recalled to work or rein- stated and employed, 11 fall within this class. The remaining four persons are among the production workers who were not employed at the plant on November 2 but were hired subsequently. These four either were members of the Brotherhood at the time they were hired or became members shortly thereafter, and all maintained their mem- bership until the occurrence of the defection in May 1937. One was told by his foreman at the time he was hired that the respondent had an agreement with the Brotherhood and that he would have to join that organization.57 Another knew that if he wasn't "a union man," he "could not go to work there." 58 Another first joined the Brother- hood after his employment at the plant and after receiving a tem- porary work permit from the Brotherhood.56 And the fourth was a member of the Brotherhood, although not an employee of the respond- ent, at the time the agreement was made.60 We believe that these facts, considered in the light of the entire record, show that the four employees had knowledge at the time of their employment that a con- tract existed between the Brotherhood and the respondent requiring them to be and remain -members of the Brotherhood as a condition of employment."' As to other employees, besides the above four, who were laid off on May 28 and may not have been' reinstated and em- ployed because of non-membership in the Brotherhood, the record is silent as to what knowledge they had of the required condition. Since the complaint, as amended, was dismissed as to these employees upon recommendation of the Trial Examiner '112 we may assume for the purposes solely of this decision that they too had knowledge. It is apparent, and we find, that through mutual mistake or inad- vertence of the parties the written instrument of October 29 failed to contain the promise of the respondent to require membership in the Brotherhood as a condition of employment of all production workers in its employ on or after November 2. It also is shown that all these workers had knowledge of the requirement prior to the 57 The name of this employee is Rutkin. The name of this employee is Wohlmuth. 69 The name of this employee is Jacobs. 80 The name of this employee is Schraier. 61 The agreement of October 29 recited that it was entered into by the Brotherhood "for and in behalf of the said Union , and for and in behalf of its members, thereof now employed and hereafter employed by the Employer . . We do not determine whether the four employees hired after November 2, by joining the Brotherhood , became bound to the closed-shop provision irrespective of whether they had actual knowledge thereof. 61 See Statement of the Case , supra. ANSLEY RADIO CORPORATION 1057 defection in May 1937. Under these circumstances the agreement of October 29 will be considered for the purposes of this proceeding as if it expressly set forth the respondent's undertaking. Where through mutual inadvertence or mistake of the parties to a written collective agreement that agreement fails to express fully and accu- rately the intention of the parties, the Board in a proper case may consider and treat the written agreement as if it expressed what the parties intended it to provide and supposed it did. Effectuation of the purposes and policy of the Act requires that in such instances the determination of whether the respondent has engaged in an unfair labor practice should not depend upon a fact which is contrary to the understanding of the employer and all persons concerned. Thus, on June 10, 1937, when the respondent put into effect its decision to reinstate and employ only production workers who were Brotherhood members, thereby discharging in a body and refusing to reinstate and employ all laid-off employees,63 including the 15 afore-mentioned, who were not members, there existed an agree- ment 64 with the Brotherhood, as these employees knew, providing that the respondent require of its production workers membership in the Brotherhood as a condition of employment. The letter to the respondent of June 7, above mentioned, constituted a request by the Brotherhood for enforcement of the requirement against laid-off employees who no longer were members, and the statement of June 10 by the respondent to the committee of the United was a sufficient notice in that respect to all -such employees. The action of the re- spondent must be deemed to have been and was in pursuance of this request and the agreement. The cases in which we have held not violative of the Act a dis- charge or refusal to reinstate an employee, for non-membership in a labor organization, pursuant to a valid, closed-shop agreement did not involve the precise question presented." Here the discharge and refusal to reinstate and employ concern a majority of the employees within the appropriate bargaining unit covered by the agreement, a majority who withdrew from membership in the contracting labor organization and designated another labor organization as their ex- clusive representative for purposes of collective bargaining. The 15 afore-mentioned employees constituted a majority of the 24 em- "See Williams Coal Company and United Mine Workers of America, District No. 23, 11 N. L. R. B. 679, 652-654. 64 There is no contention by any of the parties that under applicable State law the agreement , in so far as it provided for a closed shop, was illegal . Moreover, if a closed- shop agreement were invalid under State law but came within the terms of the proviso clause to Section 8 (3) it would not necessarily follow, and we do not determine, that the making or performance thereof would constitute an unfair labor practice , within the meaning of the Act. 65 See footnote 50, supra. 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees laid off on May 28, such 24 employees comprising on May 28 and at all times thereafter to and including June 10, 1937, all the respondent's employees within the appropriate collective bargaining unit above found. The agreement of October 29 was entered into by the Brotherhood "for and in behalf of the said Union, and for and in behalf of its members, thereof now employed and hereafter employed by the Em- ployer . . ." Although the introductory paragragh of the agreement does not name the Brotherhood but names "Radio Factory Workers' Union Local 18609, American Federation of Labor" as the party, 16 the agreement was signed by the Brotherhood and, hence, must be deemed to have been made by that organization as a party signatory. In executing this agreement the Brotherhood acted as the exclusive collective bargaining representative, within the meaning of Section 9 (a) of the Act, of all employees composing the appropriate unit covered by the agreement when made. While the agreement recites its having been entered into by the Brotherhood for its members only, the inclusion of the closed-shop provision as a term thereof shows that the Brotherhood acted as the statutory representatives' Recitals of a contract should be read in the light of the entire con- tract and given a construction, if reasonable, which would not render the agreement invalid 68 There is nothing in the factual situation as it existed on June.10 which warrants a conclusion that the respondent could no longer seek protection in the proviso clause of Section 8 (3) if, pursuant to request of the Brotherhood and upon sufficient notice, it terminated the employment of persons who voluntarily withdrew from the Brotherhood, unless it be that the Act itself compels such a conclu- sion. No claim or showing is made of any agreement or understand- ing, express or implied, or of any condition imposed by the parties to the agreement of October 27, or in whose behalf it was made, limiting the duration of the respondent's obligation to employ Broth- erhood members, except the provision for expiration of the agreement of October 29 set forth in that agreement. Nor is there any showing that the withdrawal of the substantial majority of the respondent's employees from membership in the Brotherhood and their formation of the United and designation of it as their bargaining agency affected the continued existence of the Brotherhood as an organiza- ati See footnote 51, supra. Certain evidence, as Respondent Exhibits 13 and 14, inti- mates that the Brotherhood is the same labor organization as "Radio Factory Workers' Union Local 18609, American Federation of Labor." a+ Matter of Pacific Greyhound Lines and Amalgamated Association of Street , Electric Railway and Motor Coach Employes of America, 9 N. L. R. B. 557, 568. 68 Matter of M. & J. Tracy, Inc. and Inland Boatmen's Union, 12 N. L. R. B. 916, 928, ANSLEY RADIO 'C'ORPORATION 1059 tion or its status as a chartered local of International Brotherhood of Electrical Workers. In fact, the membership of the Brotherhood on October 29 included, and since has included, many hundreds of members employed by various manufacturers of radios and radio parts located in New York City. Hence, to the extent that the agreement of October 29 and the closed-shop provision therein con- tained depended for their force upon such continued existence and status, the defection would occasion no change 69 Nor would the discharge of Garry and Bailey vitiate the provision for a closed shop. Where an unfair labor practice constituting assistance to the con- tracting labor organization is engaged in after the making of a valid closed-shop agreement, the Act does not require that the contract be voided if such assistance did not materially affect employees in self-organization or collective bargaining beyond the restraint neces- sarily inherent in the operation of the contract itself. The question resolves itself finally into the following : Where an employer has made a valid agreement with a labor organization which is the exclusive collective bargaining representative of his em- ployees within an appropriate collective bargaining unit covered by such agreement when made, to require of all present and prospective employees in the unit that they be members of that labor organiza- tion as a condition of employment, can the employer without con- travening the Act perform the undertaking, after request of the labor organization and upon notice to the employees, by discharging or refusing to reinstate a majority of the employees within the unit who subsequent to the making of the agreement have voluntarily withdrawn in a body from membership in the contracting labor organization and have designated another labor organization as their exclusive bargaining agency. I am of the opinion, as indicated below, that the question as it pertains to the refusal of the respondent herein to reinstate the laid-off employees on June 10 ought to be answered in the affirmative, and the respondent's action held to have been per- lnissive conduct under the proviso clause of Section 8 (3).70 The freedom guaranteed employees under the Act to form, join, and assist labor organizations and to bargain collectively through representatives of their own choosing, without economic or other compulsion by the employer, is qualified by the proviso clause of 0° See Matter of M. and M. Wood Working Company and Plywood and Veneer Workers Union Local No. 102, Affiliated with. International Woodworkers of America , 6 N. L. R. B. 372, where the Board treated certain action taken by a majority of the employees who were members of a labor organization with which the employer had made a closed-shop agreement as effectuating a legal withdrawal of that organization from affiliation with its parent organization. The decision of the Board finding a violation of the Act rested on this assumption of fact. See also Matter of Smith Wood Products, Inc. and Plywood and Veneer Workers Local No. 2691, International Woodworkers of America, 7 N. L. R. B. 950. 70 See footnote 27, supra. 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (3).71 The legislative history of this clause 72 as well as its language shows that its purpose was to leave undisturbed by the Act, except in two instances,73 a form of industrial relationship which had won increasing acceptance by employers and had found widening approval in the law of the several States. The legislative intent and policy were to withhold what rights individual employees otherwise might have had under the Act but for the proviso in order to permit organized labor to seek and enter into this relationship where the employer was willing to do so and local law offered no obstacle. Although the employees who withdrew from the Brotherhood were a. majority of the employees in the unit and had designated another labor organization as their collective bargaining representative it cannot be said that by virtue thereof the immunity accorded the respondent by the proviso clause ceased under the Act and in con- sequence the respondent's refusal to reinstate was violative of the statute. If the Congress had intended to limit in this manner a relationship which it sanctioned under the Act and to impose a responsibility upon the employer for failure to recognize the limita- tion, certainly such limitation would have been express. There is no express limitation in the Act that the proviso is applicable only so long as the contracting union maintains its majority. The proviso clause declares that "nothing in this Act" shall preclude an em- ployer from "making" a closed-shop agreement with a labor organ- ization "if such labor organization is the representative of the employees as provided in section 9 (a), in the appropriate col- lective bargaining unit covered by such agreement when made." Although the proviso relates specifically only to the making of the 71 See footnote 50, supra. "Senate Report No. 573 , 74th Congress , 1st Sess ., Committee on Education and Labor: The proviso attached to the third unfair -labor practice deals with the question of the closed shop . . . . The reason for the insertion of the proviso is as follows : According to some interpretations , the provision of section 7 (a) of the National Industrial Recovery Act, assuring the freedom of employees "to organize and bar- gain collectively through representatives of their own choosing ," was deemed to illegalize the closed shop . The committee feels that this was not the intent of Congress when it wrote section 7 ( a) ; that it is not the intent of Congress today; and that it is not desirable to interfere in this drastic way with the laws of the several States on this subject. But to prevent similar misconceptions of this bill , the proviso in question states that nothing in this bill . . . shall be held to prevent the making of closed-shop agreements between employers and employees . In other words , the bill does noth- ing to facilitate closed -shop agreements or to make them legal in any State where they may be illegal ; it does not interfere with the status quo on this debatable subject but leaves the way open - to such agreements as might now legally be con- summated . . . See also Congressional Record Appendix , June 19, 1935, p. 10137. 73 These two exceptions are, first , where the contracting labor organization was not at time of the making of the agreement the exclusive representative under Section 9 (a), and second, where it had been established , maintained , or assisted by action defined in the Act as an unfair labor practice. ANSLEY RADIO CORPORATION 1061 agreement, the necessary implication is that. the employer is protected against a charge of discrimination under Section 8 (3) in carrying out the closed-shop agreement as made, at least where, as here, the agreement is for a reasonable period of time. As has been stated many times by this Board and by the courts, the Act contemplates the making of collective agreements between the employer and the representatives of his employees. A prime purpose of such agreements is to stabilize employment relations, to the benefit of both employer and employees. The provision of Section 9 (a) that representatives selected by a majority of the employees in an appropriate collective bargaining unit shall be the exclusive bargain- ing representative of the employees in that unit, must be read in the light of this fundamental objective of the Act. Consequently, where a collective agreement is validly made, for a reasonable duration, the Board should recognize and uphold that agreement despite a shift of sentiment among the employees whose representatives entered into it. In my opinion, to hold that a closed-shop or other collective agreement may be disrupted at any time that a majority of the employees in the unit determine upon another bargaining representa- tive would open the door wide to that very instability and uncertainty in labor relations which the Act is designed to remove.74 Since I am of the opinion that the respondent's refusal to reinstate the laid-off employees was privileged under the proviso clause of Section 8 (3), and, therefore, that the complaint, as amended, should be dismissed in this respect, and since Mr. Leiserson concurs in a dismissal, we shall dismiss the complaint, as amended, in so far as it alleges that the respondent refused and refuses to reinstate the em- ployees and each of them who were laid off.75 We have held that an agreement in which the employer agrees with a labor organiza- tion to require membership in that organization as a condition of employment is no bar to an investigation and certification of representatives under Section 9 (c) of the Act, where the agreement was made or renewed by the employer after formal notice of the claim of a rival labor organization, Matter of Colonic Fibre Company, Inc. and Cohoes Knit Goods Workers Union No. 21514, A. F. of L., 9 N. L. R. B. 658, 660; Matter of Showers Brothers Company, Inc. and National Furniture Workers Local No. 1, of the Upholsterers International Union of North America, Affiliated with the American Federation of Labor, 13 N. L. R. B. 829 ; or was made or renewed after the filing of a petition for investi- gation and certification, Matter of Union Premier Food Stores, Inc., a Pennsylvania Cor- poration, et at. and United Retail & Wholesale Employees of America, Affiliated with the Congress of Industrial Organizations, 11 N. L. It. B. 270, 277; Matter of California Wool Scouring Company and Textile Workers Organizing Committee, 5 N. L. R. B. 782, 785 ; Matter of American-West African Line, Inc. and National Marine Engineers' Beneficial Association, 4 N. L. R. B. 1086, 1090; or where the agreement is about to expire or be renewed, Matter of Quality Furniture Mfg. Co. and United Furniture Workers of America, Local 576, C. I. 0., 8 N. L. R. B. 850, 853 ; Matter of Martin Bros. Box Company and Toledo Industrial Union Council, 7 N. L. R. B. 88, 91. Nothing herein expressed would limit or affect the decisions in the foregoing cases. 75 This dismissal does not apply to the respondent's refusal to reinstate Garry and Bailey. 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III5 B, above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It is essential to an effectuation of the purposes and policy of the Act that the respondent be ordered to cease and desist from the unfair labor practices in which we have found it to have engaged, and, in aid of such order and as a means of removing and avoiding the consequences of such practices, that the respondent be ordered to take certain action more particularly described below. We have found that the respondent on May 24, 1937, discharged James Garry and Morris Bailey because they favored and assisted the U. E. R. M. W. and attempted to induce other employees to join that organization and to disassociate themselves from the Brotherhood, thereby discriminating in regard to their hire and tenure of employ- ment and encouraging membership in the Brotherhood and dis- couraging membership in any other labor organization. Accordingly, we shall order the respondent to cease and desist from engaging in such unfair labor practices, and otherwise interfering with, restrain- ing, and coercing its employees in the exercise of rights guaranteed them under the Act. Subsequent to their discharges Garry and Bailey withdrew from the Brotherhood and joined the United. They are now members of the United. It is not improbable that there exists at present an agreement between the respondent and the Brotherhood in which the respondent has agreed to employ only Brotherhood members. The record shows that upon the expiration of the agreement of October 29 a new agreement was made by the parties which they claim contained a provision concerning the employment of Brother- hood members similar to that in the October 29 agreement. In any event, we are of the opinion that the change in affiliation of the two men subsequent to their discriminatory discharges should not operate to their prejudice and prevent the issuance by the Board of its usual order restoring such persons to the positions they enjoyed at the time the discrimination occurred, and otherwise making them whole. It is. inconsonant with the policies of the Act that such a change in union affiliation should be deemed to preclude the Board from providing a remedy which in its opinion is necessary to effec- ANSLEY RADIO CO'RPORATION 1063 tuate these policies. Accordingly, we shall order the respondent to offer Garry and Bailey immediate and full reinstatement to their former or substantially equivalent positions, without prejudice, to their seniority and other rights and privileges, and to make them whole for any loss of pay they have suffered by reason of the respond- ent's discriminatory termination of their employment, as aforesaid, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from May 24, 1937, to the date of the offer of reinstatement, less his net earnings 76 during said period. The respondent contended at the hearing that Garry and Bailey should not be reinstated for the reason that they allegedly were involved in acts of violence committed against members of the Brotherhood in its employ in connection with the picketing of the plant after June 10. Offer of proof to that effect was made by the respondent and refused by the Trial Examiner upon objection by the Brotherhood and the Board. We note that the answer filed by the respondent herein failed to contain a statement of either the facts constituting the asserted defense or of the defense itself, although such matters took place prior to such filing. The respond- ent admitted that neither of the two men had been convicted or sentenced in connection with the alleged violence.77 It did not claim that they disobeyed the injunction which is alleged to have issued, or that their misconduct was directed toward seizure of, or constituted a tort against, the respondent's property.71 We do not believe that acts of violence of the character involved, occurring in connection "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 termination of his employment and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Car- penters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal, or other work-relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal, or other government or governments which supplied the funds for said work -relief projects. 77 See Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. It. B. 219 , 387-388, enf 'd as mod., Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472 (C. C. A. 3). 78 See N. L. R. B. v. Arthur L. Colten and Abe J. Colman, Co-Partners doing business as Kiddie Kover Manufacturing Company, 105 F. ( 2d) 179, 183 (C. C. A. 6 ), enf'g Matter of Arthur L. Colten and A. J. Colman, etc. and Amalgamated Clothing Workers of America, 6 N. L. It. B. 355 ; N. L. R. B. v. Stackpole Carbon Company, 105 F. ( 2d) 167, 176-7 (C. C. A. 3), mod'g and enf'g as mod. Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No. 502, 6 N. L. It. B. 171. Cf. N. L. R. B. v. Remington Rand, Inc., 94 F. ( 2d) 862 , 872-3 . (C. C. A. 2), cert. denied , 304 U. S. 576, enf'g Matter of Remington Rand, Inc. and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L. It. B. 626; N. L. R. B. v. Carlisle Lum- ber Co., 94 F. ( 2d) 138, 146 , (C. C. A. 9), cert . denied, 304 U. S. 575 , enf'g Matter of Carlisle Lumber Company and Lumber & Sawmill Workers' Union, Local 2511, Onalaska, and Associated Employees of Onalaska, Inc., Intervener, 2 N. L. R. B. 248. 283029-41-vol. 18 68 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with picketing and in the midst of industrial strife, show unfitness for employment. Under all the circumstances we are of the opinion that the reinstatement of Garry and Bailey is necessary, as stated above, as a means of removing and avoiding the consequences of the respondent's unfair labor practices and to effectuate the policies of the Act. VI. THE PETITION As stated above, we will dismiss the complaint, as amended, in so far as it alleges that the respondent engaged in unfair labor prac- tices in refusing on and after June 10, 1937, to reinstate and employ the laid-off employees who prior to that date withdrew from the Brotherhood and joined the United and thereafter never resumed affiliation with the Brotherhood. All the persons, except Garry and Bailey, shown by the evidence to desire representation by the U. E. R. M. W. for purposes of collective bargaining with the re- spondent come within this group of persons refused reinstatement and employment. It is apparent from the record that the positions of all of these persons were filled by November 12, 1937. What their relationship with the respondent will be in the light of this Decision is highly speculative. Accordingly, I am of the opinion that the petition should be dismissed without prejudice, on the ground that the record does not present a justiciable question concerning the rep- resentation of employees of the respondent. Mr. Smith and Mr. Leiserson agree that the petition should be dismissed. Upon the basis of the foregoing findings of fact and upon the. entire record in the proceedings, the Board makes the following : CONCLUSIONS OF LAW 1. Radio Factory Workers' Union, Local B-1010 of the Inter- national Brotherhood of Electrical Workers; Local 1206 of United Electrical, Radio & Machine Workers of America; and United Elec- trical, Radio & Machine Workers of America, formerly known as United Electrical .& Radio Workers of America, are labor organiza- tions, within the meaning of Section 2 (5) of the Act. Local 1221 of United Electrical & Radio Workers of America was a labor or- ganization, within the meaning of said section. 2. By discriminating in regard to the hire and tenure of employ- ment of James Garry and Morris Bailey, and thereby discouraging membership in a labor organization and encouraging membership in Radio Factory Workers' Union, Local B-1010 of the International Brotherhood of Electrical Workers, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. ANSLE'Y RADIO CORPORATION 1065 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. No question concerning representation of employees of Ansley Radio Corporation for the purposes of collective bargaining arises, within the meaning of Section 9 (c) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Ansley Radio Corporation, New York City, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Local 1206 of United Electrical, Radio & Machine Workers of America, or any other labor organiza- tion of its employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join, and 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 and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to James Garry and Morris Bailey, and to each of them, immediate and full reinstatement to their former or. substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges ; (b) Make whole James Garry and Morris Bailey, and each of them, for any loss of pay they have suffered by reason of the re- spondent's discriminatory termination of their employment, by pay- ment to each of them of a sum of money equal to that which he normally would have earned as wages from May 24, 1937, to the date of the offer of reinstatement, less his net earnings during said period,79 deducting, however, from the amount otherwise due to each °D See footnote 7G, supra. 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, munici- pal, or other government or governments which supplied the funds for said work-relief projects; (c) Immediately post, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, in conspicuous places throughout its plant, notices to its employees stating that the respondent will cease and desist in the manner set forth in 1 (a) and (b), and that it will take the affirmative action set forth in 2 (a) and (b), of this Order; (d) Notify the Regional Director for the Second Region in writ- ing, within fifteen (15) days from the date of this Order, what steps the respondent has taken to comply therewith : PROVIDED, HOWEVER, that the provisions of this Order shall be subject to any valid contract now in effect or subsequently entered into between the respondent and any labor organization, which con- tract requires as a condition of employment membership in such organization. AND IT IS FURTIIER ORDERED that the complaint, as amended, be, and it hereby is, dismissed in so far as it alleges that the respondent, by locking out or refusing to reinstate the employees named in the complaint, as amended, other than James Garry and Morris .Bailey, and by keeping union meetings and meeting places under surveillance, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) and (3) of the Act. By virtue of Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, IT IS HEREBY FURTHER ORDERED that the petition for investigation and certification of representatives of employees of Ansley Radio Corpora- tion, New York City, filed by United Electrical & Radio Workers of America, how known as United Electrical, Radio & Machine Workers of America, be, and it hereby is, dismissed, without prejudice. MR. EDWIN S. SMITH, concurring in part and dissenting in part: I concur in the findings and decision of the Board relating to the discharge on May 24, 1937, of James Garry and Morris Bailey. It is plain that the respondent rid itself of these employees because it be- lieved that their espousal among their fellow workers of a change in affiliation from the Brotherhood to the U. E. R. M. W. threatened the respondent's existing relationship with the Brotherhood. The proviso clause of Section 8 (3) of the Act does not afford a warrant for this ANSLEY RADIO CORPORATION 1067 dismissal. While the respondent had made a valid agreement condi- tioning employment upon membership in the Brotherhood, perform- ance of the agreement was not involved in the discharge, for both Garry and Bailey were then Brotherhood members. Merely because an employer has entered into an agreement of the kind mentioned in the proviso clause, he is not licensed to thwart a nascent movement for a change in affiliation, or of collective bargaining representative, by using his power of discharge to make an example of the leaders of such a movement. I also concur in the subsidiary findings of fact set forth in the De- cision respecting the respondent's lay-off of the production employees on May 28, 1937, and its refusal to reinstate those of the laid-off em- ployees who were not Brotherhood members. However, I am not in accord with the opinion of Chairman Madden that the respondent in committing these acts did not engage in any unfair labor practice. The Board finds that the respondent laid off the production em- ployees for the purpose of preventing, pursuant to imminent demand by the Brotherhood, a discharge of the majority of these employees who had joined the United and had thereby indicated their withdrawal from the Brotherhood. The opinion of the Chairman assumes that by virtue of the closed-shop provision of the October 29 contract, and under the proviso clause of Section 8 (3), the Brotherhood lawfully could have insisted upon and the respondent properly could have undertaken to replace these employees with new employees who were Brotherhood members; and that a lay-off to forestall such a con- tingency would not be a discriminatory act. I do not think that this could have legally been done. As stated below, I am of the opinion that an otherwise valid agreement of an employer with a labor organi- zation to require membership in that organization as a condition of employment becomes inoperative upon a change in choice of collective bargaining representative by a majority of the employees within the appropriate collective bargaining unit covered by the agreement. Such a change occurred here prior to the lay-off when a majority of the production employees designated the United as their bargaining rep- resentative. Although the respondent in laying off the employees en- tertained an honest belief that they thereby were being afforded a respite against enforcement of the closed-shop provision of the con- tract, nevertheless, because the lay-off was occasioned by the employees' shift of affiliation, it would constitute an unfair labor practice, within the meaning of Section 8 (3), and also of Section 8 (1). As the Board finds, between May 24 and 26, 1937, 20 of the respond- ent's production workers joined the United and designated that labor organization as their collective bargaining representative. These workers were a substantial majority of all the employees, 24 in num- 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her, within the appropriate collective bargaining unit covered by the contract of October 29 and by its closed-shop provision. On June 10, 1937, the respondent resumed production operations at its plant and took the position that for-the duration of the contract none of the employees previously laid off who was not a loyal Brotherhood member would be reinstated to his former position. Unless this action by the respondent was valid under the proviso clause, all these employees were thereby, in effect, discriminatorily discharged on June 10.11" There is no issue here as to whether the respondent independently could have refused reinstatement to non-members of the Brotherhood without a request therefor by the labor organization with which the closed-shop agreement was made. Such a request was, in fact, made by the Brotherhood in its letter of June 7 to the respondent. Nor is there involved the effect upon a closed-shop agreement of a dissolution of the contracting labor organization. The withdrawal of a substan- tial number of the production employees from the Brotherhood and their designation of the United as bargaining representative did not affect the continuance of the Brotherhood as a labor organization. The question is simply whether an employer who has made a valid closed- shop agreement may properly enforce the terms of the closed-shop upon request of the contracting union after and at a time when a ma- jority of the employees in the appropriate collective bargaining unit covered by the closed-shop provision have designated another union exclusively to represent them for collective bargaining purposes. I am of the opinion that the employer cannot lawfully do so ; that neither the proviso clause of Section 8 (3) nor any other provision of the Act permits him to engage in such conduct.. The opinion which Chairman Madden expresses that the refusal to reinstate the laid-off employees did not violate the Act rests upon an application of the proviso clause of Section 8 (3). In sum, it is stated that the proviso was intended to exempt closed-shop contracts and similar agreements from the prohibition against discrimination em- bodied in Section 8 (3) and that the proviso cannot reasonably be con- strued to remain operative only so long as a majority of the employees covered by the agreement do not designate a collective bargaining representative other than the contracting union to represent them. I am satisfied that the proviso was intended to be, and should be, so limited. We are met with an apparent conflict in principle and application of two provisions of the Act. The proviso clause purports to free closed-shop and similar agreements from the limitations of the Act and to permit them what status, and legal significance they have 80 See cases cited in footnote 48 of the Decision. ANSLD'Y RADIO CORPORATION 1069 acquired under local law. However, Section 9 (a) of the Act pro- vides that representatives designated or selected for the purpose of collective bargaining by the majority of the employees in a unit appropriate for such purpose shall be the exclusive representative of all the employees in such unit for the purposes of collective bargaining.81 It is clear to me that in resolving this conflict and reaching a proper construction, emphasis should be placed on the statutory right in the majority of the employees freely to choose an exclusive collective bargaining representative, not on the asserted privilege in the minority or the contracting labor organization, acting through the employer, to enforce membership in the contracting union. The doctrine of majority rule which Section 9 (a) enunciates is a fundamental principle of the statute. In this principle is found warrant for imposing upon employers the duty to bargain collec- tively; and in the performance of that duty lies avoidance of indus- trial strife and unrest. The Board should be reluctant in any case to hold the majority of the employees to be without voice through a representative that in the ordinary application of the Act could speak for all employees. Consequently, when the majority of the employees in the appropriate collective bargaining unit covered by a closed-shop provision designate a bargaining representative other than the con- tracting union to represent them, the closed-shop provision should terminate. Otherwise, the majority of the employees, to preserve their jobs, must remain attached to a representative which they have repudiated. _ This makes self-organization, with all its beneficial consequences as proclaimed by the Act, a completely dead letter. Congress, in my opinion, could not have intended to put into the hands of any labor organization or any employer a legal weapon to blot out by discharge a new majority, in deference to a contract made on behalf of the same discharged individuals by a bargaining agent they no longer desire. A more absolute disregard of the prin- ciple of majority rule could hardly be devised. I am of the opinion that respondent should be ordered to offer reinstatement to the employees named in the complaint whom the respondent discriminatorily laid off and refused to reinstate after the lay-off. However, because the legal rights and obligations of the respondent under the contract of October 29 were in doubt, and be- cause the record indicates that the respondent's conduct was in large part based upon an honest belief that it was not thereby violating the el The proviso declares that "nothing in this Act" shall preclude an employer from en- tering into a closed-shop agreement, subject to specified conditions . I do not believe that the words , "nothing in this Act" establish that the principle embodied in the proviso Is intended to be paramount over that embodied in Section 9 (a), for the language of the proviso Is express only as to the making of the contract and not as to the status of the contract where conditions have subsequently changed. 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, the respondent should not be required to make the employees whole for any loss of pay they have. sustained. 82 With regard to the petition of the U. E. R. M. W., I concur in the dismissal thereof, without prejudice, on the ground that more than 2 years have elapsed since it was filed, and the situation concerning representation as it currently exists at the respondent's plant is not before the Board. MR. WILLIAM M. LEISERSON, concurring in part and dissenting in part : I am of the opinion that the entire proceedings should be dismissed. 8' See Matter of M. & M. Wood Working Company and Plywood and Veneer Workers Union, Local No. 102, affiliated with International Woodworkers of America , 6 N. L. R. R. 372, 383.