New Era Die Co.

In the Matter of NEW ERA DIE COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 243, (A. F. OF L.) In the Matter of NEW ERA DIE Co . and. INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 243, A. F. OF L. Cases Nos. C-1.73 and R-1322, respectively.Decided January 8, 1940 Steel Clicking Die Manufacturing Industry-Interference, Restraint, and Coercion: anti-union statements including threats to close plant if majority of employees joined union ; circulation of petition which sought to compel employees to reveal to respondent their desire to be represented by an outside labor organi- zation ; testimony of employees that they signed respondent's petition of their own free will rejected as irrelevant and immaterial ; failure of respondent to discipline employees for leaving plant during working hours in order to "run" union organizer out of town held to be endorsement of. their action -Unit Ap- propriate for Collective Bargaining : production and maintenance employees, excluding supervisory and clerical employees-Representatives : proof of choice : authorization cards signed by majority ; revocation of authorizations after respondent's unfair labor practices held ineffective-Collective Bargaining: re- .spondent's interference, restraint, and coercion immediately after request of union for a bargaining conference held to constitute a refusal to bargain;. refusal to permit designated representatives of union to attend bargaining conference: respondent ordered to bargain-Discrinvination: reduction in pay and subsequent lay-off of employee most active in Union without substantial evidence of decline in quality of his work or that the lay-off was in accord with respondent's usual practice-Reinstatement Ordered: of employee discrimina- torily laid off-Back Pay: awarded, to compensate both for discriminatory re- duction in pay and for discriminatory lay-offInvestigation of Representatives: petition for, dismissed, in view of order to respondent to bargain. Mr. Joseph F. Castiello, for the Board. Mr. Robert C. Fluhn'er and Mr. Basil A. Shorb, of York, Pa., for the respondent. Mr. N. Barr Miller, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed on behalf of Inter- national Association of Machinists, Lodge 243 (A. F. of L.), herein called the .Union, the National Labor Relations Board, herein called 19 N. L. R. B., No. 27 227 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board, by its Regional Director for the Fourth Region (Phila- delphia, Pennsylvania) issued its complaint, dated March 11, 1939, against New Era Die Co., Inc.,' Red Lion, Pennsylvania, herein called the respondent alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, accompanied by notice of hearing, was duly served upon the respondent and upon the Union. With respect to the unfair labor practices the complaint alleged, in substance, that the respondent (1) on November 30, 1938, and at all times thereafter,' had refused to bargain collectively with the Union as the exclusive representative of its production and mainte- nance employees, who constituted a unit appropriate for the purposes of, collective bargaining, (2) had circulated petitions and made threats,, remarks, and speeches to its employees, interfering with the rights of its employees guaranteed in Section 7 of the Act, and de- signed to destroy the majority designation of the Union, (3) had reduced the hourly wage of one employee and later terminated his employment because of his membership and activities in the Union. On March 20, 1939, the respondent filed an answer denying that it had committed any of the unfair labor practices alleged in the com- plaint, but at the same time admitting and explaining certain of the specific facts alleged. On December 7, 1938, a petition on behalf of the Union was filed with the Regional Director for the Fourth Region 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 February 1, 1939, the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regulation's-Series 1, as amended, ordered an in- vestigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and also acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regulations, ordered that the two cases be consolidated for the purposes of hearing. On March 11, 1939, notice of the hearing in the consolidated cases was duly served upon the respondent and upon the Union. Pursuant to the notice, a hearing on the consolidated cases was held on March 23 and 24, 1939, at York, Pennsylvania, before Web- ster Powell, the Trial Examiner duly designated by the Board. The 1 Designated in certain of the formal papers as New Era Die Company or New Era Die Co. NEW ERA DIE COMPANY 229 Board and the respondent were represented by counsel and partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties, and the respondent availed itself of the opportunity to argue orally before the Trial Examiner. At the close of the hearing paragraph 2 of the complaint, concerning the movement of the raw materials used and the finished products manu- factured by the respondent, was amended by agreement of the par- ties. Motions were made to conform the complaint and the answer to the proof, which motions were granted by the Trial Examiner. During the course of the hearing, the Trial Examiner made various other rulings on motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On May 3, 1939, the Trial Examiner filed his Intermediate Report, finding that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act, and recommending that the respondent cease and desist therefrom and take certain specified affirmative action to effectuate the policies of the Act. In his Inter- mediate Report the Trial Examiner notified the parties that they might file exceptions within 20 days and request the privilege of filing briefs or presenting oral argument before the Board within 10 days of the receipt of the Intermediate Report. On May 20, 1939, exceptions to the Intermediate Report were filed by the respondent, but no requests have been made by the parties for the privilege of filing briefs or presenting oral argument. The Board has considered the exceptions to the Intermediate Report and, save as consistent with the findings, conclusions, and order, hereinafter set forth, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT New Era Die Co., Inc., is a Pennsylvania corporation, with office and plant at Red Lion, York County, Pennsylvania. The officers of the corporation are: Frank Dedrick, president; Harry W. McGuigan, vice president; Paul S. Raub, secretary; and L. Earl Grove, treasurer. The respondent is engaged in the manufacture, sale, and distribu- tion of steel clicking dies used for the purpose of cutting materials for the fabrication of shoes. Approximately 20 per cent of the value 283030-41-vol. 19-16 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the materials used in the processing of the dies comes from out- side the State of Pennsylvania. The value of the finished products manufactured by the respondent in 1938 was $58,045.22. The gross value of the respondent's products shipped outside the State of Penn- sylvania in 1938 was $34,365.96. - These products went chiefly to Maryland, Virginia, New York, New Jersey, "Massachusetts, New Hampshire, and Maine. There are approximately 46 persons em- ployed in the respondent's plant and office. II. THE ORGANIZATION INVOLVED International Association of Machinists, Lodge 243, affiliated with the American Federation of Labor, is a labor organization admitting to membership all production and maintenance employees of the respondent, excluding supervisory and clerical employees. III. THE UNFAIR LABOR PRACTICES A. Chronology of events On or about May 28, 1938, Fred Cederholm, Grand Lodge repre- sentative of the Union, came to Red Lion and had conferences with two of the respondent's employees concerning organization of the plant. Thereafter, unionization was a subject of discussion among the employees. In the latter part of June or early July 1938 Frank Dedrick, who at that time was plant superintendent, called a meeting of all employees. The meeting took place in the plant at about 2 p. in., during working hours. Dedrick stated in substance that the respondent was not an old enough concern to meet the obligations and wage rates which would be imposed by unionization; that the men would derive no benefit from being in a union and that the money paid in by them for dues would be sent out of town. He .further told the employees that if they should join a union they would have union dues to pay whether they worked or not, and under a union shop they would be limited to performing one job in the production process, whereas without a union they could transfer from one job to another within the -plant. Dedrick did not- testify and these statements stand undenied. Cederholm returned to Red Lion on several occasions during the summer of 1938 and on Sunday, November 20, 1938, arranged for a meeting of the employees of the respondent at the Windsor fire house. At this meeting, 19 employees signed cards designating the Union. as their collective bargaining agency. At a second meeting on Novem- ber 27, 6 additional employees signed authorization cards, bringing the total to 25 out of approximately 39 employees on the pay roll of the respondent for the week ending December 7, 1938, in a unit here- NEW ERA DIE COMPANY 231 with found to be appropriate for the purposes of collective bargaining. At the first organization meeting of employees on November 20, 1938, Stanley E. Eby, Dean Poet, and Charles Kelly were selected as shop committeemen. At the second meeting a week later, Cederholm was authorized by those present to begin negotiations with the re- spondent regarding an agreement covering wages, hours, and other conditions of employment. Pursuant to this authorization Ceder- holm wrote to the respondent under date of November 28, 1938, stating that the Union had been designated by a majority of the employees as their collective bargaining agency and requesting a conference. The respondent made no reply to this letter. As soon as Cederholm's letter was received by Paul S. Raub, secre- tary of the respondent, Raub prepared a, petition or statement for circulation among the employees. The petition, to which the letter from Cederholm was attached, is as follows : To all Employees of New Era Die Company: We have received a letter from the International Association of Machinists, to the effect that they have your authorization to have them represent you as your collective bargaining agency, with the officers of New Era Die Company. In a spirit of fairness and co-operation between you as em- ployees and we as employers, it is our desire that we know definitely, your sentiment in this matter, before we enter any negotiations with the above mentioned representative., NEW ERA DIE COMPANY, By: Secretary. We desire a Union Shop : We desire an open shop : Number Name Number Name The petition was placed in the hands of Charles S. Mosher, super- intendent and general manager of the plant, and circulated among the employees on November 29 and 30 at the instruction of Mosher. The respondent secured signatures of 30 out of the approximately 42 employees for an open shop; none signed for a union shop. Bruno -Bierbrauer, foreman of the filers, and Leon H. Null, a clerical em- ployee, solicited most of the employees. The petition was brought to Stanley Eby, one of the production employees, by Null and Bier- brauer. When Eby refused to sign, Null said : "Are you one of those suckers, too? Paying money into unions." Then he added : "We will close up shop, I guess." Null was awitness at the hearing but did not deny making these statements. Mosher himself asked Dean Hibbs to sign the document. Hibbs asked Mosher whether he would 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be fired if he signed for the Union. Mosher replied that he would not be fired for it but that he should sign one way or the other because he could not expect any "gravy" on the job if he did not. Hibbs understood this to mean that he would not be given an opportunity to earn extra money by working on other jobs in the plant after his regular job was done. In view of Dedrick's earlier statement that employees could work at only one job if there was a union in the shop, this was a disguised appeal to Hibbs to sign under the open- shop column of the petition. Mosher's final statement to Hibbs was that he did not believe the company would continue to operate "if we got a union in the shop." After Cederholm sent his letter of November 28, he telegraphed the respondent that he would come to Red Lion for a conference on November 30. Mosher and Paul Raub, secretary of the respondent, met with Cederholm on that day in Raub's office. Cederholm stated to them that he was there to negotiate an agreement covering the wages, hours, and working conditions of the respondent's employees. Mosher asked Cederholm what authorization he had to represent the employees. Cederholm replied that he had 25 authorization cards signed by the respondent's employees but that he had left the cards in Philadelphia. Mosher then showed Cederholm the "open shop- union shop" petition, previously circulated at the plant, as evidence that the employees did not desire the Union to represent them. Cederholm protested that the respondent was taking an active part in determining the question of representation among its employees and the conference ended without any discussion of a contract. Within a few days the respondent called its employees together in the plant at 6 p. m. Dedrick repeated what he had said at the July gathering about the inability of the respondent to meet union wage rates and other obligations, and referred to the disadvantage of pay- ing union dues when not working, also to the fact that the Union would prevent an employee from working at more than one job in the shop. Stanley E. Eby,2 one of the three shop committeemen of the Union, and the only committeeman who had refused to sign the petition, was especially instructed by Gutshall, his foreman, to check out at 5 p. m. that afternoon while all other employees were instructed, to work until 6 o'clock. When Eby did not leave at 5 o'clock, Bier- brauer, another foreman, told him to check out at 5:15, which Eby did. At the hearing, Mosher admitted that sometime in December 1938, he offered to refund union dues to three of the employees. In mak- ing the offer Mosher said : "Well, I don't know why but I pity you. 2 Eby's alleged discriminatory discharge is considered in Section D, infra. NEW ERA DIE COMPANY 233 fellows and I will give you your dollar back if you show me receipts that you paid the money." On December 8 a second conference between Cederholm and the same officers of the respondent took place. In addition, Robert Warner, president of the York Federation of Labor, attended as a union representative. Cederholm was again questioned regarding his authority to represent the respondent's employees. Cederholm testi- fied in substance that lie told Mosher he had 25 authorization cards but had left thein in the Philadelphia office of the Board and that Mosher might communicate with the Philadelphia office to ascertain the correctness of his statement and find out whether the representa- tives of the Board had the 25 authorization cards in their possession. Raub gave a somewhat different, although not necessarily incon- sistent, version of the same conference. He testified that Cederholm asked whether certification by the Board that the Union represented a majority would be sufficient proof and that he assured Cederholm that it would be. The record shows that the Union had filed its peti- tion for certification on the day preceding this conference. Raub further stated he did not at any time understand that Cedarholm -was placing the burden on him to write the Board or to verify the Union's claim in any other manner. When Cederholm returned to Philadelphia from the conference of December 8, he found awaiting him a registered letter, dated Decem- ber 7, containing revocations of the union authorizations by 21 of the 25 employees enrolled by the Union.3 Cederholm made a third attempt to negotiate with the officials of the respondent on December 21. He called Mosher by telephone on the morning of that day and requested that Eby, one of the union committeemen and the shop steward, be allowed to participate in the conference scheduled for 3 o'clock that afternoon. Mosher objected to the inclusion of Eby. Cederholm then requested that the manage- ment meet with him and the entire shop committee, consisting of Eby, Kelly, and Hibbs, who had been appointed to succeed Poet. Mosher refused to notify these men about the conference and sug- gested that Cederholm come up to the plant and notify them him- self. When Cederholm arrived, he and Mosher had another dispute regarding the right of the Union to bring whomever it pleased to the conference with the management. As a result of the argument none a The revocations took the form of a letter signed by the 21 employees, reading as follows we the undersigned employees of the New Era Die Co., Red,Lion , Pa., do this date hereby wish to cancel all previous authorization for your representative or your organization to do any further negotiating in our behalf or any agreement as to hours of labor, wages or other employment conditions from this date on. We sign this of our own free will and judgment. 234 DECISIONS OP NATIONAL LABOR RELATIONS BOARD of the shop committeemen was notified. Although Cederholm met with Raub and Mosher at 3 o'clock, as previously arranged, no nego- tiations' were entered into, Cederholm taking the position that he wanted members of the local organization present before commencing negotiations. Mosher refused to agree to have Eby, Kelly, and Hibbs at the conference. At the close of the conference, Mosher offered Cederholm a piece of advice, saying : "My advice to you is for you not to remain in town overnight; . . . somebody is out to get you." Cederholm thereupon left the conference. In the meantime, at the plant as 3 o'clock approached, Dean Poet, one of the employees, shouted, "Come on, fellows, let's go." Thereupon, by prearrangement, some 10 to 20 employees noisily rang out and left the plant without any interference by foremen or supervisors, although it was not quitting time. This group drove to Raub's office, where the conference be- tween Cederholm and the respondent's officers had taken place. They were told Cederholm had already left. All except 4 of the employees returned to the plant. The 4 employees drove about Red Lion until they found Cederholm in his car. They told him it would not be "healthy" for him to remain in town and not to make further com- plaints to the Board against the respondent. They added that he was not to negotiate further with the respondent on behalf of the employees. When these employees returned to the plant about 4 p. in. they proclaimed in loud tones in the presence of Foreman -Gutshall that they had run Cederholm out of town. Their return was the signal for considerable commotion at the plant. The em- ployees were never disciplined in any manner for leaving without permission during working hours, nor were they effectively repri- manded for any of their actions in the plant .4 B. Interference, restraint, and coercion The above-recited facts, most of them undenied, reveal a persistent effort by the respondent to prevent its employees from affiliating with the Union. President Dedrick's talk in July 1938 was a plain statement that the respondent did not want to deal with the Union and was not on a sufficiently sound financial basis to survive if com- pelled to do so. The circulation of the "open shop-union shop" petition in November and the circumstances surrounding it increased the respondent's pressure for its employees to abandon self -organiza- tion. There were threats to close the plant if the Union succeeded in establishing its status as exclusive bargaining representative. It 4 Foreman Gutshall testified : "I told several of them when they came back that they shouldn't have done it." Gutshall also testified that he talked to President Dedrick concerning disciplinary action. Dedrick told Gutshall that he needed the men for pro- duction and that nothing could be done about their walking out. NEW ERA DIE COMPANY 235 was pointed out by responsible agents of the respondent that if the shop were unionized the Union would prevent the employees from working at extra jobs for extra pay after their regular work was done. At least one person belonging to the Union was disparagingly labeled a "sucker" for paying dues. The circulation of the petition in itself was all interference with the right of the employees to choose their own bargaining representatives. It was designed and circu- lated by the respondent in such a manner that if any of the employees had expressed a preference for the Union that fact would have been revealed at once to the respondent.5 A canvass of employees by their employer conducted in a manner to make possible reprisals against any who reveal their desire to be represented by an outside labor organization is,coercive and within the prohibition of the Act., The respondent attempted to justify the circulation of the petition on the ground that it was for the purpose of determining the cor- rectness of the Union's claim to a majority. Even if the respond- ent's purpose was the one asserted, its action falls within the prohibition of the Act. However, we cannot credit this explanation of its purpose for several reasons. First, Superintendent Mosher stated that from Cederholm's letter lie presumed the Union had attained majority status before the petition was circulated. Second, the petition did not offer the employees an opportunity to register secretly their preference for or against the Union, but was so devised that any employee who voted for the Union would at once be known to the respondent. This fact indicates that the respondent was more interested in knowing who the union adherents were than in deter- mining whether its employees as a group desired to be represented by the Union. Third, the remarks and threats of the respondent's agents when they presented the petition to various employees were beyond doubt aimed at influencing them to reject the Union. Such a course of conduct. negatives the claim of the respondent that it was taking a disinterested poll of the employees by means of the petition. From these facts we conclude that the respondent intended by the circulation of the petition to coerce those employees who had previously affiliated with the Union to renounce their adherence 6 The choice offered by the respondent on the petition is between an "open shop" and a "Union shop." However, the petition was in fact circulated as a means of polling the employees on whether or not they wished the Union to act as their bargaining agent. This is clearly indicated by the statement of purpose on the petition preceding the listing of the two alternatives and by the fact that the petition , after being signed in the open- shop column by 30 employees,, was treated by the respondent as showing a rejection of the Union. B See Matter of Greensboro Lumber Company and Lumber and Sawmill ' Workers Local Union No. 2688, United Brotherhood of Carpenters and Joiners of America, 1 N. L. R. B. 629: Matter of Stimson Lumber Company and Lumber and Sawmill Workers, Glenwood Local No. 2540, 2 N. L. R. B. 568: Matter of The Grace Co and United Garment Workers of America, Local No. 47, 7 N. L. R . B. 766. 236 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD thereto, and to restrain other employees from joining the Union or designating it as their collective bargaining agent. The respondent sought to prove that its conduct did not in fact coerce its employees by placing on the witness stand each of the 30 signers and asking them whether they had signed the open-shop column of the petition voluntarily and of their own free will. The Trial Examiner sustained an objection to the question,' to which ruling the respondent has taken an exception.$ We have heretofore affirmed the Trial Examiner's ruling. The evidence offered is irrelevant and immaterial, because, as we have found, the respondent by the circulation of the petition under the circumstances recited was asserting its superior economic power in an attempt to interfere with, restrain, and coerce its employees in the exercise of their rights under the Act. Such conduct is prohibited by Section 8 (1) irrespec- tive of its success .9 Furthermore, even if relevant, we do not deem such testimony of employees, elicited on the witness stand in the presence of an employer who has already manifested a definite hostility to outside organization, as here, sufficiently credible to warrant consideration. We find that by the above-described conduct the respondent inter- fered with, restrained, and coerced its employees in their exercise of the rights guaranteed to them in Section 7 of the Act.10 Continuing its opposition to the Union, the respondent, through President Dedrick, made another anti-union talk a few days after the circulation of the petition, and at about the same time, Mosher, the plant superintendent, offered to refund to three employees dues paid to the Union, as a further inducement to them to withdraw. The respondent's persistent campaign brought tangible results on December 7, when 21 of those who had signed union authorizations canceled them, and on December 21, when a group of employees 7 The question was: "You signed it [i. e . the petition] of your own free will?" In making his ruling the Trial Examiner stated : "If you want to ask more specific questions , counsel, I will rule on them. The ruling will stand as to the general question as you have put it." 8 After the Trial Examiner had sustained an objection to the question, counsel for the respondent stated that it had been his intention to produce each signer of the petition (and of the letter of revocation discussed below in Section C (2)) and to ask him whether he had signed it voluntarily and of his own free will. Although this statement is not in the form of an offer of proof, we have treated it as such. 0 See Matter of Yale & Towne Manufacturing Company and United Electrical & Radio Workers of America, Local No. 227, C. I. 0., 10 N . L. R. B. 1321, at 1328 , where it is said: ". . . it is an unfair labor practice within the meaning of Section 8 (1) of the Act for an employer to interfere with the rights of his employees guaranteed in Section 7 irrespective of the success of such interference ." See also Matter of Consunners' Power Company and Local No. 740, United Electrical, Radio if Machine 'Workers of America, 9 N. L. R . B. 701, 739. Compare Consolidated Edison Co. v. N. L. R. B., 305 U. S. 197, 230 (1938 ), mod'g and aff'g, 95 F. (2d) 390 (C. C. A. 2), enf'g Matter of Consolidated Edison Company of New York, Inc. and United Electrical and Radio Workers of America, 4N.L.R.B.7]. 10 See Matter of Waiter Stover, etc. and Upholsterers Allied Crafts Local Union No. 501, 15 N. L. R. B. 035 , and cases cited in footnote 8 therein. NEW ERA DIE COMPANY 237 ordered Cederholm, the union organizer, out of town after- he had attempted to negotiate with,,the respondent on their behalf. While the respondent may not have planned this incident, Mosher's warn- ing to Cederholm indicates that the respondent knew that the em- ployees intended to take some action against Cederholm while he was' in Red Lion. Although Cederholm was subjected to no physical violence, Mosher's statement, "somebody is out to get you," suggests that he expected the action of the employees to take the form of actual violence. Yet the respondent made no effort whatever to re- strain its employees either at the plant or when they stopped at Raub's office in their search for Cederholm. We find that the re- spondent's failure to make an effort to restrain its employees from leaving the plant when it had knowledge or well-founded suspicion of the purposes for which they were leaving, and its complete failure to discipline or effectively reprimand the men for deserting their duties at the plant in mid-afternoon and for causing a commotion when they returned with the announcement that they had run Ceder- holm out of town, amounted to encouragement and approval by the respondent of the acts of those employees. We find that by the activities hereinabove described in this section the respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. C. The refusal to bargain collectively The complaint alleges that the respondent on or about November 30, and thereafter, refused to bargain with the Union as the exclu- sive representative of the respondent 's production and maintenance employees. (1) The appropriate unit At the hearing the parties stipulated that the unit appropriate for the purposes of collective bargaining should consist of all pro- duction and maintenance employees of the respondent, exclusive of supervisory and clerical employees. The production and maintenance employees all work in a single room, approximately 100 feet long and 60 feet wide. The testimony shows a high degree of interdependence from the beginning to the end of the process of manufacturing clicking dies. The production employees are paid on an hourly basis. Of the two maintenance employees, one who is a janitor is paid a salary. In applying their stipulation the parties apparently have excluded him from the unit. We see no justification for such exclusion and find that he is within the appropriate unit. We find that the production and maintenance employees of the respondent, excluding supervisory and clerical employees, constitute 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an appropriate unit for the purposes of collective bargaining and that such unit insures to the employees of the respondent the full benefit of their right to self-organization and collective bargaining and other- wise effectuates the policies of the Act. (2) Designation of the Union as exclusive representative We have previously stated that 25 of the 39 employees in the appro- priate unit signed cards on November 20 or 27, 1938, authorizing the Union to act as their bargaining agent. The respondent conceded that the signatures on these cards were genuine, but objected to them on the ground that they were all signed on Sunday and therefore invalid, or at least voidable. Assuming that there is a rule of law making contracts signed in Pennsylvania on Sunday invalid or voidable, it can have no application in this situation, where the function of the Board is merely to determine whether a majority of the employees in an appropriate unit have-selected a bargaining agent. For this pur- pose the authorizations are sufficient regardless of their validity as contracts. On December 7, 1938, 21 of the 25 employees who had signed the authorizations joined in sending to Cederhohn a registered letter con- taining revocations of their authorizations. The record indicates that the employees themselves had secured the revocations and that the officers and supervisors of the respondent had not directly participated in obtaining the signatures. The respondent contends that these revo- cations destroyed the majority designation of the Union, as of Decem- ber 7.11 We do not agree with that contention. We think it is plain that the respondent's outspoken opposition to the Union and other acts of interference and restraint, which 'we have found above to be unfair labor practices, induced the revocations. Under these circum- stances they cannot be accorded validity as uncoerced expressions of, the signers' desires. The respondent sought to put on the witness stand at the hearing the 21 employees who had revoked the union authorizations, asserting that each would testify that he had signed the revocation "voluntarily and of his own free will." The Trial Examiner sustained an objection to the question,12 to which ruling the 11 Each card provides that the authorization "shall remain in full force and effect for one year from date and thereafter, subject to thirty (30) days written notice of my desire to withdraw such power and authority to act for me in the matters referred to herein." However , the respondent contended that the revocations were effective at once because (1) seven who signed the revocations were minors and their authorizations being voidable were revoked immediately . and (2 ) a principal has absolute power to revoke an agency at any time regardless of an agreement that it shall continue for a specified time. It is unnecessary to determine the merits of these contentions. 12 The question was: "Did you sign that [ I. e. the revocation ] of your own free will?" See footnotes 7 and 8, supra, and related text for additional details concerning the offer of proof and the ruling of the Trial Examiner thereon. NEW, ERA DIE COMPANY 239 respondent has taken an exception. We have affirmed the ruling of the Trial Examiner because we believe that the evidence is immaterial. In the first place, as we find in subsection (3), below, there was a refusal by the respondent to bargain prior to the date on which the revocations were signed and while the Union clearly represented a majority. Under these circumstances, the subsequent revocations can- not be given any effect, for "unfair labor practices of the respondent cannot operate to change the bargaining representative previously selected by the untrammeled will of the majority." 13 Moreover, as pointed out in Section B, above, where a, similar offer was made with reference to the "open shop-Union shop" petition, such testimony lacks sufficient credibility to warrant consideration. We find that the revocations were induced by the respondent's acts of interference, and therefore had no effect upon the majority status previously'acquired by the Union. We find that on November 27, 1938, and at all times thereafter, the Union has been designated by a majority of the employees in the appropriate unit as their respresent- ative and by virtue of that designation is the exclusive representative of all employees of the respondent in such unit for the purposes of collective bargaining in respect to wages, hours of employment, and other conditions of employment. (3) The refusal to bargain The record establishes that, although the Union represented a majority of its employees in an appropriate unit, the respondent at no time either accorded exclusive recognition to the Union upon proper request or entered into negotiations with it.' The respondent contends, however, that it was under no duty to enter into negotiations at the conferences of November 30, December 8, and December 21, be- cause (1) the Union failed upon request to show the respondent its authorization cards or to supply other proof that it represented a majority, and (2) after December 7 the revocations destroyed the majority status of the Union. We shall consider these contentions, the second of which requires no further discussion since we have already found that the revocations were induced by the unfair labor 11 See Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No . 1139, 10 N. L. R. B. 33 , 40; Matter of Lady Ester Lingerie Corp . and International Ladies' Garment Workers' Union, 10 N. L. R. B. 518, 532. See also Int . Ass'n of Machinists, Tool and Die Makers Lodge No. 35, affiliated with 7. A. M. v. N. L. R. B., 110 F.. (2d) 29 (Ct. of App., D. C.), aff'g Matter of The derrick Corporation and Internationab Union, United Automobile Workers of America , Local No. 459, 8 N. L. R. B. 621. 11 See N. L. R. B. V. The Griswold Mfg. Co. 106 F. (2d) 713 (C. C. A. 3d), decided September 21, 1939, enf'g Matter of The Griswold Manufacturing Company and Amalgamated Associa- tion of Iron, Steel and Tin Workers of N. A., Lodge No. 1197. 6 N . L. R. B. 298. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices of the respondent and therefore had no effect upon the previously acquired majority status of the Union. As to the request of the respondent for proof of the Union's ma- jority, we have held in other cases that when a labor organization claims to represent a majority and the employer questions that claim in good faith, it is the Union's duty to offer and the employer's cor- relative duty to accept some reasonable method for ascertaining the truth of the Union's claim.,-' However, it is unnecessary to determine here whether the parties fulfilled their respective obligations in that regard, since we are convinced that the respondent never intended to bargain collectively with the Union, and merely utilized an asserted doubt regarding the Union's status as majority representative to evade bona fide collective bargaining with the Union.1' The conduct of the respondent after receiving the Union's letter stating that it rep- resented a majority of the respondent's employees and requesting a bargaining conference impels us to this conclusion. The respondent admits by the testimony of its superintendent, that it presumed from Cederholm's letter that the Union had a majority as claimed. But instead of declaring its readiness to sit down at the conference table, the respondent embarked on a campaign of opposition to the Union, which we found in Section B, above, was intended to and did coerce those employees who had previously affiliated with the Union to re- nounce their adherence thereto, and to restrain other employees from joining the Union or designating it as their collective bargaining agent. The respondent's unmistakable purpose in engaging in these unfair labor practices was to undermine the majority status of the Union and thus escape the duty to bargain collectively. Such con- duct "is as patently a refusal to bargain within the meaning of Sec- tion 8 (5) of the Act as a forthright refusal to meet with representa- tives of a labor organization clothed with the right to exclusive recognition." 17 Under these circumstances the respondent's chal- lenge of 'the Union's majority status was not made in good faith, and any failure of the Union to offer a reasonable method for establishing its claim is no defense to the respondent's refusal to bargain. The respondent's conduct falls within the prohibition.of Section 8 (5) of the Act in another respect. On December 21, the respondent 16 See Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. R . B. 621, enf'd in Int. Ass'n of Machinists; Tool and Die Makers Lodge No. .75, affiliated with I A. M. v. N. L. R. B., 110 F. (2d) 20 (Ct. of App., D. C.). Matter of Hamilton-Brown Shoe Company, a corporation and Local No. 125 United Shoe Workers of America,,afliated with the C. I. 0., 9 N. L. R. B. 1073, 1180. Cf. Matter of Stehli & Co., Inc. and Textile Workers Union of Lancaster, Pennsylvania and Vicinity, Local #133, 11 N. L. R. B. 1397. 1425-26. . 19 See Matter of The Stolle Corp. and Metal Polishers, Buffers, Platers, and Helpers Int. Union, 13 N. L. R. B. 370. 17 See Matter of Chicago Apparatus Company and Federation of Architects, Engineers, Chemists and Technicians, Local 107, 12 N. L. R. B. 1002, 1012. NEW ERA DIE COMPANY 241 objected to Cederholm's proposal to have Eby, one of the shop com- mitteemen, attend the conference, on the ground that he had not been elected by the men. Nor would the respondent agree to the proposal to have present at the conference the three members of the shop committee-Kelly, Eby, and Hibbs. Inasmuch as the employer is without right to determine what persons shall act as representatives of the properly designated bargaining agent,"' the failure of Mosher to permit these representatives to participate in the conference con- stitutes a refusal by the respondent to bargain collectively with the Union. We find that on November 30, December 8, and December 21, 1938, and at all times thereafter the respondent refused to bargain col- lectively with the Union as the exclusive representative of the re- spondent's production and maintenance employees, exclusive of clerical and supervisory employees, with respect to wages, hours, and other conditions of employment. D. The discriminatory discharge The complaint alleged that Stanley E. Eby received a reduction in pay and that his employment with the respondent was terminated because he joined and assisted the Union. Eby was first employed by the respondent in August 1937. Be- cause of his previous experience as a bender of dies he became an instructor in the bending department and was placed on a salary basis. In December 1937 his employment with the respondent was terminated after he had refused to report for work on Saturday. On this occasion Eby asked Dedrick whether his work was not good enough, to which Dedrick replied: "It is not that; you are just an instigator of trouble." Eby was rehired by the respondent on May 23, 1938, this time as a bender on an hourly basis. Eby was the most active union man in the shop from the time he signed an authorization card on November 20, 1938, and was recog- nized by the respondent as a leading figure in union activities at the plant. He was appointed shop steward by Cederholm early in De- -cember, in addition to being one of the shop committee selected to represent the Union in its negotiations with the respondent. Eby was the only shop committeeman who refused to sign the "open shop-Union shop" petition circulated by the respondent; nor did he revoke his authorization designating the Union as his representative. Dedrick, Mosher, and Gutshall manifested their hostility toward Eby in various ways after November 20. Prior to that time Eby 11 See Matter of Lindeman Power and Equipment Company and International. Association of Machinists, 11 N. L. R. B. 868, 879. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Gutshall, who lived next door, were on the friendliest terms. It had been Eby's practice to ride to and from work in Gutshall's car several days each week. Without warning or explanation Gut- shall informed Eby one day soon after the latter had joined the Union that he would not be able to take Eby home any more. Ded- rick also changed his attitude toward Eby after the meeting of November 20, refusing to speak to him. Eby was sent home early from work on the occasion in December when Dedrick addressed the employees regarding his reasons for opposing the formation of a union in the plant. As previously set forth, Mosher made strenuous objection to the participation of Eby in the conference of December 21 between officials of the respondent and Cederholm. There is no explanation in the record for the change in attitude on the part of these supervisory officials, save the fact that they were hostile to the Union and knew Eby to be active in its behalf. On January 19, 1939, Eby received a reduction in pay from 55 cents to 50 cents per hour. The explanation given by the respondent for this reduction is stated in its notice to Eby as follows : Beginning January 20th your hourly rate will be 50 cents. Shop production records show that neither the quality nor the quantity of your work entitles you to a higher rate than the rest of our employees. If you can show us during the next 3 -months a justifiable increase, we will be glad,to reinstate or increase your rate accordingly. The testimony shows that it was not until the middle of December 1938, after Eby became active in behalf of the Union, that his produc- tion record was questioned. Mosher testified that Eby had been an excellent worker when he (Mosher) had become superintendent of the respondent's plant in August 1938. The respondent offered no evi- dence to substantiate its statements that the quality and quantity of Eby's production had declined. Eby testified that shortly prior to the day on which he was notified of the reduction in his rate, or on the same day, the other employees in the plant received wage increases. This is not denied by the respondent. It is true that Eby's hourly rate had been higher than that of any other bender in the employ of the re- spondent. Even after the wage reduction he was receiving more per hour than most of the benders and only two or three others were being paid as much as he. Nevertheless, we believe from all the evidence, especially in view of the subsequent discriminatory lay-off of March 1, discussed below, that the cause of the reduction in Eby's hourly rate was his interest in and activity on behalf of the Union. On March 1, 1939, Eby was laid off, together with two other em- ployees of the respondent, Wilson Myers, and John Blattenburg. The only reason given to Eby at the time was that work was slack. Al- NEINT ERA DIE COMPANY 243 though it is not disputed that the period from February to July is a slack period in the die-making industry, the previous practice of the respondent during such periods had been to allow all the employees to report for work each day and to distribute the work as it came in. The respondent sought by inference to prove that its policy had been changed in this respect with the advent of Mosher as general manager in the latter part of 1938. The Trial Examiner found, and we agree, that this contention is not substantiated by the evidence. We there- fore conclude that Eby's lay-off was contrary to the established prac- tice of the respondent. Moreover, his selection as one of the three to be laid off was not based on any failure to do satisfactory work. Mosher admitted during the hearing that Eby had been an excellent worker in August 1938. He was a more experienced bender than a number of the other employees. Mosher stated that at the time of the lay-off Eby's work was better than that of three or four who were re- tained. Eby had greater seniority than at least one of those retained but there is no showing that the respondent customarily followed any seniority policy. At the hearing the respondent advanced as a reason for the lay-off the fact that the respondent corporation had been estab- lished to give employment to residents of Red Lion and that he be- lieved Eby was not living in Red Lion on March 1. Mosher said that he had been informed by Kenneth Bidaman, a clerk in the respondent's office, that Eby resided in Dallastown. Actually, Eby was living in the Borough of Red Lion at the time of his lay-off and had lived there for 10 of the 13 months he had been employed by the respondent. Moreover, there were other employees living outside of Red Lion on March 1 who were not laid off at that time. The Trial Examiner found that the reason advanced by Mosher that Eby was laid off be- cause he was not a resident of Red Lion was merely an afterthought to lend some color of justification to the respondent's act, and we agree with his finding. We find that Stanley E. Eby received a reduction in rate of pay on January 19, 1939, and was•laid off by the respondent on March 1, 1939, because of-his union membership and activity; that the respondent has discriminated in regard to hire and tenure of employment, thereby dis- couraging membership in the Union; and has interfered with, re- strained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent, described in Section I above, have a close, intimate, and sub- 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantial 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 Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease' and desist from further engaging therein. Moreover, we shall order the respondent to take certain affirmative action which we deem necessary to effectuate the policies of the Act. We have found that the respondent has refused to bargain col- lectively with the Union, a labor organization representing a majority of the employees in the unit hereinbefore found to be appropriate. We shall, therefore, order the respondent to bargain collectively with the Union upon request. Since we have found that the respondent reduced the rate of pay of Stanley E. Eby and later laid him off because of his activities on behalf of the Union, we shall order the respondent to reinstate Eby and to make him whole for the loss of wages sustained by reason of the reduction in rate and the lay-off. For the period from January 19, 1939, when Eby's hourly rate was reduced, to March 1, 1939, when he was laid off, the respondent will be required to pay Eby the dif- ference between the amount he would have earned at the higher rate and the , amount actually paid to him at the lower rate. We shall further order the respondent to pay to Eby a sum of money equal to the amount he would normally have earned as wages from the date of his lay-off to the date of the offer of reinstatement, less his net earnings 19 during said period. The respondent is not en- titled to deduct amounts paid to Eby by union organizations as relief payments.2° THE PETITION In view of the findings in Section III above as to the appropriate unit and the designation of the Union by a majority of the respond- ent's employees as their representative, it is not necessary to consider 39By "net earnings" is meant earnings less expenses. such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings, but as provided below in the Order, shall be 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 govern- ment or governments which supplied the funds for said work-relief projects. 20 See Matter of M-issouri-Arkansas Coach Lines, Inc. and The Brotherhood of Railroad Trainmen, 7 N. L. R. B. 186. NEW ERA DIE COMPANY 245 the petition of the Union for certification of representatives. Conse- quently, the petition will be dismissed. Upon the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONor usIONs OF LAW 1. International Association of Machinists, Lodge 243, affiliated with the American Federation of Labor, is a labor organization, .within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of the respondent, exclusive of supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining, within the .meaning of Section 9 (b) of the Act. 3. International Association of Machinists, 'Lodge 243, was on November 28, 1938, and at all times since has been, the exclusive representative of all employees in the above-described unit for pur- poses of collective bargaining, within the meaning of Section 9'(a) of the Act. 4. By refusing and continuing to refuse to bargain collectively with the Union as the exclusive representative of the employees in .the above-described unit on November 30, 1938, and at all times thereafter, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act.. 5. By discriminating in regard to the hire, tenure, and other terms of employment of Stanley E. Eby, thereby discouraging membership in a labor organization, the respondent has engaged in and is engag- ing in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. 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. 7. There is no question concerning representation within the mean- ing of Section 9 (c) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 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 respond- ent, New Era Die Co., Inc., Red Lion, Pennsylvania, and its officers, agents, successors, and assigns shall : 283030-41-vol. 19-17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Refusing to bargain collectively with International Associa- tion of Machinists, Lodge 243, as the exclusive representative of. all its production and maintenance employees, excluding supervisory and clerical employees; (b) Discouraging membership in the International Association of Machinists, Lodge 243, or any other labor organization, by discrimi- natiori. iri regard to hire or tenure of employment or any term or condition of employment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, 'or' assist International Association of Machinists, Lodge 243, 'or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of. collective bargaining or other mutual aid or pro- tection, as.guarariteed in Section '7 of the Act. 2. Take the followirig affirmative action which the Board finds will effectuate the policies of the Act : (4) Upon request, bargain collectively with International Associ- ation of :Machinists,' Lodge 243, as the exclusive representative of all . its production and maintenance employees, exclusive of super- - v.isory'a id clerical employees, in respect to rates of pay, wages, hours ofemployment, 44A 'other conditions of employment; (b) Offer to Stanley E. Eby immediate and full reinstatement to his former position Without. prejudice to his seniority and other rights and privileges „ (c). Make whole the said 'Stanley E. Eby' for the loss of pay he' suffered by reason of the respondent's discrimination with regard to his rate of pay. by payment to him of a sum of money equal to the difference between the amount he would have earned between Jan- uary 19, 1939, and March 1,. 1939, at the hourly rate paid him prior to' Jaiidary 19, 1939, and the amount he actually was paid by the respondent between January 19, 1939, and March 1, 1939; and further make"whole the said Stanley E. Eby for any loss of pay he may have suffered by reason of the respondent's discrimination with regard to .his.hire and. tenure of employment by payment to him of a sum of money equal to that which he would have earned as wages or salary during the period from March 1, 1939, to the date of offer 'of rein- statement, less his net earnings during said period, deducting, how- ever, from the amount otherwise due him, monies received by him during said period for work performed upon Federal, 'State, county, municipal or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which sup- plied the funds for said work-relief projects;' NEW ERA DIE COMPANY 247 (d) Post immediately in conspicuous places in its plant at Red Lion, Pennsylvania, and maintain for a period of at least sixty (60) consecutive days, notice to its employees, stating (1) that the re- spondent will cease and desist in the manner aforesaid; (2) that the respondent will, upon request, bargain with the International Association of Machinists, Lodge 243, as the exclusive representative of the respondent's production and maintenance employees, exclusive of supervisory and clerical employees, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (3) that the respondent's employees are free to become or remairn members of the International Association of Machinists, Lodge 243',. and that the respondent will not discriminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT Is FURTHER ORDERED that the petition for certification of repre- sentatives, filed by International Association of Machinists, Lodge 243, be, and it hereby is, dismissed.