National Motor Rebuilding Corp.

In the Matter of NATIONAL MOTOR REBUILDING CORP.' and INTERNA- TIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 15, A. F. OF L.2 Cases Nos. C-1360 and R-1.319-Decided January 15, 1940 Motor Rebuilding Industry-Interference, Restraint, and Coercion: anti-union statements ; persuading employees to refrain from forming or joining unions ; persuading employees to sign individual contracts ; circulation of anti-union petition among employees-Company-Dominated Union: attempts to initiate and form, dominate, and interfere with Balleisen type of bargaining committees ; disestablished as agency for collective bargaining-Contract: collective, with organization found to be company dominated, void ; "Yellow dog" ; em- ployer ordered to cease and desist from giving effect thereto and to notify in writing each employee who signed of their invalidity-Strike: caused by employer's unfair labor practices-Employee Status: strikers- Discrimination: withholding pay increases from employees who refused to sign illegal contracts; discharges and lay-offs to discourage union activity; refusal to reinstate laid-off employees because of refusal to sign individual contracts and opposition to a company-dominated union ;-charges of alleged discriminatory lay-offs dismissed as to five persons-Unit Appropriate for Collective Bargain- ing: production employees excluding supervisors and electrical employees ; no controversy.as to-Reprc entativcs: proof of choice: comparison of application cards with pay roll ; majority status not affected by withdrawals induced by respondent's unfair labor practices-Collective Bargaining: refusal to recognize union ; refusal to negotiate with union; good faith ; submission of individual contracts as counterproposals not evidence of; ordered to bargain and to enter into signed agreement if understanding is reached-Reinstatement Ordered: strikers, laid off, discharged and employees refused reinstatement; displacement of newly hired employees ; preferential list-Back Pay: awarded laid off, dis- charged and employees refused reinstatement ; computation of : period between Intermediate Report and Order excluded as to those employees Trial Examiner found no discrimination-Remedial Order: special form of : grant of pay increases discriminatorily denied employees. Mr. Millard L. Midonick, for the Board. Kotzen, Mann cC Siegel, of New York City, by Mr. Abraham Manna, for the respondent. Mr. Pawl Hutchings, of Washington, D. C., for the Union. Mr. Edward Scheunontann, of counsel to the Board. 'Incorrectly designated National Motor Rebuilding Corporation in the Pleadings and corrected by motion at the hearing. z Incorrectly designated as A. F. of L. District No. 15 International Association of Machinists in the petition and corrected by motion at the hearing. 19 N. L. R. B. No. 56. 503 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE On November 9, 1938, International Association of Machinists, Dis- trict No. 15, A. F. of L., herein called the Union, filed with the. Re- gional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of National Motor Rebuilding Corp., Brooklyn, New York, herein called the respondent, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 29, 1938, the Union filed with the Regional Director charges which, as amended by charges filed on January 24, and March 8, and 10, 1939, alleged that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act. On December 21, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Sections 3 and 10 (c) (2),, and Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, consolidated the complaint and representation cases and ordered the Regional Director to conduct an investigation of repre- sentatives and to provide for an appropriate hearing upon due notice. Upon the charges and amended charges duly filed by the Union, the Board by the Regional Director, issued its complaint dated January 31, 1939, and its amended complaint dated March 8, 1939, further amended March 11, 1939, against the respondent alleging that it had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act: Copies-of the, amended complaint. as amended, and the petition, accompanied by notices of hearing thereon, were duly served upon the respondent, the Union, and the Collective Bargaining Committee of the Employees of National Motor Rebuilding Corporation, herein called the Committee. The complaint, as amended, alleged in substance (1) that the re- spondent persuaded, threatened, and coerced its employees to sign individual contracts of employment, to become members of an organi- zation formed and sponsored by the respondent, and to refrain from becoming or remaining members of the Union, and kept under sur- NATIONAL MOTOR REBUILDING 'CORPORAT'ION 505 veillance the meetings and meeting places of the employees who were members of the Union; (2) that on or about October 7, 1938, the re- spondent initiated, formed, sponsored, dominated, and contributed support to the Committee; (3) that on May 3 and October 14, 1938, and on January 9 and February 24, 1939, the respondent laid off and discharged 19 employees and refused to reinstate some of them because they joined and assisted the Union and refused to join or assist the Committee; (4) that on October 15, 1938, because of the discriminatory discharges on October 14, 4 employees went on strike, and that 2 of them have remained on strike from that date to the date of the issuance of the complaint; (5) that the respondent on March 1, April 1, October 26, November 1, and December 1, 1938, and at all times thereafter, refused and continues to refuse to bargain collectively with the Union, the exclusive representative of the employees in an appropriate unit; and (6) that by its afore-mentioned acts the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. On February 8, 1939, the respondent filed its answer denying the unfair labor practices alleged and the necessity and propriety of an investigation and certification of representatives. The respondent urges as separate and distinct defenses: (1) that the Union is a stranger and an interloper and has no right to file charges under the Act; (2) that the respondent has complied with the Act, and that the action of the Union in filing the petition and charges fostered indus- trial unrest and undermined the respondent's business thereby dimin- ishing employment; (3) that the activities of the respondent do not affect commerce, within the meaning of the Act, and the Board there- fore has no jurisdiction; and (4) that the complaint is defective in that the original charge is not annexed to the complaint 3 and the amended charges, annexed to the complaint, do not contain clear and concise statements of the facts constituting the alleged unfair labor practices. The answer concluded by moving that the complaint be dismissed. The motion is hereby denied. Pursuant to notice, a hearing was held in New York City from March 13 to 20, 1939, inclusive, before I. L. Broadwin, the Trial Ex- aminer duly designated by the Board. The Board and-the respondent were represented by counsel and participated 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. During the course-of the hearing the Trial Examiner made a number of rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. $ The amended charges in this proceeding were not supplementary to the original charge but in substitution therefor. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 13, 1939, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties. He found that the respondent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (5) of the Act, and recommended that the respondent cease and desist from these violations, disestablish the Committee and withdraw recognition from it, reinstate with back pay the employees discriminatorily dis- charged, and proceed to bargain collectively with the Union. He also found that some of the discharges alleged in the complaint were not discriminatory and recommended that the complaint be dismissed as- to them. On October 4 and 9, 1939, the respondent and the Union, respec- tively, filed exceptions to the Intermediate Report. On October 31, 1939, pursuant to notice, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. The Union appeared and presented oral argument. The Board has considered the exceptions and, save as they are con- sistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE RESPONDENT AND ITS BUSINESS The respondent is a New York corporation with its principal office and place of business in Brooklyn, New York. It is engaged in re- building and selling old automobile motors. It employs about 40 persons. The respondent purchased materials valued at $25,694.48 during the 6-month period ending October 31, 1938, and obtained 30 per cent in value- of such materials outside the State of New York. Its sales totaled $50,866.11 in value for the same period, and it shipped over 40 per cent in value of manufactured products to States other than New York. Seventy-five to 90 per cent of the respondent' s sales are made through Sears, Roebuck & Co., as a result of advertising in the catalog of that company. II. THE ORGANIZATIONS INVOLVED International Association of Machinists, District No. 15, is a labor organization affiliated with the American Federation of Labor. It admits- to membership production employees of the respondent. The Collective Bargaining Committee of the Employees of National Motor Rebuilding Corporation is an unaffiliated labor organization. NATIONAL MOTOR REBUILDING 'CORPORATION 507 III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; the Committee; and the individual contracts On or about and after January 1938 as found below, the Union had as members a majority of the respondent's production employees. About the middle of March 1938, Frank Wernersbach, who performed the duties of plant superintendent for the respondent,4 called James McKeon, Michael Gazza, Anthony Cafiero, and Frank Haslach into the office of Herman Rudnick, president of the respondent, and told them that Rudnick wanted to know the Union's demands. McKeon was the employee most active in organizing the Union. Gazza, Cafiero, and Haslach were foremen. They had all signed union application cards. Cafiero mentioned some demands the Union might make and Wernersbach replied that Rudnick would never grant them. Shortly after the meeting the three foremen told McKeon that they were "through with the Union." Haslach added, "if you string along, I will try to get you more money." McKeon refused, saying, "I'm in it and I think I'll stick with it." Shortly after the meeting in Rudnick's office, Hyman Lehman, a director of the respondent, asked George Rebecchi, one of the em- ployees, whether he had signed a union application card. Rebecchi admitted he had. Lehman asked, "Who made you, sign?" Rebecchi replied that nobody had. Lehman then said, "Do you like your job?" Rebecchi replied, "Yes." Lehman thereupon said, "Who made you sign, Mr. McKeon?" and Rebecchi denied again that his membership in the Union had been secured through coercion. A few days thereafter Wernersbach brought a petition to the plant and showed it to some of the employees. The petition had been drawn by Rudnick following a form created by L. L. Balleisen, secretary of the Brooklyn Chamber of Commerce. The petition, addressed to the respondent, purported to notify it that the under- signed employees had elected a bargaining committee to represent them, with authority to enter into a contract "provided it contains substantially the provisions outlined to us by the management," and that the representative authority of any other organization was thereby superseded. The Union threatened to file charges with the Board. The respondent took no further steps with respect to the petition until the following October. On October 7, 1938, Rudnick called a meeting of the, employees in the shop and delivered a talk in which he stated that it was necessary 4 The respondent denies that Wernersbach is a supervisory employee ; however, the evidence clearly shows. and we find, that he exercised supervisory powers, including the power to hire and discharge. 508- DECISIONS OF NATIONAL LABOR RELATIONS BOARD under the Fair Labor Standards Act that a collective bargaining committee be set up. He presented to the assembled employees a petition similar to the one which the respondent had circulated in March. At the conclusion of Rudnick's speech, Wernersbach sug- gested that the employees elect a bargaining committee in accordance with the petition. Accordingly, the assembled employees selected Foremen Gazza and Cafiero and Constantine Hastalis and George Rebecchi to constitute the Committee. Most of the employees signed the petition under Wernersbach's observation as they left the room. On October 10 Rudnick presented a proposed collective; bargaining contract to the Committee. The contract was drawn by Rudnick from forms prepared by Balleisen. Our description of the Balleisen contract in Matter of National Licorice Company and Bakery and Confectionery Workers International Union of America, etc.,5 de- scribes the contract offered here : "It was to be signed by each iii- dividual employee. The benefits of the contract were limited to those employees who signed. In return, the signers relinquished the right to strike and the right to demand a closed shop or signed agreement with any union. They also agreed to accept a procedure not necessarily involving the Union in the settlement of labor dis- putes, thereby eliminating the Union as a possible agency for collective bargaining." The next day, October 11, Albert Davey, an employee, called a meeting in the shop. At the meeting, the employees unanimously re- jected this contract, and elected Davey and William Blauth to the Committee in place of Foremen Cafiero and Gazza. Davey solicited suggestions from the employees, and on the basis of these suggestions, drew a proposed contract to be submitted to the respondent. On October 14 the Committee called on Rudnick to present its proposal. Rudnick refused to recognize or confer with it on the asserted ground that it did not represent the employees because of the change in its personnel. On the same day, 16 employees were laid off under circumstances which we discuss below. In January 1939 Rudnick again circulated individual contracts of employment identical with those presented to the Committee in Octo- ber, with the exception that the Committee designated on the contract as the bargaining representative consisted of Foremen Cafiero and Has- lach and William Blauth and Arthur Zarakas. There is no evidence in the record that these persons were elected by the employees to serve on the Committee. Twenty-one employees signed the contracts. They received increases in their hourly rates of pay, accordingly, effective on or about Janu- 6 7 N. L. R. B. 537, enf'd as mod ., National Labor Relations Board v. National Licorice Co. 104 F. ( 2d) 655 (C. C. A. 2). NATIONAL MOTOR 'REBUILDING IGORPORATION 509 ary 13, 1939. The five or six employees who refused to sign the indi- vidual contracts did not receive pay increases. Rudnick and the supervisory employees persistently urged them to sign the contracts, and called their attention repeatedly to the fact that they would receive increased wages when they did sign. The Committee named in the Balleisen contracts as the "collective bargaining representative of the employees" had no rights or duties. It had no constitution or bylaws, charged no dues, had no officers or headquarters, and possessed no membership records. The Committee was composed at all times of one or more supervisory officials, with the exception of the occasion in March, when Davey and Blauth were elected to replace Michael Gazza and Cafiero and, on that occasion, Rudnick refused to recognize it. In short, the petition, the contracts, the Committee, and the re- spondent's actions with respect to them hereinabove and hereinbelow further set forth, represent the familiar Balleisen pattern *of em- ployer interference, restraint, coercion, support, domination, and discrimination.' We find that the respondent dominated and inter- fered with the formation and administration of the Committee and contributed support thereto and that the respondent by these activi- ties, by the limitations on union activity imposed by the individual contracts, and by the other acts and statements set forth above, inter- fered with, restrained, and coerced its employees in the exercise of the right of self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection as guaran- teed in Section 7 of the Act. B. Discrimination 1. Wage increases We have pointed out above that the respondent granted wage in- creases to the employees who signed the individual Balleisen contracts and thereby authorized the Committee to bargain for them. The respondent withheld increases to the employees listed in Appendix °Ma.tter of Hopwood Retinning Co., Inc. and Metal Polishers, Buffers, Platers, and Helpers Int., Local 8 and Teamsters' Union, Local 548, 4 N. L . R. B. 922 enf'd, National Labor Relations Board v. Hopwood Retinning Co., 98 F. ( 2d) 97 (C. C. A. 2) ; Matter of National Licorice Co. and Bakery and Confectionery Workers Int. Union of Amer. Local 405, 7 N. L. R. B. 537 enf'd as mod. National Labor Relations Board v. National Licorice Company, 104 F. ( 2d) 655 (C. C. A. 2) ; Matter of American Manufacturing Co., eto. and Textile Workers' Organ. Comm. C. I. 0., 5 N. L. R. B. 443, enf'd National Labor Relations Board v. American Manufacturing Co., 106 F. (2d) 61 (C. C. A. 2) ; Matter of Jacobs Bros . Co. and United Elec. and Radio Workers of Amer. , Local 1226, 5 N. L. R. B. 620; Matter of Atlas Bag and Burlap Company , Inc. and Milton Rosenberg , etc., 1 N. L. R. B. 292. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "A," because they would not sign the illegal Balleisen contracts or authorize the company-dominated Committee to bargain for them. It is clear that the respondent discriminated against these employees in order to encourage membership in the Committee, and to discour- age membership in the Union. Accordingly, we find that the respondent by withholding pay in- creases from the employees listed in Appendix "A" discriminated in re- gard to their hire and tenure and terms and conditions of employment, thereby encouraging membership in a labor organization, discourag- ing membership in another labor organization and interfering with, restraining, and coercing its employees in the exercise of rights guar- anteed in Section 7 of the Act. 2. James McKeon Jain s McKeon was discharged on May 13, 1938, and he has not been reinstated. The Trial Examiner found that this discharge and failure to reinstate were discriminatory. The respondent takes exception. McKeon was the leading member of the Union at the respondent's plant and an outspoken opponent of the Committee. It will be re- called that in March 1938 Foremen Gazza, Cafiero, and Haslach aban- doned the Union following a conference with Wernersbach, and that, at that time, McKeon refused to "string along" with them despite Haslach's promise to try to get him more money if he did "string along." In May 1938 the respondent granted McKeon an increase in wages and Haslach promised him steady employment. At this time Ha.slach stated to McKeon : "We want to make it a big happy family here." McKeon replied : "The only way I will be happy is to have the A. F. of L. in here." Shortly thereafter, on May 13, Foreman Haslach discharged McKeon. McKeon asked why he was being discharged and Haslach replied : "You know what for." The respondent contends that McKeon was discharged because of lack of work, and because he could not get along with his foreman. There is no showing that work had declined at the time of the dis- charge, nor is there any evidence of insubordination on the part of McKeon, other than Rudnick's vague and unsupported statements that McKeon was "running all over the shop," and that he "didn't know whether McKeon was boss or Haslach was boss." The record shows that McKeon was an efficient workman and had been praised by Rudnick himself. We find that the respondent, by discharging and failing to reinstate McKeon, discriminated in regard to his hire and tenure of employ- ment thereby discouraging membership in a labor organization, en- couraging membership in another labor organization, and interfering _NATIONAL MOTOR REBUILDING CORPORATION 511 with, -restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. At the time of his lay-off McKeon received $30 per week. He had earned approximately $32.00 per week for 2 weeks' work for another company, and $3.00 per day for 2 weeks' jury duty in the Supreme Court and 1 month's jury duty in General Sessions, from the date of his discharge to the date of the hearing. 3. The October 14, 1938, lay-off. On October 14, 1938, the respondent laid off 16 employees : Frank Onorio, Albert Davey, H. Donaldson, A. Becker, N. Grillo, S. Onorio, A. Golembeski, H. Weiner, J. Petra.usky, A. Pasternak, E. Tasso, D. Giacalone, C. Wozne, A. Ferrante, B. Ladner, and J. Concilio.7 The Trial Examiner found that these lay-offs were discriminatory. The respondent takes exception. These employees had signed application cards for the Union. On October 7 they signed Rudnick's petition asking that the Committee be formed. On October 10 they rejected the individual contracts Rudnick offered. On October 11 they approved Davey's proposal and participated in the election to the Committee of two persons in place of Foremen Haslach and Cafiero. On October 14, the day that Rud- nick refused to recognize the Committee as thus constituted, Werners- bach told these employees that they were being laid off. He gave them no specific reason for the lay-off, but told them that there might be work in a few days. On October 15 Hastalis asked Wernersbach "if the fellows would sign that contract, Mr. Rudnick's contract, would they have been working?" Wernersbach replied, "Yes." He further added, "Why don't you play ball with the boss? If you would have played ball you would have been working there now;" Wernersbach testified as follows in this connection : Q. And do you remember saying you should have played ball with the boss, do you remember that? A. Yes; I might have said something like that; something like "playing ball." It might have been something in that respect. Q. Did you have anything in mind with reference to anything particularly, when you said that if you did say it? A. The only thing I had in mind was, I know these fellows so well, I couldn't understand what was the matter with them. I had nothing in mind. 7 The spelling of some of the names of these employees varies throughout the pleadings and the record . We have adopted the spellings as they appear on the respondent's pay roll. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 26 John Hurley, the union organizer, in a conference with. Rudnick, charged that the mass lay-off was in effect a lock-out. Rudnick did not deny this accusation at the time. The respondent contends that the employees were laid off because business had fallen off. and there was a surplus of motors in the shop awaiting orders. The evidence shows that business decreased and that the respondent signed a mortgage on October 1 in, order to meet its pay roll. These considerations, however, are outweighed by the cir- cumstances surrounding the lay-off and other facts revealed by the record. There had been a much greater decline in business in June and July and there is no evidence that employees were laid off or discharged at that time. Also several of the employees testified that there was the usual and normal amount of work to be done on October 14. The events with respect to the Committee and the Balleisen contracts immediately' preceding the lay-offs, and Werners- bach's statements immediately thereafter, make it abundantly clear that the employees were laid off for their membership and activity in the Union and their opposition to the Committee. The mass lay- off was a part of the respondent's attempt at that time to compel its production employees to cooperate with the Committee, as formed and dominated by the respondent. We find that the respondent on October 14, 1938, discriminated in regard to the hire and tenure of employment of the above-named employees, thereby discouraging membership in a labor organization, encouraging membership in another labor organization, and inter- fering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. Although Pasternak, Becker, Concilio, and Tasso did not testify at the hearing, the evi- dence fully establishes the right of each of them to the same relief as the other 12, and we so find. Six of these employees were reinstated by the respondent. Five of them are listed in Appendix "B." 8 The record reveals that during the period from the lay-off on October 14 to the dates when they were reinstated respectively, N. Grillo and D. Giacalone had earned nothing, and S. Onorio had earned approximately $25. The record does not reveal how much, if anything, Pasternak, and Tasso earned during that period. The remaining 10 employees, who ware laid off on October 14 and who are listed in Appendix "C", were not reinstated. The record reveals that from the' date of the lay-off to the date of the hearing, Davey earned approximately $87.50 up to January 17, 1939, and 50 cents per hour up to the date of the hearing; Wozne, approximately $1.00 per week; Ladner, approximately $30; 8 The sixth, Frank Onorio , was discharged subsequent to this reinstatement. His case is further discussed below. NATIONAL MOTOR R-EBU1LDI__S7G CORPORATION 513 Petrausky, approximately $66.00; Donaldson, approximately $20.00; and that Golembeski and Weiner had earned nothing during that period. The record does not reveal how much, if anything, Becker, Concilio, and Ferrante had earned during the same period. 4. The strike and the alleged offers of reinstatement On October 15 Frank Gore, George Rebecchi, Lawrence Gazza, and Constantine Hastalis, went on strike in protest against the discrim- inatory lay-offs of the previous day. We find that these employees remained employees within the meaning of Section 2 (3) of the Act. We find further that this strike was caused by unfair labor practices of the respondent. As we find below, the respondent engaged in unfair labor practices within Section 8 (5) of the Act by refusing to recognize or to bargain with the Union, and by dealing with its employees individually. On October 26 the Union requested Rudnick to negotiate with respect to the reinstatement of the laid-off employees, and with respect to an agreement on wages and conditions of employment. Rudnick replied in substance that the condition of his business would not allow him to deal with any union. Thereafter and at different times, the respondent by letter re- quested individual employees to return to work. It was thus vir- tually impossible for the individual employees, who were at that time picketing the respondent's plant in protest against the respond- ent's unfair labor practices, to ascertain whether the respondent intended to reinstate all of them or only a few individuals. Several of the employees testified that they did not return to work when they received the letters because they did not know whether other employees had also received offers of reinstatement. In addition they feared that, by returning individually, they would be forced again to capitulate to the respondent's unfair labor practices. That their fear was justified is borne out by subsequent unfair labor prac- tices of the respondent which we have set forth above. Under these circumstances, we hold that if the respondent intended to offer un- conditional reinstatement to its employees, it was under a duty to notify the Union of that intent. Its action in sending individual offers to different employees at different times can only be construed as an attempt by the respondent to break the collective opposition of its employees to the unfair labor practices by dealing with them individually. We cannot, therefore, consider the letters to be un- conditional offers of reinstatement. 514 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD 5. Michael Gazza Michael Gazza, assistant foreman in charge of the V-8 department, was discharged on January 7, 1939. The Trial Examiner found that this discharge was not discriminatory . The Union takes exception. On November 15, 1937, Michael Gazza signed an application card for the Union. He withdrew after the meeting in Rudnick's office in March 1938. In the same month he was elected as one of the four members of the Committee . He withdrew from this position, as did Foreman Cafiero, at the request of the other employees. In January 1939, Rudnick again requested employees , including the foremen , to sign individual contracts . On January 5 Rudnick discussed these contracts with the employees in charge of depart- ments, including Michael Gazza . On January 6 Wernersbach assem- bled the employees and told them that those who signed the contracts would receive pay increases . On January 7 Michael Gazza was discharged. Lawrence Gazza, Michael's brother, and a group of other employees went to Haslach and asked why Michael had been dis- charged. Haslach at first stated that he did not know but later said, "Mike was fired because something was said at the meeting the night before." He told them they could go in and see Rudnick "but it wouldn't do any good." On Monday, January 10, Lawrence Gazza and the same group went to see Rudnick. In response to Lawrence Gazza's question .as to why Michael had been discharged , Rudnick replied, "that Mike didn't tell him about the contract when they had the meeting of the heads of departments on Thursday night, but on Friday morning he had gone over to Frank Haslach and Frank WVernersbach and told them that he didn't like the contract." The respondent contends that Michael Gazza was discharged be- cause the amount of work in his department had decreased . Rudnick admitted, however, that on other occasions when work in the V-8 department had become slack Michael Gazza had been transferred to other departments. In view of this admission , Michael Gazza's position of responsibility, his previous regular and satisfactory em- ployment,. and Haslach's and Rudnick's statements with respect to the reason for his discharge , we find that the respondent discharged Michael Gazza because of his opposition to the respondent's inter- ference with and domination of the Committee. We find that the respondent, by discharging Michael Gazza, dis- criminated in regard to his hire and tenure of employment , thereby discouraging membership in a labor organization and encouraging membership in another labor organization, and interfering with, NATIONAL MOTOR REBUILDI'l-KG CORPORATION 515 restraining, and coercing its employees in the exercise of rights guar- anteed in Section 7 of the Act." 6. The February 24, 1939, lay-offs The respondent laid off 13 employees on February 24, 1939. The amended complaint alleged that these lay-offs were discriminatory as to five employees : Frank Onorio, S. Onorio, D. Giacalone, N. Grillo, and Lawrence Gazza, herein called charging employees. The Trial Examiner found that these lay-offs were not discriminatory. The Union takes exception. The charging employees, other than Lawrence Gazza, were among those laid off on October 14, 1938. They were reinstated on various dates thereafter. Lawrence Gazza was among those who went on strike on October 15, 1938. He was reinstated on or about December 1, 1938. The five charging employees contended that they were laid off on February 24, 1939,-because they refused to sign the Balleisen con- tracts. Of the 13 employees who were laid off on February 24, 1939, however, 7 had signed the individual contracts. The record is silent as to the remaining employee. Three of the 13 employees were later reinstated. One of these three had signed an individual contract, and two had not. In view of these facts, and in the absence of any evi- dence that the five charging employees were singled out because of their refusal to sign individual contracts, we are not persuaded that they were discriminatorily discharged. The complaint also alleged that the respondent discriminatorily refused to reinstate the charging employees. The respondent's pay roll introduced in evidence shows that S. Onorio, D. Giacalone, and N. Grillo have returned to work. We shall, therefore, dismiss this allegation of the complaint as to them. Lawrence Gazza and Frank Onorio have not been reinstated. Gazza requested reinstatement during the same week in which he was laid off. He asked Foreman Haslach at that time why he had not been "picked to come back instead of the other fellows," since most of those who were reinstated were new men who had been hired since December 1, 1938. Haslach replied, "Well, you wouldn't satisfy the boss." Gazza and Onorio returned again during the week of March 6-13, 1939, and in substance had the following conversation with Haslach : He [Frank Onorio] asked Mr. Haslach why this Al Pasternack was kept in there babbitting when he was kept out, so Haslach said, "You know why." ' Cf. Matter of American Potash and Chemical Corp . and Borax and Potash Workers' Union No . 20181, 3 N. L. R. B. 140, enf'd 98 F. ( 2d) 488 (C. C.'A. 9). 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD So I [Lawrence Gazza] told Frank fOnorio], "Because you wouldn't sign the contract ," and Frank asked Mr. Haslach was that right and Mr. Haslach said, "That's right." He nodded his head. A new employee, Joseph Kolonics, was hired on March 3, which is on or about the time Gazza and Onorio applied for reinstatement. In view of these facts we must, and do, conclude that Gazza and Onorio were. refused reinstatement because they opposed and refused to sign the individual contracts. We find that the respondent discriminated in regard to the hire and tenure of employment of Lawrence Gazza and Frank Onorio by refusing to reinstate them, thereby discouraging membership in a labor organization , encouraging membership in another labor organi- zation, and interfering with, restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. We find that the record does not support the allegations of the complaint that the respondent discriminated in regard to the hire and tenure of employment of Frank Onorio, S. Onorio, N. Grillo, D. Giacalone, and Lawrence Gazza by discharging them on February 24, 1939, and by refusing to reinstate S. Onorio, N. Grillo and D. Giacalone, thereby discouraging membership in a labor organization. C. The refusal to bargain collectively 1. The appropriate unit The complaint, as amended , alleges that the production employees of the respondent in its Brooklyn plant, excluding clerical, mana- gerial, and supervisory employees, countermen, and drivers constitute a unit appropriate for purposes , of collective bargaining. The answer does not deny the allegation. We find that the production employees of the respondent in its Brooklyn plant, excluding clerical ; managerial , and supervisory em- ployees, countermen, and drivers constitute a unit appropriate for the purposes of collective bargaining and that said unit insures to em- ployees of the respondent the full benefit of their right to self -organi- zation and collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit The complaint alleges, the answer denies, and the Trial Examiner found that the Union at all times represented a majority of the re- spondent's employees in the appropriate unit. The respondent excepted to the finding. NA'T'IONAL MOTOR REBUILDING CORPORATION 517 The respondent's pay roll introduced in evidence shows that from January 1, 1938, to the date of the hearing the maximum number of employees in the appropriate unit at any one time was approxi- mately 50. The Union introduced in evidence 52 application cards signed by employees of the respondent.10 Although many of the cards are undated, McKeon testified that he witnessed the signatures of all those who signed, with the exception of three employees who handed him their signed cards in person, and that all but three or four of the cards had been signed prior to or about January 1, 1938.11 A comparison of the application cards with the respondent's pay roll from January 1, 1938, to the date of the hearing shows that the Union at all times during that period represented a majority of the employees in the appropriate unit. On March 31 and October 26, 1938, the Union requested the re- spondent to bargain with it as the exclusive representative of the respondent's employees. Both times it offered to prove to Rudnick that it had been designated by a majority. On both occasions Rud- nick stated his willingness to accept the Union's word that it repre- sented a majority. The respondent contends, however, that the employees, by signing the petitions drawn by Rudnick, which purported to supersede any authority given by the signers to any other organization, and by. signing individual contracts, had repudiated their membership in the Union. As we have found in Section III B, the respondent engaged in unfair labor practices by insisting that the employees sign the peti- tions and the individual contracts. The necessary effect of this course of conduct was to coerce employees into designating the Com- mittee as bargaining agent by signing the petitions and the contracts. It is clear that the petitions were circulated by supervisory employees of the respondent who urged the employees to sign and offered them wage increases as inducements. On the present record of interference, restraint, coercion, dis- crimination, and the effects thereof, we hold that the petitions and the individual contracts do not constitute valid designations of the Committee or genuine rescissions of the authority of the Union. The number of signatures on these petitions and contracts registers noth- 10 This number includes all those who signed cards from January 1 , 1938 , to the date of the hearing, and due to fluctuations in the pay roll includes some employees who were not employed on any given date but who were employed on other dates. u Respondent contends that these cards are not applications for membership in the Union which filed charges since they are headed "Application for membership. Auto- mobile Machinists Lodge , No. 447." However the cards themselves and the undisputed testimony show that Automobile Mechanics Lodge , No. 447 and International Association of Machinists , District No. 15 , A. F. of L., the charging Union , are one and the same organization. 283030-41-vol. 19--34 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing more than the success of the respondent's campaign to form and assist the Committee. The labor organization with which the re- spondent is obligated to bargain within Section 8 (5) is the one which by Section 9 (a) has been designated by a majority of the respondent's employees for the purposes of collective bargaining. The Union has been thus designated and this record reveals no genuine withdrawal of such designation. A company-coerced choice of a labor organization is clearly inoperative.12 It is equally clear that a company-coerced defection from a labor organization is invalid.- To hold otherwise would be to allow the respondent to avoid its obligation under Section 8 (5) by the simple expedient of violating Section 8 (1), (2), and (3). Accordingly, we find that on and after January 1, 1938, the Union was the duly designated rep- resentative of the majority of the employees of the respondent, and that there is no showing that this designation was ever validly revoked. We find that on January 1, 1938, and at all times thereafter the Union was the duly designated representative of a majority of the respondent's employees in a unit appropriate for collective bargaining and pursuant to Section 9 (a) of the Act was the exclusive repre- sentative of all employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain On March 13, 1938, John Hurley and Samuel Newman, representa- tives of the Union, visited Rudnick's office, informed him that they represented a majority of the respondent's employees, and, in sub- stance demanded that the respondent cease its activities in regard to the petitions. Rudnick replied that he was not in a position to "have any labor relations with any union" because of the infancy of the industry and his inability to pay mechanics' wages, and that he could not negotiate an understanding with respect to wages and hours of labor with any labor organization. On October 26, 1938, Hurley and Newman requested Rudnick to bargain with the Union. Rudnick reiterated the position he had taken at the meeting of March 13, 1938, and added that the only way he could come to an agreement with his employees was by an individual contract with each employee. On October 27, 1938, the Union submitted to the respondent a proposed contract providing for exclusive recognition and for other 12C/. National Labor Relations Board v . Stackpole Carbon Co., 105 F . (2d) 167 (C. C. A. 3). 13 National Labor Relations Board v. Arthur L. Colten etc., 105 F. (2d) 179 (C. C. A. 6) ; National Labor Relations Board V. American Manufacturing Co., supra footnote 6. NATIONAL MOTOR REBUILDING 'OORPORATION 519 terms with respect to working conditions. Thereafter, on November 1, at another conference, Rudnick rejected substantially all of its provisions, including the provision for exclusive recognition. He repeated again his determination to sign individual contracts with each employee and not to sign a collective agreement with the Union. The union representatives nevertheless left the proposed contract with him and asked him to submit a counterproposal. On December 1 Hurley and Newman again went to Rudnick's office and asked if he had reconsidered their proposal, and if he was willing to submit a counterproposal. Rudnick gave the union rep- resentatives a mimeographed copy of the Balleisen contract which he had requested each individual employee to sign and, according to his own testimony, stated : "I have no counterproposal, other than a certain contract. There is what I would like in a counterproposal." The union representatives then left and no further conferences were held. We have already found in this and other cases, that the solicitation of signatures to such individual contracts is an unfair labor practice intended to discourage membership in a union. Conse- quently, it is perfectly clear that the submission of such a contract as a counterproposal is not an evidence of bona fide collective bargaining or of the respondent's good faith. In short, the respondent, in response to the Union's demand for collective bargaining and for exclusive recognition, refused to recog nize the I7nion, to negotiate with the Union in a_ good-faith effort to arrive at understandings with respect to terms of employment and to embody such understandings, if reached, in a collective agreement. It rather forestalled collective bargaining by imposing upon its em- ployees individual contracts which prevented them from bargaining collectively through the Union, and allowed them to deal with the respondent only as individuals or. through the company-inspired and dominated Committee.14 We find that the respondent refused to bargain collectively with the duly designated representatives of a majority of its employees in the appropriate unit in respect to rates of pay, wages, hours of employment, or other conditions of employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and UMatter of American Manufacturing Co., etc . and Textile Workers' Organizing Com- mittee;f Matter of Hopwood Retinning Co. and Metal Polishers . Buffers, Platers and Helpers Union, etc.; Matter of National Licorice Co . and Bakery and Confectionery Workers Union, etc.; supra footnote 6. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substantial relation to trade, traffic, and commerce among the several States, and led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since we have found that the respondent has engaged in unfair labor practices, we shall order it to cease and 'desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and restore as nearly as possible the condition that existed prior to the commission of the unfair labor practices. We have found that the respondent dominated and interfered with the formation and administration of the Committee and con- tributed support thereto. In order to remedy this unlawful condition the respondent must withdraw all recognition from the Committee for the purposes of dealing with the respondent concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment. We shall, therefore, order the respondent to disestablish the Committee as such representative. We have found that the individual contracts signed by the respond- ent's employees were intended to and did impede the efforts and right of the employees to form, join, or assist labor organizations and to engage in concerted activities for their mutual aid and protec- tion, and we have also found that the respondent, by'its officers and supervisory employees, persuaded and coerced its employees to sign. the individual contracts. To restore the status quo and to free the respondent's employees from the restraint and interference involved in and exerted by these illegal contracts, we shall order the respond- ent to give written notice to each employee who signed such a con- tract that the contracts are invalid and void because they were entered into pursuant to an unfair labor practice within the mean- ing of the Act, that they will therefore be discontinued as a term or condition of employment and will not in any manner be enforced or attempted to be enforced, and that the employees are not re- quired or expected to deal with the respondent through the "rep- resentatives" named in the contracts. We shall also order the respondent to post appropriate notices in its plant advising its employees to the same effect. This part of our order will extend to any modification, continuation, extension, or renewal of the individual contracts. We have found that the respondent discriminated against the em- ployees listed in Appendix "A" thereby encouraging membership in the Committee and discouraging membership in the Union, by withholding from them wage increases because they refused to sign NATIONAL MOTOR REBUILDING CORPORATION 521 individual contracts renouncing the Union and designating the Com- mittee as collective bargaining representative. We shall order the respondent, accordingly, to make whole these employees by granting to them the increase in their wages which they would have received during the time they worked for the respondent had the respondent not thus discriminated against them. We shall also include the pay increase in any orders of back pay covering the period in which the employee would have been working and been eligible to receive the pay increase had the respondent not thus discriminated against him. We have found that the respondent discriminated in regard to the hire and tenure and terms and conditions of employment of Michael Gazza and the employees listed in Appendix "B" and Appendix "C." Since the respondent has already reinstated the employees listed in Appendix "B," we shall not order the respondent to reinstate them. The respondent, however, has not reinstated Michael Gazza nor the employees listed in Appendix "C." ' We shall, therefore, order the respondent to offer to Michael Gazza and to the employees listed in Appendix "C" reinstatement to their former positions or substan- tially equivalent positions. The offer of reinstatement shall be with- out prejudice to their seniority and other rights and privileges and shall be effected in the following manner : All employees hired during or after the discharge, lay-offs, and strike in question shall, if neces- sary to provide employment for those to be offered reinstatement, be dismissed. If thereupon, by reason of a reduction in force, there is not sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees in accordance with the, respondent's usual method of reducing its force, without discrimination against _ny employee because of his union affiliation or activities, following a system of. seniority to such ex- tent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or substantially equivalent positions, as such employment becomes available and before other persons are hired for such work. We shall also order the respondent to make whole the employees listed in Appendix "B" and Appendix "C" for any losses of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of the employees listed in Ap- pendix "B" and Appendix "C" of a sum of money equal to that' 522 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD which he would normally have earned as wages from the date of his discharge or lay-off to the date of his reinstatement, less his net earnings 15 if any, during said period. We shall enter the same order with respect to Michael Gazza except that, since the Trial Examiner found that he was not discriminated against and recommended the dismissal of the complaint with respect to him, we shall exclude from the computation of his back pay, the period from September 13, 1939, the date of the Intermediate Report, to the date of the Order herein. This is in accord with our usual rule.16 We have found that the respondent discriminated in regard to the hire and tenure of employment of Frank Onorio by discharging him on October 14. We have also found that he was reinstated and again discharged on February 24, 1939. We have found that the respondent discriminated against him by refusing to reinstate him after his second discharge. We shall, therefore, order the respondent to offer to Frank Onorio reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges to be effected in the manner set forth above. We shall also order the respondent to make him whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of an amount equal to that which he would normally have earned as wages from October 14, 1938, the date of the first discrimination, to December 8, 1938, the date of his reinstatement, less his net earnings 17 during said period, from the date of the respondent's refusal to reinstate him after his second discharge to September 13, 1939, the date of the Intermediate Report, and from the date of the Order herein to the date of the offer of reinstatement. We have found that Lawrence Gazza, Constantine Hastalis, George Rebecchi, and Frank Gore went on strike because of the respondent's unfair labor practices. Frank Gore and George Rebecchi have not "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 elsewhere than for the respondent , which would not have been incurred but-for his unlaw- ful 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 Saunnill 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 to the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county , municipal , or other gov- ernment or governments which supplied the funds for said work-relief projects. Matter of Republic Steel Corp . and Steel Workers' Organizing Committee, 9 N. L. R. B. 219, enf'd Republic Steel Corp ., etc. v. National Labor Relations Board, 107 F . (2d) 472 (C. C. A. 3). 18 Matter of D. R. Hafelfinger Co ., Inc. and United Wall Paper Crafts of North America, Local No. G, 1 N. L. R. B. 760. 17 See footnote 15, supra. NATIONAL MOTOR REBUILDING CORPORATION 523 been reinstated. We shall therefore order the respondent upon appli- cation to offer to Frank Gore and George Rebecchi immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, to be effected in the .manner set forth above. Since the respondent reinstated Constantine Hastalis after the strike, we shall not order the respondent to reinstate, him. The respondent also reinstated Lawrence Gazza after the strike. We have found, however, that he was later discharged and that the respondent discriminated against him by refusing to reinstate him after that discharge. We shall therefore order the respondent to offer to Lawrence Gazza reinstatement to his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges to be effected in the manner set forth above. We shall order the respondent to make Lawrence Gazza whole for any loss of pay he may have suffered by reason of the respondent's refusal to reinstate him after his second discharge by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of this refusal to reinstate him to the date of the offer of reinstatement, less his net earnings 18 during said period. Since the Trial Examiner found that the refusal to reinstate him was not discriminatory, however, we shall, in accord with our usual practice. exclude from the computation of his back pay the period from September 13, 1938, the date of the Intermediate Report, to the date of the Order herein. We have found that the discharges of Lawrence Gazza, Frank Onorio, S. Onorio, D. Giacalone, and N. Grillo on February 24, 1939, and the subsequent failure to reinstate S. Onorio, D. Giacalone, and N. Grillo were not discriminatory. We shall, therefore, dismiss these allegations of the complaint. We have found that the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit. We shall, therefore, order the respondent, upon request, to bargain collectively with the Union and, if under- standings are reached, to embody such understandings in a signed agreement. THE PETITION Since we shall order the respondent to bargain collectively with the Union, upon request, we need not consider the Union's petition, which will accordingly be dismissed. 1S See footnote 15, supra. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings ' of fact and upon the entire record in the case, the Board makes the following:: CONCLUSIONS OF LAW 1. International Association of Machinists , District No. 15, A. F. of L., and The Collective Bargaining Committee of the Employees of National Motor Rebuilding Corporation are labor organizations within the meaning of Section 2 (5) of the Act. 2. The production employees of the respondent 's Brooklyn plant, excluding clerical, managerial , and supervisory employees , counter- men, and drivers , 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 , District No. 15, A. F. of L., was on March 31, 1938, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. by refusing to bargain collectively with International Associa- tion of Machinists, District No. 15, A. F. of L. as the exclusive repre- sentative of its employees in the appropriate unit, the respondent . has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. By dominating and interfering with the formation and admin- istration of, and contributing support to The Collective Bargaining Committee of the Employees of National Motor Rebuilding Cor- poration, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 6. By discriminating in regard to hire and tenure and terms and conditions of employment of its employees , thereby discouraging membership in International Association of Machinists, District No. 15, A. F. of L., and encouraging membership in The Collective Bar- gaining Committee of the Employees of National Motor Rebuilding Corporation, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 7. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( 1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. NATIONAL MOTOR REBUILDING 'CORPORATION 525 ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the. National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, National Motor Rebuilding Corp., and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of The Collective Bargaining Committee of the Employees of National Motor Rebuilding Corporation, or the formation or administration of any other labor organization of its employees, and contributing any support to The Collective Bargaining Commit- tee of the Employees of National Motor Rebuilding Corporation, or to any other labor organization of its employees; (b) Recognizing The Collective Bargaining Committee of the Employees of National Motor Rebuilding Corporation as the representative of any of the employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of employment; (c) Discouraging membership in International Association of Machinists, District No. 15, A. F. of L., or any other labor organ- ization of its employees by discharging, laying off, or refusing to reinstate any of its employees, or 'in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment; (d) Giving effect to any agreement which it may have entered into with or through The Collective Bargaining Committee of the Employees of National Motor Rebuilding Corporation in respect to rates of pay, wages, hours of employment, or other conditions of employment ; (e) Refusing to bargain collectively with International Associa- tion of Machinists, District No. 15, A. F. of L., as the exclusive representative of the production employees in its employ at its Brooklyn, New York, plant, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from The Collective Bargaining Committee of the Employees of National Motor Rebuilding Corpora- tion as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or conditions of employment, and completely disestablish The Collective Bargain- ing Committee of the Employees of National Motor Rebuilding Cor- poration as such representative; (b) Give separate, written notice to each of its employees who has signed an individual contract or any modification, continuation, or extension thereof that such contract was entered into pursuant to an unfair labor practice, within the meaning of the National Labor Relations Act, that it is invalid and void, that it will therefore be discontinued as a term or condition of employment and will not in any manner be enforced or attempted to be enforced, and that the employee is not required or expected to deal with the respondent through the "representative" named in the contract; (c) Upon request, bargain collectively with International Asso- ciation of Machinists, District No. 15, A. F. of L., as the exclusive representative of its production employees in its Brooklyn plant, excluding clerical, managerial, and supervisory employees, counter- men, and drivers, in respect to rates of pay, wages, hours of employ- ment, or other conditions of employment; (d) Offer, upon application, to Frank Gore and George Rebecchi, and, without application, to the employees listed in Appendix "C" and to Michael Gazza, Lawrence Gazza, and Frank Onorio immedi- ate and full reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority and other rights and privileges, such offer to be effected in the manner set forth in the section entitled "The remedy" above; (e) Make whole the employees listed in Appendix "A" for any losses of pay they have suffered because the respondent withheld from them the same pay increase which it granted to the employees who signed individual contracts by payment to each of them of a sum of money equal to the pay increase which he would have re- ceived during the time he was working, had the respondent not so discriminated against him; (f) Make whole the employees listed in Appendix "B" and in Appendix "C"' for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure and terms and conditions of employment, by payment to each of them, respectively of a sum of money equal to that which he would NATIONAL MOTOR REBUILDING OORPORAT'ION 527 have earned as wages, including the wage increase effective at the time it was granted to the employees who signed individual con- tracts, during the period from the date of the discrimination to the date of reinstatement, less his net earnings 19 during said period; deducting, however, from the amount otherwise due to each of the said employees , monies received by said employees during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State , county, munic- ipal, or other government or governments which supplied the funds for said work-relief projects; (g) Make whole Michael Gazza and Lawrence Gazza for any loss of pay they have suffered by reason of the respondent's dis- crimination in regard to their hire and tenure and terms and con- dition; of employment, by payment to each of them of a sum of money equal to that which he would have earned as wages, including the wage increase effective at the time it was granted to the em- ployees who signed individual contracts, during the period from the date of the discriminations to September 13, 1939, the date of the Intermediate Report of the Trial Examiner, and from the date of this Order to the date of the offer of reinstatement , less their net earnings 20 during said periods ; deducting , however, from the amount otherwise due to each of the said employees monies received by said employees during said periods for work performed upon Federal, State , county, municipal , or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal , State, county, municipal, or other government or governments which supplied the funds for said work -relief projects; (h) Make whole Frank Onorio for any loss of pay he has suffered by reason of the respondent 's discrimination in regard to his hire and tenure of employment (1) by payment to him of a sum of money equal to that which lie would have earned as wages during the period front October 14, 1938, the date of the first discrimination , to December 8, 1938, the date of his reinstatement, less his net earnings 21 during said period, and (2 ) by payment to him of a sum of money equal to that which he would have earned as wages, including the pay increase effective at the time it was granted to the employees who sighed indi- vidual contracts , from the date of the second discrimination to the date of the Intermediate Report of the Trial Examiner , and from the date' of this Order to the date of the offer of reinstatement , less his net "See footnote 15, supra. 20 See footnote 15, supra. 21 See footnote 15, supra. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earnings 22 during said periods ; deducting, however, from the amount otherwise due to him, monies received by him during said periods for work performed upon Federal , State, county, municipal , or other work- relief projects , and pay over the amount so deducted to the appropri- ate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work- relief projects; (i) Make whole Frank Gore and George Rebecchi for any losses of pay they may suffer by reason of the respondent's failure to re- instate them within 5 days of their application for reinstatement pur- suant to the terms of this Order; (j) Post immediately and in conspicuous places in each department of the respondent's plant, and maintain for a period of at least sixty (60) consecutive days from the ' date of posting, notices stating : that the respondent will cease and desist as provided in paragraphs 1 (a), (b), (c), (d), (e), and (f ) of this Order; that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c). (d), (e), (f), (g), (h), and (i ) of this Order; and that employees are free to remain or become members of International Association of Machin- ists, District No. 15, A. F. of L.; (k) Notify the Regional Director for the Second Region in writing within ten ( 10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint in so far as it alleges that S. Onorio, D. Giacalone, N. Grillo, Lawrence Gazza, and Frank Onorio were discriminatorily discharged or laid off on February 24, 1939, and that S . Onorio, D. Giacalone, and N. Grillo were subse- quently discriminatorily denied reinstatement, and the petition for investigation and certification of representatives be, and they hereby. are, dismissed. MR. WILLIAM M. LEISERSON concurring : I concur in the foregoing decision in this case , but I am of the opinion that the petition for certification of representatives filed by the Union should have been withdrawn or dismissed before the Board proceeded- upon the Union's charge that the respondent had engaged in unfair labor practices contrary to Section 8 (5) of the Act. APPENDIX A S. Onorio Lawrence Gazza D. Giacalone Frank Onorio N. Grillo 22 See footnote 15, supra. NATIONAL MOTOR REBUILDING GORPOIL TION 529 APPENDIX B N. Grillo A. Pasternak S. Onorio F. Tasso D. Giacalone APPENDIX C A. Davey B. Ladner H. Donaldson A. Becker A. Golembeski J. Concilio Henry Weiner J. Petrausky C. Wozne James McKeon A. Ferrante 0