Lansing Co.

In the Matter of LANSING COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA LOCAL No. 182 Case No. C-1037.-Decided February 14, 1940 Wheelbarrow, Warehouse and Industrial Truck, Concrete Mixer, Truck Wheel, Caster, Industrial Tractor, Coal Dealers' Supplies , and Contractors' Equipment Industry-Interference, Restraint, and Coercion : anti-union speech by president; anti-union statements by supervisory employees-Company-Dominated Union: domination of and interference with formation and administration ; activities on employer's time and property ; supervisory cooperation and participation in solicitation of membership ; employer ordered to refuse to recognize , as agency for collective bargaining -Collective Bargaining : charges of refusal to bargain collectively, dismissed-Discrimination : charges of, dismissed where ( 1) some strikers engaged in sit-down strike, and (2 ) others were refused reinstatement because employer ^ had hired new employees during strike not caused by em- ployer's unfair labor practices ; discharge ; sustained - as, to , one, employee-Re- instatement Ordered: discharged employee-Back Pay: ordered from filing of charge to offer of reinstatement. Mr. Earl R. Cross, for the Board. Cummins d Cummins; by Mr. Charles F. Cummins and Mr. A. M. Cummins, of Lansing, Mich., for the respondent. Mr. Robert D. Allen, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Local 182, Inter- national Union, United Automobile Workers of America, herein called the U. A. W. A., the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventh Region (Detroit, Michigan) issued its complaint, dated June 9, 1938, against Lansing Company, Lansing, Michigan, 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), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and accompanying notice of hearing were duly served upon the respondent 20 N. L. R. B., No. 41. 434 LANS'IN'G OOMPANT 435 and upon the U. A. W. A. An unsuccessful attempt was also made to obtain service upon Lansing Company Employees' Association, herein called the Association, a labor organization alleged in the complaint to be dominated and supported by the respondent. With respect to the unfair labor practices the complaint alleged in substance (1) that the respondent expressed opposition to the U. A. W. A. and engendered among its employees fear of loss of employment for activity and mem- bership therein; (2) that the respondent, beginning on or about April 20,1937, dominated and interfered with the formation and administra- tion of the Association, and contributed financial and other support thereto; (3) that on or about July 19, 1937, after a sit-down strike called by the U. A. W. A. because of the respondent's refusal to bargain collectively with the U. A. W. A. as the representative of the respond- ent's employees in an appropriate unit, the respondent evicted certain named employees from the plant, and locked out and thereafter refused to reinstate them for the reason that they joined and assisted the U. A. W. A. and engaged in concerted activities with other employees for' the purpose of collective bargaining and other mutual aid and protection; (4) that at the time of the sit-down strike above mentioned, the respondent manifested an intention not to rehire and did not there- after rehire certain named employees, for the reason that they joined and assisted the U. A. W. A. and engaged in concerted activities for the purposes of collective bargaining and other mutual aid and pro- tection; (5)' that on or about July `6, 1937, and at all times thereafter, the respondent refused to bargain collectively with the U. A. W. A. as the exclusive bargaining representative of a majority of the re- spondent's employees within an appropriate unit consisting of all production and maintenance employees, exclusive of office and clerical employees and those engaged in a supervisory capacity; and (6) that by said acts and other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed its answer to the complaint, admitting, the facts alleged with reference to the character of its business, but deny- ing that it had engaged in or was engaging in the unfair labor prac- tices alleged, and setting forth a number of affirmative defenses. Pursuant to notice a hearing was held in Lansing, Michigan, on June 30, and July 1, 5, 6, 7, and 8, 1938, before Webster Powell, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. On July 18, 1938, pursuant to leave granted by the Trial Examiner at the close of the hearing, the respondent filed a brief. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . On November 9, 1938, the Trial Examiner issued his Intermediate Report wherein he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, cease and desist from discouraging membership in the U. A. W. A. or any. . other labor organization, by discriminating in regard to employment, cease and desist from dominating or interfering with the formation or administration of the Association, or any other labor organization, and that the respondent take certain affirmative action in order to effectuate the policies of the Act. He recommended the dismissal of that portion of the complaint charging a violation of Section 8. (5) of the Act. After the issuance of the Intermediate Report the U. A. W. A. filed a motion to reopen the case and receive further evidence, which motion the Board denied. Both. the respondent and the U. A. W. A. filed exceptions to the Intermediate Report. The Board has considered the exceptions to the Intermediate Report and, except to the extent that they are consistent with the findings, conclu- siolis; and order set forth below, finds no merit in them.. At the hearing and in his Intermediate Report the Trial Examiner made rulings on numerous motions and on objections to the admission of evidence. The Board has reviewed these rulings of the Trial Exam- iner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. . . Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, a Michigan corporation having its office and prin- cipal place of business at Lansing, Michigan, is engaged in the manu- facture and sale of wheelbarrows, warehouse and industrial trucks, concrete mixers, truck wheels, casters, gasoline industrial tractors, coal dealers' supplies, and contractors' equipment. The respondent is one of the largest manufacturers of wheelbarrows and trucks in the United States. In addition to its plant at Lansing, the part of the respondent's operations herein involved, it has an assembly plant at Poughkeepsie, New York, and maintains sales offices in eight prin- cipal cities throughout the United States.' The principal raw mate- rials purchased by the respondent for use at the Lansing plant are ' Boston, Chicago , Kansas City, Minneapolis , New York, Philadelphia , San Francisco, and Los Angeles. LANSING COMPANY 437 steel; bolts -and-=nuts, pig-.iron, lumber, paint; and scrap iron, at an approximate annual cost of $285,000.00. The respondent purchases about 38 per cent of these materials outside the State of Michigan. Approximately 90 per cent of its sales of finished products are to purchasers outside the State of Michigan. ' II. THE LABOR ORGANIZATIONS INVOLVED Local 182, International Union, United Automobile Workers of America, is a labor organization, affiliated at the time of the hearing with the Committee for Industrial Organization, admitting to mem- bership the. production and maintenance employees of the respondent and of other employers situated in and near Lansing, Michigan. Per- sons having authority to hire and discharge are excluded from membership. Lansing Company Employees' Association is an unaffiliated labor organization admitting to membership the respondent's employees at its Lansing, Michigan, plant. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Prior to March 1937 there had been no union activity in the respond- ent's plant. - At :that•time-the U. A. W. A. began to organize the re- spondent's employees. By April 8, 1937, the organization campaign had progressed to a point where a shop bargaining committee had been set up and the first conference with the respondent, relative to a grievance, was held. As soon as the respondent's officers became aware of the existence of the U. A. W. A. among its employees it made known its hostility thereto. On March 26, 1937, Harry E. Moore, the re- spondent's president, caused work in the plant to be stopped shortly before closing time and assembled the employees to speak to them. Although, at the date of this meeting, no action had been taken by the U. A. W. A. or any of its members to indicate that a strike was proposed, Moore told the employees that "I have heard that there is some agitation in the shops as to your wanting to strike, and I thought that I would put these matters before you so that you could see just exactly where you stand and where we stand." According to the testimony of Basil Green, an employee who was present, Moore stated that the respondent could not stop the men from joining any church or lodge but that it did not want any union in the plant. Moore denied making this statement attributed to him by Green, but admitted that he spoke about labor organizations at the meeting. Green's testimony concerning the speech was corroborated by several other witnesses who, had attended the meeting. We accept 283031-41-vol. 20-29 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Green's version of the incident and find that Moore made the statement attributed to him. At the meeting, Moore singled out some of the older employees and asked them whether they wanted to strike. He proposed that a vote on the question be taken, stating, "You can go the front way, out the front door, and we will have sombody there at a desk and you can give your vote as to whether or not you wish to strike, or whether you don't wish to strike. We will take a vote on this thing right here and now." The employees, however, "were so overwhelmingly in favor of not voting" that the proposal was withdrawn. At the conclusion of the meeting William Himelberger, the respondent's superintendent, stated to the assembled employees that the respondent "positively would have no outsiders coming in telling them how to run their busi- ness" and that "We don't want you to join no union," and William Sheathelm, foreman of the shipping department and general manager of production, stated that the men were being forced to join the U. A. W. A. On several other occasions after the U. A. W. A. became active in the plant and before the strike, which started on July 15, 1937, persons having official or supervisory capacity made statements to employees showing the respondent's disapproval of the U. A. W. A. On April 8, 1937, a union bargaining committee, consisting entirely of employees of the respondent, met with the management to confer respecting the discharge of an employee. In a discussion after the conclusion of this meeting Himelberger said to Moore and Clare Johnson, an employee and union member, that "they would have to break up that union" and Moore made the statement that he "was going to hire and fire who he pleased, regardless of any outside. interference." Following are other incidents that occurred on the respondent's time and property during the early part of the U. A. W. A.'s membership campaign. Himelberger, after asking- Walter Drews, an employee; whether he was going to join the U. A. W. A. said, "You better not." John Voss, foreman of the mixing department, advised Ed Warner, an employee and union member, that "the union that they were trying to organize wasn't going to get anywhere," that at "another shop here in town where they tried to organize ... after the boys had signed up they threw their buttons out of the window and quit, and it won't be very long before it won't amount to anything here." Ed Fell, manager of the respondent's real-estate operations,' after having questioned Lyman Goodwin, an employee, as to whether he had been asked to join the U. A. W. A. and having received a nega- tive answer, said "Well, you haven't been working here very long, so don't have anything to do with it. You want to keep on working." 'The respondent owns a number of private dwellings in Lansing most of which are occupied by its employees at a monthly rental. LANSING COMPANY 439 Fell also admonished Kenneth Goodwin, an employee, not to have anything to do with the U. A. W. A. Milo Ingersoll, foreman in the woodshop, in a talk with Bigio Lucian, an employee and union member, said "Do you get any benefit if you join the U. A. W. - . . Yes, you can join a club or church any place, except the U. A. W. If you go on strike what are you going to live on; who is going to feed your family." With the exception of Moore's denial of the statement attributed to him, as noted above, there was no denial of this activity by the respondent's officers and supervisory employees. It is apparent that at the inception of union activity in the plant and at a time when self-organization, among its employees was in the formative stage, the respondent's attitude of hostility and antagonism toward the U. A. W. A. and the union activity of its employees was clearly manifested. The, respondent's officials and supervisory em- ployees indicated their displeasure with the formation of the U. A. W. A., disparaged it, threatened those who joined with loss of their jobs, and discouraged membership therein and activity on its behalf. We find that, by the acts above set forth, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Domination of and interference with the formation, and adminis- tration of the Association and contribution of support thereto In March 1937, during the early stages of the U. A: W. A.'s or- ganization campaign, there were rumors among the employees that an inside union was being formed. Petitions requesting membership in such an organization were circulated throughout the plant during working hours by employees. Several of the respondent's super- visory employees were particularly active in the movement to organ- ize an inside union and solicited membership in the organization on the respondent's property during working hours. Sheathelm told Warner that "We want to get the boys organized in a company union." One or two nights after making this statement Sheathelm mentioned a petition which was being circulated through .the plant at the time, told Warner that it was "for that company union," and asked him whether he would sign it. Warner agreed to sign "if it will do any good." Again, at about the same time, Sheathelm di- rected Lyman Goodwin, an employee, to see Al Druitt, a foreman, "about a petition he had." Druitt told Goodwin "that the boys were getting together" and that Goodwin "had better sign" the petition. Goodwin refused to do so at the time. However, he consulted Fell, his superior, regarding the matter. Fell told him that "it was just a few of the boys there getting together" and that Goodwin "had 'better go down and sign it." Goodwin then signed the petition. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although it does not appear who arranged for or called it, a meet- ing for the purpose of organizing the' Association was held during the latter part of March or early in April 1937, in a building located across the street from the respondent's plant. This meeting was at- tended by supervisory as well as other employees of the respondent, and the Association was there formed. Officers of the Association were elected by acclamation at the meeting. However, no constitu- tion or bylaws were adopted and no meetings of the Association were thereafter held. Aside from solicitation of membership, which con- tinued thereafter, and one contact with the respondent's president, hereinafter mentioned, there was no activity among the employees on behalf of the`' Association subsequent to this organization meeting. The respondent offered no evidence to deny or explain the activity of its supervisory employees in the formation and administration of the Association. It contends, however, that it was not responsible therefor. Moore testified that until one of the Association's mem- bership petitions was brought to him, apparently by its representa- tives, at which time Moore said he "would have nothing to do" with the Association, he was unaware that it existed. However, Moore's lack of actual knowledge of the Association is immaterial. It is sufficient that other individuals holding positions of authority in the respondent's plant dominated and interfered with the formation of the Association and contributed support to it. The respondent further contends that the activities of the above- mentioned supervisory employees cannot be imputed to the respondent for the reason that they do not have the authority to hire or discharge employees. Final authority in this connection appears to have been vested in Himelberger, the plant superintendent. However, as stated above, Fell is in charge of the respondent's real-estate operations, a capacity which obviously identifies him with the management, and Sheathelm, in addition to being foreman of the shipping department, is, under Himelberger's. supervision, in general charge of production. The other supervisory employees mentioned are foremen, each in charge of a department and authorized to recommend to the plant superintendent the`hiring and discharging of employees. All these supervisory employees are thus held out by the respondent to its employees as part of the management. We find that in their conduct with relation to the Association these supervisory employees were acting for and on behalf of the respondent and that the respondent is responsible therefor.' 8 See International Association of Machinists, Tool and Die Makers Lodge No. 35, affiliated with the International Association of Machinists, and Production Lodge No. 1200. affiliated with the International Association of Machinists v. N. L. P. B.. 110 F. (2d) 29 (C. A. for D. C.), aff'g Matter of The Serrick Corporation and International Union, United.4uto- mobile Workers of America, Local No. 1,59, 8 N. L. R . B. 621. . LANSING GOMIPAN'Y 441 To show the Association's independence of it, the respondent relies upon the fact that Moore refused to confer with the Association's representatives on the occasion, mentioned above.. In ruling on this same argument previously we have said that "where the Board finds interference, domination, and support of the character set forth above . .. the refusal of an employer to bargain with that organization upon request cannot constitute a complete defense to an allegation under Section 8 (2) of the Act." 4 Finally it is contended by the respondent that a finding of violation of Section 8 (2) of the Act is unwarranted because the Association was never formally organized, has issued no membership cards, col- lected no dues, and has been inactive since its first organizational meeting, with the exception of the one attempt to meet with the re- spondent, mentioned above. We think these latter facts are relevant only in determining whether the respondent shall be ordered to dis- establish the Association.' We find no merit in the respondent's contentions. We find that by the acts of its officers and supervisory employees in circulating among the employees petitions for membership in the Association in openly encouraging membership therein, in partici- pating' in' the,'organization meeting thereof, `and`•in advising the-em- ployees that no outside union would be permitted in the plant, the respondent has dominated and interfered with the formation and ad- ministration of the Association, and has contributed support thereto, and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. C. The alleged refusal to bargain The complaint alleges that the appropriate unit for the purposes of collective bargaining with the respondent consists of all production and maintenance employees of the Lansing plant, exclusive of those engaged in a supervisory capacity and office and clerical employees. It is alleged that on or about July 6, 1937, and at all times thereafter, the respondent refused to bargain with the U. A. W. A. as the repre- sentative of a majority of the employees in the unit- claimed to be appropriate. At the hearing it was stipulated that on said date there were 210 production and maintenance employees on the respondent's pay roll, exclusive of clerical workers and those having supervisory *Matter of Ingram Manufacturing Company and Textile Workers Organizing Committee, 5 N. L. R. B. 908. 5 Matter o f Swift and Company, a corporation and Local No. 530, United Packing House Workers Industrial Union, affiliated with the Committee for Industrial Organization, 11 N. L. R. B. 809. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD positions. It was further stipulated that the Board had present at the hearing only 97 membership cards or applications for membership in the U. A. W. A., 27 of which were challenged by the respondent for various reasons. There is no other evidence tending to show that the U. A. W. A. represented a majority of the respondent's employees in an appropriate unit at any time. Since the evidence does'not suffi- ciently establish that the U. A. W. A. had a majority status on July 6, 1937, or at any other time, it is not necessary to discuss the appropriate- ness of the unit alleged in the complaint to be appropriate ; 6 nor do we find that the respondent refused to bargain collectively with the U. A. W. A. as the representative of its employees in an appropriate unit.7 D. The stake Prior to July 15, 1937, there were several conferences between representatives of the respondent and the U. A. W. A. At such conferences, on June 28 and July 6, the U. A. W. A. presented to and discussed with the respondent a proposed contract. A provision therein calling for a wage increase proved to be a stumbling block in the negotiations and on July 9 the respondent's attorneys wrote to the officers of the. U. A. W. A. informing them that, unless this provision could be deleted, further negotiations relative to the pro- posed contract would be useless. Negotiations thereupon ceased. At membership meetings on July 11 and July 13 the U. A. W. A. authorized the calling of a sit-down strike. Shortly after the open- ing of the plant on the morning of July 15, 1937, the strike was called. The striking employees shut off the power for the machinery, advised non-strikers to leave the plant, locked the gates, and took possession of the entire plant, with the exception of the clerical and executive offices. A request by the respondent for surrender of the plant hav- ing been refused by the strikers, the respondent commenced proceed- ings in the Circuit Court for Ingham County, Michigan,. to obtain possession. thereof. The occupation of the plant continued until' the afternoon of July 19 when, the strikers having refused to comply with an injunction requiring surrender of the premises, police authorities forcibly broke into the plant and the strikers thereupon withdrew. While it is probably true that the acts of the respondent's officers and agents in promoting the formation of the Association and in discouraging membership in and activity on behalf of the U. &W 'A. e See Matter of Luckenbach .. Steamship Company, Inc. and Maritime Office Employees Association, International Longshoremen's and Warehousemen's Union, Local 1- 4, 12 N. L. R. B. 1333. P Matter of Continental' Oil Company and Oil Workers International Union, 12 N. L. R. B. 789. LANSING COMPANY 443 served to increase the antagonism attendant upon the negotiations leading up to the strike, the evidence concerning the cause of the strike constrains us to find that the strike resulted, not from any unfair labor practices by the respondent, but from its refusal to agree to the terms of the contract proposed by the U. A. W. A. Since the U. A. W. A. did not represent a majority of the respondent's employees in the unit claimed to be appropriate for the purposes of collective bargaining and since the strike was called in an effort by the U. A. W. A.'' to bring about compliance with the demands set forth in its proposed contract, we find that the strike was not caused by the unfair labor practices of the respondent. The respondent reopened the plant within 4 days after the evacua- tion of the strikers but it was about 2 weeks thereafter before full operations were resumed. The strikers picketed the plant until August 12, 1937, and the strike continued in effect for some time thereafter, as a result of which the respondent hired many new em- ployees. No action had been taken by the U. A. W. A. at the time of the hearing to call off the strike. However, by that time many old employees, including some who had participated in the strike, had returned to work. All those who had. not participated in the sit-down strike and who applied for reinstatement after operations had been resumed, were reinstated or told that they would be given work as soon as openings should occur. E. The discriminatory discharge and alleged lock-out and refusal to reinstate 1. The sit-down strikers At meetings between the respondent and the U. A. W. A. following the eviction of the strikers, the principal issue was the reinstatement of the sit-down strikers. The U. A. W. A. insisted upon their rein- statement in a group as a condition precedent to settlement of the strike. This the respondent refused upon the ground that their con- duct in occupying the plant and refusing to vacate it in response to the injunction deprived the sit-down strikers of the right to reinstate- ment. The respondent, however, did offer to reinstate in a group all its former employees, with the exception of those who had actually participated in the occupation of the plant. It further expressed its willingness to reinstate those in the latter group upon the individual application of each sit-down striker and his apology for his conduct during the occupation of the plant. ' The evidence clearly establishes that the respondent refused the U. A. W. A.'s demand to reinstate the sit-down strikers solely because of their action in occupying the re= spondent's plant and refusing to vacate it pursuant to legal process. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under these circumstances we find that the respondent's action in refusing to reinstate the sit-down strikers does not constitute an unfair labor practice within the meaning of the Act.8 2. Other strikers_ The complaint alleges that at the time of the strike the respondent locked out and thereafter refused to reinstate or manifested an inten- tion not to and did not thereafter rehire certain employees who, it appears, participated in the strike but as to whom there was no proof of participation in the sit-down feature thereof. As stated above, the respondent has reinstated some of these employees and has offered reinstatement to all who have applied therefor as soon as openings should occur. Since, as we have found above, the strike was not caused by the respondent's unfair labor practices, it "is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, in order to create places for them." 9 At the hearing no evidence was offered to.prove that the respondent had in any manner discriminated against these strikers, upon their request for reinstatement, because of their membership in or activity on behalf of the Union. We find that the.respondent.has not discriminated: in regard to,the hire and tenure of employment of its striking employees to discourage membership in a labor organization. 3. The discriminatory discharge of Ed Warner Ed Warner was a night watchman in the respondent's plant. He was a member of the U. A. W. A. at the time the strike was called, but, due to the nature of his work, was granted permission by the U. A. W. A. to continue to perform his duties for the respondent dur- ing the period when the plant was occupied by the strikers. On July 19, 1937, Warner was discharged by Himelberger. The reason for his discharge is apparent from Himelberger's statement made at the time : "Well, Ed, I guess we won't need you night-watching any more. If you are going to belong to that thing, we will get somebody else to do the night-watching." Himelberger did not deny 'making., :this statement. Warner testified that some days later,Himelberger told him that he had not been discharged and that he would be back at work in a few days. Since Warner's request for reinstatement was 8 See N. L. R. B. v. Fansteel Metallurgical Corporation , 306 U. S. 240, mod'g and aff'g as mod . 98 F. (2d) 375 (C. C. A. 7), setting aside Matter of Fansteel Metallurgical Cor- poration and A malgamated Association of Iron, Steeb and Tin Workers of North America, Local 66, 5 N. L R. B. 930. 9N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333, rev'g 92 F. (2d) 761 (C. C. A. 9), and enf'g Matter of Mackay Radio & Telegraph Company, a Corporation and American Radio Telegraphists ' Association, San Francisco Local No. 3, 1 N. L. R. B. 201. LANSING COMPANY 445 thereafter refused by the respondent, we do not attach any significance to the later statement by Himelberger. The respondent contends that, Warner was relieved of his duties in an effort to safeguard and protect the respondent's plant during the strike. Without passing upon the question whether the removal of Warner as night watchman during the strike would have constituted an unfair labor practice, it is clear that Warner was discharged per- manently by the respondent for the reason that he was a member of the U. A. W. A. We find that the respondent, in thus discharging and thereafter refusing to reinstate Ed Warner, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the U. A. W. A., and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent, described in Section III Al B, and E 3 above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has committed certain unfair labor practices. We shall order it to cease and desist therefrom and to take certain affirmative action which we find will effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the Association and has contributed support to it. Inasmuch as formal organization of the Association has never been perfected and all activity in its behalf has ceased, we shall not order the respondent to disestablish it. How- ever, since the Association is subject to the possibility of revival by the respondent at any future time when that course of action might appear desirable to the respondent, we shall order the respondent to refuse to give the Association any recognition as a collective bar- gaining agency if it should ever become active under its present name and form or any other." Having found that the evidence fails to sustain the allegation of the complaint that the respondent refused to bargain with the 10 See Matter of Yates-American Machine Company and Amalgamated Association of Iron. Steel and Tin Workers of North America, Lodge 1787, 7 N. L. R. B. 627. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U. A. W. A. as the representative of a majority, of its employees, in a unit appropriate for the purposes of collective bargaining we shall order that allegation of the complaint dismissed. Since we have found that the employees . of the respondent who went on strike were not discriminated against by the respondent in regard to their hire and tenure of employment, we shall order the complaint, except with respect to Warner, dismissed in so far as it alleges such discrimination. We have found that on July 19, 1937, because of his union mem- bership, the respondent discriminatorily 'discharged and thereafter refused to reinstate Ed Warner and that the respondent thereby dis- couraged membership in the U. A. W. A. and interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. To remedy this so as to effectuate the policies of the Act, we shall order the respondent to offer to Warner immediate and full reinstatement to his former or to a substantially equivalent position without prejudice to his seniority and other rights and privileges. We will further order the respondent, subject to one qualification, to make Warner whole for any loss of pay he has suf- fered by reason of his discharge. The record shows that the amended charge, in which Warner was first named as having been discrimi- natorily discharged, was filed on April 13, 1938, almost 9 months after, his discharge. It does not appear that prior to that time Warner had been named in the negotiations between the respondent and the U. A. W. A. looking to the reinstatement of employees. Under these circumstances, we are of the opinion that back. pay to Warner should, not be directed, as is our usual practice, from the time of his dis- charge 11 We shall order that Warner be made whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he normally would have earned as wages from April 13, 1938, to the date of the offer of reinstatement less his net earnings 12 during said period. "See Matter of Inland Lime and Stone Company and . Quarry Workers International Union of North America, Branch No. 259, 8 N . L. R. B. 944; Matter of Crowe Coal Company and United Mine Workers of America, District No. 14, 9 N. L. R . B. 1149, enf'd, N. L. R. B. v. Crowe Coal Co., 104 F. (2d) 633 (C. C. A. 8), cert. denied 308 U. S. 584. 12 By "net earnings" is meant earnings , less expenses, such as for transportation, room, and board , incurred by warner in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlawful dis- charge 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 re- ceived for work performed upon Federal , State, county, municipal , or other work-relief projects are not considered as earnings , but as provided below in the Order, shall be de- ducted from the sum due to Warner and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county , municipal, or other government or governments which supplied the funds for said work -relief projects. LANSENG COMPANY 447 Upon the basis of the foregoing findings. of fact and upon the.eiitire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Local 182, International Union, United Automobile Workers of America, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. Lansing Company Employees' Association is a labor organization, within the meaning of Section 2 (5) of the Act. 3. By dominating and interfering with the formation and adminis- tration of Lansing Company Employees' Association and contributing support thereto, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Ed Warner and thereby discouraging membership in Local 182, International, Union, United Automobile Workers. of America, the respondent has engaged in and is engaging in an unfair labor practice, within the meaning of Section 8 (3) of the Act.. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respond- ent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. - 7. Except with respect to Ed Warner, the respondent has not en- gaged in unfair labor practices within the meaning of Section 8 (3) of the Act. 8. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Lansing Company, Lansing, Michigan , and its officers, agents, suc- cessors, and assigns shall : 1. Cease and desist from : (a) Dominating or interfering with the formation or administration of Lansing Company Employees' Association or with the formation or administration of any other labor organization of its employees, and from contributing support to Lansing Company Employees' Asso- ciation, or any other labor organization of its employees; 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Discouraging membership in Local 182 , International Union, United Automobile Workers of America, or any other labor organiza- tion of its employees, by discharging or refusing to reinstate any of its employees , or in any other manner discriminating in regard to their 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 their right to self-organization , to form, join, or assist labor organizations, to bargain collectively through•rep- resentatives of their own choosing , and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Refuse to recognize Lansing Company Employees ' Association under its present name and form or any other, as a representative of any of its employees for the purpose of dealing with the respondent concerning grievances , labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (b) Offer to Ed Warner immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges; (c) Make whole the said Ed Warner for any loss of pay that he may have suffered by reason of the respondent's discrimination in regard to his hire and tenure of employment, by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from April 13, 1938, to the date of the offer of reinstatement less his net earnings 13 during said period , deducting, however, from the amount otherwise due to said Warner, monies re- ceived by him during said period for work performed upon Federal, State, county, municipal , or other work-relief projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal , or other government or governments which supplied the funds for said work -relief projects; (d) Immediately post in conspicuous places throughout its plant and maintain for a period of at least sixty ( 60) consecutive days, notices stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a), (b), and (c), and that it will take the affirmative action set forth in paragraphs 2 (a), (b), and ( c) of this Order ; that the respondent's employees are free to become or remain members of Local 182, International Union , United Automobile Work- ers of America ; and that the respondent will not discriminate against 23 See footnote 12, supra. LANSING G0'MPANT 449 any employee because of membership or activity in that organization ; (e) Notify the Regional Director for the Seventh Region, in writ- ing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint in so far as it alleges (1) that the respondent refused to bargain with Local 182, Inter. national Union, United Automobile Workers of America, as the repre- sentative of a majority of its employees in a unit appropriate for the purposes of collective bargaining, and (2) that the respondent has discriminated in regard to the hire and tenure of certain employees, other than Ed Warner, be, and it hereby is, dismissed.