Chicago Casket Co.

In the Matter Of CHICAGO CASKET COMPANY and CASKET MAKERS UNION, No. 19306, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C-879.-Decided March 7,1940 Casket Manufacturing Industry-Interference, Restraint , and Coercion: anti- union statements by supervisory employees ; campaign to break strike ; soliciting and inducing individual strikers to return to work; threatening strikers who failed to return with discharge, and nominally discharging strikers who had not returned by specified date ; engaging police officers to assist in campaign to break strike ; employing persons to spy on Union ; maintaining surveillance of union meetings ; ordered to cease engaging services of police officers-Unit Appropriate for Collective Bargaining : production and maintenance employees , excluding truck drivers, sales, office, and supervisory employees, but including engineer and fireman-Representatives : proof of choice: a majority of the employees in appropriate unit remained out for the duration of the strike, thereby indicating designation of Union as their representative ; documentary proof of membership lost by Union's president ; contention that Union coerced employees to strike and remain on strike, found not supported by the record-Collective Bargaining: refusal to bargain in good faith by campaigning to break strike and undermine Union's support while ostensibly negotiating with the Union for the settlement of the strike ; ordered to bargain collectively with Union as exclusive representa- tive-Stroke: prolonged by the employer's unfair labor practices-Discrimination: charges of discharges for union membership and activity , not sustained ; charges of refusal to reinstate members of Union after strike, not sustained-Reinstate- ment: strikers : company ordered upon application to reinstate or place on prefer- ential list all striking employees who have not been reinstated-Strike^Settlement: settlement disposing of strike held no bar to these proceedings since not accorded substantial compliance by the employer. Mr. Stephen M. Reynolds, for the Board. Mr. Otto A. Jaburek, of Chicago, Ill., for the respondent. Mr. Joseph M. Jacobs and Mr. Harry U. Bernstein, of Chicago, Ill., for the Union. Mr. Theodore W. Kheel, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed in behalf of Casket Makers Union, No. 19306, affiliated with the American Federation 21 N. R. L. B.; No. 28. 235 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Labor, herein called the Union," the National Labor Relations Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated July 23, 1938, against Chicago Casket, Company, Chicago, Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, -49 Stat. 449, herein called the Act. Copies of the complaint and accompanying notice of hearing were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent (1) refused to bargain collectively with the Union as the representative of a majority of its employees in an appropriate unit; (2) urged and warned its employees to refrain' from joining or retaining membership in the Union, questioned them concerning their union activities and affiliations, exercised surveillance over their union activities, and urged and solicited them individually during a strike to abandon their concerted activities and return to work; (3) discharged Victor Lukowski and thereafter refused to reinstate him because he joined and assisted the Union; (4) caused its employees, by the acts above set forth and by other acts, to go out and remain out on strike; (5) refused to reinstate 44 named employees who participated in said strike, because they joined and assisted the Union; and (6) by the foregoing and other acts interfered with. restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On August 1, 1938, the respondent filed its answer to the complaint, in which it admitted certain facts with respect to the interstate char= actor of its business, but denied that it had engaged in the alleged, unfair labor practices. As an affirmative defense, the respondent averred that it executed and complied with an agreement, proposed by the Regional Director and accepted by the Union, settling the strike and disposing of the alleged unfair labor practices. Pursuant to notice, a hearing was held in Chicago, Illinois,•from August 4 through 12, 1938,-before Carl J. Ludwig, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union 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 upon the issues was afforded all parties. At the commencement of the hearing, counsel for the Union moved to amend the charges to allege that the respondent discharged Frank Szarek and Charles Goodall because they joined and assisted 'The charges and amended charges were filed by counsel for , the-Union. When, the charges were filed, the Union was known as Casket Makers Union , Local No 1052,` affili- ated with the Committee for Industrial Organization . Before the amended charges were filed, it changed its name and affiliation to that indicated above. CHICAGO CASKET COMPANY 237 the Union and Kenneth Tohill because he advocated the organization ,of a union among its, employees. Counsel for the Board) moved to .amend the complaint accordingly. The respondent objected to these amendments in so far as they applied to Goodall and Tohill. The Trial Examiner granted both motions. At the conclusion of the Board's case, counsel for the respondent moved to dismiss the com- plaint with respect to 24 of the 44 persons who the complaint alleged had been discriminatorily denied -reinstatement to employment, upon the ground that they had not testified at the hearing. The Trial Examiner denied this motion. Counsel for the Board moved to dis- miss the complaint in so far as it alleged that the respondent dis- criminatorily discharged Victor Lukowski. The Trial - Examiner granted this motion. During the course of the hearing, the Trial Examiner made rulings' on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On September 6, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served. on all the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act, but that it had not engaged in unfair labor practices in discharging 'Frank Szarek, Charles Goodall, Kenneth Tohill, and Victor Lukowski. The Trial Examiner recommended that the - respondent cease and desist from such unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. Exceptions to the Intermediate Report were subsequently filed by the respondent and the Union. Although the respondent' requested oral argument before the Board at Washington, D. C., it thereafter agreed to waive oral argument. Both the respondent and the Union filed briefs. The Board has considered the briefs and the exceptions filed by the respondent and the Union and, in so far as the exceptions are inconsistent with the findings of fact, conclusions of law, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT . Chicago Casket Company, an Illinois corporation, is engaged in the manufacture, sale, and distribution of metal, cloth-covered wood, and hardwood caskets at its plant in Chicago, Illinois. It also sells and distributes undertakers' supplies. From March 15, 1935, to March 15, 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1936, the respondent used 800 tons of raw materials, valued at approxi- mately $300,000, of which 90 per cent were obtained outside the State of Illinois. These raw materials consisted of steel, wood, broadcloth, plush, rayon, velvet, crepes, silks, glue, nails, screws, hardware, glass, casket mountings, lacquers, varnishes, excelsior, woodwool, and copper. During the ,same period -the respondent produced 720 tons of finished products, valued at approximately $850,000, of which two-thirds were transported to points outside the State of Illinois. The respondent maintains a branch sales office in Minneapolis, Minnesota, which is not involved in this proceeding, where two sales- men and one clerk are employed. It also employs some 30 salesmen, -approximately one-half of whom work outside the State of Illinois. II. THE ORGANIZATION INVOLVED Casket Makers Union, No. 19306, is a labor organization affiliated with the American Federation of Labor. It admits employees of the respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion before the strike The Union began to organize the respondent's employees in Feb- ruary 1936. Meetings were held and members were enrolled. The respondent was aware of the organizational activities of its employees. In the early part of March 1936; James Sommerville, factory super- intendent and efficiency expert, instructed Joseph M. Deane, foreman of the metal-trimming department, to "try to find out ... who be- longed to the Union." In obedience to Sommerville's instructions, Deane asked Renis Cameron, an employee, "if he was in the Union." When Cameron answered affirmatively, Deane remarked, "I don't know where you fellows think you are going to get with a union in here. I don't see any need for a union." Bill Hoseth, superintendent, also asked employees if they were members of the Union or expected to join. After inquiring of John Cournoyer, an employee, if he in- tended to join the Union, Hoseth commented, "Well, if you are joining, why, you are going to the slaughter like the rest of them." These and other supervisory officials of the respondent made addi- tional anti-union statements to the employees. Deane warned Kroll that he would "see to it that there isn't any union in that [his] depart- ment." Dick Hardy, foreman, told George W. Black, an employee, "that anybody that joined a union was foolish or crazy; that he never got no benefits from it" and, "If the old man ever finds out that you fellows joined the Union he would close the plant down and move out of the city." CHICAGO CASKET COMPANY 239 None of the foregoing conversations or other similar conversations ascribed to Hoseth, Hardy, and Deane were denied at the hearing. Hoseth and Hardy did not testify and Deane admitted having made many anti-union statements while not denying others. Joseph Miller, foreman, denied certain anti-union remarks attributed to him. We are satisfied, despite his denials,'that he and the supervisory officials mentioned above, spoke to the respondent's employees substantially as. the witnesses called by the Board related. We find that the respondent has, by the above-described activities of its supervisory employees, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The strike; refusal to bargain; interference, restraint, and coercion 1. History In the latter part of 1935 the respondent engaged the George S. May Company, industrial engineers, to assist in placing its business upon a more efficient basis. A representative of this company, James Som- merville, was sent to the respondent's plant and employed by the re- spondent as factory superintendent. Among other things, Sommer- ville introduced a "speed-up" system of production, cut wages by 12 per cent in the metal-assembly and metal-trimming departments, and equalized or adjusted other wage rates. At a meeting on March 13, 1936, the Union considered these and other alleged grievances and appointed a committee of 13 members to discuss these matters with the respondent. A conference was held on the morning of March 16, 1936. The respondent was represented by George W. Richards, its president, Sommerville, and Harry M. Grider, sales manager. Charles Kroll, president of the Union, and Frank T. Butler, an employee, acted as spokesmen for the Union. The testi- mony of witnesses for the respondent and the Union establishes, de- spite many serious conflicts in evidence,2 that at this meeting the Union requested a guarantee against wage cuts, the observance of seniority rights, and an arrangement whereby a committee of the Union would act jointly with the respondent in passing upon discharges, lay-offs, and hirings. The Union and the respondent discussed these demands for approximately 2 hours but were unable to dispose of them to the satisfaction of either party. Immediately following this conference, 2 For example, the Union asserts that it offered to prove that it represented a majority and that it requested and was refused recognition ; Richards and Grader ( Sommerville did not testify ) emphatically deny that these subjects were mentioned . The Union insists that Richards abruptly terminated the conference with the comment "let's break this up" and walked out of the room, while Richards maintains that the Union ended the meeting. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent's employees; with only a few exceptions, walked out of the factory on strike. The respondent maintains that following the conference the union bargaining committee "augmented by approximately-10 other of re- sponderit's employees, coursed through respondent's six-story place of business, floor by floor, and coerced,, intimidated, and compelled the remainder of respondent's employees, more than 100 in number, to quit respondent's said place, of business and join in the strike against it"" While the record is not wholly clear on the precise manner in which the strike occurred, it does appear that representatives of `the Union traveled through the factory and shouted to employees "The strike is on. Come on," "Get out fellows, we are going.to strike," "You will have to go out," "If you don't go away from here, I'll hit you over the head," and other like remarks. The employees left the factory at about 1 o'clock and immediately walked to union headquarters at 777'West Adams Street. They were then informed of the results of the conference with the respondent. Thereafter, the Union established various committees, such t griev, ante, strike, negotiating, food, -finanee, and relief. In addition, it appointed picket captains and began to picket the respondent's. plant on the following day. Representatives of the Union and the respondent met several. times at intervals of 2 or.3 days following` the strike. All parties agree that the Union made the same,demands and that the, respondent adhered to the position announced on March 16. Richards testified that "we could not come to any agreement because we could not agree to the things they wanted." 8 Richards admitted that at the conference preceding the strike and during the meetings following the strike, he said to the union com- mittee, "I think you had better all go back to work." He also ad- 'mitted that he had tendered no counterproposals to the Union "except for them to come back to work." Kroll testified, and we find, that the union committee was informed by the respondent "that we were all wrong and we should go back to work as we left if we want our. jobs back, because the company will not stand for it; that the plant will be reopened and if we.don't go back to work that some- one else will take our jobs and we will be left out." The respondent not only instructed its employees "to go back to work" but enforced this summons with a relentless campaign to break the strike. Richards conceded that'the respondent "made every 8 The Union asserts that it presented a proposed written contract at the first of these meetings which the respondent refused to consider. Richards stated, when confronted with a'copy of this contract, "I don't rememhei that" and "I don't believe I ever did [see the contract before].". The contract provides that wage rates shall not be reduced during the life of the agreement, that employees shall not be discriminated against for union activity, that grievances shall be disposed of as set forth in the contract, and that lay- offs and rehirings shall be made in accordance with principles of seniority. CHICAGO CASKET COMPANY ' 241 effort 'possible to get them [the strikers] back [to "work]." These efforts were initiated shortly after the strike had begun. On March 21, 1936, while negotiations with the Union were in progress, the respondent sent the following letter to each striker : To ALL EMPLOYEES : An investigation convinces us that the large majority of the employees of the Chicago Casket Company who quit their em- ployment when the strike vas .instituted last Monday did so against their will. We have therefore decided to re-open the plant next Monday, March 23, 1936 at 7:30 A. M. Because of the fact that we have been shut down for almost a week, we will not be able to resume on full schedule and will reinstate workers who apply as we can use them. If you desire to return to work under the same conditions and same wages, please call at our plant Monday Morning at 7: 30 A. M. and we will try to put you to work then and if not then, as soon as we are able. If you do not report on Monday, we will assume that you do not wish to return and will strike your name from our records and fill your place permanently when the occasion arises. Company officials will be at the plant on Sunday, March 22nd from 9: 00 A. M. to 12: 00 noon if you wish to telephone and make arrangements to report on the following day. Yours truly, CHICAGO CASKET COMPANY, By GEO. W. RICHARDS, President. This letter succeeded in persuading some employees to return to work. When the respondent opened its plant on March 23, 1936, there were approximately 24 old employees (in the unit found appropriate below) on its pay roll.4 The pay roll also included 44 new employees. Supplementing its letter of March 21, 1936, in which Richards in- formed each employee that "If you do not report on Monday, we will assume that you do not wish to return and will strike your name from our records and fill your place permanently when the occasion arises," the respondent sent the following telegram to Frank Butler at union headquarters : PLEASE NOTIFY ALL FORMER EMPLOYEES THAT AFTER WEDNESDAY APRIL FIRST NINETEEN THIRTY SIX THE CHICAGO CASKET COMPANY WILL NOT BE RESPONSIBLE FOR ANY CLOTHING TOOLS OR OTHER PROPERTIES 4 This figure is taken from exhibits identified by the respondent and introduced into evidence by the Board. Witnesses called by the Board maintained that certain of the 24 old employees did not return to work until a later date although , admittedly, they returned before the strike ended 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LEFT AT THE FACTORY BY THEM PLEASE HAVE FORMER EMPLOYEES CALL FOR THEIR BELONGINGS AS QUICKLY AS POSSIBLE. CHICAGO CASKET CO. NOTE.-A COPY OF THIS NOTICE WILL BE MAILED TO.ALL FORMER EMPLOYEES. [ Italics ours ] As indicated, copies of this telegram were sent to the strikers. In addition to the letter and telegram, agents of the respondent made personal visits to the homes of employees and vigorously peti- tioned them to return to work. Merle Zeigler, an office employee, and Price, factory superintendent, visited Betty Maize, an employee, and advised "that I better change my mind about the strike and come back to work or I'll be fired." Two weeks later they called to inquire if she had decided to come back to work. When she replied that she had not so decided, Zeigler remarked, "You'll be sorry because you'll never win the_ strike." Zeigler also visited Laura LeBeau and Howard Gaines.5 Frank Zugschert, a witness called by the respond- ent, explained that "Mr. Swanson, that foreman of mine, and this officer, I don't know what his name is, they come out to my home on Monday night and tell me that all of the men from the factory is starting already to work, and they say that I have to come in other- wise I have to stay home." Counsel for the Board inquired of Grider, the respondent's sales manager, "Did you ask any of the strikers to come back to work?" Grider responded: "If I would meet them; when I went out to lunch I spoke to all of the strikers I saw." Ed- ward Mallett, Charles Goodall, and William Hood, employees, con- firmed that Grider had met and solicited them to return to work. In other ways the respondent sought to dissuade employees from remaining on strike. During the third Week of the strike, while Renis Cameron was serving on the picket line, he was told by Zeigler that "I might as well go back to Paris, Illinois, where I come from because I would never get in the shop anyway." Sommerville in- formed Cournoyer while he was on the picket line, "We don't have to hire you back." The respondent enlisted the services of officers attached to the Chicago police force to assist in its efforts to break the strike. A police officer asked Black during the strike "Why don't you fellows go back to work?" and added, "You fellows are damn fools the way you are going on around here. They can hire carloads of scabs to come in here and take your jobs." On occasions while Black was on the picket line, a police officer would make such remarks to him as "You little son-of-a-bitch, go on." Police officers entered union headquarters during the strike and inquired; "What is this, a com- munist meeting." About 4 or 5 weeks after the strike had begun, Cameron and two other strikers were stopped by police officers as I Upon the basis of the record in this case , we find that Zeigler acted for the respond- ent in his relations with the Union. CHICAGO CASKET COMPANY 243, they were walking by the factory after working hours. The police- men took them to the corner of Sangamon and Washington Streets where George Richards, Marcus Richards, the respondent's secretary- treasurer, Crider, Price, and Sommerville were standing. Grider then advised these employees that if they "would get away from the shop and stay away from the shop that he wouldn't press any charges against us. He says, `Now, we have got plenty of money behind us. We are going to smash your strike and your union, too, before we are through with you."' Neither Sommerville nor Price appeared at the hearing; George and Marcus Richards 6 testified but did not deny this incident; and Grider merely denied that he had told any striker that "The company has plenty of money and will smash your strike and your union." He did not deny that police officers stopped these strikers and brought them to the officials of the respondent named above. We find that the incident took place substantially as Cameron described. Two police officers accompanied by Al Sachs, an office employee, came to George Black's home with a warrant for the arrest of his wife. Mrs. Black helped cook for the strikers and assisted in picket- ing during the strike. When Black opened the door, Sachs said to the policemen, "That's her." The officers explained that "Mr. Rich- ards told us to throw you in the police station over night." "When they seen that she was sick . . . they said, `You appear in court to- morrow morning."' The following morning, when she calve to court, no one appeared against her and the case was dismissed. Sachs did not testify at the hearing nor did Richards deny that he had instructed the police as stated above. An affray between strikers and non-strikers took place in front of the respondent's plant on or about April 9, 1936. The evidence in the record pertaining to this disturbance is not complete and respon- sibility cannot be determined.7 During this affray, Cichon, an em- ployee hired during the strike, was arrested and placed in a patrol wagon with strikers who had been arrested. Presently, the police officer who arrested him "called me out" and "questioned me as to whether I was an employee or not." Cichon assured the officer that he was an employee. "Then he went up and talked to Merle Zeigler, asked him if he could recognize me, which Merle did" and then "he 'Marcus Richards testified that if he was asked the questions propounded to George Richards and Grider concerning what was said at the meetings between the Union and the respondent, that his answers would be substantially the same. 7 The respondent knew beforehand that a disturbance was likely to occur on this day Tohill testified, and his testimony was not contradicted, that Sommerville told him that "they [the respondent] had gotten word and were expecting trouble" Edmund Cichon, who was employed during the strike, explained that the respondent "herded" the employees in the receiving room near the gates leading from the plant and then let them out en masse. The disturbance ensued. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD let me go." Edward Mallett, a striker, had a similar experience. He and George Kozla ran into an alley and were pursued by a police officer who "pulled out a gun and he said, `Stand right where you're at."' Zeigler, who had either followed Mallett and Kozla or had come upon them thereafter, said to the police officer, "Take both of these fellows in." The officer thereupon put them in the patrol wagon. "Then Mr. Grider came along, and he looked in the wagon. Just then he happened to see one of the fellows that didn't work there, that wasn't on strike a fellow that didn't work there, and he said to the officer, `Not that fellow. Take him out.' So he took him out . . . ." As mentioned above, Zeigler did not appear at the hearing and, although Grider testified, he did not deny the foregoing incident. Several months after the strike was settled, Sommerville informed Tohill, while out with him one evening, "that he thought that the rioting, it wasn't the fellows that was striking, but it was the police that were behind it, because they had stopped paying the police, and the police thought they could make money and they created a riot, that they would have them back again and pay them." Richards was questioned by counsel for the Board on the alleged payment of money to police officers for assistance during the strike. He testified as follows : Q. The police were present at your plant for quite a period of time during the strike, were they not? A. Oh, yes; I saw them around there for some time. Q. Do you know whether any money, or any gratuities what- ever might have passed from any officer of the company to the police for their services in protecting your property? A. Well, I don't know. I know I didn't pay any of them. Q. Did you hear about any money being appropriated for that purpose from the company's treasury or petty cash box, or what- ever it is? A. I wouldn't know. Q. You don't know? A. No, sir. Q. Would you say that no money ever did pass? A. Well, I don't know, I am not sure. In the light of the foregoing, we find that the respondent paid for and obtained the assistance of police officers attached to the Chicago police force in its efforts to break the strike. As president of the respondent and actively in control of its operations, Richards would, in our opinion, know whether or not the police received payment from the respondent. Yet, in the face of testimony to the effect that the police were paid, Richards was unwilling to deny and in fact CHICAGO CASKET COMPANY 245 alleged that he was not "sure" whether the respondent had paid money to the police. Tohill's conversation with Sommerville, which was uncontradicted, indicates that the police received payment at least before the disturbance on April 9, 1936.8 And the activities of the police, viewed particularly in the light of the respondent's deter- mination to break the strike, confirms the conclusion that they were paid. Such activities were not, for the most part, necessary for the preservation of law and order. It was not essential for the police in the maintenance of order to advise and threaten employees to return to work, to address pickets in abusive language, to arrest and release persons on the respondent's direction, and in other ways un- duly to interfere with the conduct of the strike. These officers of the Chicago police force functioned not as guardians of the law but as agents of the respondent. The respondent also enlisted the services of at least two employees to spy on the Union and report on its activities. Deane testified that Sommerville told him during the strike "that he had a couple of boys out there that was keeping him posted." Subsequently, Ray Stone, an employee told Deane that he had acted as informer for the respondent. Tohill, who was hired during the strike, testified that Deane told him "that they [the respondent] had men on the outside tell them what was going on" and that after the strike Walte Groebe, an employee, admitted to him that "lie was going to meetings and getting the stuff that they were holding at the meetings for the com- pany." Neither Sommerville, Stone, nor Groebe testified at the hearing. Wealer related that during a meeting of the Union at a hall on North Avenue and Damen Street, which is several miles from the respondent's plant, he observed Grider, Harris, Sachs, and Sommer- ville seated in an automobile parked diagonally across the street from the hall "watching the people that were going into the meeting." George Kozla, all employee, testified that he saw a car with Grider, Price, and some others drive near the meeting hall and "when we started to walk over towards them, why, they pulled away." Of the persons allegedly engaged in this surveillance, only Grider ap- peared at the hearing. He gave the following testimony on direct examination : Q. Mr. Wealer testified that you were present in an automo- bile with certain other persons at or near the meeting hall in the vicinity of North Avenue and Damon [Damen]. The testimony was undenied since Sommerville, who was no longer in the respondent's employ at the time of the hearing, did not appear as a witness. No proof was intro- duced by the respondent to show that Sommerville was unavailable and no request was made for a subpena to obtain his presence although the respondent requested and obtained a subpena for another witness 283032-41-vol 21--17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. That would be possible because I go home that way. Q. Well, were you parked in an automobile in the vicinity at or near the meeting hall? A. I don't see why we should park there. Mr. REYNOLDS. I object to that and I ask that the answer be stricken. Mr. JABUREK. Just let me ask him the question again. Q. (By Mr. JABUREK.) The question is: Were you parked there? A. No, sir. We are satisfied, nonetheless, that Grider and the others engaged in surveillance of the union meeting and we so find. The employment of labor spies and surveillance of union meetings are consonant with the other activities carried on by the respondent in its campaign to end the strike. On April 15, 1936, the respondent applied to a State court of Illinois for a temporary injunction restraining or restricting the Union in picketing the factory.9 While the application was pending, a representative of the United States Department of Labor, J. L. O'Connor, intervened and attempted to settle the strike. Several meetings were held and proposals advanced but ultimately to no avail. While these negotiations were pending, the suit for an in- junction was postponed. During this period the parties decided, as Richards testified, "that the pickets should be taken off for a week, at least" since "there was a meeting pending with Mr. O'Con- nor." 10 Accordingly, the pickets were removed on Monday, April 20, 1936, by agreement and remained away at least until Saturday, April 25, 1936. During this interval, according to an exhibit identified by the respondent and introduced into evidence by the Board, only one employee, C. Engberg, returned to work. Another attempt to mediate the strike, which also proved fruitless, was made by John Fitzpatrick, president of the Chicago Federation of Labor. On May 5, 1936, the Union filed charges with the Board alleging violations of Section 8 (1), (3), and (5) of the Act. There- after, the Regional Director intervened and proposed a settlement agreement which was accepted by the Union and the respondent. 8 The injunction papers were not introduced into evidence and we cannot determine pre- cisely what was sought thereby lO It was alleged during the heaiing that the pickets were removed in order to establish that the employees were not coerced into remaining on strike Counsel for the Board asked Richards "Don't you know that one of the reasons for the Union removing the pickets during the strike was to make the showing that the employees on stake were not intimidated by the pickets Didn't you understand that to be one of the purposes in 1 emov- ing the pickets " Richards replied "I think the removal of the pickets would help along that line " CHICAGO CASKET COMPANY 247 This settlement agreement, which ended the strike, is discussed in detail below. 2. The appropriate unit The complaint alleges that the appropriate unit consists of all the production and maintenance employees of the respondent, excluding supervisory, sales, and office employees. During the hearing, counsel for the Board and the respondent stipulated that "the appropriate unit in the respondent's place of business includes all of the employ- ees in the plant except office, supervisory, salesmen, and executives; that the question as to whether the engineer and fireman belong to the appropriate unit, as to whether the four chauffeurs belong to it, and as to whether supervisory employees who actually work in pro- duction belong to it shall be left for future determination." The undecided issues were not disposed of during the hearing. The truck drivers or chauffeurs have for many years been mem- bers of International Brotherhood of Teamsters and Chauffeurs, Local 705. They are engaged in hauling raw materials to the plant and finished products from the plant to railway and bus-shipping depots. They did not join in the strike on March 16, 1936. We are of the opinion that they should be excluded from the appropriate unit. The engineer and fireman work in the engine room where the engi- neer tends the power plant and the fireman shovels coal and removes ashes from the furnace. At the time of the strike the engineer was a member of an engineers union which refused to permit him to take part in the strike.11 The fireman struck with the Union but returned to work in a few days. The Trial Examiner concluded and we find that as maintenance employees, the engineer and fireman properly belong in the appropriate unit. The respondent contends that such supervisory employees as work in production should be included within the appropriate unit. Ad- mittedly these employees have supervisory duties."- None of them ever joined the Union. Upon request of the only labor organization involved they should be excluded from the appropriate unit as supervisory employees. We find that a unit composed of the production and maintenance employees of the respondent, excluding truck drivers, sales, office, and supervisory employees, but including the engineer and fireman, con- stitute a unit appropriate for the purposes of collective bargaining 11 The name of this organization does not appear in the record ^ These working supervisory employees ai a Stella Niemes in charge of the sewing girls, Harry Hansen, who supervises the shipping clerks, and Paul Hruby, foreman of the cabi- netmakers and woodworkers. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 3. Representation by the Union of the majority in the appropriate unit The respondent's pay roll for March 15, 1936, contained the names of 131 employees within the appropriate unit. The Union asserts that it represented a majority of these on and after March 13, 1936. However, it was unable to produce its membership records in support of this claim.13 Witnesses for the Union testified, nonetheless, that approximately 100 employees had joined the Union before the end of its meeting on March 13, 1936. Witnesses for the respondent placed the number of union members at a substantially lower figure. We do not, in the light of the above facts, find that the Union represented a majority prior to March 16, 1936. On March 16, 1936, all of the respondent's employees, with only a few exceptions, walked out of the plant on strike. A majority of the employees in the appropriate unit remained out until the strike was settled on June 4, 193614 The respondent insists, as mentioned above, that its employees were "coerced, intimidated, and compelled" to participate in the strike. It is true, as we have observed, that repre- sentatives of the Union shouted to employees "Get out, fellows, we are going to strike" and "You will have to go out." In a few in- stances, threats were used to induce employees to leave the building. It is also true that the strike was spontaneous in the sense that it had not been previously decided upon by the Union. However, in their opinion the employees had genuine grievances against the respondent. These alleged grievances were considered at the union meeting on March 13, 1936, and a committee was appointed to discuss them with the respondent. That the strike grew out of the unsatisfactory dis- position of these grievances is confirmed by the testimony of Howard Gaines, an employee who joined the strike but thereafter returned to work and was made a foreman. Gaines was called as a witness by the respondent and testified that the employees' fear "that Mr. Sommerville was there to cut the wages" . . . "caused the strike more than anything else." 13 Kroll, president of the Union and custodian of the Union's records , lost the member- ship records when evicted from his home for the nonpayment of rent. 14 The complaint names 44 strikers whom the respondent never reinstated Two of these 44 (Ralph Scalise and Anna Dunne ) were not on the pay roll for March 15, 1936 Fol- lowing the termination of the strike, the respondent reemployed 27 of the strikers To- gether, this makes a total of at least 69 employees who were out for the duration of the strike. This figure does not include 12 employees not named in the complaint who were not reemployed during the strike. The record does not reveal why the names of these employees were omitted from the complaint CHICAGO CASKET COMPANY 249 Following the strike, the employees convened at union headquar- ters and were there apprised of the results of the conference with the respondent. Thereupon they reaffirmed their determination to strike by establishing various committees and other machinery for the successful conduct of the strike. There is no proof in the record that any employee was coerced into remaining on strike and, in fact, approximately 50 employees re- turned to work during the strike. Etta Ray testified that she "was afraid to go back." But when asked why she was afraid, she replied, "Oh, I don't know. I was just afraid, that's all." Despite this alleged fear, she went back to work during the strike. Irene Tietjens also testified that she was afraid to go back to work. She also ad- vanced no reason for her fear and also returned to work during the strike. Bernadette Bernau, a witness called by the-respondent, was asked by counsel for the Board, "did you feel that you would be in any danger if you didn't remain in the strike with the other strikers?" and answered, "Well, personally, myself, I can't say that I ever thought that." On the other hand, the respondent, as Richards testified and as we have described above, "made every effort possible" to get its employees back to work. Despite these strenuous efforts, more than a majority of the employees in the appropriate unit remained on strike until it was settled on June 4, 1936. For one workweek, from Monday, April 20, to Saturday, April 25, 1936, the Union removed its picket line. Yet only one striker returned to work during this period. We are satisfied, in the light of the foregoing facts, that the em- ployees who remained on strike until June 4, 1936, did so of their own free will, without having been "intimidated, coerced, or com- pelled" by the Union or its representatives. In so doing, these em- ployees affirmatively designated the Union as their bargaining rep- resentatives.16 Had they desired, these employees had ample oppor- tunity to renounce the Union and return to work. As Richards testified, "The doors were always open for them [strikers] to come in. We would have taken them back. They just had to apply for work, that is all." Since a majority of the employees in the appropriate unit re- mained on strike for its entire duration, we find that on March 16, 1936, and at all times thereafter, the Union had been designated and selected by a majority of the respondent's employees in the appropri- ate unit. Pursuant to Section 9 (c) of the Act, it was, therefore, on that date, and at all times thereafter, the exclusive representative 16 Cf. Matter of United Fruit Company and International Longshoremen and Ware- housemen's Union, District #3, Local # 901, affiliated with C. 1 0 , 12 N. L. R B 404 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of all the employees in such unit for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 4. Conclusions with respect to the refusal to bargain; the strike; interference, restraint, and coercion The complaint charges that the respondent refused to bargain with the Union on March 16, 1936, and thereafter, and precipitated, by its refusal to bargain on March 16, 1936, the strike which fol- lowed. We have found, however, that the record does not establish that the Union represented a majority of the employees in the appropriate unit prior to the strike. The strike grew out of a disagreement over certain demands pre- sented by the Union. Since the strikers ceased work as a result of a labor dispute, they. remained employees within the meaning of the Act and were entitled to its protection.16 And, inasmuch as a majority in the appropriate unit had, following the commencement of the strike, designated the Union as their bargaining representa- tive, the respondent was required, under the Act, to bargain with the Union as the exclusive representative of all the employees in the appropriate unit. We are of the opinion that the respondent failed to discharge its obligations under the Act. We have mentioned above that the respondent held several con- ferences with the Union after the strike began. Although the evi- dence in the record pertaining to these conferences is not clear, the respondent unmistakably revealed by its activities during these negotiations that it was unwilling to bargain with the Union in good faith or to treat with it as the exclusive representative of its employees. The respondent was opposed to the Union and its opposition ante- dated the strike. After March 16, 1936, this hostility was translated into a vigorous campaign to break the strike. • This campaign began almost immediately after the strike was declared. At an early con- ference following the strike, the respondent advised a union coin- mittee, As Kroll testified to "go back to work . . . if we want our jobs back, because the company will not stand for it; that the plant will be reopened and if we don't go back to work that someone else will take our jobs and we will be left out." This sentiment was con- 16 Cf National Labor Relations Board v Mackay Radio & Telegraph Co, 304 U. S 333 (1938 ) rev'g 92 F. (2d) 761 (C C A 9, 1937 ), and enf'g Matter of Mackay Radio it Telegraph Company, a Corporation, and American Radio Telegraphists ' Association, San Francisco Local No. 3, 1 N. L. R. B. 201 ; Jeffery -DeWitt Insulator Co v. National Labor Relations Board, 91 F (2d ) 134 (C. C A. 4, 1937), cert. den, 302 U S 731 ( 1937 ), enf'g Matter of Jeffery -DeWitt Insulator Company and Local No 455, United Brick and Clay Workers of America, 1 N L R B 618. CHICAGO CASKET COMPANY 251 veyed to each striker in a letter on March 21, 1936, threatening that if they did not return to work by March 23, 1936, "we will assume that you do not wish to return and will strike your name from our records and fill your place permanently when the occasion arises." Ostensibly, the "occasion" had arisen by March 31, 1936, for on that date each striker received a copy of a telegram, in which they were addressed as former employees and advised to remove their tools from the plant. The letters and telegrams were supplemented by personal visits to homes of strikers during which they were advised to return to work at the risk of losing their jobs if they failed to do so. They were warned that they would not win the strike. The campaign to break the strike took other forms. Police officers paid by the respondent, abused and disparaged the strikers and advised, warned, and threatened them to abandon the strike. Upon instructions from the respondent, these police officers arrested strikers and released nonstrikers and in other ways unduly interfered with the activities of the strikers. Spies were employed by the respond- ent to obtain "the stuff that they [the Union] were holding at the meeting" and agents of the respondent maintained surveillance over union meetings. The Act was designed to encourage the settlement of labor dis- putes, including such disputes as have resulted in strikes," through the orderly processes of collective bargaining. To that end, it re- quires an employer to bargain exclusively with the representative of a majority of its employees in an appropriate unit. With the strike but a few days old and while negotiations for its settlement were in progress, the respondent, disregarding its duty to deal exclusively with the Union, began soliciting its employees individually to re- turn to work. Not only was the respondent derelict in discharging its duty to treat exclusively with the Union, but it revealed in this way and by other acts designed to break the strike, that it was not prepared to bargain with the Union in good faith. Collective bargaining, as contemplated by the Act, means more than an idle exchange of pro- posals. It means that the employer and the Union shall earnestly and sincerely consider the proposals each has advanced with the end in view of reaching a middle ground upon which both agree.18 Par- ticularly during a strike is it essential that these requirements be observed. Yet, while the respondent was conducting negotiations 11 Section 3 of the Act provides that the term "employee shall include any employee . . . whose work has ceased as a consequence of, or in connection with, any current labor dispute." 11 See Globe Cotton Mills v National Labor Relations Boa) d, 103 F (2d) 91 (C C A 5) enf'g Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6 N. L R. B 461; Matter of P. Lorillard Company, Louisville , Kentucky, and Local Union No 201, Tobacco Workers' International Union , 16 N L R. B 703 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Union for the settlement of the strike, it was at the same time bending every effort to force the employees to abandon the Union and return to work.- Proceeding jointly with the collective bargaining conferences, this campaign to undermine the Union's support and break the strike, unmistakably revealed that the respond- ent was not fulfilling its obligation to bargain collectively with the Union.2° We find that the respondent has refused to bargain with the Union in good faith or to treat with it as the exclusive representative of the employees in the appropriate unit. We also find that the re- spondent, by its refusal to bargain with the Union and by its cam- paign to break the strike, as above described, has interfered with, restrained, and coerced its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. We further find that the respondent's unfair labor practices were a substantial factor in prolonging the strike. C. The strike settlement agreement; interference, restraint, and coercion As we have mentioned above, the strike was settled by agreement between the respondent and the Union on June 4, 1936. The settle- ment was proposed in a letter to the respondent on June 2, 1936, from the Regional Director, who intervened after charges had been filed. This letter provided, inter alia: 2. You [the respondent] will employ as many of the people [strikers] as possible and as rapidly as possible. You are to be the sole judge as to how rapidly the people can be absorbed. 3. During the period of one (1) year from this date, you will give preference to the people that are now on strike. If any of these people are available who can do the work required, they will be offered employment before any new people are employed. 7. All legal action by the union or the firm will be withdrawn. With minor changes, this proposed settlement was accepted by the respondent and the Union. The respondent relies upon this settlement agreement as a defense to the unfair labor practices. As a rule we will give effect to a "An employer, of course , is to be encouraged in making every legitimate effort to settle a strike. But this desirable end, as the Act recognizes , cannot be accomplished by deny- ing to employees the rights guaranteed in Section 7 of the Act 20 Cf Matter of Chicago Apparatus Company and Federation of Architects , Engineers, Chemists and Technicians, Local 107, 12 N L R B 1002 ; Matter of Blanton Company and United Oleomargarine Workers Local Industrial Union No 1189, 10 N L R B 951. CHICAGO CASKET COMPANY 253 settlement agreement consummated through the offices of agents for the-Board since the effective administration of the Act requires that the Board's agents have the respect and confidence of labor organiza- tions and employers with whom their work brings them in contact." The Union maintains, however, that the respondent failed to honor this agreement and consequently cannot urge it as a bar to this proceeding. It is, of course, a necessary corollary to the policy we have followed in observing settlement agreements that the respondent fully comply with its terms. Moreover, an agreement which com- promises public policy must be strictly construed. The question before us for determination, therefore, is whether the respondent has sufficiently fulfilled its obligations under the settlement agreement. During the year following the settlement of the strike, the respond- ent engaged 32 employees.22 Of these, 27 were strikers and 5 were outsiders. The Union contends that there were strikers among those not reemployed who were qualified to fill the positions awarded to the five outsiders and that these strikers should have been given preference in employment. The respondent insists "that there was no one among the former strikers who in the opinion of respondent could `do the work required."' The five positions filled with outsiders were : (1) hardware finish- ing, (2) top coating, (3) prime coating, (4) rubbing, and (5) wet sanding. Joseph H. Wealer, a striker, maintained that he could "do the work required" of a prime coater or a top coater. Wealer related that, "When I first started there in 1934, they put me in the priming booth. Practically for the first year I done nothing but priming. After that they put me on color coating. I done that for the remainder of my employ over there every day, and I also done top coating for parts of the day practically for two hours of the day for the last year that I worked there." Before Wealer began to work for the respondent, he had obtained 16 years' experience as a sprayer. "An experienced sprayer," «Tealer explained, "should be able to do a full job. By that I mean he should be able to take a piece of raw material and put a finished coat on it, that is, priming, coloring and top coat." Richards did not deny that Wealer had worked as a primer in 1934 and had done top coating for 2 hours a day, in addition to color coating, thereafter. He admitted that priming was only "a =i Matter of Shenandoah-Dives Mining Company and International Union of Mine, Mill and Smelter Workers, Local No . 26, 11 N L R B. 885; Matter of Godchaux Sugars, Inc., and Sugar Mill Workers' Union, Locals No. 21177 and No 2188 affiliated with the American Federation of Labor, 12 N L R B 568 , Matter of Hope Webbing Company and Textile Workers Organizing Committee of the C 1 0 , Local No 14, 14 N L R. B 55; Matter of Harry A Half, doing business as The Halff Manufacturing Company, and Interna- tional Ladies' Garment Workers ' Union, 16 N L R B 667. 22 Approximately 50 strikers in the appropriate unit returned to work during the strike 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD slightly different method of spraying" from top coating and color coating. In explaining his failure to engage Wealer either as a top coater or a color coater, Richards averred that "we did not feel obligated" to reemploy a striker for any available position "If he had not done that work previous to the strike." This interpretation of the agreement clearly is not warranted by its terms. The agreement provides that "If any of these people [strikers] are available who can do the work required, they will be offered employment before any new people are employed." Ob- viously Wealer could "do the work required" and, in fact, had done top coating for 2 hours a day before the strike. In its brief, the respondent asserts that "in the opinion of respondent" none of the. strikers could "do the work required" for any of the available posi- tions. The agreement, however, does not contain the modifying phrase, "in the opinion of respondent," which the respondent would now insert therein. It states baldly that strikers must be offered employment before outsiders if they "can do the work re- quired." Furthermore, Richards did not insist that in his opinion Wealer was not qualified to fill either the job of top coating or prime coating. He contended merely that Wealer did not occupy either position before the strike and consequently the respondent was not "obligated" to engage him. Richards admitted that he made no investigation to determine whether Wealer had as much experience for prime coating as the outsider who was employed.23 It is significant, we believe, that Wealer was active in the Union. He solicited members for the Union, served on bargaining commit- tees which met with the respondent before and after the strike, and in June 1936 was elected recording secretary of the Union. In view of our foregoing discussion, we find that the respondent violated the strike settlement agreement in failing to employ Wealer either as a top coater or as a prime coater. Mislevic, a rubber, was not employed to fill the rubbing vacancy, although he had done that work before the strike. Richards testi- fied that Mislevic neglected to turn in $109.50 worth of piece-rate tickets until a month or so after the strike "on account of," as Mis- levic explained to Richards, "some trouble at home." Richards main- tained that "we did not like that way of doing it, of holding out $109.00, so we did not want Mr. Mislevic back again." Since, ad- mittedly, Mislevic could "do the work required," the respondent breached its agreement in failing to employ him as it rubber. Fur- thermore, Renis Cameron, a striker, testified that he had worked as a rubber for approximately a month in 1931 and at times subse- zs The prime coater was engaged by Price, the factory superintendent, who did not testify at the hearing. CHICAGO CASKET COMPANY 255 quently "when the rubbers wasn't there." While the respondent con- tends that Cameron was not qualified to fill the position, it did not give, him an opportunity to demonstrate whether he could "do the work required" nor did it seek to show in what respect Cameron was not so qualified. Counsel for the Board asked Richards, "Didn't you feel obligated under the terms of the settlement agreement to make an investigation of the qualifications of a striker to do a job," and Richards replied "Whenever we hired a new person we took back persons who had done that kind of work before." It is appar- ent that the respondent followed a procedure of eliminating union members not warranted by the settlement agreement. The respondent claims that the job of wet sanding was created after the strike and since "there was no wet sander out [on strike] so we didn't take any one." Cameron testified that he had done wet sanding after the strike for another concern and that it took him approximately 30 minutes to learn this operation. Wealer corrob- orated Cameron's testimony with respect to the skill required to do wet sanding. Richards averred that wet sanding "is not so simple that it can be learned in 30 minutes." While we are inclined to resolve this conflict in testimony in favor of Cameron, who actually worked as a wet sander, we do not find it necessary in view of the fact that the respondent did not afford any of the strikers an oppor- tunity to demonstrate that they could "do the work required." In other ways, the respondent revealed its continuing hostility to the Union. When Malpede, a striker, returned to work on June 25, 1936, Sommerville and Deane decided, as Deane testified, "that the thing to do was to humble them [the strikers] as much as we possible could, make it appear that we could get along without him [Malpede], that we didn't need him; that we was doing him a favor by bringing him back." A committee of the Union called upon Richards on June 9, 1936, before any of the strikers were reemployed, "to see how soon the people could expect to go back to work." Wealer described the conversation with Richards as follows : Mr. Richards said, "It's really nice to look out on the sidewalk. There is nobody walking up and down with signs on their shoulders any more." He said, "It's really pleasant to look out the window now," real sarcastically. I said, "That's the reason we come over here." I said, "We come over here to dis- cuss your attitude towards the strikers, those that stood on the outside." "Well," he says, "what do you want me to do about it"? We said, "You signed an agreement a few days ago that you would reemploy your people." "Why," he said, "no. What agreement? I don't know anything about any agreement." ... Mr. Rizzo asked him . . . if he could go back to the 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD :all and tell some of the people that they could come back to work. Mr. Richards said, "What do you want me to do, fire these people that have been working for me during this trouble"? He said, "I can't trust you people, anyhow. I may put some of you back to work, then you will start this same thing over again." . . . He says, "I can't trust you people. You follow Charley Kroll around all of the time, and he is misleading you. You ought to take him out in the country and give him a good trimming." Wealer's testimony indicates that Richards, as well as Sommer- ville and Deane, sought to "humble" the strikers. Richards denied the statements attributed to him by Wealer although he did not deny that he met and conversed with a union committee on June 9, 1936. We credit, in the light of Richards' expressed hostility to the Union, Wealer's account of the conversation. In March 1937 Cameron applied at the factory for reinstatement. He was told by Price that "business was awfully slack and that there wasn't any jobs." "As I was coming out of the factory I met Mr. Grider [sales manager] and he talked to me for about 45 minutes. We got into a conversation at the time about unions and organiza- tion, the Wagner Act, and all of that." During this conversation, Cameron remarked that the respondent's plant would be organized some day. Grider replied, "Oh, no, and furthermore, Mr. Richards will move the plant out of the city or spend all of the money he has before he would ever see the plant organized." Grider recalled that he had conversed with Cameron but denied that he had said that Richards would move the plant out of the city before he would permit it to be organized. We are not impressed with his denial and find, accordingly, that he spoke to Cameron as stated above. We find that the respondent has failed to comply with the pro- visions of the settlement agreement and that in consequence cannot urge the settlement agreement as a defense to the unfair labor prac- tices. We also find that the respondent has, by its activities above described, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The alleged refusal to reinstate The complaint charges that the respondent refused to reinstate 44 named strikers after the strike had been settled because they joined and assisted the Union. We do not find that the record sustains these allegations of the complaint. We have concluded in Section III C above, that the respondent breached its agreement with the Union in certain respects, and consequently cannot rely upon the agreement as a bar to this proceeding. However, it does not appear that at the CHICAGO CASKET COMPANY 257 time the agreement was executed the respondent refused to reinstate any of the striking employees because of their membership or activity in the Union. We shall accordingly dismiss the allegations of the complaint. E. The alleged discriminatory discharges Frank Szarek worked for the respondent for approximately 12 or 13 years before the strike. He was employed as a rubber. Szarek joined the Union on March 14, 1936, and went out on strike with the other employees on March 16, 1936. In September 1936, Szarek was reemployed by the respondent, worked for about 2 weeks, and was then discharged. Richards maintained that Szarek was discharged because "he rubbed through the outside coat of lacquer into the color coat making it necessary to refinish some of the caskets." He ex- plained that when Szarek returned to work, "he appeared to hold a great deal of resentment against the company. This mental con- dition he was in seemed to affect his work very much, because he had been a good rubber." Szarek testified that when he returned to work, "I feel that I am in strangers and don't mean anything there." The employees who replaced the strikers, he complained, laughed at him and acted "like they were like the bosses of the owners of this building." He also testified that approximately a dozen caskets had been spoiled during the 2 weeks he worked in September. He surmised that some of the employees had intentionally spoiled his caskets "to keep me out." Szarek was discharged without an opportunity to defend himself although, it appears, he had been reprimanded by his foreman. Ad- mittedly, Szarek was a good worker. In fact, Deane, a foreman, testified that he was "the best rubber in the country." And for 13 years he had rendered the respondent satisfactory service. Yet it is true that Szarek was uneasy when he began working in September 1936 and this appears to have affected the quality of his work. Con- ceivably, his uneasiness might have been attributable to the fact that supervisory employees engaged in a practice of "humbling" strikers. Nevertheless, we are not convinced, although this case is not free from doubt, that the respondent discharged Szarek because of his membership or activity in the Union. Kenneth Tohill was hired during the strike as a metal trimmer. He was discharged in January 1937. The complaint as amended al- leges that Tohill was discharged because he advocated the organiza- tion of a union. In September 1936 Tohill received a wage reduction. He complained to his foreman and other employees about this reduc- tion and remarked that "If they go to cutting wages around here, we should have a union." Richards testified that the respondent "got to a point where they didn't need so many trimmers" and Tohill 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was selected for discharge because he had objected to the wage cut and complained about the manner in which the sewing girls made the "interiors." Tohill admitted that he voiced a complaint about the "interiors." No one was hired to take Tohill's place. We are not satisfied that the evidence pertaining to Tohill's dis- charge establishes that the respondent discriminated against him be- cause he advocated the organization of a union. Charles Goodall joined the Union on March 6, 1936, and, on March 16, 1936, went out on strike. He was reemployed on June 10, 1936, and continued in the respondent's employ until May 1938 when he was laid off. He was told at that time that business was slack and that he would be reemployed if the respondent could use him. Goodall asserts that he had seniority over an employee named Tim McHenry. This was not controverted by the respondent. How- ever, Richards maintained that Goodall was the only "shaper hand" employed by the respondent at this time and that two other employees, Weinert and Swanson, with 49 and 32 years' seniority respectively, could work as shaper hands when needed. It was not shown what position McHenry occupied. Although Goodall participated in the strike, it does not appear that he was active in the Union. Under the circumstances, we find that the respondent has not discriminated against Goodall because of his membership or activity in the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. In order to remedy the respondent's illegal refusal to bargain, we will order the respondent to bargain collectively with the Union. Since the strike was continued because of the respondent's unfair labor practices from March 21, 1936,24 until June 4, 1936, we shall 24 It does not appear clearly in the record that the unfair labor practices in connection with the strike, began before this date CHICAGO CASKET COMPANY 259 in accordance with our usual custom, order the respondent, upon application, to offer reinstatement to all striking employees who have not been reinstated . The offers of reinstatement shall be without prej- udice to seniority and other rights and privileges. Such reinstatement shall be effected in the following manner : All persons hired after March 21, 1936, the date the unfair labor practices commenced, and who were not on the pay roll as of that date, shall if necessary to pro- vide employment for those to be offered reinstatement , be dismissed. If thereupon , by reason of a reduction in the force of employees needed, 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 em- ployees in accordance with the respondent 's usual method of reduc- ing its force , without discrimination against any employee because of his union affiliation or activities , following a system of seniority to such extent as has heretofore been applied in the conduct of the, respondent's business. Those employees remaining after such dis- tribution , for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence , and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions , as such employment becomes, available and before other persons are hired for such work.25 Upon the basis of the foregoing findings of fact and upon the entire record in the proceedings , the Board makes the following : CONCLUSIONS OF LAW 1. Casket Makers Union, No. 19306, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of the respondent, excluding truck drivers , sales, office , and supervisory employees, but including the engineer and fireman , constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 3. Casket Makers Union, No. 19306, was on March 16, 1936, and at all times thereafter has been , the exclusive representative of all the employees in such unit for the purposes of collective bargaining , within the meaning of Section 9 (b) of the Act. 4. By refusing to bargain collectively with Casket Makers Union, No. 19306, as the exclusive representative of its employees in the appro- 'S See Ford Motor Company and International Union, United Automobile Workers of America, Local No 406, 18 N L Ii B 167 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD priate 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 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. 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. The respondent has not discriminated in regard to hire and tenure of employment within the meaning of Section 8 (3) 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, Chicago Casket Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Casket Makers Union, No. 19306, as the exclusive representative of all its production and main- tenance employees, excluding truck drivers , sales, office, and super- visory employees, but including the engineer and fireman; (b) Engaging the services of police officers to interfere with, re- strain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act; (c) In any other manner interfering with, restraining, or co- ercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose 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) Upon application, offer to those employees who were on strike on March 21, 1936, and thereafter , and who have not since been fully reinstated, immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the sec- tion entitled "The Remedy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section and thereafter , in said manner, offer them employment as it becomes available; CHICAGO CASKET COMPANY 261 (b) Make whole the employees referred to in paragraph 2 (a) above for any loss of pay they may suffer by reason of any refusal of reinstatement or placement upon the preferential list required by paragraph 2 (a) above, by payment to each of them a sum of money equal to that which each would normally have earned as wages during the period from five (5) days after the date of application to the date of the offer of reinstatement or placement upon the prefer- ential list, less his net earnings during said period; deducting, how- ever, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work per- formed upon Federal, State, county, municipal, or other work-relief projects, and paying over the amount so deducted 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; (c) Upon request, bargain collectively with Casket Makers Un- ion, No. 19306, as the exclusive bargaining representative of the employees in the unit found appropriate; (d) Immediately post notices to its employees in conspicuous places throughout its plant and offices, and maintain said notices for a period of at least sixty (60) consecutive days, stating that the re- spondent will cease and desist in the manner set forth in 1 (a), (b), and (c), and that it will take the affirmative action set forth in 2 (a), (b), and (c), of this Order; (e) Notify the Regional Director for the Thirteenth 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 allegations of the complaint that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act be, and the same hereby are, dismissed. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order. 283032-41-vol 21-18