Chambers Corp.

In the Matter Of CHAMBERS CORPORATION and ALLIED STOVE MOUNTERS AND STOVE PROCESSORS INTERNATIONAL UNION, LOCAL No. 36 (A. F. OF L.) Case No. C-14418.--Decided March 20, 1040 Stove Manufacturing Industry-Interference, Restraint, and Coercion: inter- rogation by stockholder and director as to employee's union membership and statement that union membership would be a bar to employment; foreman's statement to employee of futility of joining union-Unit Appropriate for Collec- tive Bargaining: all employees exclusive of supervisory, clerical, and salaried employees and employees in engineering department ; unit corresponding to unit defined in consent election agreement-Representatives: proof of choice: majority vote at consent election ; alleged loss of majority not sustained, refusal to bargain occurring prior to defections in membership and causing such defec- tions-Collective Bargaining: announced refusal to incorporate in writing terms to be agreed on; preconceived determination to avoid any agreement. refusal to agree on existing practices ; "counterproposal" to maintain status quo without agreement; refusal to adopt suggestions as "unnecessary" because restating legal obligations or existing policies ; reiterations that contract unnecessary, no legal compulsion to agree, and agreement might be impossible ; respondent's ex- pressed unwillingness to commit itself to any settled policies. reference to alleged legal irresponsibility of unincorporated associations; insinuations at con- ferences of hostile action and attacks on union representatives and member- ship ; failure to arrange, on request, for further meeting for contract negotia- tions; ordered to bargain and to embody understandings in written agreement- Agreement: for settlement and consent election : evidence of company domina- tion preceding, considered because of respondent's violation of agreement and purpose of election by failing to bargain with union receiving majority vote- Company-Dominated Union: solicitation on company premises with knowledge of supervisory employees ; meeting held on company time and property : shutting power off for ; attended by foremen ; statements by supervisory employees in favor of-Discrimination: charges of, not sustained as to 20 persons; charges of, sustained as to failure to grant equal work during lay-offs to one fore- man ; duty not to discriminate against foreman for union membership in absence of non-discriminatory rule requiring foremen to refrain from union membership and participation in inter-union rivalry-Back Pail: awarded. Mr. Colonel C. Sawyer, for the Board. Mr. Frederick A. Fischel and Mr. Max H. Weinberg, of Chicago, Ill., Mr. Francis M. Curlee, Mr. Richard F. Moll, and Mr. Alden A. Stockard, of St. Louis, Mo., and Mr. Wilbur F. Pell, of Shelbyville, Ind., for the respondent. Mr. William Murrell Denney, of Shelbyville, Ind., and Mr. Edward J. Winters, of Belleville, Ill., for the Stove Mounters. Mr. Joseph Forer, of counsel to the Board. 21N L.R.B,No 83. 808 CHAMBERS CORPORATION DECISION AND ORDER 809 STATEMENT OF THE CASE Upon charges and amended charges duly filed by Allied Stove Mounters and Stove Processors International Union, Local No. 36 (A. F. of L.), herein called the Stove Mounters, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eleventh Region (Indianapolis, Indiana), issued its complaint dated December 7, 1938, against Chambers Corporation, Shelby County, Indiana, herein called the respondent, alleging that the re- spondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notices of hearing and postponement of hearing were duly served upon the respondent, the Stove Mounters, and Employees Welfare Association, herein called the Association. Concerning the unfair labor practices, the complaint alleged, in substance, that the respondent (1) discouraged membership in the Stove Mounters by discharging and refusing to reinstate 4 of its employees 1 and discriminating in regard to the hire and the tenure, terms and conditions of employment of 17 employees 2 on account of their union membership and activity; (2) dominated and inter- fered with the formation and administration of the Association, a labor organization, and contributed support thereto; (3) refused to bargain collectively with the Stove Mounters as the representative designated by a majority of the employees in an appropriate unit; (4) discouraged membership in the Stove Mounters by urgings and threats and by surveillance of -union meetings; and (5) by these and, other acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On December 15, 1938, the respondent filed an answer denying the alleged unfair labor practices and setting up certain allegations of affirmative defense, including allegations that the Act and the instant proceedings violate the Constitution of the United States. On the 'Ray Thoiuburg, William Handly, Ralph Yeley, and Dorey McKenney (erroneously re- ferred to in the complaint as Dora McKinney ). The complaint was amended at the hear- ing to conform to the proof 2 Lucien Arbuckle, J. A. Cassidy, Raymond Coidrey, Mat ion Harrell, Ary Fleck, Carl Junken , Amos Kerby, Joseph Owens, C R Pendleton, Lloyd Phares, William G Riggs, Jerry E . Shaw, Herbert D. Small, John FI Snyder , Donald Stulb, Eugene H Walker, and Harold K . Williams. 810 DECISIONS OF NATIONAL LABOR RELATION'S BOARD same date the respondent filed a motion to dismiss the complaint and a demurrer thereto. Pursuant to notice, a hearing was held from January 16 to Febru- ary 2, 1939, at Shelbyville , Indiana, before William R. Ringer, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and the Stove Mounters by its representative ; all participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing upon the issues. The Association did not appear . At the hearing the respondent filed amendments and supplements to its answer , which appear of record. During the course of the hearing the Trial Examiner denied the respondent's motions for dismissal of the complaint and overruled the respondent's demurrer. He also denied a motion by the respond- ent for a trial by jury. The Board has reviewed these rulings, which are hereby affirmed. During the course of the hearing the Trial Examiner made numer- ous other rulings on 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. After the close of the hearing counsel for the Board and for the respondent participated in oral argument before the Trial Examiner. Thereafter , pursuant to leave granted to all parties at the hearing, counsel for the Board submitted a brief for the consideration of the Trial Examiner. On December 14, 1939, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties . Therein 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), (3), and ( 5) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from the unfair labor practices so found and take certain affirmative action of remedial nature. He also recommended that the complaint be dismissed in so far as it alleged discrimination against employees of the respondent other than Lucien Arbuckle . Exceptions to the Intermediate Report and to the conduct of the hearing were filed by the respondent and, as to that portion of the Intermediate Report recommending dismissal of the complaint in part, by the Stove Mounters. Pursuant to notice duly served upon all the parties , a hearing was held on February 6, 1940, at Washington , D. C., before the Board, for the purpose of oral argument. The respondent, represented by counsel, and the Stove Mounters , by its representative, participated in the argument. CHAMBERS CORPORATION 811 The Board has considered the exceptions filed by the respondent and the Stove Mounters and finds the exceptions to have merit only in so far as they are consistent with the findings of fact, conclusions of law, and order set forth below. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is an Indiana corporation having its principal office and place of business adjacent to the city of Shelbyville, Indiana. It is engaged in the manufacture and sale of gas stoves and ranges and in the purchase and sale of aluminum cooking utensils. Approxi- mately 59 per cent of the raw materials used by the respondent at, its Shelbyville plant are obtained from sources outside of the State of Indiana, including sheet steel, steel stampings, and castings from Ohio,; enamel, nuts, and bolts from Illinois; thermostats and aluminum tubing from Pennsylvania; and gas cocks from Michigan. During 1938 approximately 96.2 per cent of the respondent's finished products were sold and shipped to customers outside of Indiana, less than 1 per cent of this amount being shipped to customers in foreign coun- tries. The respondent's annual sales substantially exceed $200,000 per year. The respondent employs approximately 225 persons. II. THE ORGANIZATIONS INVOLVED Allied Stove Mounters and Stove Processors International Union, Local No. 36, affiliated with the American Federation of Labor, is a labor organization admitting to its membership employees of the respondent. Employees Welfare Association is an unaffiliated labor organization admitting to'its membership employees of the respondent. III. THE -UNFAIR LABOR PRACTICES A. Chronology of events Prior to November 1936 there was no labor organization of the respondent's employees. On the evening of November 25, 1936, the first meeting of the Stove Mounters was held in secrecy at a private home in Fairland, a town 5 or 6 miles from Shelbyville. Eleven or twelve of the respondent's employees attended the meeting. There- after meetings of the organization were held regularly. On December 10, 1936, the respondent shut down its plant for an indefinite period and notified its employees of the termination of their employment. Prior to this time the Stove Mounters had made 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no demands on the respondent and had taken no public action. During the shut-down, the respondent, contrary to its practices during pre- vious shut-downs, closed the plant gates, hired and armed plant guards, and installed floodlights. Early in February 1937 operations were resumed at the plant. Approximately 41 members of the Stove Mounters were not reem- ployed. During and after the shut-down the Stove Mounters filed with the Board charges against the respondent. On July 8, 1937, it entered into a written agreement with the respondent in settlement of the charges. The agreement provided, in part, that the respondent would offer within a specified time employment to 41 named indi- viduals, would pay $3,500 to the Stove Mounters for distribution as it should decide, and would comply with the provisions of the Act, including those relating to collective bargaining. The Stove Mount- ers agreed that it, "its individual members, the men named in para- graph 13 and any employees of said Chambers Corporation represented by said Union will not file or cause to be filed with said National Labor Relations Board any charges or complaints on ac- count of or arising out of any acts done by the Chambers Corporation prior to the date of this agreement, and in further consideration of such offer, said Union, its individual members, the men named in paragraph 1 and any employees of said Chambers Corporation repre- sented by said Union agree to and do hereby waive all claims, action or causes of action, damages, losses and demands had or asserted against the corporation to the date of this agreement." The Board's agents participated in the negotiations which culmi- nated in the settlement agreement, and after execution of the agree- ment the Board cancelled hearing on a complaint which it had issued on the charges made by the Stove Mounters. The respondent made the offers of employment and paid the $3,500 as provided in the agreement. On August 19, 1937, the respondent posted a plant notice recog- nizing the Association as the exclusive representative of all the re- spondent's employees, with the exception of supervisory and clerical employees. The notice stated that the Association had submitted evidence of its designation as representative of a majority of the employees. The Stove Mounters objected to the recognition of the Association, and after extended conferences the respondent, the Stove Mounters, and the Association entered into a consent election agree- ment on October 22, 1937. In accordance with the terms of the agreement an election was held on October 29, 1937, under the supervision of the Regional Director, 3 Referring to the 41 individuals to be offered employment. CHAMBERS CORPORATION 813 among the employees of the respondent exclusive of supervisory, sal- aried, and clerical employees, and employees in the engineering de- partment. Of 218 ballots cast at the election the Stove Mounters received 112, a majority, the Association received 91, and 15 were challenged. After the election, the respondent orally recognized the Stove Mounters as the bargaining agent of the employees in the defined unit. On November 27, 1937, the respondent posted in the plant a notice recognizing the Stove Mounters as -representative of its employees. B. The refusal to bargain collectively 1. The appropriate unit The Stove Mounters alleged in its charge, and it was alleged in the complaint, that the employees of the respondent, exclusive of supervisory, clerical, and salaried employees, and employees in the engineering department, constitute a unit appropriate for the pur- poses of collective-bargaining. , The claimed unit is the same as that described in the consent election agreement of October 22, 1937. No question was raised at the hearing as to the appropriateness of this unit, and we see no reason to modify the unit defined by the consent election agreement. We find that all the employees of the respondent, exclusive of supervisory, clerical, and salaried employees, and em- ployees in the engineering department, constitute a unit appropriate for the purposes of collective bargaining 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. 2. Designation of the union by a majority of the employees in the appropriate unit It has already been seen that the Stove Mounters obtained a ma- jority of the votes cast in the consent election of October 29, 1937. At the hearing, evidence was introduced of certain resignations from the Stove Mounters dated as of various days in 1938. For the rea- sons stated below,' these resignations had no effect on the status of the Stove Mounters as the representative designated by a majority of the employees of the respondent in an appropriate unit. We find that on October 29, 1937, and at all time thereafter, the Stove Mounters was the duly designated representative of a major- ity of the employees of the respondent in the appropriate unit. Pur- suant to Section 9 (a) of the Act, the Stove Mounters was and is, 4'Section III, B , A infra. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore, the exclusive representative of all employees in such unit for the purposes of collective bargaining. 3. The attempted negotiations On November 23, 1937, representatives of the respondent and the Stove Mounters met to discuss a proposed contract which the Stove Mounters had submitted to the respondent. Leefers Karmire, the respondent's secretary-treasurer, Nolke, its superintendent, and Glass represented the respondent; Kiser and Winters of the Stove Mount- ers' international union and a committee from the union local rep- resented the Stove Mounters. The record contains transcripts of this conference and following conferences. Almost from the start of the conference Karmire questioned the necessity of a contract, and subsequently returned to this subject. He also indicated that the first clause of the proposed contract, pro- viding for preference in employment for members of the Stove Mounters, was unacceptable. In a discussion on wages Karmire took the position that the respondent would not be justified in pegging labor costs in view of the possibility of a market recession. Thomas Butler, president of the Stove Mounters, suggested the possibility of providing for wage adjustments if the market declined. Karmire replied that it would first be necessary to adjust individual inequali- ties. The discussion then returned to the first clause of the contract draft, after which Karmire stated that the Act did not compel agree- ment. The Stove Mounters requested a counterproposition, and Kar- mire said he would give consideration to the request. Clause 1 was then passed over, as was clause 2, an allied provision. Clause 3 provided for continuance of the existing working days and hours, with the addition of extra pay for overtime work. Kar- mire objected to the latter provision but raised no question as to the former. Clauses 4 (provision for a bargaining committee) and 5 (working supervisors to be members of the Stove Mounters) were passed over after brief discussion of their meaning. Clause 6 provided for a week's vacation with pay. Karmire referred to the possibility of a series of enforced vacations and objected to the clause on the basis that it necessitated a commitment for the future. He suggested that vacation privileges be left to the respondent's discretion. Clause 7 provided for the recognition of certain holidays, with double time for work on such days. All the holidays with the pos- sible exception of one were already observed by the respondent. Karmire objected to the double-time provision. Clause 8 provided for an equal division of work among employees in their respective departments when practical. Karmire objected to CHAMBERS CORPORATION 815 the clause on the grounds that it only restated the respondent's exist- ing policy. Butler stated that there had been instances of inequality. Karmire replied, "I have the answer to that right now. We will adjust the rates that are too high downward." Briggs, a member of the Stove Mounters' committee, interposed, "How about the lower ones upward?" Karmire answered, "They have gone as far as they could go. We will go into that later." He stated that the clause should be easy to agree on because it restated existing practice, but then added, "Why talk about something that is already in force, that is what I can't understand." Winters later pointed out, "You haven't granted a thing yet." Karmire replied, "You are right, that is one thing we can agree on." Clause 9 provided for the establishing of a price list after the Stove Mounters' Committee and the respondent had adjusted prices on the various jobs. Winters explained that this meant that after piece- work rates were established, the list of rates for each job would be posted. Karmire said, "Don't they know that now?" He also asked how rates would be revised when necessary. This led to consideration of clause 10, which provided for arbitration of disputes concerning job rates. After an inconclusive discussion of this clause, Karmire read clause 11, which set the specific hours of work. He stated that this clause would be easy to agree on because it represented existing practice. Clause 12, providing for a 10-percent wage increase, was passed over as having been earlier discussed. Clause 13 provided that the respondent would give at least 2 hours' pay to employees who re- ported to work pursuant to call and were then sent home. Karmire took the position that the respondent did not summon men unless there was work to do, but that if the men summoned could not be put to work for some reason, he did not wish to get involved in an argument on the clause. Clause 14, providing a 13 months' term for the contract, and clause 15, calling for recognition of the Polishers and Platers Union No. 171, Indianapolis, as bargaining agent for its members, were read. Arrangements were then made for the calling of a future meeting, and the conference adjourned. On December 9, 1937, the same persons met with the exception of Kiser and one committee member and the addition of Robert E. Mythen, a conciliator of the United States Department of Labor. - Karmire definitely rejected the clause providing for preference in employment for members of the Stove Mounters and also refused Winters' offer to amend the clause to provide preference for former employees of the respondent. Karmire said there was no need to have a clause recognizing the Stove Mounters as collective bargain- 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing agent because the recognition notice had already been posted on the board. He offered to mail notices of recognition to every em- ployee. Winters agreed that a recognition clause in the contract was unnecessary. Clause 2 was passed over as being dependent on clause 1. Karmire stated that the provision for an 8-hour day and a 5-day week was unnecessary because it represented the respondent's existing policy and that the provision for overtime rates was unac- ceptable. He also rejected clause 4, which provided for recognition of a grievance committee of the Stove Mounters and contained a stipulation that members of the committee would not be discrim- inated against, on the basis that it was a matter of internal union concern and was unnecessary because restating a legal obligation. Karmire dismissed clause 5 (working supervisors to be members of the Stove Mounters) as an internal problem of the Stove Mounters. Winters agreed that vacations should be left to the option of the respondent. Karmire rejected the holiday provision because of its double-time clause. With regard to clause 8, the following colloquy took place: KARMIRE. Clause 8: That' has to do with an equal division of work to employees in their respective departments when practical, and that is something else we already do, I think. WINTERS. Is that a fact, Tom? BUTLER. Mr. Karmire, that may be your impression of it, but I don't think so. KARMIRE. Then clause 8 is unacceptable to the company. Karmire also stated that cases of discrimination in allotment of work could be brought to his attention as a grievance, and that he and Nolke had no intention of discriminating against employees. He said that an agreement, if reached, would not be reduced to writ- ing and that he understood that a case dealing with the necessity of reducing agreements to writing had not been adjudicated by the Supreme Court. He asked Mythen, "Is it possible for Congress to legislate in any manner to enforce you and me for example to enter a contract?" Karmire then initiated a discussion of alleged labor difficulties involving the international union of the Stove Mounters in Mt. Vernon, Illinois, and claimed that a contract could not be enforced against an unincorporated association. Winters invited him to "check" the international union. Karmire said he had already done so and remarked to Butler, "By the way, Tom, it might be well for you to do a little checking, too." Karmire then alleged the existence of labor difficulties in Belleville, Illinois, involving the international union, and the discussion became an attack on the international union by Karmire and a defense by Winters. The CHAMBERS CORPORATION 817 necessity of mutual confidence was mentioned, and Karmire said, "If mutual confidence exists what is the necessity for reducing any- thing to writing?" Karmire then turned to accusations regarding local happenings. He asked the committee members individually if they knew which of the respondent's employees upset a machine at a local garment factory. He asked Winters if he had not told Earl Hurst, the respondent's time-study man and employment man- ager, that if Hurst took care of "the boys" on rates "the boys" would take care of Hurst. Winters denied the accusation, and Kar- mire remarked that "such a thing as that involves one man's word against another." Karmire questioned the committee members about statements he attributed to the Stove Mounters' members to the effect that employees had better join their organization soon, as later the entrance fee would be made $25. Karmire objected to clause 9, providing for the establishing of a price list after rates were set on jobs, on the grounds that the work- ers would know their rates without posting of a list. He objected to clause 10, the arbitration provision, and remarked, "You can bargain from here on until next year, and neither you nor me need to agree, you know." He stated that the working hours proposed in clause 11 were substantially the same as those now in force, and passed on to the next clause without indicating whether clause 11 was acceptable. He rejected the wage raise proposed in clause 12, and objected to clause 13, dealing with payment of men sent home after they were summoned to work. He again raised the question of why it was necessary to have a contract in view of the alleged history of satisfaction among the respondent's employees. Mythen pointed out that if conditions were satisfactory they would not become less so if reduced to writing, and asked if that placed "any more burden." Karmire replied, "Not a bit, but what is the necessity for it?" He further stated that if the committee would forget about a contract "they can do more for themselves and for this company to assure continued employment than any other thing they can do. In other words, do you realize the only thing we as a company are asking these men to do is to continue to be satisfied with the conditions as they have existed here?" Karmire later stated the following as a counterproposition : "Why can not our relationship, company and employees, continue in the future just as it has in the recent past?" Karmire then charged that Winters' presence was in violation of assurances from the committee that it would bargain with the respondent without "outside interference," but added that the men had a right to choose any individual they desired to negotiate for them. He renewed his counterproposition of preserving the status quo, offered to meet with the committee 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whenever necessary to discuss grievances and problems, and said that he did not wish to be bound by any one set of rules in view of the possibility of rapid econo nic fluctuations. On February 14 and March 22, 1938, the respondent's representa- tives and the Stove Mounters' committee met to discuss various grievances. No mention was made of the proposed contract. On April 15, 1938, the Stove Mounters sent Karmire a new draft of the proposed contract deviating from the earlier draft chiefly in the omis- sion of the clauses as to preference in employment and a raise in wages, and the addition of provisions for seniority recognition and maintenance of existing wage rates. The new draft was accom- panied by a letter charging Karmire with having refused to bargain in good faith and stating that it was felt that he would reconsider his "mistake." On May 12, 1938, the Stove Mounters' committee met with Karmire and other representatives of the respondent to discuss certain pro- posals of the respondent concerning wages. Toward the end of the conference Butler asked for a date to negotiate concerning the new contract draft. Karmire said, "You mean to go back over all that rigmarole?" He then questioned whether the Stove Mounters still had a majority and referred to resignations from the organization. He stated that before resuming contract negotiations he would have to decide whether he might not be doing wrong in bargaining with the Stove Mounters. Finally he said that he would be able to set a day for a meeting within the near future. On May 20, 1938, Butler asked Superintendent Nolke to set a date for discussion of the contract draft. Nolke said he would speak to Karmire and then advise Butler. However, the respondent never communicated further with the Stove Mounters on the subject of resuming contract negotiations, nor did the Stove Mounters again request a meeting for that purpose. After May 20, 1938, the Stove Mounters' committee and the respondent confined their relations to discussions of specific grievances with Nolke, except that on or about May 26, 1938, the Stove Mounters sent the respondent a supplement to the contract draft. The supplement provided that all production employees of the respondent should become members of the Stove Mounters within 30 days after signing of the agreement. 4. Conclusions regarding the refusal to bargain It is clear from the foregoing that the respondent refused to bar- gain collectively with the Stove Mounters. Its announced refusal to incorporate into writing terms which might be agreed on demon- strates in itself a lack of good faith and constitutes a refusal to bar- gain. But the respondent's actions went even further; its representa- CHAMBERS CORPORATION 819 fives approached the conference table with a preconceived determi- nation to avoid agreement of any kind, oral or written. The existence of such an attitude is demonstrated by a number of circumstances. Karmire's refusal to incorporate existing ' operating practices into an agreement can be convincingly explained in no other fashion, particularly in view of the fact that at least some of these practices were not inconsistent with his expressed fear of economic changes. A prime illustration is Karmire's refusal to agree on the clause pro- viding for equalization of work within departments, so far as prac- tical. As has already been seen, Karmire claimed that the respond- ent was already following such a policy and that he had no desire to discriminate among individuals. Yet when Butler suggested that in fact the policy was not being followed, Karmire retorted, "Then Clause 8 is unacceptable to the company." Karmire's "counter proposal" is further evidence of his intention to avoid agreement regardless of the nature of the Stove Mounters' proposals. After rejecting the terms suggested by the Stove Mount- ers he made the "counter proposal" that the existing relationships be- tween the respondent and its employees be continued. His "counter proposal" was, therefore, merely a proposal that collective bargaining be dispensed with in the future, as in the past. On no other thesis than that of a mind closed to the possibility of agreement can we explain, also, the combination of the following factors : (1) Karmire's refusal to adopt suggestions on the basis that they were "unnecessary" because they represented legal obligations or existing policies of the respondent; (2) Karmire's reiteration that a contract was unnecessary, that there was no legal compulsion to agree, and that it might not be possible to achieve agreement; (3) Karmire's open avowal of unwillingness to commit himself to ally settled policies; (4) Karmire's insinuations of possible action by the respondent unfavorable to its employees, such as the references to the possibility of enforced vacations and the adjustment of "too high" rates downward accompanied by his evasion of a suggestion that "too low" rates be revised upward; (5) the reference to the alleged legal irresponsibility of unincorporated associations, and (6) Kar- mire's attacks during contract negotiations on the Stove Mounters, their membership, their international union, and their international representative. The respondent refused, therefore, to bargain with the representa- tive of the employees in an appropriate unit on November 23 and December 9, 1937. Its subsequent failure to set, on request, a date for further contract negotiations also constituted a refusal to bargain. The latter refusal cannot be justified by the allegation that the Stove 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mounters lost its status as the representative designated by a majority of the employees in the unit. The respondent engaged in the unfair labor practice of refusing to bargain with the Stove Mounters late in 1937. Such interference with the rights of its employees neces- sarily caused some. defections in union membership. As we have pre- viously held, an employer cannot evade the obligation to bargain because of a loss of majority attributable to its unfair labor practices .5 In any event, the refusal to bargain in 1937 could not be excused by a loss of union membership in 1938. Furthermore, the evidence of withdrawals from the Stove Mounters is insufficient to rebut the pre- sumption of a continuing majority.6 Upon the entire record we find that the respondent on and after November 23, 1937, December 9, 1937, and May 12, 1938, refused to bargain collectively with the Stove Mounters as the representative of its employees in the appropriate unit in respect to rates of pay, wages, hours of employment, and other conditions of employment, and that it thereby interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. C. Domination of the Association 1. Effect of the settlement agreement We have hitherto held that where an agreement in settlement of charges of unfair labor practices has been reached in negotiations participated in by the Board's agents, we shall, for reasons of policy, not thereafter disturb such agreement and shall refrain from consid- ering the alleged unfair practices antedating the agreement.7 Where, however, there has been a continuation of the practices which pre- ceded the agreement, we have considered such practices in their en- tirety.8 We have also treated a consent election agreement partici- pated in by agents of the Board as an acknowledgment by the Board's agents that unions placed on the ballot are able to operate as repre- sentatives of the employees. Accordingly, we have not considered charges that any such union is company dominated, provided that 'Matter of A,thur L Colten and A. J. Colman, etc and Amalgamated Clothing Wa,kers of America, 6 N. L R B. 355 , enf'd , N. L R B v Arthur L. Colten and A J Colman, etc. 105 F (2d) 179 (C C A 6) ; Matter of Moltrup Steel P,oducts Company/ and ,Steel Workers Organizing Comnnttee Lodge No. 1202, 19 N. L R. B 471. 6 Cf Matter of Clark Shoe Company and United Shoe Wo, hers of America, 17 N L. R B 1079, Matter of Woodside Cotton Mills Company and Textile Workers Organizing Committee, 21 N L R B 42 4 Matter of Shenandoah -Dives Mining Company and Inte,national Union of Mine, Mill & Smelter Workers, Local No. 26, 11 N L R B 885; Matter of Godchaux Suga,s, Inc and Sugar Mill Woi hers' Union , etc, 12 N. L R. B 568 'Matter of Corinth Hosiery Mill, Inc. and Ame„can Tede, ation of Mos,e,y 1l'o,hers, 16 N 1, R B 414 CHAMBERS CORPORATION 821 there has been no continuation of employer interference after execu- tion of the agreement.9 These holdings, however, are not applicable in the preseutinstance. In the settlement agreement of July 8, 1937, the respondeiit'exp'ressly undertook to comply with the provisions of the Act, including those relating to the duty of collective bargaining. We have found that the respondent thereafter violated the collective bargaining provi- sions of the Act. We see no reason to respect, for the respondent's benefit, an agreement which the respondent itself has not respected. In this connection, however, it should be pointed out that the com- plaint in the present case does not allege the occurrence of violations of Section 8 (3) of the Act prior to the date of the settlement agree- ment. The charges as to such violations, if any, were fully"' settled by the respondent's offers of reinstatement to the individuals allegedly subjected to discrimination and by its payment to the' Stove 1Vlount- ers of an agreed sum for distribution among the ,employees. The consent election in which the Association was on the `ballot will also not be permitted to preclude an inquiry into evidence of the alleged domination of that organization by the respondent, even though such evidence relates in part to actions antedating the election. The purpose of the consent election was to ascertain a representative for the purposes of collective bargaining. The respondent's flouting of this purpose by its refusal to bargain operates to remove any immunity which it might otherwise have enjoyed as a result of the election agreement. Under the terms of that agreement the respond- ent undertook to recognize the organization which obtained a majority of the ballots cast. With this provision the respondent complied pro forma. But recognition not implemented by bargaining is an empty gesture. 2. Domination of the Association About June 15, 1937, Henry Wheeler, an employee of the re- spondent, discussed with various other employees, particularly with Edward C. Terry, the possibility of forming an independent labor organization. Wheeler and Terry consulted an. attorney on the sub- ject and visited the nearby town of Columbus, Indiana, to obtain information concerning an independent union existing there. On or about June 22, 1937, Wheeler and Terry circulated in the plant dur- ing working hours papers dealing with the projected new organiza- tion and solicited the signatures thereto of the employees. The pre- cise nature of the papers circulated is not indicated in the record, but 9Matter of Hope Webbing Company and Textile Workers Organizing Committee of the C. I. 0, Local No 1l, 14 N L. R B 55; Matter of Wickwire Brothers and Almalgamated Ass'n of Iron, Steel t Tin Workers of North America, etc., 16 N L R B 316 283032-41-vol 21-53 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it appears to have been well understood that signers were to be con- sidered members of the contemplated organization. According to Wheeler's own testimony , he obtained permission from his foreman, Woodbury Mohr, "to pass that paper around among the employees." Wheeler's pay was docked for the time he spent in this activity. Three or four days before this solicitation occurred, Maurice Eades, an employee of the respondent, had been told by his foreman, George Watts : "It won't be long that there will be a paper around. They are going to start an organization here of our own. You want to sign it." Eacles signed the papers circulated by Wheeler and Terry and the next morning was informed by Watts, "That is the paper that I told you you ought to sign." On Friday morning, June 25, 1937, Wheeler and Terry decided to call a meeting of the employees. Wheeler testified that he attempted to see Nolke and Karmire to obtain permission to hold the meeting in the plant but that they were not available and that consequently he obtained no such permission from the management. Nevertheless, Wheeler and Terry orally informed the employees while they were at work that there would be a meeting at 4: 45 p. m. in the sheet-metal department. The working day ended at 5 p. m. Lloyd Phares, one of the respondent's employees, was notified of the meeting by Wheeler and within a half hour was again informed of it by his foreman, Russell Havens. At 4:45 Wheeler blew the lunch whistle and the employees assembled in the plant. There were no remonstrances by supervisory employees as to this wholesale quitting of work before closing time, and four foremen attended the plant meeting. The power in the plant was also turned off at 4: 45. Wheeler testified that neither he nor Terry had arranged to have the power shut off, and that although he and Terry were the only persons who planned the meeting he was not surprised when the power was shut off since he knew that it would be somehow shut off when the men quit work. We do not credit Wheeler's testimony to the effect that no arrangements had been made beforehand for the shutting off of the power both because of the implausibility inherent in the explanation and in other portions of Wheeler's testimony and because of the uncontradicted testimony of Lloyd Phares that Wheeler, in notifying him of the meeting, told him that the power would be shut off. Wheeler presided at the meeting, proposed the formation of ' an independent organization, and told of the trip he and Terry had made to Columbus . A committee for the drafting of a constitution and bylaws for an independent organization was chosen. Two witnesses testified that Wheeler stated at the meeting that the committee would meet on the following Monday in a room in the plant and that he had been informed that the room could be 'used CHAMBERS CORPORATION 823 for the meeting as it had lights and chairs. Wheeler testified that he did not recall announcing that the committee would meet in the plant on Monday and denied having made any arrangements for such a meeting. We do not credit Wheeler's testimony in this respect. It is clear from the record that the solicitation of signatures by Wheeler and Terry was known by supervisory employees of the respondent. Nevertheless, according to Wheeler's own testimony, he was never reprimanded for his violation of the respondent's rule against plant solicitation. On June 28, 1937, the Monday following the plant meeting,- the employees observed on the respondent's bulletin board a notice dated as of the preceding Saturday and signed by Karmire. This notice quoted Section 8 (2) of the Act and then stated : We have been notified that the soliciting of membership in any labor organization during working ,hours or upon our premises is construed to be a financial contribution by the Com- pany to that organization. We have no knowledge of any such practice within our organ- ization, but in order to obviate any such complaints, we are calling your attention to the fact that no employee of this Com- pany can be permitted to solicit memberships in any labor organization during working hours or upon the Company's premises. On the day following the plant meeting, Earl Hurst, the respond- ent's employment manager, came into the plant and showed the time book to Wheeler. Foreman Havens informed Phares that the men's pay was being docked for the 15 minutes spent in the plant meeting. A wage deduction was in fact so made. The committee chosen at the plant meeting never met. Instead, Wheeler and Terry called a second meeting for the evening of June 28, 1937, at the Shelbyville City Hall, allegedly because of their fear that the previous organizational activities were tainted with illegal- ity. As a result of the second meeting and subsequent meetings the Association was fully organized, interested employees again signed up as members, officers were elected, and a constitution and bylaws were adopted for the new organization. As already stated, the respondent posted a notice on August 19, 1937, to the effect that the Association had been designated by a majority of the employees as their representative and that the respondent recognized the Asso- ciation as the exclusive bargaining representative of all of its em- ployees with the exception of supervisory and clerical employees. This recognition was, of course, subsequently vitiated by the results of the consent election of October 29, 1937. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About February 20, 1938, Steven Scott, a rimmer employed by the respondent, was advised by Carl Bennett, an inspector in the re- spondent's plant, that it would be better for Scott to join the Asso- ciation; that Scott knew Bennett had hired him and had been hold- ing his job for him, and that the respondent would think more of him if he joined the Association. In the summer of 1937, Bennett solicited Ray Thornburg, a rimmer employed by the respondent, to attend an Association meeting. Bennett, in addition to exercising the normal duties of an inspector, tells the rimmers when to come to work and when to quit work, what days they will be off, when they resume operations, what work to get out, and whether they shall come back at night to finish particular tasks. Bennett also asked Scott if he wanted a job and then, on receiving an affirmative answer, instructed Scott to report to work for the respondent. We find that Bennett exercises supervisory functions. His ac- tivities in favor of the Association are therefore attributable to the respondent. In February 1938 Russell Havens, a foreman, pulled an Associa- tion card from his pocket and showed it during working hours to employees Maurice Eades and Herschel Hewitt, stating that he be- longed to the Association and "wanted to show them that he ap- preciated them letting him work while the rest of us were off." The respondent's domination of the Association is demonstrated by the following circumstances among others: (1) Foreman Watts knew beforehand that membership in an independent organization would be solicited; (2) the initial solicitation for the Association membership was on the respondent's premises during working hours with the knowledge of supervisory employees ; (3) the first meeting of the Association was held in the respondent's plant before the end of the working day without remonstrance by supervisors; (4) the power in the plant was shut off for the meeting under unexplained circumstances; (5) foremen attended the plant meeting; (6) Wheeler was not reprimanded for his flagrant violation of the respondent's rules; (7) Supervisors Watts, Bennett, and Havens spoke in favor of the Association to other employees. We regard the respondent's notice prohibiting plant solicitation- particularly in view of the tenor of the notice and the expressed unconsciousness of facts the respondent must have known-as no more than an attempt to conceal the fact that the respondent had inspired Wheeler's activities. The deduction in pay for the time spent in the plant meeting appears in the same light. Upon the entire record we find that the respondent dominated and interfered with the formation and administration of the Asso- ciation and contributed support to it, and that thereby it interfered CHAMBERS CORPORATION 825 with, restrained , and coerced its employees in the exercise of the rights -guaranteed in Section 7 of the Act. D. The alleged discrim,7owtory discharges The complaint alleges that the respondent discharged and refused to reinstate Ray Thornburg, Dorey McKenney, William Handly, and Ralph Yeley becaiuse of their union membership and activity. Ray Thornburg was a rimmer in the enameling department who started to work for the respondent in May 1936 and joined the Stove Mounters in March 1937. He was working at the time the plant closed in December 1936, was among the first to be recalled to work in February 1937 when the plant reopened, and continued to work through July 8, 1937. Nevertheless, for no reason disclosed by the record, he was one of the 41 men named for reinstatement in the set- tlement agreement of July 8, 1937. The respondent alleges that Thornburg was discharged on account of repeated violations of its rules occasioned by his failure to report unwillingness or inability to come to work and by his frequent tardiness. Thornburg last worked at the plant on July 8, 1937. Two or three weeks earlier he had been invited to a meeting of the Associa- tion by Carl Bennett but had .not attended. Thornburg testified that on July 8 Raymond McKee, a fellow rimmer, also asked him to attend an Association meeting. This testimony was contradicted by McKee. On Friday, July 9, 1937, Thornburg did not report to work. He remained absent until Monday, July 19, when he returned, only to be informed by Woodbury Mohr, his foreman, that his place had been filled. Thornburg's explanation of his absence is that he was sick from July 9 to July 19. He testified that he called in a physician on July 13 and received treatment thereafter. Thornburg did not per- sonally notify the respondent that he would be absent from work, but testified that he sent word to the respondent by two of his fellow workers, Jack Antle and Stephen Scott. Scott testified ,that on Wednesday, July 14, he obtained Thornburg's pay check from Wood- bury Mohr, at which time he told Mohr that Thornburg was ill and Mohr replied that he had already been notified of that fact by Antle. Mohr testified that he had not been informed of Thornburg's alleged illness until Friday, July 16, that he reported Thornburg's absence to Nolke and Karmire, that Thornburg's record of absences and tardiness was considered, and his discharge ordered by Karmire. Mohr also testified that Thornburg had been late or absent without notice on several occasions and had previously been reprimanded on 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that account. Thornburg testified that he did not recall being fre- quently absent from work, denied that he had often been tardy, and also denied that he had been rebuked for absences or lateness. McKee testified, however, that Thornburg had come late to work about three times in the period of 2 or 3 weeks preceding July 9, and the respond- ent's records indicate that from February to July 1937, Thornburg put in less working time than any of the other Fimmers. Mohr testified further that subsequent to Thornburg's discharge he met Thornburg in a tavern and that Thornburg said he had become intoxicated on Friday night (July 9, 1937), had stayed drunk on Saturday and Sunday, and then had decided to take the rest of the week off. This testimony was contradicted by Thornburg. Without finding it necessary to resolve the conflicts in testimony, we are of the opinion that the evidence does not support a finding that Thornburg was discharged on account of his union membership and activity. The allegations of the complaint to that effect will be dismissed. Dorey McKenney was first employed by the respondent in Novem- ber 1935 and became a member of the Stove Mounters in December 1936. He was one of the 41 employees named in the settlement agree- ment of July 8, 1937, and returned to work after the 1936 shut-down on August 9, 1937. On November 12, 1937, a complaint on a grocery bill was filed against McKenney in the court of a local Justice of the Peace. A summons was served, and McKenney appeared for trial of the cause on November 15. A judgment for $28.95 and costs was rendered for the plaintiff. A writ of execution was issued on the judgment on December 14, 1937, but was returned by the constable endorsed that he had found no property subject to levy. On December 28, 1937, the judgment creditor filed a complaint in supplementary proceedings in the nature of an action to garnishee McKenney's wages. Sum- mons was issued on the complaint but was withdrawn on instruc- tions from the plaintiff. On January 31, 1938, the complaint was refiled, and on February 2 summons thereon was served on McKenney and the respondent. On February 5, 1938, a hearing was held on the complaint. The respondent appeared by its attorney, but McKenney did not appear and was defaulted. The court thereupon entered an order directing the respondent to pay into court 10 per cent of McKenney's wages in excess of $15 per week, as such excess became due. McKenney worked on Friday, February 4, but did not work on the following Saturday or Sunday. When he returned on Monday, Superintendent Nolke asked him if he had been notified about the bill he owed and if he had read the notice on the bulletin board. e CHAMBERS CORPORATION 827 McKenney replied that he knew about the bill, but had not read the notice. They went to the board and McKenney read the notice, which was to the effect that the service of any action in garnishment would automatically terminate the employment of the individual whose wages were being garnisheed. The notice was dated February 4, 1938, but the time of its posting is uncertain from the record; McKenney had not previously seen it. Nolke then advised McKenney that his orders from Karmire were that McKenney should turn his badge in at noon.' McKenney did so. The day after his discharge McKenney went back to the plant and asked Karmire if he could have his job back. Karmire said that "they" had studied his case, that he had been there a long time and had been a steady worker and not a trouble maker. Karmire also said that the plant would be down for a while, and McKenney would be notified when production improved. Two or three weeks later operations at the plant were fully resumed, but McKenney was not asked to return. He than met Karmire on the street and again asked if he would get his job back. Karmire said no, "simply because what ... is the use of adopting a policy then tearing it up?" It may be inferred from the record that the respondent adopted its policy concerning employees subjected to garnishment actions as a result of the proceedings involving McKenney. There is, however, no evidence to indicate that the policy was instituted to discourage union membership or activity or that it has been applied in a discrim- inatory fashion. At the hearing the Board's attorney attempted to show that the respondent had adopted toward George Walker, a mem- ber of the Association, a policy different from that it had employed toward McKenney, in that it had not discharged Walker although-it had been notified by his creditor that Walker's indebtedness was past due. The claim against Walker, however, was never reduced to judg- ment, and garnishment proceedings were never instituted. The re- spondent, therefore, was not inconsistent in discharging McKenney and retaining Walker. Under these circumstances, we find that the respondent did not discriminate against McKenney after February 4, 1938. William, Handly began to work for the respondent in February 1934 as a stove repairer on the assembly line, and continued at this employment until the shut-down of December 1936. He was not thereafter reemployed.- Handly joined the union early in May 1937, and was named in the settlement agreement of July 8, 1937. In its original answer the respondent alleged that it had offered employment to Handly in accordance with the provisions of the set- tlement agreement and that Handly had rejected the offer and forfeited any' right to employment by failing to report for duty within the 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time designated in the offer and the settlement agreement. At the hearing the respondent filed an amendment and supplement to its answer, in which it added to its original answer the allegation that Handly "is in such condition as to make him incapable of performing efficiently, satisfactorily and safely his former duties or any duties as an employee in the factory of respondent." On August 7, 1937, Handly received from the respondent an offer of reinstatement which, both by its terms and those of the settlement agreement, required acceptance or rejection within 3 days. At the time Handly was sick with arthritis and gonorrhea. His mother notified the respondent that he' would be unable to report to work within the designated period. Within the next 3 months Earl Hurst, employment manager of the respondent, twice indicated to Handly that a job would be available for him when he was able to work. Handly finally reported for work on November 27, 1937, and saw Karmire, who made no commitment{ as to his employment. On the following day, Handly saw Nolke, who told him to get a doctor's re- lease, after which it would be seen whether an opening for him could be found. Handly obtained a certificate from his physician to the effect that he could resume work and the next day spoke to Hurst. Hurst said that Nolke had left word there was no opening. Tom Butler, president of the Stove Mounters, intervened in the conversa- tion, and Hurst advised him that Handly would go back to work if work was available. Hurst then told Handly to return on the follow- ing Monday. Handly came back to the plant on December 6 and sa"w Nolke, who told him that there was no opening at the time. The respondent's contention that Handly was not in such a con- dition of health in November 1937 as to be entitled to reemployment is supported by the evidence. His deafness, inability to remember and nervousness are apparent in the record and were observed at the hearing by the Trial Examiner, who commented thereon in his Intermediate Report. We find that the respondent did not on and after November 27, 1937, discriminate against Handly by its refusal to reemploy him. Ralph, Yeley began work for the respondent on August 8, 1937, as a burner's helper, and joined the Stove Mounters in the same month. He testified that when he was employed, Foreman Woodbury Mohr and Earl Hurst asked him if he belonged to the Stove Mounters and that in April 1938 Mohr told him he would be sorry he had joined the Stove Mounters. Mohr contradicted this testimony. We do not find it necessary to resolve the conflict. In the spring and summer of 1938 the respondent operated three steel furnaces and a cast-iron furnace in three 8-hour shifts. Early in June there was not sufficient work to keep the third shift busy CHAMBERS CORPORATION 829 on all three steel furnaces. The respondent decided, therefore, to shut down the No. 1 steel furnace and keep the remaining two steel furnaces in continuous operation. There were five men at the time on the No. 1 steel furnace and these the respondent shifted to other positions in the plant. Yeley, who had been working on the No. 3 steel furnace, was discharged on July 6, 1938. However, Yeley was the least experienced of the workers on the furnaces and was re- placed by Charles Priddy who had previously been working on the No. 1 furnace. Although the record is not clear as to the identity of all the men who were employed on the No. 1 furnace when it closed, the group contained at least two members of the Stove Mounters and, as already stated, these were transferred to other positions. Fore- man Mohr testified, also, that Yeley had been talkative and careless in his work. We find that the respondent did not discriminate against Yeley to discourage union membership or activity by discharging him on July 6, 1938. E. Discrimination in terms or conditions of employment The complaint alleges that since August 1937 the respondent dis- criminated in regard to the hire and tenure of employment of 17 employees "by lay-offs without regard to seniority; by discrimina- tion in regard to wage rates ; by transfers of said employees to less desirable positions; and, in various other ways, for the purpose of discouraging membership" in the Stove Mounters. At the hearing the Trial Examiner dismissed, on motion of the Board's attorney, the allegations of the complaint as regards four of the individuals named, namely, William G. Riggs, Marion Harrell, Amos Kerby, and Joseph Owens. No evidence of discrimination toward these four men was introduced. The ruling of the Trial Examiner is affirmed. Lucien Arbuckle is a foreiiian in the machine room who also op- erates a machine on piece work 2 or 3 hours a day. Arbuckle was 62 years old in March 1938 and is the oldest of the respondent's fore- men in both years and service, having worked for the respondent and its predecessor corporation since 1915. He testified without con- tradiction, and we find, that he is as active and alert in shop work as he was some years ago and has had no impairment of his speed or skill. In August or September 1937 Arbuckle attended an open social meeting of the Stove Mounters, this being the only meeting of that organization at which Arbuckle was present. Arbuckle became an honorary member of the Stove Mounters in December 1937. He paid 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an initiation fee but because of his status as an honorary member was not required to, and did not, pay union dues. The respondent 's plant is shut down at frequent interval s for lack of business. During shut-downs the respondent customarily em- ploys its several foremen for various tasks which frequently involve manual labor. Up to October 1937 Arbuckle worked during shut- down periods together with the other foremen. During such, a period ending October 2, 1937, Arbuckle worked 50 hours, approxi- mately the time worked by the other foremen during the same period. From October 2, 1937, through September 10, 1938, the other fore- men worked during 20 shut-downs, each foreman putting in between 32 and 50 hours during each shut -down. Arbuckle was given no work during these periods. Prior to January 1938 Arbuckle had always helped take the annual inventory . In that month the inventory for 1937 was taken during a plant shut-down , but Arbuckle was not employed on the inventory. In August or September 1938 Arbuckle asked Earl Hurst why he was laid off when the other foremen were working. Hurst replied, "I can't say very much, but some fellow you thought was a friend of yours wasn't. I can't tell you anything else." The respondent contends that a finding of discrimination on ac- count of union membership may not properly be made with respect to a foreman. The contention is without merit. Granted that the respondent may properly inhibit its foremen from interference with employee self-organization by adopting a non-discriminatory rule requiring foremen to refrain from activity in any labor organiza- tion and from participation in inter-union rivalry, it may not, in the absence of such a rule and without warning, discriminate against a foreman for his union membership or interest 10 Particularly is the case such as regards working foremen , whom we sometimes in- clude in a unit of production workers for the purposes of collective bargaining. In the present case , not only was there no expression of a rule of the nature indicated , but also, as already shown, some of the respondent's supervisory employees aided in the organizing of the Association with the tacit approval of the respondent. In the absence of any credible explanation for the respondent's failure to accord Arbuckle equal treatment with the other foremen, we find that the respondent has discriminated against Arbuckle for the purpose of discouraging membership and interest in the Stove Mounters, by refusing to give him employment during shut-down periods similar to that given to its other foremen. 10 Cf. Matter of Atlantic Greyhound Corpo) at,on and Bi otherhood of Railroad Trainmen, 7 N L. R. B. 1189. CHAMBERS CORPORATION 831 James A. Cassidy and Raymond R. Cordrey are truck drivers employed by the respondent, and are both members of the Stove Mounters. They contend that the respondent has discriminated against them in favor of William Records, a trucker's helper, by favoritism in allocating work. Records, who is not a member of the Stove Mounters, was employed in September 1937 to help load and unload the trucks and was later made a driver's helper to replace an employee who quit. As a helper Records was sent on trips with Cassidy and also handled some short trips alone. In addition Records continued doing loading and unloading at an hourly rate. Because of the number of his functions Records earned during 1938 and the last quarter of 1937 considerably more than the truck drivers and the other helper. Byron Dearing, the third truck driver, was initiated in the Stove Mounters in October 1937, but paid no dues. Cordrey testified that so far as he knew Dearing was not a member of that organization, that he had never heard that Dearing belonged to it, and that he had never seen Dearing' at union meetings. For 1938 and the last quarter of 1937, Cassidy made $3 less than Dearing, while Cordrey made $60 more than Dearing. We find that the respondent has not discriminated against Cassidy or Cordrey to discourage union membership or activity. Ary Heck was first employed by the respondent in February 1933 and joined the Stove Mounters in December 1936. He was one of the 41 men named in the settlement agreement and after the 1936 shut- down returned to work in August 1937, being put in the cast-iron department of, the enameling plant. In July 1938 he was made a burner helper on the furnace for a short time. He objected to the transfer, became ill on account of the nature of his new work, and was returned to the cast-iron department where he acted as off-bearer, patched tops, and helped one of the rimmers. During most of 1936 Heck had been receiving a flat rate of 45 cents an hour. Late in 1936 he was given a base rate of 40 cents an hour under a group system, which resulted in a yield in excess of 45 cents an hour. On his return in August 1937 his base rate in the group was 45 cents an hour and his actual earnings exceeded 60 cents per hour. As a burner helper, Heck received a base rate of 50 cents an hour. Heck's complaint is that the other seven men in his group receive a higher base rate than he does and consequently, under the opera- tions of the group system, greater earnings. Although the other men in the group occasionally do some off-bearing, their regular tasks are not comparable to Heck's and require greater skill. Heck receives the standard base rate paid off-bearers in the plant, although a few off-bearers imake a higher rate because of the particular nature of their work. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent has not discriminated against Ai•y Heck. Carl Jv/nken is a burner assembler who joined the Stove Mounters in September 1936. After the 1936 shut-down he returned to work in February 1937 and was paid a straight hourly rate of 40 cents. In April or May he was put on individual piece work and averaged about 71 ,cents an hour. He testified that lie knew of no other employee paid on individual piece work. In June 1938 a general regrouping was-made in the enamel plant and Junken was put in a group and paid under the group system. The change resulted in a drop in his hourly pay to approximately 68 cents. Junken contends that the change in the method of his compensation was made because of his union membership or activity. The evidence does not support this contention. We find that the respondent has not discriminated against Junken to discourage union membership or activity. Clellie R. Pendleton does enamel clipping and welding in the sheet- metal department. He joined the Stove Mounters about December 1, 1936, was laid off when the plant closed in the same month, and returned to work late in July 1937, being one of the 41 men named in the settlement agreement. The theory of the alleged discrimina- tion against Pendleton is based on his testimony that overtime work was given to his fellow worker, Sarringhaus, and refused to him. In particular Pendleton referred to extra work given to Sarringhaus in September 1938. The pay-roll records show, however, that Pendle- ton worked more hours during that month than did Sarringhaus. In addition, from the week ending August 20, 1938, through that ending October 15, 1938, Pendleton's hours totaled 3143/4 and Sarring- haus' hours totaled 2961/x. We find that the respondent did not discriminate against Pendle- ton in and after July 1937. 'Lloyd F. Phares was employed in 1923 by the respondent's prede- cessor corporation as a crater and continued working in that capacity for that corporation and for the respondent until July 1938. He joined the Stove Mounters in July 1937, and was on its grievance committee. Phares' complaint is that the respondent discriminated against him by transferring him in July 1938 to a position on the assembly line, stuffing wool insulation into stoves. His present posi- tion carries the same base rate and approximate earnings as his former job but is unpleasant and unhealthful. The transfer from Phares' former job` as a crater was made when the respondent stopped building the types of crates on which Phares had been working and began purchasing factory-made crates instead. At the time all the men in the crating department were members of the Stove Mounters and another employee, Earl Eades, was also CHAMBERS CORPORATION 833 transferred from crating to another position. After his transfer Phares made repeated requests to be assigned to another position and several times asked for specific jobs which had been vacated. His requests were not granted. Phares also contends that the respondent discriminated, against him by refusing to give him work in connection with an inventory taken on December 30, 1938. Phares asked his foreman to be em- ployed on the inventory but the foreman said that he would not hire anybody for the task. Phares was, however, given some extra work sweeping. While at this task he saw 17 or 18 men helping take inventory. However, the maximum time worked by any of these men on the inventory was 3 hours and Phares was given 3 hours of extra work at sweeping in the week ending December 31. We find that the respondent did not discriminate against Phares in and after July 1938 to discourage union membership or activity. Jerry Sliaw was employed by the respondent's predecessor corpo- ration in 1928 and was working for the respondent at the time of the 1936 shut-down. He returned to work in August 1937 pursuant to the terms of the settlement agreement and was placed on operations of a drill-press in the sheet-metal department. He joined the Stove Mounters at its inception and was a member of its negotiating committee. Shaw contends that the respondent has since August 1937 refused to give him extra work arising in his department. It is clear from Shaw's testimony that he was uncertain as to whether or not other members of the Stove Mounters received such extra work. The pay- roll records show that of eight drill-press operators, Shaw was third highest in the number of hours worked during 1938, his total being exceeded only by that of two operators who are also members of the Stove Mounters. We find that the respondent did not in and after August 1937 discriminate against Shaw to discourage union membership or activity. Herbert D. Small has been employed by the respondent and its predecessor since 1928. After the 1936 shut-down he returned ' to work in August 1937, being one of the 41 men named in the settlement agreement. He was then placed on the assembly line. Since his return, Small has received no extra work, which consists, in his department, of floor sweeping. This fact is the basis for Shaw's contention of discrimination. Small joined the Stove Mounters in May 1937 and was a member of its bargaining and grievance committees. On direct examination Shaw testified that he "would say" that the- extra work was done exclusively by Association members. The record shows, however, that a number of members of the Stove Mounters: 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did floor sweeping during 1938. There is no clear * evidence as to the amount of sweeping done by members of the Association. We find that the respondent did not discriminate against Small in and after August 1937 to discourage union membership or activity. John Snyder was working for the respondent at the time of the 1936 shut-down, was named in the settlement agreement, and re- turned to work in August 1937. Prior to his reinstatement, Snyder had been earning 45 cents an hour. On his return he was put on a job under the group system at a base rate of 45 cents an hour. Snyder complains that the respondent discriminated against him by failing to give him the benefit of a widely applied 10-per cent raise over the 1936 rate. In 1936, however, Snyder's rate was 45 cents straight-time. Under the group system his base rate of 45 cents is used merely to determine his relative share of the group earnings. In fact, Snyder earns over 60 cents per hour with his present base rate. We find that the respondent did not discriminate against Snyder in and since August 1937. Donald Stulb, a member of the Stove Mounters, returned to work after the 1936 shut-down in August 1937. He was one of those named in the settlement agreement. Stulb was paid 50 cents an hour, straight rate, before the shut- down. He returned at 45 cents an hour under the group system and was then raised to 471/2 cents an hour, group system. Stulb claims discrimination on the basis of the reduction in rate. Under the group system, however, Stulb in fact earns between 60 and 65 cents an hour. We find that the respondent did not discriminate against Stulb in and after August 1937. Eugene Walker began work for the respondent in November 1935 and voluntarily left its employ on August 24, 1938. Walker was a member of the Stove Mounters and was named' in the settlement agree- ment. He was a spot welder on piece work, and complains that he was assigned those classes of welding work which carried the worst prices. The evidence shows, however, that the welding work was regularly classified and that Walker was assigned the more varied and easier jobs because of the greater skill of the other welders, some of whom are are welders. On various occasions, also, Walker was given extra work and profitable work in positions which had been temporarily vacated. We find that the respondent did not discriminate against Walker. Harold K. Williams, a member of the Stove Mounters, was named in the settlement agreement and returned to work after the 1936 shut- down in August 1937. Prior to the shut-down he had worked on the manifold bench and was returned to the same position. At the time CHAMBERS CORPORATION 835 of his return, Estol Mahaffey and Chester McKenney, neither of whom was a member of the Stove Mounters, also were employed on the manifold bench. Late in September 1938 Williams and McKenney were transferred to the assembly line, and Jim Mahaffey, who was not a member of the Stove Mounters, was placed on the manifold bench. Williams' complaint is that since his transfer McKenney has been given some extra time building top-burner brackets while Williams has not. About a month after Williams' transfer, his foreman, Rapp, asked him, "Do you think you will ever amount to anything?" Williams expressed ignorance on the subject and Rapp then said : "All you have got-is a little bit of money and your job back. At one time I was in a union and I thought I was really doing something. Then they went out on strike and all I got out of it was I come mighty near losing everything I ever got. Maybe you'll be in the same shape." The respondent's pay-roll records show that from October 1 through December 3, 1938, Williams worked 2751/4 hours and earned $198.90. During the same period McKenney worked 3001/4 hours and earned $217.29. Since Williams' transfer from the manifold bench he has averaged 6 cents an hour more pay but has worked less hours. Har- rell, a member of the Stove Mounters, has also helped build the top-burner brackets. The evidence does not support a finding of discrimination against Williams on account of his union membership or activity. The allegations of the complaint to that effect will be dismissed. F. Other interference, restraint, and coercion In January 1937 Harry Lightfoot, an employee of the respondent, asked one DePrez, a stockholder and director of the respondent, if he would intercede to obtain employment for Lightfoot in the re- spondent's plant. DePrez asked Lightfoot if he was a member of the Stove Mounters. Lightfoot was in fact a member, but replied in the negative. DePrez then said that he did not know what was going to be done in the way of operating the plant, and that he had himself twice met the pay roll in the past. He again asked Light- foot if he had joined the Stove Mounters, and said: "The reason why I asked the question was that if you had ever had anything to do with the union or joined the union, you won't get back to work at Chambers Corporation and probably you won't have a job anywhere in Shelbyville." DePrez's interrogation as to Lightfoot's union membership and his statement that such membership would be a bar to employment are attributable to the respondent. We find that by the statements made by DePrez and the previously described statements made to Williams by Foreman Rapp, the respondent has interfered with, 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRAC TICES 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 to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in and is engaging in unfair labor practices, we shall order it to cease and desist there- from and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent on and after November 23, 1937, refused to bargain with the Stove Mounters, which was and is the exclusive representative of the employees in the appropriate unit. L order' to effectuate the policies of the Act, we shall require the respondent "to ' bargain with the Stove Mounters on its request. Since we; gave„found that the respondent entered negotiations with a pie- concei.ved determination not to enter into a contract, we shall order the respoiic ent,, if an understanding is reached upon matters bar- gained about by it and the Stove Mounters, to embody such under- standing in a signed agreement, upon request by the Stove Mounters. We shall also order the respondent to refuse to recognize the As- sociation as the representative of any of its employees for the purposes of collective bargaining, and completely disestablish the Association as such representative. We have found that the respondent has discriminated against Lucien Arbuckle by refusing to give him employment during shut- down periods substantially equal to that given to its other foremen. In order to effectuate the policies of the Act, we shall order the re- spondent to make whole Lucien Arbuckle for any loss of pay he may have suffered by reason of such discrimination by payment to him of a sum equal to the amount which he normally would have earned as wages during such shut-down periods, less his net earnings 11 during said periods. By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- wwhere than for the respondent , which would not have been incurred but for the unlawful discrimination and the consequent necessity of the employee 's seeking employment else- where See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B 440. Monies received for work performed upon Federal, State, county, municipal , or other work- 28'l032-41-vol 21--54 CHAMBERS CORPORATION 837 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Allied Stove Mounters and Stove Processors International Union, Local No. 36, affiliated with the American Federation of Labor, and Employees Welfare Association are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and ad- ministration of Employees Welfare Association and contributing support to it, the respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8 (2) of the Act. 3. The employees of the respondent exclusive of supervisory, clerical, and salaried employees, and employees in the engineering department, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act. 4. Allied Stove Mounters and Stove Processors International Union, Local No. 36, was, on October 29, 1937, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing to bargain collectively with Allied Stove Mounters and Stove Processors International Union, Local No. 36, as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. By discriminating in regard to the hire and tenure of employ- ment of Lucien Arbuckle and thereby discouraging membership in Allied Stove Mounters and Stove Processors International Union, Local No. 36, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the ,Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 9. The respondent has not engaged in unfair labor practices with- in the meaning of Section 8 (3) of the Act as respects Ray Thorn- burg, Dorey McKenney, William IIandly, Ralph Yeley, William G. relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee, Lad the amount thereof shall he paid to the appropriate fiscal agency of the Federal , State, county, municipal , or other government of governments which supplied the funds for said work -relief projects 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Riggs, Marion Harrell , Amos Kerby, Joseph Owens, James A. Cas- sidy, Raymond R. Cordrey, Ary Heck, Carl Junken, Clellie 'R:'Pen- dleton, Lloyd F. Phares , Jerry Shaw, Herbert D. Small, John Sny- der, Donald Stulb, Eugene Walker, and Harold K. Williams. 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 re- spondent, Chambers Corporation. its officers , agents, successors, and assigns, shall: 1. Cease and desist from : (a) Dominating and interfering with the administration of Em- ployees Welfare Association , or with the formation and administra- tion of any other labor organization of its employees , and contribut- ing support to Employees Welfare Association or any other labor organization of its employees; (b) Discouraging membership in Allied Stove Mounters and Stove Processors International Union, Local No. 36, or any other labor or- ganization of its employees , by in any manner discriminating in regard to the hire, tenure of employment, or terms and conditions of employment of any of its employees; (c) Refusing to bargain collectively with Allied Stove Mounters and Stove Processors International Union, Local No. 36 , as 'the ex- clusive representative of its employees , exclusive of supervisory , cleri- cal, and salaried employees , and employees in the engineering department; (d) In any other manner interfering with, restraining , or coercing 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 con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Refuse to recognize Employees Welfare Association as repre- sentative of any of its employees for the purpose of dealing with the respondent concerning grievances , wages, rates of pay, hours of employment, or other conditions of employment, and completely dis- establish Employees Welfare Association as such representative ; (b) Make whole Lucien Arbuckle for any loss of pay he may have suffered by reason of the respondent 's discriminatory refusal to give him employment during shut down periods substantially equal to that given to its other foremen by payment to him of a sum of CHAMBERS CORPORATION 839 money- equal to that which .he would--have earned as wages during such shut-down periods had the respondent refrained from discrimi- nating against him, less his net earnings during such periods; 12 de- ducting, however, from the amount otherwise due to said Lucien Ar- buckle monies received by him during said shut-down periods for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects ; (c) Upon request, bargain collectively with Allied Stove Mount- ers and Stove Processors, International- Union, Local No. 36, as the exclusive representative ,of "the `employees of the respondent exclu- sive of supervisory, clerical, and salaried employees and employees in the engineering department, in respect to. rates of pay, wages, hours of employment, and other conditions of employment ; and, if an understanding is reached on such matters, upon request embody such understanding in a signed agreement; (d) Post immediately in conspicuous places in its plant, and maintain for a period of at least sixty (60) consecutive days, notices to its employees stating (1) that the respondent will cease and de- sist as provided in paragraph 1 of this Order; (2) that it will take the-affirmative actions described in paragraph 2 (a), (b), and (c) of this Order; -arid (3) thitt `the 'respondent's employees are 'free to become or remain members of Allied Stove Mounters and Stove Processors International Union, Local No. 36, and that the respond- ent will not discriminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director for the Eleventh Region in writing within ten (10) days from the date of this Order what-steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act as respects Ray Thornburg, Dorey McKenney, William Handly, Ralph Yeley, William G. Riggs, Marion Harrell, Amos Kerby, Joseph Owens, James A. Cassidy, Raymond R. Cordrey, Ary Heck, Carl Junken, Clellie R. Pendleton, Lloyd F. Phares, Jerry Shaw, Herbert D. Small, John Snyder, Donald Stulb, Eugene Walker, and Harold K. Williams. '= See footnote 11, supra