Hoosier Veneer Co.

In the Matter of HOOSIER VENEER COMPANY, A CORPORATION AND FRANK F. WOOLLING, RECEIVER FOR HOOSIER VENEER COMPANY and UNITED VENEER AND LUMBER WORKERS LOCAL INDUSTRIAL UNION No. 607, AFFILIATED WITH THE C. I. O. Case No. C-1094.-Decided March 22, 1940 Veneer _Manufacturing Industry-Employer: receiver in charge of business, held to be-Interference, Restraint, and Coercion: questioning employees re- garding union affiliation ; threats to close plant because of union activity ; blacklisting laid-off employee because of union activity--Discrimination: re- fusal to reinstate following temporary shut-down ; in selection of reduced staff upon resuming operations ; contention that employees discharged rather than laid off, denied-Reinstatement Ordered: of 12 employees ; displacement of em- ployees hired after shut-down ; preferential list to be followed in reinstatement of those for whom no work available-Back Pay: awarded : to 14 employees discriminated against-Unfit Appropriate for Collective Bargaining: production and maintenance employees, excluding clerical and supervisory employees- Representatives: proof of choice : application cards-Collective Bargaining: re- fusal to recognize Union as exclusive bargaining agent; refusal to bargain with purpose of reaching an agreement ; refusal to bargain as to reinstatement of laid- off employees-Order: to bargain ; runs against receiver and, in the event the receivership is discharged, against the corporation. Mr. Walter B. Chelf, for the Board. Mr. H. K. Bachelder and Mr. W. C. Bachelder, of Indianapolis, Ind., for the respondents. Mr. Frank P. Baker, of Indianapolis, Ind., for W. C. Bachelder. Miss Marcia Hertzmark and Mr. Francis V. Paone, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Veneer and Lumber Workers Local Industrial Union, No. 607, affiliated with the C. I. 0., herein called the Union, the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Eleventh Region (Indianapolis, Indiana), issued its complaint dated September 26, 1938, against Hoosier Veneer Company, a Cor- 21 N. L. R. B., No. 91.. 907 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD poration, and Frank F. Woolling, Receiver for Hoosier Veener Com- pany, Indianapolis, Indiana, sometimes herein respectively called the respondent corporation and the respondent receiver and sometimes collectively called the respondents, alleging that the respondents had engaged in and were 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 accom- panying notice of hearing were duly served upon the respondents and the Union. Concerning the unfair labor practices, the complaint alleged in substance (1) that on or about October 1, 1937, and at all times thereafter, the respondents refused to bargain collectively with the Union although that organization represented a majority of the employees within an appropriate unit; (2) that on or about Novem- ber 15, 1937, after a temporary shut-down of the plant, the respond- ents refused to reinstate certain named employees for the reason that they had joined and assisted the Union and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection; (3) that the respondents kept under surveillance the meeting places of the Union, made derogatory statements to the employees concerning the Union, and conducted an open poll for the purpose of ascertaining the desires of employees as to union membership. On September 30, 1938, the respondent corporation filed with the Regional Director a special appearance and a motion to dismiss the complaint on the ground that the respondent corporation was and had been in receivership at all times covered by the allegations of the complaint, that the corporation was legally incapable of being an employer under the Act, and that it was incapable of being served with process without formal consent of the receivership court. Pursuant to notice, a hearing was held at Indianapolis, Indiana, on October 6, 7, 10, 11, and 12, 1938, before Earl S. Bellman, the Trial Examiner duly designated by the Board. The Board and the re- spondent corporation were represented by counsel and participated in the hearing. The respondent receiver appeared specially and filed a motion to dismiss the complaint as to him on the ground that the Board had no jurisdiction over him. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the commencement of the hearing the respondents renewed their motions to dismiss the complaint. The Trial Examiner denied the motions. During the course of the hearing, counsel for the re- spondent corporation entered orally a general denial to the complaint and was granted permission by the Trial Examiner to file a written HOOSIER VENEER COMPANY 909 answer to the complaint. On October 12, 1938, the respondent cor- poration filed its answer to the complaint, denying the jurisdiction of the Board and denying that it had engaged in the unfair labor practices alleged. The Trial Examiner granted a motion of counsel for the Board to dismiss the complaint without prejudice as to Roy Grider and B. B. Quillen. At the conclusion of the hearing, counsel for the Board moved to amend the complaint to conform to the proof. The motion was granted. During the course of the hearing the Trial Examiner made a number of 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.' The respondent corporation, pursuant to permission granted, submitted a brief to the Trial Examiner. On December 15, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all the parties, finding that the respondent receiver had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1), (3), and (5) of the Act. He recommended that the respondent receiver cease and desist from his unfair labor practices; that he offer reinstate- ment with back pay to 13 employees named in the complaint who were found to have been refused reinstatement because of their union membership and activity, but that the complaint be dismissed as to William Coffey ; and that he bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit. He also recommended that the complaint be dismissed as to the respondent corporation. The Union thereafter filed exceptions to the Intermediate Report, protesting the action of the Trial Examiner in recommending the dis- missal of the charges against the respondent corporation on the ground that it would relieve the corporation of the fulfillment of the obligation created by our order in the event that the receivership should be terminated. The Board has considered the exceptions to, the Intermediate Report. As set forth below we shall provide in our order that the respondent corporation be responsible under our order in the event that the receivership is terminated and the receiver discharged. The Board, having been informed that Frank F. Woolling, the respondent receiver, had died on January 15, 1939, thereafter issued an order pursuant to Article II, Section 36, of National Labor Rela- ' The ruling of the Trial Examiner , denying the motion of the respondent corporation to dismiss the complaint as to it , was in effect reversed by the Trial Examiner in his Intermediate Report. We affirm the ultimate ruling of the Trial Examiner as contained in the Intermediate Report. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Board Rules and Regulations-Series 1, as amended , reopening the record and authorizing the Regional Director to accept a supple- ment to the charge and to the complaint for the purpose of making W. C. Bachelder, the successor' to Frank F. Woolling, a party to the proceedings. Thereafter, upon a supplemental charge duly , filed by the Union, the Board , by the Regional Director , issued a supplemen- tal complaint, dated May 3, 1939, against Hoosier Veneer Company, a corporation , and W. C. Bachelder, Receiver for the Hoosier Veneer Company. On May 9, 1939, W. C. Bachelder filed with the Regional Director a motion to dismiss the complaint as to him on the ground that the Board had no jurisdiction over him. Pursuant to notice , a hearing was held at Indianapolis , Indiana, on May 18, 1939 , before James C. Paradise, the Trial Examiner duly designated by the Board. The Board and W. C. Bachelder, who appeared specially , were represented by counsel . Full opportunity to be heard, to examine and cross -examine witnesses , and to introduce evidence bearing on the issues was afforded all parties . At the com- mencement of the hearing W. C. Bachelder renewed his motion to dis- miss the complaint. The Trial Examiner reserved ruling on the motion. The Board hereby denies the motion . On May 29, 1939, the Board issued an order directing that no Intermediate Report be issued by the Trial Examiner in the further hearing. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT CORPORATION The respondent corporation, Hoosier Veneer Company , was incor- porated under the laws of the State of Indiana in about 1903. Its office and plant are located in Indianapolis , Indiana. The operations of the respondent corporation , consisting of the manufacture, sale, and distribution of veneer and related products, were continuous from its incorporation until January 17, 1933. On that date, its entire business was placed in charge of the respondent receiver by the Marion County Circuit Court, Marion County, Indiana. The re- spondent receiver continued in full charge of the business from that time until his death on January 15, 1939. On January 17, 1939, W. C. Bachelder succeeded him as receiver. Upon entering his duties as receiver in 1933, Woolling apparently made no changes in foremen or in the supervisory set-up at the plant. H. E. Daugherty , former president of the corporation, was retained in a role apparently equivalent to that of general manager of the plant, under the direction of the respondent receiver. James C. Daugherty, secretary-treasurer of the respondent corporation, was also HOOSIER VENEER COMPANY 911 retained by the respondent receiver in a capacity substantially equiv- alent to that of sales manager. It is apparent that the respondent receiver delegated routine responsibilities for production, sales, and personnel, including hiring and discharging of employees, during the period of the receivership, to H. E. Daugherty and James C. Daugherty and to the various foremen at the plant. The respondent corporation's operations require the use of such raw materials as logs, stumps, and burls. During 1937, 73 carloads of logs were shipped to the respondent corporation's plant from points outside the State of Indiana, including one carload from British Columbia and five from West Africa.2 From 1933 to 1937 the sales of the respondent corporation have ranged from approximately one-quarter million to over one-half million dollars per year. The major portion of the products sold were shipped to States other than Indiana. The respondent cor- poration maintains salesmen in each of the principal furniture manufacturing areas in the United States including Rockford and Chicago, Illinois; Grand Rapids, Michigan; Jamestown, New York; Virginia; North Carolina; and Oregon. II. THE ORGANIZATION INVOLVED United Veneer and Lumber Workers Local Industrial Union No. 607 is a labor organization affiliated with the Committee for Industrial Organization,3 admitting to membership persons employed at the respondent corporation's plant at Indianapolis, Indiana, except clerical and supervisory employees. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Union commenced organizational activities among the re- spondent receiver's employees in July 1937. Beginning about the latter part of August, the respondent receiver, Frank F. Woolling, various agents of the respondent receiver, including H. E. Daugh- erty, president of the respondent corporation, James C. Daugherty, secretary and treasurer of the respondent corporation, and Plant Superintendents Connor and Randall, interrogated individual em- ployees concerning their membership in the Union and inquired whether other employees had joined. Often coupled with such,ques- tions were anti-union remarks and statements concerning the C. I. O. On or about October 5 James C. Daugherty asked Frank Scott, a fireman, if he had joined the C. I. O. and if other firemen had 2 The total number of carloads shipped to the respondent corporation does not appear 8 Now the Congress of Industrial Organizations. 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "signed up." When Scott replied that he had joined, Daugherty said, "Well, Scotty, I hate that. I think the old man [H. E. Daugh- erty] will shut the plant down." On October 11, 1937, the day of the shut-down, which we shall discuss hereinafter, H. E. Daugherty called on Scott in the cutting room of the plant and said, "Scotty, when 4 o'clock comes this evening and you punch the clock your working here is over. You are permanently away from here. I want to tell you myself so you can damn well understand and there will be no misunderstanding in any way. Scotty, one time you stood mighty well with me, but that is all over now." During the same period Superintendent Connor on various oc- casions asked Scott about his union affiliation. In the course of these conversations Connor told Scott, in substance, that the Union was bad; that if the Union got into the plant it would shut down; and that they had "plenty of veneers to run for two or three years with- out any production in the cutting room." Connor also inquired of Charles Arthur, Hayden Arthur, and B. M. Wasson, three employees, whether they had joined the Union. Upon receiving an affirmative reply from Hayden Arthur, Connor told him, "Well, it looks like jobs is going to be kind of scarce here now. It looks like the old man will shut down now." Omer Lee Cookenour was also ap- proached by Connor and queried as to whether he had joined the Union. Cookenour replied that he had joined. Connor thereupon inquired why he had joined and expressed the opinion that the men had treated H. E. Daugherty "wrong" by signing up with the Union. Connor also asked William Maynard if he had joined the C. I. O. and when Maynard replied that he had and was "damn proud of it," Connor said, "You may be sorry and might lose your job." On another occasion Connor questioned James Short as to whether he was a member of the Union. Short replied that he had joined. Connor who was carrying a day book in his hand, stated that he was taking the names of those who had joined the Union, that "old man" Daugherty would not recognize the Union, and that the men would all be laid off, except Connor, and a few others, who would be there "reading a newspaper and drawing his money just the same." Connor also told Frank Toler, on October 7, 1937, that the plant would shut down, after Toler admitted having joined the Union. On the following day Connor told Toler, "I have got as many names or more that hasn't joined them than you have that have." Prior to the shut-down, Myrna Heady, an employee, carrying a veneer tape, approached Jesse Holyfield, the president of the Union, while at work and said that Randall, a superintendent, wanted those who had joined the C. I. O. to mark an "X" on the tape and those HOOSIER VENEER COMPANY 913 who had not joined to mark an "0" on it. Holyfield took the tape, wet the glue on the reverse side, affixed it to the table, and told Heady that if Randall wanted to know about the membership of the Union he could ask Holyfield. Several days later Randall met Holyfield at the plant and said to him, "I figured you would try to block Myrna." On about October 7, while Holyfield was at work at his inspection table, Woolling, the respondent receiver, approached him and started a conversation about unions. Woolling stated that "he didn't see why we had to join up with this outfit when we could have a shop union." O. W. Humrichouse testified that prior to the shut-down Connor asked him if he had signed up with the Union. Humrichouse replied that he did not feel that his union affiliation was any of Connor's business. Connor stated that he would take it for granted that Hum- richouse had signed, and added that H. E. Daugherty wanted to know who had signed up and who had not. During the latter part of October Humrichouse applied for a job with a manufacturer of veneer machinery in Indianapolis. The official of that company who interviewed Humrichouse told him that he understood Humrichouse was a member of the C. I. O. and stated, "I don't know as it is going to do you any good. You- will get a lot of 'publicity from that from Mr. Daugherty." Shortly thereafter Humrichouse returned to the respondents' plant and talked to Daugherty about getting work. Daugherty told him he could never be employed at the plant under any consideration. Humrichouse requested that Daugherty "come out and make it straight" with the veneer manufacturing company "how I was as a workman" and, after refusing, Daugherty told him "that the veneer employers had had meetings as well as the union had had meetings," and that if he ever got a job elsewhere Daugherty would do his utmost to have him discharged. Daugherty also told him "he would blacklist . . . (him) so that ... (he) wouldn't be able to work anywhere." In May 1938, Humrichouse applied for work with a veneer company in Maryland. The reply Humrichouse received contained the following paragraph: In the meantime, we have been looking you up from our own angle and the most disturbing thing is that it was mentioned you were the C. I. O. representative in the Hoosier Veneer Company strike. Have you anything to say about this report? It is apparent, and we find, that Daugherty carried out his threat to blacklist Humrichouse. About 2 weeks after the shut-down, Harold Peters, who had been employed as a sawyer, returned to the plant and talked to H. E. Daugherty about returning to work. Daugherty asked him if he had joined the C. I. O. and, upon Peters' acknowledgment that he had, 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Daugherty said, "Well, there will never be a job here for you. I am organizing this plant. I am doing all the hiring and firing. I am boss around here and intend to continue to be boss." King Beatty, who was employed on the stump deck and who was reinstated about 3 weeks after the shut-down, recounted on the witness stand a conversation he had with Connor a short time after he returned to work. Connor asked Beatty if he had joined the Union. Beatty replied that he had. Connor stated "he didn't think the damn thing didn't amount to much anyway.... You are a good worker, but just forget about it." Shortly thereafter Beatty went to the office of H. E. Daugherty to make certain arrangements with regard to securing unemployment insurance. Daugherty inquired of Beatty what he was going to do when his insurance ran out and told him, "You are even lucky you have got a job here. You are fooling around with this union." Woolling, H. E. Daugherty, James C. Daugherty, Connor, and Randall were not called to testify at the hearing. The statements attributed to them are not denied and we find that they were made. There can be no doubt that the course pursued by the respondent re- ceiver immediately following the commencement of the organizational movement among the employees was designed to prevent, if possible, any organization of the employees. The statements of agents and supervisory employees of the respondent receiver must be regarded as attempts to impede the Union's efforts to secure members. We have frequently held that such interference by an employer, or by those responsible for expressions of his policy, contravenes the Act 4 Such interrogation constitutes an implied threat that the employer's eco- nomic power may be used to the disadvantage of the individual employees who are active in the Union. We find that the respondent receiver, by the statements and actions described above, has interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed by Section 7 of the Act. B. The discriminatory refusals to reinstate On or about October 10 or 11, 1937, the respondent receiver filed with the Circuit Court of Marion County, Indiana, a Petition for Instructions. The petition began with a recital of the relations be- tween the respondent receiver and the Union up to that time and continued with a statement that business had been declining for some time, that an excess amount of finished products was on hand, and 'Matter of Trenton Garment Company and International Ladies' Gai meat Workers Union, Local 278, 4 N. L. R. B. 1186; Matter of Commonwealth Telephone Company and Theodore It. Siplon, Walter F. Seidler and International Brotherhood of Electrical ii of tiers, 13 N. L. R. B. 317, and cases cited therein. HOOSIER VENEER COMPANY 915 that during the week immediately preceding the petition evidence of sabotage had been discovered in the plant. On October 11 the court issued its order on the respondent receiver's petition providing, among other things : that the receiver terminate all manufacturing operations of said plant, excepting only such as are necessary for the fulfillment of orders after the same have been received or to prevent unusual depreciation ; .. . The Court further instructs the receiver that he has authority to enter into discussion, at any time, with those then in his em- ploy, with regard to the rate of wages, hours of labor, or condi- tions of employment; and that, if the receiver as a result of such discussions is of the opinion that any material change relating to any of said above mentioned subjects should be made that he report his recommendations to the Court for further instruc- tions thereon. Upon receipt of the court's order, the respondent receiver immedi- ately notified the foremen and superintendents that the plant would shut down at the end of the working day. A copy of the order was posted on the clock and the plant closed at the appointed time. Two or three days after the shut-down, the respondent receiver reopened the plant and started limited operations to fill current orders. Prior to the shut-down the respondent receiver had in his employ between 125 and 135 production and maintenance employees. On November 1, 1937, approximately one-half of the number pre- viously employed were working. Thereafter, the number fluctuated but apparently averaged about 60 production and maintenance em- ployees. Among those who were not reinstated were the 14,1 com- plainants herein, Frank Toler, Eugene Montgomery, Frank Scott, Jesse Holyfield, Eugene Brummett,6 O. W. Humrichouse, Hayden Arthur, Charles Arthur, James Short, Harold Peters, Omer Lee Cookenour, William Maynard, William Coffey, and B. M. Wasson. We shall consider here the work histories and union activities of these men in so far as it appears from the record before us. Jesse Holy field had been employed for about 6 years and, at the time of the shut-down, was working as an inspector in the dimen- sions department. He had experience in practically every operation in the plant and had acted as assistant to Superintendent Randall, having taken the latter's place during his absence from the plant for 2 months during 1935. Holyfield had been praised for the manner 5 At the hearing the allegations of the complaint as to Roy Grider and B B Quillen Here dismissed without prejudice upon motion of counsel for the Board OIncorrectly designated Brunimitt in the complaint The complaint was amended to correct the error 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in which he performed his work and was given a bonus for the extra work he did during Randall's absence. His earnings had averaged $28 per week. Holyfield was president of the Union, was a member of the committee which attempted to negotiate a contract with the respondent receiver, and had secured about 30 signatures on applica- tions for membership in the Union. Eugene Montgomery had been employed for 17 years, during the last 8 years in drying, measuring, and sampling flitch stock veneer. During part of this time he was in charge of these operations. He had received no complaints on his work. His earnings averaged about $22 a week. He was vice president of the Union, a member of its negotiating committee and had secured 13 signatures on appli- cations for membership in the Union. 0. W. Humrichouse had worked for the respondent receiver for about 4 years, during which time he had operated a slicer, the most highly skilled job in the plant. He had been complimented on his work by Superintendent Randall and by H. E. Daugherty and had received two pay increases which brought his hourly earnings from 55 cents to $1.00 an hour. He had earned on the average $46 a week. Humrichouse was treasurer of the Union, a member of the negotia- ting committee, and at the hearing, identified the signatures on six union membership applications which had been signed in his presence. Eugene Brummett was employed about 4 years before the shut- down. He had experience as off-bearer on a slicer, in addition to the work he had done the past 3 years on the drier. At the time of the shut-down he was lead man on the day shift, had received no com- plaints on his work, and was earning about $23 or $24 a week. Brummett was a member of the Union's negotiating committee and had secured the signatures of 13 employees upon union membership cards. Harold Peters began working for the respondent receiver in February 1937. He worked on the hot plate press drier, served as an off-bearer on machines, ran a clipper and a saw on dimension veneer. His work had been continuous and there had been no com- plaints as to the manner in which he performed it. His weekly earnings averaged $20. At the hearing Peters identified the signa- tures of eight persons on union cards and testified that he had per- sonally "signed up" five of them. He was one of the leaders in the organizing campaign of the Union. Hayden Arthur, Frank Toler, James Short, and O'iner Lee Cookenour were employed on the stump deck under Foreman Bolles. Arthur had worked for about 21/2 years as a chopper ; Toler had been employed for 20 years and was head sawyer; Short had worked for about 2 years breaking root wads on the stump deck; and Cookenour HOOSIER VENEER COMPANY 917 had worked in the log yard during his 13 months' employment. Each had earned about $18 a week and had received no complaints as to his work. Toler's hourly wage had increased from 25 cents to 45 cents an hour. On October 8, 3 days before the plant was shut down, these employees were notified that they were being laid off because of a shortage of stumps and that they would be recalled when the stumps were obtained. They were not called back to work. All were members of the Union and had solicited others to join. Arthur had also served on the negotiating committee of the Union which met with the respondent receiver. William Maynard and William Coffey worked on the stump vats under Superintendent Connor. Maynard had been employed for about a year and Coffey for 10 months. Each was earning approxi- mately $16 a week at the time of the shut-down and neither had re- ceived any complaints as to his work. Both were members of the Union and had solicited others to join. Charles Arthur and Frank Scott had been employed prior to the shut-down as boiler firemen and night watchmen. Arthur had worked for the respondent receiver for about 2 years and was earn- ing an average of about $22 a week. Scott had worked for almost 8 years and his average weekly earnings were about $21. No com- plaints had been made concerning their work during the time each was employed. Arthur and Scott belonged to the Union and solicited members among the employees at the plant. B. M. Wasson had been employed as a common laborer on a variety of operations for 10 months preceding the shut-down, at which time he was earning about $16 a week. There were no com- plaints made as to his work. He had joined the Union prior to the shut-down and had solicited others to join. The Union contends that, in the reinstatement of employees when the plant began to operate after the shut-down, union members were discriminated against. It points to the fact that several new em- ployees were hired after the reopening of the plant, and charges that the respondent receiver has violated Section 8 (3) of the Act by refusing to reinstate the complainants because they were mem- bers of and active in the Union. In conferences between the respondent receiver and the Union after the plant reopened, the respondent receiver took the position that the persons who ceased work as a result of the court order had been discharged and that only those employed thereafter were his em- ployees. The Union, on the other hand, contended that when the plant shut down the employees had merely been laid off, that they retained their status as employees within the meaning of the Act, and that they were entitled to reinstatement. 2530 32-41-vol 21-,9 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The order of the Circuit Court of Marion County clearly did not contemplate a complete and permanent cessation of operations, as appears from the wording of the order.7 The fact that the respond- ent receiver resumed operations in certain parts of the plant within a few days after the shut-down indicates that he did not construe the court's order as requiring such cessation and that he had no in- tention of stopping operations for more than a temporary period. Indeed, the circumstances under which the petition of the respondent receiver was presented to the court show that the respondent receiver had no desire to secure a complete stoppage of work and that, at the time, he had no intention of discharging the men whose services would not be required for a short period. Also, the men laid off at the time of the shut-down could reasonably expect to be called back to work upon the resumption of operations. They were not informed that they were being discharged but were merely given an opportunity to read the court's order when it was posted on the clock. The plant had previously been closed down in some or all departments on occasions for periods varying from a few hours to several weeks and the men had always been called back to work upon the resumption of operations. King Beatty, who was reinstated about 3 weeks after the shut-down, was not required to execute a new employment application at the time he went back to work, which further indicates that the respondent receiver did not con- sider the employees discharged. We find that the persons laid off at the time of the shut-down re- tained their status as employees of the respondent." Although it is admitted that the plant has not operated at full capacity since the shut-down, and we do not find that the respondent receiver engaged in discrimination by employing fewer persons upon the plant's reopening, we must consider further whether the respond- ent receiver's method of selecting employees to be given work upon the resumption of operations involved discrimination against the union members and in favor of non-union employees.e 'The order directs, in part, "that the receiver terminate all manufacturing operations of said plant, excepting only such as are necessary for the fulfillment of orders after the same have been received or to prevent unusual depreciation , . . . B See North Whittier Heights Citrus Association v N L R B , 109 F (2) 76 (C C A. 9), enf'g Matter of North Whittier Heights Citrus Association and Citrus Packing House Workers Union, Local No. 21091, 10 N. L R. B. 1269, Matter of American Radiator Company, a corporation, and Local Lodge No 1770, Amalgamated Association of Iron, Steel and Tin Workers of North America, affiliated with the Committee for Industrial Organization, 7 N. L. R. B. 1127 ; N. L R B v. Waterman Steamship Corporation, 309 U S . 696 (U S S. Ct ), rev'g Waterman Steamship Corporation v N L R, B . 103 F. (2d) 157 (C. C. A. 5), and enf'g Matter of Waterman Steanzslnp Corporation and National Maritime Union of America, Engine Division, Mobile Branch, Mobile, Alabama, 7 N. L. R B. 237. e Cf. Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local Union No. 3, International Woodworkers of America , 20 N L R B 1. HOOSIER VENEER COMPANY 919 On November 3,1937, there were 57 persons working in the plant. Of the 57 there were 29 union members, or a fraction more than 50 per cent, and 28 non-union members. Prior to the shut-down the respond- ent receiver employed 96 union members who constituted almost 76 per cent of the total number of employees, and 31 non-union members, constituting approximately 24 per cent of the total. Only 3 non-union employees were not reinstated, whereas 67 union members were not taken back. As to the non-union men who had not been reemployed, Whitman, the union organizer, testified, "It was explained in a meet- ing why these three or four wasn't working. One of them was work- ing on his house, another fellow had some other excuse but every one of the non-union employees that wanted to work at that time was work- ing ... " It is apparent, therefore, that the non-union employees received about twice as many jobs as their former representation in the plant would have led them to expect, while the union employees received only about two-thirds as many jobs as they might have expected. The disparity between a 76-per cent expectancy and a 50-per cent realization by the union employees, and a 24-per cent ex- pectancy and 50-per cent realization by non-union employees can only be explained on the ground that the respondent receiver dis- criminated against the members of the Union in favor of the non- union employees.10 Moreover, although 29 union members were re- instated by the respondent receiver after the shut-down, among those who were refused reinstatement were the president, vice president, and secretary-treasurer of the Union, two leaders of the organizing cam- paign, and employees who were active in soliciting membership in the plant-and who were on the negotiating committee of the Union. We have already found that James C. Daugherty, secretary and treasurer of the respondent corporation, and Superintendents Connor and Randall questioned the men concerning their union membership. We have also found that some of the men had been warned that if union activity continued the plant would shut down and that they would all lose their jobs except a few who would be "sitting around," reading a newspaper and drawing their pay. Superintendent Randall had sent a tape through the plant with a request that employees identify themselves as union or non-union members. H. E. Daugh- erty indicated his reaction to the activity of the Union by telling Hulnrichouse, "by the Union coming in at this particular time that it would save him the embarrassment of going to the court and slow- ing down production ... He would just stop all operations." Super- 10 Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local Union No 3, International Woodworkers of America, 20 N L R B 1 It should be noted that if the 14 complainants were reinstated, and 14 non-union employees dismissed, the Union and non-union employees then working in the plant would be in the same proportion as existed prior to the shut-down 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intendent Connor told William Coffey, about a week before the shut- down, that he "should have considered" before he went into the Union, and warned Maynard that he might regret the fact that he had joined and that he might lose his job. When the plant reopened subsequent to the shut-down, the mem- bers of the Union who applied for reinstatement were given a clear indication of the real reason for the respondent receiver's refusal to re- instate them. Omer Lee Cookenour was told by H. E. Daugherty that he understood Cookenour had been one of the "head leaders" of the C. I. O. and was told to leave the plant and to "stay outside." Harold Peters, who applied for reinstatement about 2 weeks after the shut-down, was asked by Daugherty whether he belonged to the C. I. O. When Peters replied affirmatively, Daughtery said, "Well, there will never be a job here for you," although Peters' foreman, Pogue, had told Peters a few minutes before that he could be used at any time if he had Daugherty's approval. George Woods, a night -watchman at the plant who was kept on after the shut-down, testified that, about November 15, 1937, he was called to Daugherty's office and instructed that he was not to permit certain people in the plant. Daugherty inquired if Woods "had any affairs" with the Union and explained that he had worked Jesse Holyfield and Eugene Montgom- ery "a good while, paid them good money, they had went and signed up in a union and was causing trouble amongst the shop, that he let them out. As far as he was concerned Mr. Holyfield would never work there any more, and the rest. He says those that is in the union, mixed up in the affairs, if he found them out he would drop them out one and two at a time, and he went on to talk about what he wanted me to do over there every night, different kinds of work." It was not denied that Woods was given the instructions about which he testified and we find that the statements attributed to Daugherty were made. During the latter part of October Humrichouse applied for a job with a manufacturer of veener machinery. An official of that com- pany told Humrichouse that he understood he was a member of the C. I. O. and "I don't know as it is going to do you any good. You will get a lot of publicity from that from Mr. Daugherty." Soon there- after Humrichouse applied to Daugherty for reinstatement and was told, "Well, to my estimation you are lower than a snake," and that he could never obtain work for Daugherty "under any consideration." Daugherty continued, ". . . if you get a job anywhere else, I will do my very utmost to have you discharged." The evidence disclosed no occasion for such expressions by Daugherty except the union activity of Humrichouse. We have already found that Daugherty carried out his threat to blacklist Humrichouse and that on two occasions when he applied for work his union activity was called to his attention by prospective employers. HOOSIER VENEER COMPANY 921 Daugherty told King Beatty, after his reinstatement, "You are even lucky you have got a job here. You are fooling around with this union.'' About 3 weeks after the shut-down, Maynard, who had ad- mitted to Superintendent Connor that he belonged to the Union, inquired of Connor as to conditions in the plant. Connor replied, "Your damn C. I. 0. shut the plant down, you get the hell out of here." In view of the anti-union attitude demonstrated by the respondent receiver and his agents prior to the shut-doivn of the plant, the unmis- takable antagonism to union members who applied for reinstatement thereafter, the large percentage of non-union men reinstated in com- parison with the unusually small number of union men, and the fact that those refused reinstatement included the officers and most active members of the Union, we believe that the selection of employees when the plant reopened was made on a discriminatory basis. The evidence does not disclose that a fair comparison was made between the abilities of the Union and non-union men or that the former were given an opportunity of being judged upon the basis of merit. The principle applicable here was expressed by the United States Circuit Court of Appeals in the Kentucky Fire Brick Company case as follows : We think that the attitude of respondent toward its Union employees both before, during and after the strike of June 18, 1935, carries a substantial inference that these 30 men were re- fused reinstatement because of their union activities. This in- ference is sufficient to support the order unless it is destroyed and refuted by other evidence now to be considered.,, We shall consider the evidence introduced to rebut the inference that the complaintants herein were refused reinstatement because of their union activities.12 The respondents deny that they practiced discrimination in the reinstatement of employees when the plant resumed operations. They contend (1) that they reemployed the men best qualified for the posi- tions available; and (2) that they are now engaged in an entirely new operation, the manufacture of venetian blind slats, that the method of operating on this article is different from the work previously done by their employees, and that these employees are not capable of doing u N. L. R B. v. The Kentucky Fsi e Thick Company. 99 F (2d) 89 (C. C A 6), rehear- lag denied October 12, 1938 aff'g Matter of Kentucky Firebrick Company and United Brick and Clay Workers of America, Local Union No. 510, 3 N L R. B 455. 12 Although only the respondent corporation took part in the hearing the respondent receiver appealing specially, in view of the fact that one individual, H K Bachelder, served as counsel for both the respondent corporation and the respondent receiver and since the respondent corporation was incapable of acting during the receivership, we shall consider the defenses raised by the respondent corporation as equally applicable to the respondent receiver At the supplemental hearing W C Bachelder, successor to the respondent receiver, was represented by other counsel 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the new work. It is admitted that two new men, Joseph Donoghue and Frank Fuhrmann, were hired to inspect and grade the slats. In addition to their contention that they reemployed the men best qualified for the positions available, the respondents sought to jus- tify their refusal to reinstate certain employees upon more specific grounds. Jesse Holyfield was accused of sabotage, through negli- gence in inspecting stock, which caused a substantial financial loss to the respondents. The evidence disclosed that there was no certainty that either batch of veneer which Holyfield is alleged to have inade- quately inspected ever crossed his inspection table. Some of the ve- neer had come from stock in the warehouse and may have become warped through standing. John Proctor, who was final inspector at the plant at the time of the discovery of the second allegedly im- proper inspection, stated that lie worked in a different part of the plant and could not be sure that Holyfield had inspected the veneer in question. The only thing about which Proctor was certain was that if the veneer had been inspected, the inspector had been care- less in his work. Holyfield denied having inspected the order in question. We cannot base a finding that Holyfield was guilty of sabotage upon such meager evidence thereof. Moreover, Holyfield was not notified of the alleged sabotage until he and other members of the Union's committee sought the reinstatement of the complain- ants herein. On November 19 Holyfield received permission to visit the plant to investigate the charge of sabotage. When he arrived at the plant the respondent receiver told him the stock had already been shipped out and he could not see it. The respondent corporation attempted to prove at the hearing, and argues in its brief to the Trial Examiner, that Humrichouse had engaged in sabotage at the plant where he was employed prior to the time that he worked for the respondent receiver. We cannot find, on the record before us, that Humrichouse had engaged in sabotage prior to his employment by the respondent receiver. Nor can we find that the respondent receiver had any belief that Humrichouse had previously engaged in such activities at the time that he refused to reinstate him. The evidence on this question does not, therefore, alter our conclusion as to the reason why Humrichouse was refused reinstatement. Eugene Montgomery, who had worked for the respondents for 17 years and whose foreman, Pogue, admitted that he would have been capable of inspecting other types of work than that which he had previously done, was replaced by Campbell allegedly because Campbell was a "better and older man" and Pogue "preferred him." The respondent made no effort to indicate in what respect, if any, Campbell was more capable than Montgomery or why the former HOOSIER VENEER COMPANY 923 should have been preferred. The same situation exists in the case of Humrichouse, who was replaced by Dillard Walker. No showing is made as to the comparative qualifications of these men. Eugene Brummett's place as lead man on the day shift of the drier was filled by Sam Woods who, the respondents contend, is "a better workman" and "more physically fit" than Brummett. There is no proof on the subject but, even if we were to assume that such is the case, the respondents have not explained why Denzel Collins, who had not previously been employed by the respondent receiver, was hired to work on the drier while Brummett was refused reinstatement. With reference to Hayden Arthur, Frank Toler, James Short, and Omer Lee Cookenour, the respondents stated that the work on the stump deck in which they had engaged was not being done regu- larly; that these men had not been replaced; and that on occasions when work was done on the stump deck they called in men from other departments to fill the temporary assignments on the stump deck. Among the men who have at times been called in to work on the stump deck are King Beatty, who runs a drag saw and is a util- ity man, Jack Smith, a sawmill man who sometimes worked in con- nection with the vats, the maintenance man, and two night watch- men. The duties of these men are not made clear by the record, but they do not appear to require a high degree of skill. Certainly the night watchmen, at least, were not highly skilled laborers and their work could have been performed by any of the four complainants under discussion. Although Foreman Bolles stated that Toler was not sufficiently versatile to be shifted to other employment and was too old, no attempt was made to show that the other three men could not have done other work. Furthermore, there is no evidence to sub- stantiate Bolles' statement as to Toler. Charles Arthur and Frank Scott were said to be undependable as night watchmen and boilermen. There was no evidence to substan- tiate the claim, however, and without such evidence we cannot say, in view of our finding of discrimination generally, that the reasons given by the respondents are valid. The record does not support the respondents' contention that new men were required for the manufacture of venetian blind slats and that the men refused reinstatement were not qualified to perform the duties in connection therewith. A description of the process involved indicates that the skill required in making the slats is not essentially different from that necessary in the manufacture and inspection of veneer, and, in fact, is less for the former industry than for the lat- ter. Most of the employees who were refused reinstatement had been employed by the respondents for many years and were experienced in a variety of operations. Undoubtedly the period necessary for 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them to adjust themselves to the new work would not have been unduly long. The respondents failed to point out in what respect the laid-off employees lacked ability to perform the new type of work and we cannot find that they lacked the necessary skill. A review of the explanations offered by the respondents for the failure to reinstate the complainants convinces us that some of them are invalid on their face and that others are not sufficiently proved to sustain the defense stated. On the whole we think that the evidence does not refute the substantial inference that the respondent receiver refused to reinstate the employees in question because they had joined the Union and had become active members thereof." It is clear that the respondent receiver followed a formulated plan to rid the plant of the most active union members in an effort to evade the duty to deal with the Union. The respondent receiver availed himself of the opportunity presented by the shut-down pursuant to the court's order and, in reinstating employees upon the reopening of the plant, systematically weeded out the Union's officers and most active members. Thus he hoped to put an end to the problems pre- sented by the Union's organization and its request for recognition and collective bargaining which we shall discuss hereinafter. The dis- crimination against union members inherent in such procedure is ob- vious. Instead of choosing for reinstatement the men best qualified for the positions available, the respondent receiver has taken back the men he believed least likely to interfere with his plans for stamping out union activities. The Act prohibits the respondent receiver from making reinstatement upon such a discriminatory basis and protects employees so discriminated against 14 We find that on November 1, 1937, the respondent receiver, by re- fusing them reinstatement, discriminated in regard to the hire and tenure of employment of Frank Toler, Eugene Montgomery, Frank Scott, Jesse Holyfield, Eugene Brummett, O. W. Humrichouse, Hay- 13 N. L. R. B Y. The Kentucky Fire Brick Company, 99 F. (2d) 89 ( C. C. A. 6), rehearing denied October 12, 1938, aff'g Matter of Kentucky Firebrick Company and United Brick and Clay Workers of America, Local Union No. 510, 3 N L R. B. 455; Matter of Harry Schwartz Yarn Co, Inc. and Textile Workers Organizing Committee, 12 N. L. R. B. 1139. 11 Cf. North Whittier Heights Citrus Association v. N. L R. B., January 12, 1940 (C. C. A. 9 ), enf'g Matter of North Whittier Heights Citrus Association and Citrus Packing House Workers Union , Local No. 21091, 10 N L R B 1261) ; West Oregon Lumber Company and Lumber and Sawmill Workers Local Union No 3, International Woodworkers of America, 20 N L R B 1, Hamilton-Brown Shoe Company, a corporation v. N L R. B, 104 F (2d) 49 (C C A 8), enf'g as mod Matter of Hamilton-Brown Shoe Company, a corporation and Local No. 125 United Shoe Workers of America , affiliated with the Committee for Industrial Organization , 9 N L. R. B. 1073; Montgomery Ward d Co., Inc. v. N. L. R. B, 107 F. (2d) 555 (C. C. A 7), enf'g as mod Matter of Montgomery Ward t Company and Reuben Litzenberger, et al, 9 N. L R B 538; N L R B v The Louisinlle Reflnting Company, 102 F (2d) 678 (C C A 6), cert denied, 308 U. S 568 , enf'g as mod Matter of The Lousiville Refining Company and Interna- tional Association, Oil Field, Gas Well and Refinery Workers of Amaitea, 4 N. L. R. B 844. HOOSIER VENEER COMPANY 925 den Arthur, Charles Arthur, James Short, Harold Peters, Omer Lee Cookenour, William Maynard, William Coffey, and B. M. Wasson, thereby discouraging membership in the Union, and has thereby in- terfered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that the respondent receiver, by refusing to employ the above-named indi- viduals on November 1, 1937, has discriminated against them in regard to their hire and tenure of employment, thereby discouraging member- ship in the Union, and has interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act. After the respondent receiver discriminated against the complain- ants herein by refusing them reinstatement, and prior to the hearing, the complainants obtained other employment as indicated below. All of them desire reinstatement except Peters, who has been reinstated, and Coffey. Holyfield worked at a lumber yard for 5 days and earned $16.40; he earned $5.50 working for a trucking company, and did odd jobs which brought his total earnings up to the time of the hearing to about $60. Montgomery had 5 weeks work with the Veterans of Foreign Wars and earned $75; he was on W. P. A. from February 7 to September 23, 1938, at $15 a week, and on the latter date obtained employment with Switzer-Cummins Corporation where he was working at the time of the hearing and in which employment he was earning $24 a -week. Humrichouse was employed by W. P. A. on April 6, 1938, Brummett on January 14, 1938, Maynard on December 28, 1937, Hayden Arthur on December 27, 1937, and Toler on December 21, 1937. All earned $60 a month and were doing this work at the time of the hearing. Wasson earned $87.58 working for a construction company ; $7.13 with Hill Fence Company; $152.06 with Ostrom Realty Company; and, on April 6, 1938, went to work on W. P. A., where he has earned $65 a month. Scott earned $4.25 while working for a hospital ; $16.80 working for Ostrom Realty Company; $266.50 while employed by W. P. A. from April 6 to August 14, 1938. On August 20 he moved on a farm where he earns $30 a month and obtains garden products, wood, and milk without cost. He pays no rent on the farm. Charles Arthur worked for International Harvester Company for 4 weeks, earning $4 a day. On March 1, 1938, he went to work for W. P. A. at $60 a month and staved 3 months. Five weeks before the hearing he was employed by Richardson Company at 60 cents an hour. Coffey had intermittent employment with a contractor which totaled about 6 months and in which he earned 40 cents an hour. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Four weeks prior to the hearing he was employed by the Richardson Company at 55 cents an hour. Short was employed by Mid-West Construction Company for about 4 months at an average of $32 a week ; worked on a pipe line for 3 or 4 weeks at about $16 a week, and since the spring of 1938 has been working for Tom McQueen Construction Company at $28.80 a week. Cookenour earned $41 working for Ermit Products Company for 3 weeks. From February 7, 1938, to the date of the hearing he had worked on W. P. A. and was earning $60 a month. Peters worked for an interior decorator from the latter part of May 1938 until 2 weeks before the hearing. He averaged $18 a week in this employment. He then secured a position with Richardson Rubber Company where his salary averaged $26 a week. C. The refusal to bargain 1. The appropriate unit The Union contends that the production and maintenance em- ployees of the respondent receiver, exclusive of clerical and super- visory employees, constitute a unit appropriate for the purpose of collective bargaining. The Union organized the employees of the respondent receiver upon that basis and, in its attempts to bargain with the respondent receiver, claimed to represent production and maintenance employees. The respondent corporation denied that the unit alleged is appropriate, but neither it nor the respondent receiver introduced any evidence at the hearing to support the denial or to assist the Board in determining the question. The record discloses that the work in the plant constitutes a continuous operation and that men are frequently shifted from one department to another as the need arises. The production and maintenance employees compose an integrated unit. We find that the production and maintenance employees of the respondent receiver, exclusive of clerical and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit insures to employees of the respondent receiver the full benefit of their right to self=organiza- tion and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of the majority in the appropriate unit Prior to the shut-down on October 11, 1937, the respondent receiver employed between 125 and 135 employees in the unit herein found appropriate for purposes of collective bargaining. There were intro-. HOOSIER VENEER COMPANY 927 duced in evidence at the hearing 92 cards, signed by employees within the appropriate unit; aitfhorizing the C. I. O. to represent the signers for the purposes of collective bargaining. Each of the signatures on the cards was authenticated. All of the cards bear dates prior to October 1, 1937. On October 11, 1937, the Union was chartered as an affiliate of the C. 1. 0. The respondents objected to the admission of the cards in evidence upon the ground that they did not show the name of a labor organi- zation. We have held that the Committee for Industrial Organi- zation is a labor organization, within the meaning of the Act." The representatives of the Union first attempted to bargain collec- tively with the respondent receiver on September 30, 1937. A further conference was held on October 6. While the respondent receiver did not contest the fact that the Union represented a majority of the employees for the purposes of collective bargaining at either of these conferences, he contended, after the shut-down of October 11, that the employees whose work was terminated on that date had been dis- charged, and that they lost their status as employees. We have already found that the employees who ceased work on October 11 were only laid off and that they retained their status as employees of the respondent. It is clear, therefore, that they may be counted in computing the Union's majority. Even were this not so, the Union represented 29 of the 57 employees reinstated by November 3. In addition it represented 14 employees whom we have found the re- spondent receiver discriminatorily refused to hire on November 1, 1937. In view of these facts it is clear that the Union represented a majority of the respondent receiver's employees irrespective of whether or not the persons laid off retained their status as employees. We find that on September 30, 1937, and at all times thereafter, the Union was the duly designated representative of a majority of the respondent receiver's employees in the appropriate unit and that by virtue of Section 9 (a) of the Act it was the exclusive represent- ative of all the employees in said unit for the purposes of collective bargaining. 3. The refusal to bargain (a) The bargaining negotiations On September 30, 1937, Elmer Whitman, an organizer of the Union, called on Frank F. Woolling, the respondent receiver, and told him that the Union represented a majority of his employees. Whitman presented a proposed agreement as a basis for negotiations, and asked 15 Matter of Fanny Farmer Candy Shops, Inc. and Committee for Industrial Organtiza- tion, 10 N L. R. B. 288. The cards signed by employees authorized the C I. O. to act as a collective bargaining agency in all matters pertaining to pay rates, wages , hours of employment, and other conditions of employment 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Woolling to confer with the bargaining committee of the Union. Woolling asked the organizer why he had come to the plant to start trouble and inquired why an attempt had not been made to organize other veneer plants in the city. Whitman informed Woolling that the Union had more than a majority of the employees signed up in the other three veneer plants in the city and that it had done so without trouble. The conference closed with an agreement to meet again on October 6. On October 6 Woolling, H. K. Bachelder, attorney for the respond- ents, and Carl Daugherty, secretary-treasurer of the respondent cor- poration, met with Whitman and a committee of the Union composed of eight of the respondent receiver's employees. The Union requested that the respondent receiver enter into negotiations on the basis of the proposed agreement previously submitted, but Woolling stated that since he was an officer of the court which had appointed him, he could do nothing without specific instructions from the court. Although the representatives of the Union contended that the receiv- ership was not a bar to working out a tentative agreement for pres- entation to the court, the respondent receiver refused to proceed on that basis. On October 9 Whitman consulted with Circuit Court Judge Earl R. Cox, who had appointed the receiver, and pointed out to him the extent of the Union's membership at the plant and what had previously taken place in the attempt to negotiate with the respond- ent receiver. Judge Cox suggested that Whitman consult with Thomas Hudson, chairman of the State Division of Labor, and attempt to arrange for a meeting between Hudson, the respondent receiver, and the Union at which a satisfactory settlement might be worked out. On the same day Whitman went to see Hudson who agreed that a date be set for a conference as suggested by Judge Cox. Thereafter Whitman informed Woolling of arrange- ments for a meeting on October 13. Woolling stated in response that he had procured a court order shutting down the plant because of sabotage and a decline in business. On October 11, after the respondent receiver had notified the superintendents and foremen at the plant to shut down at the end of the workday, the plant closed. Following the shut-down, several conferences were held between the respondent receiver and the Union. At two of the conferences representatives of the State Division of Labor participated. On October 13, 1937, the union committee, H. K. Bachelder and Emmett Cox, a State Labor Conciliator, met in accordance with arrangements previously made at the suggestion of Judge Cox. Whitman opened the conference with an attempt to discuss the proposed agreement. HOOSIER VENEER COMPANY 929 Bachelder pointed out that because of the receivership the Union "didn't have jurisdiction." Whitman argued that if this were true any one could go into receivership and thereby defeat the aims of the Act. Thereupon , Bachelder read excerpts from the court order and informed Whitman that under the respondent receiver's interpretation of the order the respondent receiver could deal only for those persons then employed at the plant. He stated that those who had been laid off at the time of the shut -dawn had ceased to be employees. The conference adjourned after considerable argu- ment over what interpretation should be placed on the court order. The next conference was held on about October 20 and arrange- ments were then made for Holyfield, president of the Union, to visit the plant and attempt to discover whether there had actually been any sabotage. On November 19 another conference was held at which Bachelder,. Whitman, and two members of the Union's committee were present. Again the question arose as to who were employees and who were not. In the meantime the plant had begun to operate as to some phases of the work and a number of employees had been taken back, including some members of the Union . The Union's committee, however, contended in the conferences with Bachelder that the re- spondent receiver was rehiring a larger proportion of non-union raen than union men and was thus discriminating against the union men. At a conference held on November 22 there was some discussion of the terms of the proposed contract and Whitman furnished Bachelder with a list of employees who were members of the Union and who were not working , together with a statement of the length of time each had worked for the respondents and whether there had ever been complaints against his work. At the next conference, on November 26 , the Union continued to request some concession with ref- erence to wages and working conditions and again urged that the employees be reinstated . Bachelder presented to the representatives of the Union a list of the employees belonging to the Union who had not been rehired and under each name was stated the reason for the failure to reinstate the employee . The most prevalent reasons given were that the job had been discontinued or that there was not enough work for all and that those taken back were more capable workers than the members of the Union . When requested to discuss these matters more fully Bachelder stated "that he couldn't put in all- his time; that he had made an investigation , that that was the fact, if we wanted to believe it all right; if we didn't, why let it alone." Further meetings between representatives of the Union and Bachelder were held on December 6 and December 29, but the Union's attempts to secure its demands for bargaining continued to 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be unsuccessful. On January 31, 1938, Bachelder, Woolling, and Herman Brunka, a representative of the Indiana State Labor Divi- sion, met and conferred without the representatives of the Union. At the conclusion of the conference Woolling left and Whitman and the committee of the Union were called in. The discussion once more centered around the question of whether persons laid off when the plant was shut down should be considered employees, and around the Union's efforts . to have members taken back to work. The last conference between the respondents and the Union oc- curred on June 2, 1938. The record contains a copy of the transcript of the conversations at the meeting and discloses clearly the attitude of Bachelder in dealing with the representatives of the Union. In answer to practically every question put to him by Whitman or by Cox and Arthur Viatt, conciliators from the State Division of Labor, as to his intentions with relation to negotiations with the Union, Bachelder stated that they would have to draw their own conclusions from the order of the court. The following excerpt is enlightening : Mr. WHITMAN . Would you tell me as a representative of the company what the situation is and what you can do? Mr. BATCHELOR.16 That I could not do. The court did not empower the Receiver or me to bind him as you see by the con- struction of his own language . I have the right to discuss with you regal'ding the-persons who are employees of the receiver. Mr. WHITMAN. What do you mean by "discussing." Does that mean you have the right to enter into an agreement with us? Mr. BATCHELOR . By discussing, I mean "talk." After some discussion as to the status of the men who had been laid off at the time of the shut-down, Bachelder inquired , "Does the State Labor Board take the position that the Court can not hire new employees ?" Thereafter, the following conversation took place: Mr. VIAT. The State Board does take the position that if any employees have been discharged because of union activities, they have been discriminated against. Mr. BATCHHELOR . T hat has no part of negotiating. The ques- tion of negotiation relates to hours, wages , and working condi- tions and one question is not included in the other. Mr. VIAT. Well, I think you are wrong, because it is a part of negotiation ; negotiating for those employees who have been discriminated against. Mr. BATCHELOR . That is not a part of negotiation . Negotia- tion contemplates an agreement for future activities but does not contemplate a settlement of past grievances. It involves future "This is a reference to H K Bachelder Flis name is incorrectly spelled throughout the following excerpts HOOSIER VENEER COMPANY 931 relationships for employer and employees. It is toward the future and not toward the past. They are two distinct and separate situations and the law recognizes them. It would be a waste of time to say whether this man ought to be working in place of some body else or anything with reference to that. If you go ahead on the question of working conditions, that is alright. Mr. WHITMAN. Well, let me see what we can do. The first paragraph of the proposal is the recognition clause of our organization as sole collective bargaining agent. Mr. BATCHELOR. Oh, no; nothing of that kind. Mr. VIAT. I understand Judge Cox has agreed to that. Mr. WHITMAN. For the purpose of this record, I want to say that I talked to Judge Cox about our rights under the law and I told him how many members we had. I offered to show Judge Cox our membership lists. I showed him my credentials when he asked me who I represented. I told him about bringing in the committee and he told me to see the Receiver. Mr. BATCHELOR. If you think the court has recognized your organization, you will have to take that matter up with the court. I don't know. He has never told me. The law de- termines who is the sole collective bargaining agency. As to your right, I don't know how many you represent, whether one or all. The law settles that question. Mr. VIAT. If that question stands in your way, I would sug- gest that you pass on for Judge Cox is going to pass on that. The conferees then took up the question of the wage increases proposed in the contract submitted by the Union. Bachelder stated, "You know that I can't make such a recommendation." When Whitman inquired, "Are you in a position to offer anything?" Bachelder replied, "I have told you many times that I am only the attorney for the receiver. The difficulty is that we are involved in a legal position here and you have always needed and still need a lawyer to advise you." Whitman, however, made another attempt to secure some commitment from Bachelder and asked, "Can you recommend or indicate some kind of increase which, we believe, these men are entitled to?" Bachelder's answer was, "I don't see how I can recommend any increase in wages at this plant. The plant is losing money." The meeting adjourned when Whitman stated that he saw no possibility of reaching any agreement. We find that the negotiations were terminated because the respondent receiver refused to bargain with the Union with a bonafide purpose of reaching an agreement.17 17 The respondent corporation contends that Whitman terminated the negotiations on June 2, 1938 , because the respondent receiver would not agree to negotiate with the 932 DECISIONS OF NATIONAL LABOR RELAT[ONS BOARD (b) Conclusions as to the refusal to recognize The first question presented by the foregoing facts is whether or not the respondent receiver at any time during the negotiations recognized the Union as the exclusive representative of the em- ployees for the purpose of collective bargaining. The obligation of an employer to bargain collectively under Section 8 (5) of the Act entails, as an essential element thereof, the duty to recognize the representative chosen by a majority of the employees as exclusive bargaining agency.- At no time during the conference with the Union did the respond- ent receiver agree to recognize the Union or to recommend to the court that the Union be recognized. At the conference on June 2, 8 months after negotiations began, the Union once again requested Bachelder to agree to the provision in the proposed contract deal- ing with recognition of the Union. His answer was, "Oh, no, noth- ing of that kind." He could hardly have expressed his refusal to recognize the Union in plainer terms. As upon each previous oc- casion, when an attempt was made to discuss the recognition clause along with other terms of the proposed contract, he set up the re- ceivership as a reason for his refusal to discuss the proposals.19 The respondent receiver may not evade his obligation to recognize the Union by setting up the receivership as a bar. Not only does the language of the Act specifically refute this contention, but, m addi- tion, the court which appointed the receiver instructed him that he had authority to enter into discussion with regard to labor problems and to recommend to the court suggested action. Moreover, the judge had urged that the problems confronting the receiver be settled Union as the representative of the employees who ceased work as a result of the shut-down on October 11, 1937 ; that, as the respondent receiver was justified in his position, the responsibility for the failure of the negotiations rests with the Union We do not accept this contention It is evident from the entire record, and «e find, that the disagree- ment between the Union and the respondent receiver on the limited question of the Union's right to represent the employees who had been laid off was not the effective cause of the termination of negotiations 1BMatter of The Griswold Manufacturing Company and Amalgamated Association of Lion, Steel and Ten War hers of North America, Lodge No. 1196, 6 N. L. R. B 298, enf'd N L R. B v The Griswold Manufacturing Company , 106 F. (2d) 713 (C. C. A 3) ; Matter of McNeely d Price Company and National Leather Workers Association, Local No 30, of the C 1 0., 6 N. L R. B 800, enf'd as mod , N L R B. v. McNeely d Price Company, 106 F. (2d) 878 (C C A 3) 39 Bachelder also stated at the conference on June 2, and at other meetings prior to that time, that he did not know whether the Union represented a majority, or any of the em- ployees. It is clear from his remarks and their context, that Bachelder, rather than excusing his failure to recognize the Union on the ground that it did not represent a majority, was merely informing the Union that he was not concerned with the extent of its representation The Union claimed to represent a majority of the employees at its first conference with the respondent receiver and Whitman had offered to show the Union's membeiship cards to Judge Cox in support of its claim Bachelder never requested that the Union prove its representation claim or indicated in any way that he was genuinely doubtful as to its validity. We have already found that the Union represented a majority of the employees on and after September 30, 1937. HOOSIER VENEER COMPANY 933 promptly and he must have contemplated that the receiver recognize the Union or recommend its recognition to the court. Accordingly, we find that the respondent receiver, by refusing to recognize the Union as exclusive bargaining representative and by failing to recommend to the receivership court that the Union be so recognized, has refused to bargain collectively, within the meaning of Section 8 (5) of the Act. (c) Conclusions as to the refusal to bargain with the purpose of reaching an agreement The second issue raised by the facts heretofore related is whether or not the respondent receiver has bargained with the Union in good faith in an honest endeavor to reach an agreement. The Act con- templates that such an effort be made. As we said in Matter of Globe Cotton Mills: The term collective bargaining denotes in common usage, as well as in legal terminology, negotiations looking toward a collective agreement. If the employer adheres to a preconceived determination not to enter into any agreement with the repre- sentatives of his employees, as we have found here, then his meeting and discussing issues with them, however frequently, does not fulfill his obligations under the Act.20 WWTe cannot find, from a review of the negotiations, that the respondent receiver made a genuine effort to reach an agreement with the Union. Emmett Cox, the State Division of Labor Conciliator who was present at two of the conferences between Bachelder and the union representatives, described the actions of the respondent re- ceiver as evasive and stated that each time the Union sought to consider the proposed agreement Bachelder raised the question of the receivership and contended that only Judge Cox could make any decision in the matter. He also testified that he had personally talked to Judge Cox several times and that on each occasion he was urged to bring the parties together and arrange a satisfactory settlement of the dispute. He further testified that, upon the basis of his attempts at conciliation in the case, he was convinced that the respondent receiver at no time had been attempting to bargain in good faith with the Union. The record shows that at almost every conference between repre- sentatives of the Union and Bachelder there was some discussion of the terms of the proposed contract. The record does not dis- close all of the terms that were considered, but at least the questions -Matte) of Globe Cotton Mills and Text,le Workers Organizing Committee, 6 N L, R B 461, enf'd as mod. , Globe Cotton Mills v N. L. R . B., 103 F ( 2d) 91 (C C. A 5) 28503 2-41-v of 21-60 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of wages and hours were discussed. However, other than a refusal to grant the Union's demands as to wages and hours, Bachelder's reply on each occasion was that he was unable to do anything because of the receivership. Emmett Cox testified with reference to the conference on October 13, 1937, "However, in bringing up the different subjects of the different paragraphs of the agree- ment . . . we did not seem to be able to get any place with the discussion and the meeting was finally adjourned." Cox also attended the last conference between the parties on June 2, 1938, and his testimony as to what transpired is, in part, as follows : "In other words, I mean by that that when . . . some one particular thing would be brought up for discussion there would always be the fact that the company was in receivership and the Judge was the only man that could do or say anything." Moreover, the respondent receiver did not, by counterproposal or otherwise, make any sincere effort to find a basis for agreement with the Union.21 While the respondent receiver discussed the terms of the proposed contract at various times, throughout the entire series of conferences he adopted the position that nothing could be done without the permission of the State court. That such it position was unjustified is evidenced by the fact that the judge of that court had urged that the labor problems of the respondents be adjusted speedily and that he had instructed the respondent receiver that he was authorized to discuss wages, hours of labor, and conditions of employment and report his recommendations to the court for further instructions. In view of these instructions from the court, it is obvious that Bachelder adopted the attitude described for the purpose of preventing further discussion of the Union's demands and in order to evade the duty to bargain collectively with the Union. The question which arose as to who were employees of the re- spondent receiver after the shut-down of the plant was answered by the respondent receiver, at a conference on November 26, 1937, with a list giving reasons why old employees were not reinstated but with a refusal to discuss the merits of the question. Whether they should have been reinstated to their positions was obviously a proper subject for collective bargaining and the respondent receiver's refusal to dis- cuss the problem was a violation of Section 8 (5) of the Act. We find that the respondent receiver, on October 6, 1937, and at all times thereafter, has refused to bargain collectively with the Union as the representative of his employees in respect to rates of pay, wages, hours of employment, and other conditions of employ- 21 See Globe Cotton Mills v X. L R. B, 103 F (2d) 91 (C C A 5 ) enf'g as mod. Matte) of Globe Cotton Mills and Textile wo,ke)s 0rgaruzsngComm , ttee, 6 N L It. B. 461. HOOSIER VENEER COMPANY 935 ment. We further find that the respondent receiver, by the conduct set forth above, has interfered with, restrained, and coerced the em- ployees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purposes of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and 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 As we have noted above, the respondent receiver appeared specially, denied the jurisdiction of the Board, and moved for dismissal of the proceeding as to him for the reason that the court which appointed him had not consented to the institution of the proceeding, and for the further reason that he was not an employer, within the meaning of the Act. The Act defines an "employer" as "any person acting in the interest of an employer, directly or indirectly ..." 22 The term "person" is defined to include "one or more individuals, partnerships, associations, legal representatives, trustees, trustees in bankruptcy, or receivers." 23 Section 10 (a) of the Act provides : The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in Section 8) affecting commerce. This power shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise. The contentions of the respondent receiver that the Board does not have jurisdiction of him under the circumstances herein existing are without merit. The Act specifically provides that receivers shall come within its purview as "persons" whom the Board is empowered to prevent from engaging in unfair labor practices. It also provides that the power granted to the Board shall be exclusive. The present Za Section 2 (2) of the Act. 23 Section 2 (1) of the Act. 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case illustrates one of the situations in which these provisions are applicable. The respondent corporation also filed a special appearance and motion to dismiss, alleging that the Board did not have jurisdiction over it because of the receivership and that it has at all times herein involved been legally incapable in its corporate entity of being an employer, within the meaning of the Act. The Trial Examiner denied the motion at the hearing, but, in his Intermediate Report, recommended that the complaint against the respondent corporation be dismissed. We are likewise of the opinion that the complaint against the respondent corporation should be dismissed. The re- spondent corporation was legally incapable of taking any action during the period of the receivership. The respondent receiver was in sole charge of the business subject to the instructions of the receivership court. While the officers of the respondent corporation continued in a managerial capacity throughout the period of the receivership, they were at all times acting as agents for the respond- ent receiver. The existence of the receivership, however, resulted in no material change in the employer-employee relationship. This relationship is our chief consideration here, since it is all important in effectuat- ing the purposes and policies of the Act.24 As stated by the United States Circuit Court of Appeals in N. L. R. B. v. Arthur L. Colten and Abe J. Colman, Co-Partners doing business as Kiddie Kover Manufacturing Company: It is the employing industry that is sought to be regulated and brought within the corrective and remedial provisions of the Act in the interest of industrial peace . . . It needs no demon- stration that the strife which is sought to be averted is no less an object of legislative solicitude when contract, death, or opera- tion of law brings about change of ownership in the employing agency.25 It is apparent that the purposes and policies of the Act may be effectuated during the existence of the receivership by holding the respondent receiver responsible for his unfair labor practices., Since the receivership had not been terminated at the close of the supple- mental hearing, we shall not issue a separate order against the 'Cf Matter of Weinberger Banana Co , Inc and/or Weinbe ) ger Sales Co, The, and/or their Successors, Assigns, Receivers, Trustees, Trustees in Bank,Uptci,, Creditors' Com- mittee, or other Representatii,es acting in behalf of either or both and United Dock and Fruit Workers' Union, 18 N 7. R B 786: Matter of the Baldwin Locomotive Work, and Steel Workers Organizing Committee _, 20 N L R B 1100 n105 P (2d) 179 (C C A 6), enf'g Mattes of Arthur L Colten and A J Colman, co-partne) s, doing business as Kiddie Kovc) Manufacturing Company/ and Amalgamated Clothing Workers of America, 6 N L R B 555 HOOSIER VENEER COMPANY 937 respondent corporation. In the event that the receivership termi- nates, however, it will be necessary, as the Union urges, to hold the respondent corporation responsible for the unfair labor practices of the respondent receiver if we are to effectuate the policies of the Act. Our order shall specifically provide, therefore, that, in the event the receivership is terminated, the respondent corporation shall be liable thereunder. Having found that the respondent receiver has engaged in unfair labor practices, we shall order him to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondent receiver interfered with, restrained, and coerced, the employees in the exercise of the rights guaranteed in Section 7 of the Act. We shall order him to cease and desist from such practices. We have also found that the respondent receiver has refused to bargain collectively with the Union as the exclusive representative of his employees within the appropriate unit. We shall order the respondent receiver, upon request, to bargain collectively with the Union. We have further found that the respondent receiver has discrimi- nated in regard to the hire and tenure of employment of Frank Toler, Eugene Montgomery, Frank Scott, Jesse Holyfield, Eugene Brum- mett, O. W. Humrichouse, Hayden Arthur, Charles Arthur, James Short, Harold Peters, Omer Lee Cookenour, William Maynard, Wil- liam Coffey, and B. M. Wasson, by refusing to reinstate them upon the reopening of the plant. It appears that employees were rein- stated at various times within a few days following the shut-down of the plant. The record does not indicate the exact dates upon which each of the above-named complainants requested reinstatement. However, it does appear that on November 1, 1937, the respondents had taken back to work approximately 60 employees, that the num- ber employed since that time has remained at about that figure, and that the Union had requested reinstatement of all of the complain- ants prior to that date. We shall order the respondent receiver to cffer immediate reinstatement to the above-named persons to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, except Harold Peters, who was reinstated prior to the supplemental hearing in this case, and William Coffey, who, having obtained another job on or about September 6, 1938, testified that he did not desire reinstatement. All of the employees presently working for the respondents who have been hired since October 11, 1937, shall, if necessary, be dismissed by the respondent receiver to provide employment for the above employees to be offered and who shall accept reinstatement. If 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD despite and after a dismissal of all such employees there is not sufficient employment immediately available for the employees presently working for the respondent receiver, excluding those dis- missed, and for the employees to be offered and who shall accept reinstatement, then all positions of employment shall be distributed by the respondent receiver among the employees presently working, excluding those dismissed, and the employees to be offered and who shall accept reinstatement, in accordance with the respondent receiv- er's usual method of reducing his force, without discrimination against any employee because of his or her union affiliation and activities, following such a system of seniority or other nondiscrimi- natory procedure as has been heretofore applied by the respondent receiver in the conduct of the business. Those employees remaining after such distribution for whom no employment is immediately available shall be placed by the respondent receiver on a preferential list, with priority determined among them in accordance with such system of seniority or other non-discriminatory procedure as has been heretofore applied by the respondent receiver in the conduct of the business, and, thereafter, in accordance with such list, shall be offered reinstatement by the respondent receiver in their former or. substantially equivalent positions, as such employment becomes available and before other persons are hired for such work. We shall also order the respondent receiver to make each of said employees whole for any loss of pay he may have suffered by reason of the discrimination against him by payment to each of them, except Harold Peters and William Coffey, of a sum equal to the amount which he would normally have earned as wages from November 1, 1937, to the date of the offer of reinstatement less his net earnings 26 during said period. We shall order the respondent receiver to give Harold Peters back pay from November 1, 1937, to the date of his reinstatement less his net earnings'-" during said period; and to give William Coffey back pay from November 1, 1937, to September 6, 1938, less his net earnings 26 during said period. 20 By "net earnings " is meant earnings less expenses , such as for tianhpoitation, room, and board , . incurred by an employee in connection with obtaining work and working elsewhere than for the respondent receiver , which would not have been incurred but for the discrimination aeainst him and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Biotheihood of Car- penters and Joiners of America, Lumber and Sawmill Workers Unwn , Local 2590, 8 N. L R. B. 440. Monies received for work performed upon Federal, State, county, municipal , or other work-relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal , or other government or governments which supplied the funds for said work- relief projects ; Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R B . 219, enf'd, as modified as to other issues, Republic Steel Corporation v A. L. R. B, 107 F (2d) 472 (C C. A. 3) HOOSIER VENEER COMPANY 939 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. United Veneer and Lumber Workers Local Industrial Union No. 607, affiliated with the C. I. 0., is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The receiver Frank F. Woolliiig was, and the receiver W. C. Bachelder is, an employer, within the meaning of Section 2 (2) of the Act. 3. The production and maintenance employees of the respondent receiver, exclusive of clerical and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. United Veneer and Lumber Workers Local Industrial Union, No. 607, affiliated with the C. I. O. was on September 30, 1937, and at all times thereafter has been, the exclusive representative of all the employees in such unit for the purpose of collective bargaining, with- in the meaning of Section 9 (a) of the Act. 5. By refusing to bargain collectively with United Veneer and Lumber Workers Local Industrial Union, No. 607, affiliated with the C. I. 0., as the exclusive representative of his employees in an appro- priate unit, the respondent receiver 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 Frank Toler, Eugene Montgomery, Frank Scott, Jesse Holy- field, Eugene Brummett, O. W. Humrichouse, Hayden Arthur, Charles Arthur, James Short, Harold Peters, Omer Lee Cookenour, William Maynard, William Coffey, and B. M. Wasson, thereby discouraging membership in the Union, the respondent receiver 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 his employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through respresentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Act, the respondent receiver has engaged in and is engaging in unfair labor practices, within the mean- ing 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. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board herelby orders that the respondent receiver, W. C. Bachelder, his agents, successors, and assigns, including Hoosier Veneer Com- pany, in the event the receivership is discharged, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Veneer and Lum- ber Workers Local Industrial Union No. 607, affiliated with the C. I. O. as the exclusive representative of the production and main- tenance employees, exclusive of clerical and supervisory employees, employed at the plant in Indianapolis, Indiana; (b) Discouraging membership in United Veneer and Lumber Workers Local Industrial Union No. 607, affiliated with the C. I. O., or in any other labor organization of the employees, by discharging or refusing to reinstate any of the employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; (c) In any other manner interfering with, restraining, and coercing the 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 or other mutual aid and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds ww ill effectuate the policies of the Act : (a) Upon request, bargain collectively with United Veneer and Lumber Workers Local Industrial Union No. 607, affiliated with the C. I. O. as the exclusive representative of the production and maintenance employees, excluding clerical and supervisory employees, employed at the plant in Indianapolis, Indiana, in respect to rates of pay, wages, hours of work, and other conditions of employment ; (b) Offer to Frank Toler, Eugene Montgomery, Frank Scott, Jesse Holyfield, Eugene Brummett, O. W. Humrichouse, Hayden Arthur, Charles Arthur, James Short, Omer Lee Cookenour, William May- nard, and B. M. Wasson immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, dismissing if neces- sary all employees hired since October 11, 1937, in the manner set forth in the section entitled "Remedy," above, and place those for whom employment is not immediately available upon a preferential HOOSIER VENEER COMPANY 941 list and offer them employment as it becomes available, in the manner set forth in said section; (c) Make whole Frank Toler, Eugene Montgomery, Frank Scott, Jesse Holyfield, Eugene Brummett, O. W. Humrichouse, Hayden Arthur, Charles Arthur, James Short, Omer Lee Cookenour, William Maynard, and B. M. Wasson for any loss of pay they have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to that which each would normally have earned as wages during the period from November 1, 1937, to the date of the offer of reinstatement, less his net earnings 27 during said period; deducting, however, from the amount otherwise due to each of said employees, monies received by said employees during said period for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, munici- pal, or other government or governments which supplied the funds for said work-relief projects; (d) Make whole Harold Peters by payment to him of a sum of money equal to that which he would normally have earned as wages during the period from November 1, 1937, to the date of his reinstate- ment, less his net earnings 27 during said period; deducting, however, from the amount otherwise due to him, monies received by him during said period for work performed upon Federal, State, county, munici- pal, or other work-relief projects; and pay over the amount so de- ducted 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; (e) Make whole William Coffey by payment to him of a sum of money equal to that which he would normally have earned as wages during the period from November 1, 1937, to on or about September 6, 1938, less his net earnings 27 during said period; deducting, however, from the amount otherwise due to him, monies received by him during said period for work performed upon Federal, State, county, munici- pal, or other work-relief projects; and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, munici- pal, or other government or governments which supplied the funds foi said work-relief projects; (f) Immediately post notices in conspicuous places throughout the Indianapolis, Indiana, plant, stating that the respondent receiver will cease and desist in the manner set forth in paragraphs 1 (a), (b), and (c) of this Order, that he will take the affirmative action 27 See footnote 26 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set forth in paragraphs 2 (a) through (e), inclusive, of this Order; that the respondent receiver's employees are free to become or remain members of the United Veneer and Lumber Workers Local Industrial Union No. 607; and that the respondent receiver will not discriminate against any employee because of membership or activity in that or- ganization; and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting; (g) Notify the Regional Director for the Eleventh Region in writ- ing within ten (10) days from the date of this Order what steps the respondent receiver 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 corporation, Hoosier Veneer Company, has engaged in or is engaging in unfair labor practices, within the meaning of the Act. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.