Moore-Lowry Flour Mills Co.

In the Matter of MooRE-LowRY FLOUR MILLS COMPANY' and FLOUR MILL AND CEREAL WORKERS UNION No. 20601. AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C-999-Decided March 25, 1400 Flour Melling Industril-Intel terenec, Rests amt, and Coca cionn: posting of editorials vilifying union leaders, purposes and policies ; misrepresenting terms and purposes of Act to employees ; disparaging remarks about union-Covn'PanNd- Dorncnated Union: domination of and interference with torniathon and adminis- tration ; activities of supervisory employees in behalf of, activities on company time and property; used to combat activities of legitimate nuion , intnuidatiun and coercion to join ; disestablished as agency for collective barga nnng- Conn ac,t. with organization found to be company dominated ; employer ordered to cease giving effect to; wage, hour. seniority, and other substantive feahlies not varied by Order-Strike: caused by unfair labor practices ; strikers ordered to be offered rein statement-Discr,ncinatlon: discharge; for union activity-Reinstatement Order ed: of discharged employee ; offer of to strikers-Back Pay: awarded, to discharged employee ; to strikers if employer refuses application for reinstatement. Mr. Daniel J. Leary, for the Board. Foulston, Siefkin, Foulston c0 Morris, by Mr. Robert C. Foulstony Mr. George Siefkin, and Mr. George B. Powers, of Wichita, Kans., for the respondent. Mr. Earl Dietz, of Kansas City, Mo., and Mr. David, Kaplan, of Washington, D. C., for Local No. 20601. Mr. Charles D. Welch, of Coffeyville, Kans., of the Association. Mr. F. Hamilton Seeley, of counsel'to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Flour Mill and Cereal Workers Union No. 20601, affiliated with the American Fed- eration of Labor, herein called Local No. 20601, the National Labor IIncorrectly designated as Moore-Lowry Flour Mill Company in the charge and complaint. 2 Incorrectly designated as Flour Mill and Cereal Workers Federal Labor Union Not 20601 , affiliated with the American Federation of Labor, in the charge and complaint 21 N. L. R B, No. 100. 1040 MOORE-LOWRY FLOUR MILLS COMPANY 1041 Relations Board, herein called the Board, by the Acting Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint dated June 24, 1938, against Moore-Lowry Flour Mills Company, Coffeyville, Kansas, herein called the respondent, alleging that the respondent. had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Re- lations Act, 49 Stat. 449, herein called the Act. Copies of the com- plaint and notice of hearing thereon were duly served upon the respondent, Local No. 20601, and upon Moore-Lowry Flour Mills Employees Association, herein called the Association, a labor or- ganization allegedly dominated and supported by the respondent. Concerning the unfair labor practices, the complaint alleged, in substance, that the respondent (1) dominated and interfered with the formation and administration of the Association, and gave finan- cial and other support to it by (a) encouraging and permitting super- visory and other employees to organize, promote, and encourage membership in the Association on the respondent's time, on its prop- erty, and at its expense, (b) instigating and suggesting that meetings be held on the property of the respondent for the purpose of forming the Association, (c) entering into an alleged contract with the Asso- ciation, and (d) causing or permitting rumors to circulate to the effect that employees not joining the Association would lose their employment; (2) discriminated in regard to the hire and tenure of employment of Orville Lander 3 because he joined or assisted in the promotion and administration of Local 20601, and thereby discour- aged membership in Local No. 20601; and (3) by the above-mentioned acts and by various statements derogatory to Local No. 20601, inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Thereafter, the respondent filed its answer to the complaint iu which it admitted certain allegations with respect to the conduct of its business, but denied that it had engaged in unfair labor practices. The answer further averred certain affirmative defenses, requested that the Association be made a party to the proceeding, and moved that the complaint be dismissd. The motion is hereby denied. Pursuant to notice duly served upon the parties, a hearing was held on July 7, 8, and 9, 1938, at Coffeyville, Kansas, before Theo. R. Bland, the Trial Examiner duly designated by the Board. The Board, the respondent, Local No. 20601, and the Association were rep- resented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine, witnesses, and to introduce evidence bearing upon the issues was afforded all parties. 3 Incorrectly spelled Landers in the charge and complaint 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the beginning of the hearing the Association filed a petition for leave to intervene. This petition was granted by the Trial Examiner. The Association then filed a petition in which it set forth the existence of a contract between it and the respondent, the validity of which it sought to have confirmed, and requested the designation of the Asso- ciation as the exclusive representative for the purposes of collective bargaining of the respondent's employees. The petition is hereby denied. At the conclusion of the hearing, the Trial Examiner granted a motion made by counsel for the Board to conform the complaint to the proof. He denied a motion by counsel for the respondent to dismiss the complaint. During the course of the hearing, the Trial Examiner made 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. On October 24, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all parties. He found that the respondent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act, and recommended that the respond- ent cease and desist from its unfair labor practices, and, affirmatively, offer full reinstatement with back pay to Orville Lander, withdraw all recognition from the Association and completely disestablish it as representative of the respondent's employees, and post appropriate notices stating, inter alia, that the contract between it and the Association is void. On November 3 and 4, 1938, the respondent and the Association, respectively, filed exceptions to the Intermediate Report. On June 6, 1939, pursuant to request therefor by the respondent and notice thereof to all parties, a hearing was held before the Board in Wash- ington, D. C., for the purpose of oral argument. The respondent and Local No. 20601 were represented by counsel and participated in the hearing. The Board has considered the exceptions filed to the Intermediate .Report and, except in so far as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Moore-Lowry Flour Mills Company, is a Kansas ,corporation with its principal place of business located in Wicl31ta, Kansas. It owns and operates a mill for the processing of grains into flour and other products,-at Coffeyville, Kansas; and 10 grain elevators MOORE-LOWRY FLOUR MILLS COMPANY 1043 located at Edna, Bartlett, Valeda, and other points within the State of Kansas. The Coffeyville mill is the part of the respondent's operations which are here involved. Between June 1, 1937, and June 1, 1938, the respondent purchased approximately 800 carloads of grain, of which at least 25 per cent was purchased in the States of Oklahoma and Missouri and elsewhere outside the State of Kansas. The Coffeyville mill produces approximately 20,000 to 25,000 barrels of flour per month, over half of which is sold by the respondent and shipped to points in the States of Illinois, Indiana, and, Ohio, and elsewhere outside the State of Kansas. The respondent admits that it is engaged in interstate commerce. The respondent employs ap- proximately 38 production and maintenance employees and approxi- mately 13 employees in office, clerical, and supervisory capacities at the Coffeyville mill. II. TAE LABOR ORGANIZATIONS INVOLVED Flour Mill and Cereal Workers Union No. 20601, affiliated with the American Federation of Labor, is a labor organization admitting to its membership all production and maintenance employees of the respondent, excluding clerical and supervisory employees. Moore-Lowry Flour Mills Employees Association is an unaffiliated labor organization admitting to its membership employees of the respondent, including clerical and supervisory employees but exclud- ing the superintendent and the foreman of its warehouse. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In April 1937 George Maiden, an organizer for the American Fed- eration of Labor, commenced an organizational campaign among employees in the milling industry in Coffeyville, Kansas. At a meet- ing conducted by him on April 25, 1937, attended by more, than 23 employees, about 11 of the respondent's employees present signed membership application cards in Local No. 20601 and elected officers thereof. Among those elected were Harlan Ray, president, and Orville Lander, secretary. Both Ray and Lander were employed by the respondent. On April 28, 1937, the American Federation of Labor issued a charter to Local No. 20601. The formation of Local No. 20601 and -its membership were soon known by the respondent.., Lander testified that ,on May 15 Lee ,Hood, the mill. superintendent, "identified- Lander as- an officer of .Local No. 20601 to - Watson Ellis,_ a,.supervisory employee. In, Lan- cler's hearing both Hood and Ellis made derogatory remarks about 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unions and both claimed to have received "a good gypping" from unions in the past. Both Lander and Ray testified that they had been on friendly terms with Hood until they joined Local No. 20601, and that after joining Local No. 20601, Hood's attitude tow ards them changed and became unfriendly. They testified that Hood thereafter ad- dressed them in a derogatory and contemptuous manner as "you Reds" and "you Bolsheviks" and that Hood informed them that he was going to work them together in order to prevent them from soliciting members for Local No. 20601. Hood, at the hearing, admitted referring to Lander and Ray as "Reds" and "Bolsheviks" but asserted that he was only joking. However, it is clear from the testimony of both Lander and Ray that Hood's remarks were not mere bantering remarks and we find that he employed the terms "Reds", and "Bolsheviks" to indicate ,his disapproval of Lander's and Ray's membership in Local No. 20601. Hood did not deny working Lander and Ray together for the purpose of interfering with their organizational activities in Local No. 20601. During July and August 1937, at the peak of Local No. 2060 is activity in the mill, the respondent either posted or permitted to be posted upon the respondent's bulletin board, editorials from the "American Miller," a trade magazine, which denounced "mad clog labor movements" and characterized union, organizers as "radical agitators," "rabble rousers," and "hunkies with dynamite." One of these editorials, from the July 1937 issue stated: DON'T BE A SUCKER ! There's a big difference between gentlemanly organization and mad-dog terrorism. We have no room here to dissect the current reign of labor-agitation but room must be made for a word of warning to all employes to let the beast alone. Hands off ! Poison ! One look at the photographs of the ringleaders in the existent strife is sufficient to reveal the general absence even of imprac- tical idealism. Instead, tough, brutal ruthlessness dominates their mugs. So expect nothing from those destroyers of busi- ness and jobs. The rogues, frankly demand the right to muscle into any business though they know nothing of the business; have no capital invested; didn't built it; have been invited neither by the owners or., the workers; don't expect to bear any possible losses; and finally fail to demonstrate any sense of responsibility. MOORE-LOWRY FLOUR MILLS COMPANY 1045 What the gangsters demand is the signed, sealed and delivered right to grab organization dues from workers and to hold con- stantly a club over the owners of the plants which they are dynamiting and otherwise wrecking as a prelude to more com- plete destruction. The method of persuasion in their lily-white project is terrorism of workers and employers alike. Now here's the point : Don't be a dupe for any wily organizer. In weighing this appeal, remember AMERICAN MILLER has long decried shabby working conditions where such blemishes exist. Remember, too, the present industrial crucifixion has little connection with any such subject. Finally, if you suffer from arrested mental development-if you believe the tripe which labor agitators stuff into simple eats-at least keep your mouth shut. Reckless gabbing will ruin your future. Not long ago an employer quietly pointed to one of his work- men, "We have been grooming that man for a superintendency," he whispered. "But, to our surprise, he's begun preaching un- rest to our people. He's getting nowhere because our men are thoroughly contented. The poor fool will never know it, but he's missed the advancement and financial benefits we had planned for him-simply because he was putty in the hands of the labor wolves." This needs no amplifications . . . Don't be a goof ! These editorials were permitted to remain posted on the bulletin board for several weeks. It is apparent and the employees under- stood from the very fact that they were posted and permitted to remain posted that these editorials expressed the respondent's atti- tude and received at least the tacit approval. of the respondent. Obviously, the editorials were designed to discourage the respondent's employees in the exercise of their right to self-organization and col- lective bargaining and could have had no other effect. At about the same time, the respondent posted upon its bulletin board a statement which purported to explain rights of employees under the Act. This statement, which was devoted entirely to ex- plaining that an employee need not join or deal with his employer through a union and that the Act does not limit an employer's right to discharge an employee for failure to perform his duties, empha- sized what the provisions of the Act do not purport to do rather than the positive principles and rights established by the Act. Such a negative approach serves to distort the true significance of the Act. We find that the posting of such a distorted interpretation of the Act by the respondent constituted an interference with its em- 283032-41-vol. 21-67 1046 DECISIONS OFNATIONAL LABOR RELATIONS BOARD ployees' right, unprejudiced by the respondent, to make their own decisions regarding self-organization.4 The success of the respondent's efforts to combat Local No. 20601 is evidenced by the fact that by August 1937 membership in Local No. 20601 had dwindled from at least 11 to 3 members. We find that the respondent, by means of the foregoing acts in- terfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. B. Domination of, interference with, and support of the Association As stated above, Local No. 20601 commenced its organizational cam- paign in April 1937. Shortly thereafter, supervisory employees com- menced advocating an inside union among the respondent's em- ployees. Lander testified that on May 15, 1937, the following conversation occurred between Hood and Ellis : [Hoon.] I belonged to a union once and I got a good gypping. [ELLIS.] So did I. I belonged to one in Topeka and I had $185.00 saved up in the bank and the union got it all. What we ought to have here is a company union where we don't have to pay any dues out. [HOOD.] Yes, that would be the best thing to have. [Italics supplied.] Although both Hood and Ellis testified at the hearing, neither denied these statements and we find that they made the statements attributed to them. On June 6, 1937, Lander saw a number of employees enter Hood's office and shortly thereafter a meeting of employees was held on the lawn in front of the office. At that meeting formation of an inside union was discussed generally. The following day, June 7, a notice was posted upon the bulletin board beside the timeclock at the mill. This notice, signed by W. H. Hurt, a watchman, stated that a meeting of employees would be held that evening at the respondent's garage. Approximately 20 employees attended the meeting. The mill was operated on a 24-hour day basis and attendance of employees at this and subsequent meetings was made possible by the temporary shut- ting down of the mill. Hurt opened the meeting with the statement, "We are assembled here tonight to try to organize a little company union of our own here. We called you boys here for the purpose of finding out just what you think about it and to appoint our officers and things like that." Watson Ellis and James Reidy, supervisory 4 See Matter of Mansfield Malls, Inc. and Textile Workers Orgaataztng Committee, 3 N. L. R. B 901. MOORE-LOWRY FLOUR MILLS COMPANY 1047 elnployees,5 were elected as treasurer and secretary, respectively, of the meeting. The meeting was then adjourned. No formal organ- ization was ever completed and no constitution or bylaws or procedure for handling grievances or dealing with the respondent were ever adopted. Nor was a name for the organization chosen. Instead, it was referred to, by the respondent's employees, variously as the "Com- mittee," the "Company Union," and the "Association." On June 8, 1937, Lander, who was the most active member in the mill of Local No. 20601, was demoted from the position of oiler to that of sweeper. Lander immediately complained to Maiden, the union organizer, who, in turn, complained to Hood. After some argu- ment, Hood agreed to reinstate Lander to his former position. The following day Lander was called to Hood's office and informed by Hood that his reinstatement to his former position was dependent upon the consent of the Company Union committee which was present. Lander refused to -acknowledge the committee's authority 'in i the matter and insisted that Hood reinstate him. After a heated dis- cussion, Lander walked out of the office and, on the following day, with Hood's acquiescence, returned to work at his former position. On June 8, 1938, another meeting of the employees was held at the respondent's garage and a proposed contract between the re- spondent and the Company Union, providing for recognition of the latter as collective bargaining representative of the employees and a general wage increase, was discussed. On June 11, 1937, Local No. 20601 filed a charge with the Regional Director alleging that the respondent was engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. Follow- ing an investigation of the charge by a representative of the Re- gional Office, a conference was held in Kansas City, Missouri, on June 21, 1937, between the Regional Director and representatives of the respondent and Local No. 20601. As a result of this confer- ence, the respondent posted a notice in the mill stating, in substance, that the respondent intended to comply with the Act and that, if properly requested by the employees, an election would be held to determine what agency should be their representative for the pur- 6 Both Ellis and Reidy were second millers A second miller is in complete charge of the mill when the superintendent is absent . Since the mill is operated on three 8-hour shifts , the second millers are frequently in sole charge . They direct and supervise the work of subordinate employees and perform generally the functions of foremen. The record is not clear concerning the authority of second millers to hire or discharge em- ployees but it is clear that they make recommendations concerning the employees to the superintendent. We find that second millers are supervisory employees , and that the respondent is bound by their acts . See Matter of American Manufacturing Company and Textile Workers' Organizing Committee, C. I. 0 , 5 N. L. R B 443 , enf'd as mod, N. L R. B. v. American Manufacturing Company, 106 F (2d) 61 (C. C A. 2), as to the supervisory capacity of such an employee, regardless of the power to hire and discharge. 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD poses of collective bargaining. Local No. 20601 then withdrew its charge. Shortly before the notice was posted, however, Hurt, Ellis, and Reidy, the officers of the Company Union, had consulted a local attorney with a view to forming a new union and retained the attorney to draft a union constitution and bylaws. The attorney, after several more conferences with the officers of the Company Union, drafted a constitution and bylaws for the Association and a contract similar to the proposed contract of the Company Union. Hurt testified that he and the others had consulted the attorney in order to form a new organization and that they did not consider themselves as representatives of the old organization; that "As far as representing, I don't know as I could say we represented anyone, only we had started in to work it out and we were still working on it." [Italics supplied.] It does not appear who paid the attor- ney for his work on behalf of the Association. On July 12, 1937, Hurt again posted a notice on the bulletin board calling a meeting of the employees for the following day. This meeting was held in the respondent's garage and was attended by about 40 employees. Hurt was in charge of the meeting and announced that it had been necessary to disband the old organiza- tion because certain supervisory employees had been officers and for other reasons. He then told the employees that a constitution and bylaws had been drafted for a new organization. Reidy read the constitution and bylaws to them and 35 employees signed them.6 The employees thereupon elected officers for the Association. Ellis and Reidy were not elected officers, although they remained mem- bers of the Association. After the election of officers, Hurt read the proposed contract to the employees who decided that it should be submitted to the respondent. The wages of those who attended this meeting were not docked for the time spent in attendance. On the same day, July 13, 1937, the attorney for the Association submitted a copy of the constitution and bylaws to the respondent and informed the respondent of the Association's desire to negotiate "a contract covering wages and hours of employment for the ensuing year." On July 23, 1937, the respondent and its counsel met with the. officers of the Association in regard to the proposed contract. The Association asked for a 10-cent wage increase for the hourly paid employees and a $5 increase for the. weekly paid employees. The respondent offered 7-cent and $4.50 increases, respectively. These 0 Although only 31 employees signed at the meeting , 4 others signed later in the day. MOORE-LOWRY FLOUR MILLS COMPANY 1049 were agreed to by the Association and a contract between the re- spondent and "all of its employees represented by the undersigned Committee of three (3) employees,"' providing for such increases, was signed on July 24, 1937. The contract was made effective as of July 1, a time prior to the Association's having been formally or- ganized. By the contract the respondent granted exclusive recogni- tion to the committee of three employees. The contract provided, inter alia, that no person not an employee of the respondent could represent its employees in dealing with the respondent, except that the "Employees' Committee" could retain counsel to represent them.8 There is nothing in the contract that requires the Association's approval before a new employee is hired. However, Hood testified that since the contract was signed he has adopted the policy of sub- mitting the names of prospective employees to the Association for its approval and that on at least two occasions, the Association has re- fused to approve his selections. Following the execution of the contract, no further bargaining took place between the Association and the respondent. The Association did, however, continue to meet thereafter on the respondent's prop- erty and announce its meetings on the respondent's bulletin board. It is thus clear that as soon as Local No. 20601 began its organiza- tional campaign among the respondent's employees, the respondent, through its superintendent and other supervisory employees, sought to counteract its activities by the formation of an inside organization. Two of the three principal officers of the organization thus formed were supervisory employees of the respondent. The organization was permitted to post its notices upon the respondent's bulletin board and attendance at its meetings, which were invariably held on the respondent's property, was actively encouraged by the respond- ent. To permit employees to attend meetings, the respondent's mill was temporarily shut down. While it does not appear that this was done on the respondent's orders, it was at least with its tacit consent and approval. Hood, the mill superintendent, also used the inside organization in an attempt to coerce Lander and other employees and to interfere with them in their self-organizational activities. When it became apparent to the respondent, by Local No. 20601's filing of charges, that the inside organization was illegal, the Association was formed. Aside from the fact that supervisory employees ceased to be officers of the organization, no substantial difference exists between the Asso- -7 The committee referred to consisted of officers of the Association. O Paragraph 9 of the contract provides that employees of the respondent "may estab. lish such form of organization among themselves as they may desire, which 'organiza- tion may substitute members of the Employees' Committee for those signing this Agreement." 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciation and its predecessor. The Association was obviously regarded by the employees as but a continuance of the old organization and no more represented the free choice of the employees than had the old organization. The respondent's supervisory employees who had managed the old organization selected the attorney who drafted, in conference with them, the Association's constitution and bylaws. The contract presented by the Association to the respondent was similar to that which had been proposed by the old organization. The Association continued to use the respondent's facilities and prop- erty in arranging for and holding its meetings and the mill was shut down to permit employees to attend the meetings. In short, the respondent's sponsorship of and influence in the old organization was carried forward and continued to dominate the Association. The contract of July 24, 1937, was drafted by the As- sociation's attorney in consultation with the respondent's supervisory employees, and its execution was preceded by hardly a semblance of collective bargaining; it was made effective as of a date when not the Association, but its predecessor was in existence; its attempted restriction upon the employees' right to selection of collective bar- gaining representatives is in derogation of employees' rights under the Act and is something to which no independent labor organization would consent. We find that the respondent has dominated and interfered with the formation and administration of the Association and has contributed support to it and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We also find that the contract of July 24, 1937, entered into by the respondent and the committee of the Association's officers, is invalid because it was made with a labor organization, the formation and administration of which had been dominated, interfered with, and supported by the respondent.,, C. The discriminatory discharge of Orville Lander The complaint alleges that the respondent discharged and refused to reinstate Lander because he joined or assisted in the promotion and administration of Local No. 20601. In its answer the respondent avers that the principal reason for Lander's discharge was his fight- ing with another employee in violation of the respondent's rules. e Matter of the Electric Auto-Lite Company, Bay Manufacturing Dtivision and Inter- national Union, United Automobile Workers of America, Local No. 526, 7 N. L. R. -B. 1179; Matter of Mo%atg-Hatch, Inc. and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No. 1139, 10 N. L. R B. 33. MOORE-LOWRY FLOUR MILLS COMPANY 1051 Lander started to work for the respondent on May 23, 1934, as a millwright helper at wages of 35 cents per hour. Three months later he was promoted to the position of sweeper and his wages increased to 421/2 cents per hour. After about a year in this position, Lander was again promoted, to the position of oiler, and his wages increased to 45 cents per hour. Lander joined Local No. 20601 on April 25, 1937, was elected secretary thereof, and was its most active member. Prior to his joining Local No. 20601 Lander's work was praised on many occasions by Hood. At the hearing, Hood admitted that Lander's work as an oiler had been satisfactory. After Hood learned of Lander's membership and leadership in Local No. 20601, his atti- tude toward Lander changed from a friendly to a critical one. As stated above, on June 8, 1937, Hood informed Lander that he was being demoted from the position of oiler to that of sweeper. Upon Local No. 20601's making representations, however, Hood agreed to reinstate Lander to his former position. The next day, June 9, Hood called Lander to- his office where a committee of three employees was waiting. In regard to this meeting, Lander testified, "When I walked in he [Hood] says, `Mike,"' I have left it up to this committee here in regard to putting you back to work. If they want to put you back to work, all right, and if they don't, you will have to go back as a sweeper.' I said, `Well, Mr. Hood, this company union committee, I; don't want nothing to do with them. You are the one that fired me off that job, and I think it is your place to put me back on the job."' A heated discussion followed and Lander walked out of the office. The following day, apparently on his own initiative, and with Hood's acquiescence, Lander returned to work at his former position. Lander's version of the meeting in Hood's office was not controverted by the respondent. It is apparent that this meeting was designed to impress Lander with the advisability of leaving Local No. 20601 and joining the inside union. For some time prior to August 6, 1937, there had been friction be- tween Lander and Claude Cox, the son of H. C. Cox, the respondent's warehouse foreman, who was employed by the respondent as an oiler. This had resulted principally from Lander's feeling that he had been unjustly accused upon several occasions for Cox's negligence and Lander had made some criticism of Cox which had been bandied about and exaggerated by other employees, despite Lander's efforts to stop the talk. On August 6 Lander was performing his usual duties as an ,oiler when Cox approached him and said, "Mike, I hear that you are telling around here that I am a hot shot." Lander denied this and Cox walked away. In about 3 minutes Cox returned brandishing a 10 Lander's nickname. 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD large knife used by employees to cut burlap sacks. Cox said, "Mike, you son-of-a-bitch, I will show you who is the hot shot around here." Cox then swung the knife back as though to strike Lander and a fight between the two ensued until they were separated by Hood. Later that day Hood reported to A. G. Kliwer, a roving superintendent of the respondent who was visiting the mill for the first time, that Lander and Cox had been fighting. Kliwer thereupon discharged them, after consulting with E. F. Merrill, general manager of the respondent, by long-distance telephone and being advised that "anybody fighting should be discharged." When Cox was discharged he was immediately given another job in a mill at Wichita, Kansas, under the same management as the Coffey- ville mill, and, about 3 weeks after his discharge, at the request of the Association, he was reinstated to his position at the Coffeyville mill "with full seniority and subject to advancement to any vacancy cre- ated since his discharge August 6, 1937." Lander, on the other hand, was offered neither other employment with the respondent nor rein- statement. While Kliwer told Lander that he would aid him in obtaining employment elsewhere, his efforts to do so were of no avail. On August 27, 1937, the executive committee of the Association served notice upon Lander to appear before it and give testimony con- cerning his discharge. Upon the advice of Maiden, Lander refused to concede to this committee jurisdiction over him and, on September 7, 1937, he wrote a letter to Hood requesting a meeting in regard to his 'discharge. On September 11, 1937, a hearing before the executive officers of the respondent was granted to Lander. The respondent con- tends that at this meeting Lander refused to answer questions con- cerning the fight. Lander contends, however, that he answered all questions concerning the fight but refused to answer questions concern- ing Local No. 20601. As to this conflict, we credit Lander's testimony. Had Lander not desired to answer questions regarding the fight, the ostensible reason for his discharge, it is inconceivable that he would have asked the respondent for a conference regarding his discharge. We note, also, that no mention of Lander's alleged refusal to answer questions was made in the letter by which, following the September 11 meeting, the respondent advised Lander of its refusal to reinstate him. Lander was never reinstated. While it is true that Lander and Cox were fighting in the mill in violation of the respondent's rules, it is plain that this was not the reason that the respondent discharged Lander and refused to reinstate him. The discriminatory treatment in favor of Cox and against Lander makes this obvious. Lander was the most active member of Local 20601 in the respond- ent's mill and this was known to the respondent. The respondent's MOORE-LOWRY FLOUR MILLS COMPANY 1053 antipathy to Local No. 20601 is also clear. Hood's references to Lander and Ray as "Reds" and "Bolsheviks," its posting of anti-union notices, its use of an inside union to disrupt Local No. 20601, its attempted coercion of Lander to accede to the authority of the inside union to handle grievances-all these and other acts of the respondent reveal clearly that it was Lander's union activities and his refusal to comply with the respondent's wishes as regards his exercise of his rights under the Act that furnished the reason for the respondent's discharge of and refusal to reinstate Lander. The fight was not the reason; it provided merely an opportunity. We find that the respondent discharged Orville Lander on August 6, 1937, and refused thereafter to reinstate him because of his mem- bership in and activities on behalf of Local No. 20601, thereby dis- criminating in regard to his hire and tenure of employment to dis- courage membership in a labor organization and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act. D. The strike On or about August 25, 1937, Local No. 20601 sought reinstatement of Lander. On August 26, 1937, the Union called a strike at the respondent's mill because of the respondent's discharge of Lander and refusal to reinstate him. Harlan Ray and Owen Kline, the only employees besides Lander who were members of Local No. 20601, went on strike. 'The strike was still in effect at the time of the hearing. In Section III, C, above, we found that the respondent by its discharge of Lander and refusal to reinstate him had engaged in and was engaging in unfair labor practices. We find that the strike which commenced on August 26, 1937, was caused by the aforesaid unfair labor practices of the respondent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has engaged in certain unfair labor practices. We shall order it to cease and desist therefrom and 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to take certain affirmative action, remedial of their effect, which we find necessary to effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the Association and has contributed support to it. In order to effectuate the policies of the Act, we shall order the respondent to refrain from recognition of the Association as representative of any of the respondent's em- ployees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and to disestablish it as such representative. We shall also order the respondent to cease and de- sist from giving effect to its contract with the Association as well as to any extension, renewal, modification, or supplement thereof, and to any superseding contract which may now be in force.11 Nothing in this Decision and Order should be taken to require the respondent to vary those wage, hour, seniority, and other such substantive features of its relations with the employees themselves, which the respondent established in performance of the invalid contract as extended, renewed, modified, supplemented, or superseded. Having found that the respondent discriminatorily discharged Orville Lander on August 6, 1937, because of his membership in and his activities on behalf of Local No. 20601 and thereby discouraged membership in Local No. 20601, we shall order the respondent to offer to Lander immediate and full reinstatement to his former posi- tion or to a substantially equivalent position without prejudice to his seniority and other rights and privileges. We shall also order the respondent to make whole Orville Lander for any loss of pay he may have suffered by reason of his discriminatory discharge, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of said discharge, August 6, 1937, to the date of the offer of reinstatement less his net earnings 12 during said period. "See Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No. 502, 6 N. L R B 171 , enf'd as mod ., N L R. B. v. Stackpole Carbon Company, 105 F. (2d) 167 (C. C. A. 3), cert. denied, 308 U S 605 ; Matter of Titan Metal Manufacturing Company and Federal Labor Union No 19981, 5 N L. It . B. 577, enf'd Titan Metal Manufacturing Company v . Titan Employees Protective Association, 106 F. (2d) 254 (C. C. A. 3), cert denied , 308 U. S 615 'a By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board , incurred by Lander in connection with obtaining work and working elsewhere than for the respondent , which would not have been incurred but for his unlawful dis- charge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R. B. 440 . Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due to Lander 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 MOORE-LOWRY FLOUR MILLS COMPANY 1055 We have found that the strike of the respondent's employees on August 26, 1937, was caused by the respondent's unfair labor prac- tices. We shall order the respondent, upon application, to reinstate its striking employees, Harlan Ray and Owen Kline, to their former or substantially equivalent positions, without prejudice to their sen- iority and other rights or privileges. Our Order will also provide that Ray and Kline shall be entitled to back pay for any wages lost as a result of the respondent's refusal to reinstate them for the period beginning 5 days after the date of application to the date of reinstatement, less net earnings 13 during said period.14 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Flour Mill and Cereal Workers Union No. 20601, affiliated with the American Federation of Labor, and Moore-Lowry Flour Mills Employees Association are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. By dominating and interfering with the formation and admin- istration of Moore-Lowry Flour Mills Employees Association and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 4. By discriminating in regard to the hire and tenure of employ- ment of Orville Lander, thereby discouraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 's By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for the respondent's unlawful refusal to reinstate him and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R . B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work- relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due to the employee and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal , or other government or governments which supplied the funds for said work -relief projects. 14 See Matter of Oregon Worsted Company and United Textile Workers of America, Local 2435, 3 N. L. R. B. 36, enf'd, N. L R. B. v. Oregon Worsted Company, 96 F. (2d) 193 (C. C. A. 9) ; Matter of Bales-Coleman Lumber Company and Puget Sound District Council of Lumber and Sawmill Workers, 4 N. L. R. B. 679, enf 'd, N. L R. B. v. Bales-Coleman Lumber Company, 98 F. (2d ) 18 (C. C. A 9) 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Moore-Lowry Flour Mills Company, Coffeyville, Kansas, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Moore- Lowry Flour Mills Employees Association or with the formation or administration of any other labor organization of its employees, and contributing support to Moore-Lowry Flour Mills Employees Asso- ciation or to any other labor organization of its employees; (b) Recognizing Moore-Lowry Flour Mills Employees Associa- tion as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor, dis- putes, rates of pay, wages, hours of employment, or other conditions of employment; (c) Giving effect to its contract of July 1, 1937, with Moore- Lowry Flour Mills Employees Association, or to any extension, renewal, modification, or supplement thereof,-or to any superseding contract with said Association which may now be in force; (d) Discouraging membership in Flour Mill and Cereal Workers Union No. 20601, affiliated with the American Federation of Labor, or in any other labor organization of its employees, by discriminat- ing in regard. to hire and tenure of employment or any term or condi- tion of employment, of its employees; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Moore-Lowry Flour Mills Employees Association as a representative of any of its employees for the purpose of dealing with the respondent concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish said MOORE-LOWRY FLOUR MILLS COMPANY 1057 Moore-Lowry Flour Mills Employees Association as such representa- tive ; (b) Offer to Orville Lander immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges; (c) Make whole the said Orville Lander for any loss of pay he may have suffered by reason of the respondent's discrimination in regard to his hire and tenure of employment by payment to him of a sum of money equal to that which he would normally have earned as wages during the period from the date of his discharge, August 6, 1937, to the date of the offer of reinstatement, less his net earnings 15 during said period ; deducting, however, from the amount other- wise due to Lander, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Upon application, offer to Harlan Ray and Owen Kline, and each of them, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their senior- ity or other rights or privileges ; (e) Make whole the said Harlan Ray and Owen Kline, and each of them, for any loss they may suffer by reason of any refusal of their application for reinstatement in accordance with paragraph 2 (d) of this Order, by payment to each of them, respectively, of a sum of money equal to that which he would normally have earned as wages during the period from a date 5 days after the date of any such refusal of his application to the date of reinstatement, less his net earnings 11 during said period, deducting, however, from the amount otherwise due him, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the, amount so deducted to the appropriate fiscal agency of the Federal, State, county, mu- nicipal, or other government or govermnents which supplied the funds for said work-relief projects; (f) Immediately post in conspicuous places throughout its Coffey- ville, Kansas, mill, and maintain for a period of at least sixty (60) consecutive day, notices to its employees stating (1) that the re- spondent will cease and desist in the manner set forth in paragraphs 1 (a), (b), (c), (d), and (e) and that it will take the affirmative 15 See footnote 12, supi a "See footnote 13, supra 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order; and (2) that the respondent's employees are free to become or remain members of Flour Mill and Cereal Workers Union No. 20601, affiliated with the American Federation of Labor, and that the respondent will not discriminate against any employee because of membership or activity in that organization; (g) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.