Universal Match Corp.

In the Matter Of UNIVERSAL MATCH CORPORATION and UNITED MATCiI WORKERS' LOCAL. INDUSTRIAL UNIONS #180,. AFFILIATED WVJTH COM- MITTEE FOR INDUSTRIAL ORGANIZATION Case .No. C-9,92.-Decided April 05, 19/0 Paper-Book 1L7etch"J?idustry=liitcrfereihce. Restraint. and Coeicion=Coi,rpany- Dominated Union: employees whose acts carried responsibility of respondent took an active part in initiating movement for an unaffiliated organization; meetings for that purpose held on company property, presided over by represent- ative of respondent, and conducted in presence of and with participation of respondent's agents and representatives; loyalty pledge and petitions for un- affiliated union circulated on company time and properly: working hours re- arranged to enable employees to attend meeting for formation of unaffiliated union; subsequent support to unaffiliated union by operation of closed :shop con- tract; discharge of employee found to he a further uieaus of support; ordered disestablished-Procedure: charging party alleged not to be an existent labor or- ganization, not established-Labor Organization: failure to adopt a constitu- tion or bylaws or to comply with other similar matters of internal organization, does not preclude the formation or existence of a labor organization, within the meaning of the Act, where in fact an',organizatiou,pii-ticipiited in by employees for the purposes defined in Section 2 (5) is formed or exists-Closed-Shop Con- tract: executed with company-dominated union, found to be invalid and a dis- crimination-Discrimination: discharge of two employees and lay-off of a third, caused by their union activities: complaint dismissed as to one employee- Rein-.statement Ordered: grounds for refusal of: indictment and arrest of one em- ployee for alleged criminal activity prior to his employment by respondent, held no bar to reinstatement even though employer first learned of "record" at hear- ing, where respondent expressly disclaimed intention to prove conviction and there was no basis for belief that employee would not render satisfactory work; respondent, however, not precluded from taking action appropriate to situation upon person's reinstatement-Back Pay: awarded; employee-- who had been offered reinstatement while out of state, limited after reasonable opportunity to return to plant following offer of reinstatement. Mr. William J. Avrutis, for the Board. Mr. Samuel I. Sievers, of St. Louis, Mo., and Anderson, Gilbert c>c Wolfort, by Mr. 'Roscoe Anderson, of St. Louis, Mo., for the respondent. Mr. Herbert E. Bryant, of St. Louis, Mo., for the Independent. Mr. S. G. Lippman, of counsel to the Board. 23 N. L. R. B., No. 19. 226 UNIVERSAL MATCH COMPANY 227 DECISION AND ORDER STATEMENT OF THE CASE On April 30, 1937, Larry Daniels filed a charge,, and on May 8, 1937, an amended charge, with the Regional Director for the Four- teenth Region (St. Louis, Missouri), alleging that Universal Match Corporation, St. Louis, Missouri, herein called the respondent, had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1), (2), and (3) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On April 27, 1938, United Match Workers Local Industrial Union No. 180, herein called the Union, filed a so-called second amended charge alleging that the respondent had engaged in and was engaging in unfair labor prac- tices, within the meaning of Section 8 (1), (2), and (3) of the Act., Upon the charges filed, the National Labor Relations Board, herein called the Board, by the Regional Director, issued its complaint dated May 13, 1938, 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 Act. A copy of the complaint, accompanied by notice of hearing, was duly served upon the respondent and upon the union. 'The respondent contends that at the time the second amended charge was filed the Union was non-existent. or in any event, was not such an organization as was entitled under the Act and the Board's Rules and Regulations to file a charge, and therefore the complaint in so far as it rested on that charge, improperly issued. The respondent states that the Union never adopted any constitution or bylaws, or complied with other formal requirements, and that "at the time of the hearing" it had only two "dues-paying" members and had held no meetings since July 15, 1937. We are satisfied, and find, that when the charges were filed the Union was an existent labor organization, within the meaning of Section 2 (5) of the Act and of the. Rules and Regulations. Failure to adopt a constitution or bylaws, or to comply with other aimilar matters of internal organization, doesApt preclude the formation or existence of a labor organization, within the meaning of the Act and the Rules-and Regulations, where in fact an organization participated in by employees for tiie purposes defined in Section 2 (5) is formed or exists See Matter of Aeolian-American Corporation and Amalgamated Piano Workers of America, 8 N L. R. B 1043, 1045. The fact that -only two "dues-paying" members were on the Union's membership roll, and no union meetings had been held for 9 months, at the time the second amended charge was filed does not establish, either taken alone or with other facts shown, the non-existence of the Union as a labor organization under the Act and Rules and Regulations, or otherwise The Union still was an organization and agency participated in by employees, and available for employee participation, for the purposes defined in Section 2 (5) of the Act Moreover, we are of the opinion that a charge of unfair labor practices when filed by an individual, eNen though purportedly in behalf of a labor organization which Is shown to be non-existent, satisfies the requirements of Section 10 (b) of the Act and constitutes substantial compliance with the Rules and Regulations See Matter of General Shoe Corporation and-Georgio Federation of Labor, 5 N. L. R. B 1005 Further, the Jurisdic- tion of the Boai d in these proceedings may be rested on the charges filed by Damcls 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint, so fan as here material, alleged in substance that the respondent (1) discharged or laid off Larry Daniels on April 26, 1937; Walter Elam on April 30, 1937; Edward McKee on April 30, 1937; George Drybread on October 5, 1937; and Richard McKinney on April 26, 1938; for the reason that they joined and assisted the Union and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid- and pro- tection, thereby discriminating in regard to hire and tenure of em- ployment and 'discouraging membership in the Union; (2) formed, promoted, assisted, and sponsored the formation of a labor organiza- tion known as Independent Match Workers of Missouri, herein called the Independent, and has dominated and interfered with its admin- istration; (3) solicited, enticed, encouraged, coerced, and intimi- dated its employees to become members of the Independent; (4) extended to the Independent the use of the company premises for meet- ing places; (5) permitted meetings of the Independent to be held on company time; (6) entered into an agreement with the Independent on May 15, 1937, wherein the respondent undertook to hire only such persons as were members of the Independent; and (7) by the fore- going acts interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the- Act.2 On May 31, 1938, the respondent filed its answer averring certain facts regarding corporate successorsliip, more particularly set forth below; denying that it engaged in unfair labor practices as alleged in the complaint ; and raising certain affirmative defenses. It also averred that Elam, McKee, and Drybread, the employees mentioned in the complaint, were laid off because of curtailed production, and that Daniels and McKinney, the other employees named, were dis- charged "on just and proper cause, and for unsatisfactory, unskilled, inefficient, and incompetent service, dereliction of duty and violation of company rules and regulations." On June 16, 1938, the Inde- pendent after leave being granted it to intervene in these proceedings filed its answer in which it denied the allegations of the complaint concerning itself, and alleged that the contract, mentioned in the com- plaint had expired and that it was seeking to negotiate a new contract with the respondent. Pursuant to notice a hearing was held from June 16 to July 12, 1938, at St. Louis, Missouri, before D. Lacy McBryde, the Trial Examiner duly designated by the Board. The Board, the respond- ent, the Union, and the Independent were represented by counsel and participated in the hearing. Full opportunity to be heard, to ex- 2 The complaint contained other allegations of unfair labor practices which it is unneces- sary to restate. Some of these were dismissed , as set forth below, by the Trial Examiner at the hearing. and that ruling is hereinafter affirmed UNIVERSAL \IATCH COMPANY 229 amine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the Board's case both the respondent and the Independent made various motions to dismiss the complaint and portions thereof. The Trial Examiner, with the consent of Board's counsel, struck certain of the allegations of the complaint, and we affirm this ruling.6 However, he reserved his ruling on the motions in all other respects, At the close of their respective cases, the respondent and the Independent each renewed its motionto dismiss the complaint. The Trial Examiner reserved his ruling on the motion of the respondent, as renewed, and with the consent of Board's counsel struck certain of the allegations of the complaint. He denied the ,remainder of the Independent's motion. In his Intermediate Report mentioned below, the Trial Examiner in effect denied the motions upon which rulings had been reserved. During the course of the hearing the Trial Examiner made various other rulings on motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. OnVSeptember 22, 1938, the Trial Examiner filed an Intermediate Report, copies of which were duly served upon all parties, finding 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 recommending that the re- spondent cease and desist from its unfair labor practices, that it withdraw all recognition from the Independent as a collective bar- gaining agency and disestablish it as such agency, that it offer rein- statement to Daniels and McKinney, that it make whole Daniels, McKinney, Drybread, and Elam for any loss of pay they may have suffered by reason of the respondent's discrimination against them which the Trial Examiner found; and that it post certain notices in its plant stating among other things that the contract between the respondent and the Independent is null and void. Thereafter, the respondent, the Union, and the Independent each filed exceptions to the Intermediate Report and the record. The respondent and the Independent submitted briefs to the Board in support of their exceptions. Upon notice duly served upon all the parties a hearing for the pur- pose of presenting oral argument on the exceptions to the Inter- mediate Report and on the record was held before the Board at Wash- ington, D. C. on October 24, 1939. The respondent and the Inde- pendent appeared and were represented by counsel, and participated in the oral argument. s See footnote 2, supra. 253034-41-von 23-]6 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has considered the exceptions to the Intermediate Re- port and, except where consistent with the findings, conclusions of law,, and order below, finds them to be without merit. Upon' the entire record in the case; the Boiird' iiiakes'the' follov ih : FINDINGS OF FACT 1. THE BUSINESS OF THE. RESPONDENT The respondent, Universal Match Corporation, is a Delaware cor- poration having its principal office and place of business at St. Louis, Missouri. ' On Jai iiaiy 28, 1938; The Universal'Match Cdrpo"ration, a Delaware corporation, referred to in these proceedings, merged into and formed the respondent corporation. We find that the respond- ent and The Universal Match Corporation are one and the same entity .4 The respondent is engaged in t lie advertising paper-book match business and in connection therewith manufactures, sells, and dis- tributes paper-book matches bearing advertising material imprinted on the paper covers thereof. Tt owns and operates a plant at Fergu- son, Missouri, a suburb of St. Louis, where the paper-book matches which it sells are manufactured, and maintains offices for the sale of its: products, in the .'States of Califi)rniit`, Illinois; Indiana, Iowa, Massachusetts, Michigan, Minnesota, Missouri, Pennsylvania, New York, Ohio, Texas, and Wisconsin. In the year 1937 the total net sales of the respondent derived from the sales of the paper-book matches which it produced, were $1,852,766. Eighty-five per cent of the amount of paper-book matches produced at Ferguson are and have been regularly sold and disposed of by the respondent in vari- ous States of the United States outside of Missouri. In 1937 the respondent used in the course of manufacture at its plant $667,000 worth of raw materials, of which $526,000 worth was shipped to the plant from the States of Illinois, Massachusetts, New York, Ohio, Oklahoma, Pennsylvania, and Wisconsin, and $55,000 from foreign countries. This proceeding is concerned only with employees of the respond- ent at its plant in Ferguson. II. THE ORGANIZATIONS INVOLVED United Match Workers Local Industrial Union No. 180 was and is a labor organization , affiliated with the Committee for Industrial 4 In its answer the respondent states, "Respondent here makes no Issue as to the cor- poiate existence or entity of the several corporations [the respondent and The Universal Match Corporation] and Respondent, Universal Matell Corporation , may be considered and treated herein as the proper corporation in these proceedings " UNIVERSAL MATCH COMPANY 231 Organization,' a labor organization, admitting to membership per- sons employed in the respondent's plant except employees having the power tp Mire and discharge' Independent Match Workers of Missouri is a corporation organized under the laws of the State of Missouri for the purpose, among others, "of advancing the members within their own trade, as well as to enable the members of association to deal with their various employers in a manner satisfactory to the members of the association." It admits to membership persons employed in the "match, working industry" exclu- sive of foremen and subforemen. III. '1IIE UNFAIR LABOR PRACTICES A. Backgrotnul Oil April 11, 1937, it group of about 25 plant employees met in the home of one of them for the purpose of organizing themselves into a local union to be affiliated with the Committee for Industrial Organi- zation. Temporary officers of the organization were elected. The Union thus had its genesis. We find that on April 11, 1937, the Union was formed as it labor organization, within the meaning of the Act. Thereafter, organization activities among the plant employees were carried on in an effort to-organize-the plailt; aftd"linion meetings were held. On June 20, 1937, the Committee for Industrial Organization issued a charter to five members of the Union conferring upon them- and their successors rights for the establishment and maintenance of it local union to be affiliated with it and known as United Match Work- ers Local Industrial Union No. 180. Thereafter, the Union functioned under that name and charter, as an affiliate of the Committee for Industrial Organization.' B. Domination of and interference with the formation and adminis- tration of, and sup port °to, the Independent; and attendant inter- ference, restraint, and coercion On April 18, 1937, the Union held its second meeting at which 25 employees were present. One Bowles attended the meeting. The rec- ord shows that Bowles exercised supervisory authority at the plant in " Now the Congress of Industrial Organizations See footnote 1. supra. 7 While no constitution or bylaws were adopted by the Union, from and after June 20, 1937, the Union acted under the charter with the name therein designated and was recognized as an affiliate by the Committee for Industrial Organization. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD connection with certain of the duties which he performed.8 Bowles testified that he then was president of an employee credit association and came to the meeting because he vas concerned with the possibility of a strike and what effect a stoppage would have on his organization. The meeting Was addressed by a, labor organizer of the Committee for Industrial Organization concerning the advantages of affiliation with that union. In the course of the speech and throughout the meeting Bowles, by repeated questioning of the speaker and by statements, practically arrogated to himself control over the meeting. His words and demeanor disclosed antipathy to the Union and to affiliation With the Committee for Industrial Organization. He examined the speaker about strikes, "if there was any benefit besides losing a couple of weeks' work on account of a strike," and on such matters as whether "an A. F. of L. man" " could join a union affiliated with the Committee for Indus- trial Organization.10 As a result of Bowles' conduct those present "could do no business or anything. He broke up the meeting." As stated above Bowles enjoyed, certain supervisory authority over the plant employees.11 He was regarded as a supervisor by these employees. We are of the opinion, and find, in view of the character of supervision which he exercised, the role which he held in the - assignment of maintenance work,12 his consequent identification with management by the plant employees, and the record that Bowles :acted as a representative of the respondent when engaging in the conduct above and hereinafter set forth, and that his conduct is 8 The respondent contends that Bowles was an ordinary and not a supervisory employee and theiefore lie did not represent the respondent in any conduct which Mould have olhstituted unfair labor practices had he, as a supervisory employee . represented the respondent. Bowles performed various duties . As a machinist he repaired the machines in the stoip -machine department and kept them - in good working order This involved at times diiectlons to the machine operators conceining the machines He also super- u sed the necessary maintenance work on the machines on Sundays In this connection ]lowles each week notified those of the production employees who were selected to do such work the following Sunday . The employees weie anxious to obtain this work, for it enabled them to increase their earnings Although those chosen were selected by Bowles ' supeiior , the production employees beliehed that Bowles made the seldction During the period from July 1936 to the spring of 1917, lie supervised the consti uction a nd erection of new machines at the plant He had - mplovees under him whose work he directed The record shows that the eniplo } ees as a ii hole regal ded Bowles as a supervisory employee Bowles was expelled from a meeting of employees on April 20, 7987 , mentioned below, on the ground lie was a foreman We think this is of particular significance While he had no authority to hire and discharge , none of the iespondent's supervisory employees or foremen had such power These powers were ieserved to three or four of the respondent 's top-ranking officials 8 Member of the American Federation of Labor 1OBowles admitted at the hearing that he suns not then a member of the Anheiican Federation of Labor. 11 See footnote S. supra 32 See footnote 8, supra UNIVERSAL MATCH COMPANY 233 attributable to it.13 It is manifest that lie attended the April 18 meeting for the purpose of discouraging membership in the Union and to impede its effectiveness as an instrumentality for concerted activity by the employees . His conduct at the meeting extended beyond mere interest or curiosity in the Union . It demonstrated to the employees the hostility of the respondent to the Union. Con- sidered in the light of the respondent's superior economic position, Bowles' conduct and statements were intimidatory . While Bowles may have been eligible to membership in the Union , a matter not clearly shown , any rule of the Union in that respect afforded no warrant for his committing anti-union action in behalf of the respondent.' On tlie day following the April 18 meeting Bowles discussed the meeting and the Union with several employees , some ten in number. They decided to hold forthwith successive meetings for the employees on the three plant shifts to form an organization which would com- pete with the Union and be unaffiliated with any of the national labor organizations. At the hearing Bowles and some of these individuals testified that they then believed that an "independent" organization of the employees would prevent any strike at the plant by the Union. Notice of the proposed meetings was spread among the employees at the plant by word of mouth, although the purpose of the meetings was not disclosed. However, the employees understood that the announced meetings had some relation to the Committee for Indus- trial Organization . One supervisory employee 15 instructed certain employees "to shut down the machines, [that they] . . . were going to have a meeting upstairs," and at least one other employee was told by his foreman to attend the meeting for his shift. 13 See International Association of Machinists, Tool it Die Makers Lodge No 35, Afh- ated with the International Association of Machinists, and Production Lodge No 1200, Affiliated with the International Association of Machinists v. N L R. B, 110 F. (2d) 29 tApp. D C.) enf'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 4i9, 8 N L R B 621 , N L R B v. American Manufacturing Company and Nu-Art Employees, Inc, 106 F (2d) 61 (C. C. A. 2), aff'd as mod. 309 U. S 629, enf 'g as mod. Matter of American Manufacturing Company; Com- pany Union of the American Manufacturing Company, the Collective Bargaining Com- mittee of the Brool,lyn Plant of the American Manufacturing Company and Textile Workers' Organizing Committee , C. 1 0 , 5 N 1. C B 448, 11 J Heinz Con' piny v _v. L R. B, 110 F (2d) 843 (C C A (3) ; Hamilton- Brown Shoe Company v. N L R B and United Shoe Workers of ,America, Local 125, 104 F (20) 49 (C. C. A 8), enf'g 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 14 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 is This supervisor is Wolheim , who was known as the night superintendent At the hearing he denied that he was a supervisory employee or had instructed employees to attend a meeting. Several employees testified to receiving instructions about their work from Wolheim , and the evidence as a whole amply shows that he is a supervisor and, as such, was identified by the employees with the management . Accordingly, we are unable to credit his testimony that he was not a supervisory employee Moreover, we ale satis- fied that he did order the stopping of machines , as found above. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the same day, and on the following day, April 20, meetings of the first and third shifts, respectively, were held immediately after the end of the shift on company premises in a cafeteria operated by the respondent.'' Bowles presided at these meetings and made- simi-lar speeches at each. His attendance at the second meeting consumed about 25 minutes of his working time. He told the employees that the Union had nothing to offer them, that they would be wasting their money by paying dues to an "outside" organization, that the union meeting which he attended had dealt with nothing "but strike"; and urged the formation of an independent organization as a means of preventing a strike. He further stated that the respondent never would recognize the Union, and cautioned that unless the employees joined an independent labor organization the plant would close. At the hearing Bowles denied that he had spoken in favor of an inde- pendent union. While he did suggest in the course of his speeches that a general meeting of the employees might be held where repre- sentatives of the Committee for Industrial Organization and of the American Federation of Labor, together with a proponent of an independent union, alight express their views on unionization, we have ne; doubt, and we find, that Bowles utilized these meetings to further the formation of an "inside" organization and to oppose membership in and employee support of the Union. In view of Bowles' conduct at the previous union meeting, the circumstances surrounding the calling of the meetings and their conduct, and the events set forth below, we are unable to give credence to his denial. Pottinger, a supervisory employee,17 and the respondent's chief ma- chinist, McGrath, who was an important supervisory official, each attended one of the cafeteria meetings. Pottinger spoke to the em- ployees against strikes and-.related certain hardships he had experi- enced in connection with a railroad strike. McGrath persuaded an employee who shortly theretofore had been unemployed and upon the Government relief rolls, to address the meeting in support of the sentiments expressed. The meeting of the second shift employees occurred on April 20 in a clubhouse owned by the respondent adjoining the plant which it leased for recreational purposes at a nominal consideration to an 16 The respondent contends that its employees enjoyed unrestricted use of the cafeteria We are not satisfied that such was the case Employee functions were generally carried on in the clubhouse which the respondent made available to them for such purpose There is no showing that such employee use of the cafeteria had previously occurred In any event, assuming the employees had free use of the cafeteria premises , such privilege would not necessarily justify a use of company property for organization purposes. See Matter of Servel, Inc and United Electrical, Radio and Machine Workers of Ames lea, Local No 1002, 11 N. L. R. B. 1295. 17 Pottinger exercised the same supervisory duties and performed the same work as Bowles. What we have said in respect to Bowles ' supervisory position and the responsi- bility of the respondent for Bowles' acts applies to Pottinger . See footnote 8, supra, UNIVERSAL 'MATCH COMPANY 235 employee association. The meeting was called shortly before the shift was to begin and extended for at least one-half hour into the working time of the shift.," The employees were not docked for this loss of working time. Bowles again. acted as chairman and addressed the employees. Two foremen were present. Bowles told the em- ployees, as at the other meetings, that the Committee for Industrial Organization had nothing to offer them. He stated that the em- ployees should be "loyal" to the respondent "by having a union of [their] . . . own." Daniels, an employee and active protagonist of the Union, renuested that representatives of the Committee for In- dustrial Organization be invited to address the meeting, but the employees voted against this. Some employees then questioned the propriety of "bosses" attending and participating in an organization meeting, and upon a vote taken it was decided to exclude,Bowles.and other supervisory employees from the meeting. Shortly after the meeting the respondent's chief engineer, Neklutin, engaged Daniels in a conversation at the plant. This conversation continued for about 2 hours. Daniels testified that Neklutin in the course thereof adverted to "what all he done" for Daniels, expressed aurprise that Daniels was opposed to the respondent and had gone over to the Union's "side." asked Daniels to take the respondent's "side," and inquired whether he, Daniels, would do as much for an independent organization as he had for the Union. Neklutin's ver- sion at the hearing of this incident was that he had overhead Dan- iels telling other employees that the respondent was paying "starva- tion wages" to its help; that he, Neklutin, then questioned Daniels about Daniels' earnings; that thereafter he stepped into the machine shop but was followed by Daniels who asked him questions; that he told Daniels that he, Neklutin, had work to do, but Daniels persisted in his interrogation; that finally he rid himself of Daniels. The Trial Examiner found the facts substantially in accordance with Daniels' testiniony and we are satisfied that the Trial Examiner was right. It seems incredible to us that a protracted conversation between the chief engineer and a plant employee should have occurred if the conversation dealt only with the subject stated by Neklutin. Daniels Was a known leader in the Union. In view of the time when the conversation occurred and the other circumstances above set forth, we are satisfied that Neklutin sought to dissuade Daniels from con- '8 The respondent disputes the occurrence Hof this meeting partly on company time, and relies essentially on a graph of the daily volume of production of the shift from April 12 to 23, 1937, which it introduced in evidence However, this graph shows that produc- tion was not constant but fluctuated substantially in daily volume even in this limited period. It is evident that factors not disclosed by the record affected production. The Trial Examiner who heard the witnesses credited the testimony of the employees respec.t- ini the use of company time. and we do likewise 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tinning his activities and membership in the Union's and to per- suade him to assist in the formation of an unaffiliated labor organiza- tion at the plant .211 About the time the above-mentioned meetings were held the em- ployees in one of the departments at the plant were requested to sign a so-called "loyalty pledge" which was circulated during working hours by one employee upon instruction of Pottinger and.wltli the approval of another supervisor. A copy of the pledge also was posted on the plant bulletin board. The pledge stated that the signers were satis- fied with working conditions and pledged their "loyalty" to the re- spondent. Similarly after the meeting of April 20 in the cafeteria Pottinger, himself, during working hours solicited signatures of em- ployees on the third shift to a petition which stated that the signers desired to form an independent union. He obtained the signatures of practically every employee on that shift. On April 24, after a substantial number of employee,, signed tha above-described petition for an independent union, a meeting of all employees was held at the Savoy theatre in Ferguson. One Edwards, an employee who procured the meeting place, testified that he was told to do this by several employees whom he could not identify. In order to permit employees to be present at the meeting, the respondent ter- minated the morning shift at noon instead of 3: 00 p. in. and postponed the beginning of the second shift from 3: 00 p. in. to 5: 00 p. m. Vari- ous of the respondent's foremen came to the meeting. Ballots were distributed among the employees fora vote upon whether they desired to ,'fliliate with an independent union or with the Committee for In- du,-trial Organization or the American Federation of Labor. Imme- 1BCf Matter of Commonwealth Telephone Company amid Theodore I? Siplon , Walter F Seidler and International Brotherhood of Electrical Workers, 13 N. L R B. 317, 326. 2OAt the hearing the respondent, to discredit Daniels as a witness , offered certain evi- dence and sought to explore a line of proof regarding indictments and arrests of Daniels in 1931 and thereafter . It made application for subpoenas and subpoenas dudes tecum for the purpose of calling as witnesses persons allegedly having knowledge of certain of the alleged criminal acts or connected iNith these matters as police officers and otherwise, and to obtain various police , court, and other records and data . The Trial Examiner rejected the offer of proof, did not peimit the respondent to pursue the proposed line of proof, and denied the application for subpoenas and subpoenas dances tecum. There is no showing that Daniels was ever convicted . He testified that he never was convicted for any criminal act and counsel for the respondent expressly disclaimed any offer to prove a conviction . In this connection , counsel said, "Now, we haven ' t offered to prove that he was convicted , we don't think that is material ," and assumed this same position in oral argument to the Board We are of the opinion that the Trial Examiner ruled correctly We think it a sound rule of practice to be followed in Board hearings that a n itness cannot be discredited by proof of alleged past criminal acts of the witness for which no conviction has been had . Any other rule would involve the Board in an ex- ploration of matters entirely collateral to the issues heard, and for which its procedures are unsuited . Moreover , an attempt to prove such past nets by indictments or arrest, as here offered by the respondent, is highly improper for "it carries the injustice of subjecting the witness to suspicion without giving him an opportunity to clear it away." Wdgmore on Evidence , 2d ed , Vol 11 , § 982, p 366, UNIVERSAL MATCH COMPANY 237 diately prior to the voting Foreman Pohlman suggested that the em- ployees sign their ballots, saying that those who "had guts enough to vote should have guts enough to put their names on the ballot." The results of the voting were 266 for an independent union and 25 for the other two labor organizations. Upon the conclusion of the voting a motion was made and carried that the, foremen be excluded from the meeting, and they thereupon departed. Organization of the Inde- pendent then and there proceeded, and temporary officers of the union were elected. On April 26, 1937, the respondent discharged Daniels, and 4 days later laid off Elam, the president and the secretary-treasurer of the Union, respectively, because of their leadership and activities in the Union, as more particlilarly set forth hereinafter. About the same time officers of the Independent met with the respondent's president to initiate negotiations looking toward a collective agreement covering' working conditions. However, the Independent's officers only had a '.vague idea" as to what requests concerning working conditions should be made of the respondent on behalf of the employees, and therefore, it was agreed to postpone negotiations until they ascertained what the employees desired. On May 1 another meeting of the Independent was held at the Savoy theatre and the temporary officers were elected to permanent office. Employee committees to represent each of the various plant departments also were elected. Beginning May 4 and continuing beyond May 15, 1937, the Independent and the respondent negotiated for a collective agreement. The Independent was repre- sented by its officers and committeemen, including one Guittar, a for•e- nian. As negotiations were carried on, various proposals of the parties were considered by employees in the various departments at meetings called by the committeemen. Thereafter, a collective agreement, among other things granting the Independent recognition as sole bargaining representative of the production employees and providing that all these employees were to be members of the Independent as a condition of employment, was executed by the respondent and the Inde- pendent. Although the agreement recited its effective date as being May 15, 1937, it is apparent that the agreement in fact was not reached until some months later.21 On July 16, 1937, the Independent was incorporated under the laws of Missouri. The names of the 17 mem- bers of the Union signed to the association agreement included 3 supervisors, Pottinger, Foreman Guittar, and one Ryles, who served as foreman in the absence of one of the regular foremen. The foregoing facts show that the respondent promoted and assisted in the establishment of the Independent as a labor organization for a, The minutes of the July 12, 1937, meeting of the Independent show that on July 12, 1937, it was determined to request a closed -shop provision , and those of the October 16, 1937, meeting that it was then decided to ask for departmental seniority 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees at the Ferguson plant, in order to prevent unionization of these employees by a labor organization to which it was opposed. The respondent was hostile to the Union and the Committee for Industrial Organization with which it was affiliated. On April 18, through Bowles, the respondent disrupted the union meeting, and at the cafe- teria and club meetings on April 19 and 20 derogated the Union and the Committee for Industrial Organization. Through Neklutin it sought on April 20 to dissuade Daniels, the union leader, from con- tinuing with the Union, and through the respondent's president it on April 26 and 30 dismissed from employment the Union's president and secretary-treasurer because of their leadership and activities in the Union. The respondent's promotion of and assistance in the organization of the Independent encompassed an entire course of domination of and interference with the formation of that organization, and support to it. Bowles, whose acts carried the respowJ)ility'of'tbe r-espo-11(ren't, took an aggressive part in initiating the movement for an unaffiliated or- ganization. Meetings for that purpose were held on company prop- erty and in one instance on company time, presided over and addressed by the respondent's representative, and conducted in the presence of and with the participation of others of the respondent's agents and representatives.22 "Loyalty" pledges and petitions for the organiza- tion of an independent union were circulated on company time and property, either by or with the assent of the respondent's supervisors. This pattern of employer domination, interference, and support was manifest even at the Savoy theatre meeting on April 24 when the cli- max in the campaign for an independent labor organization was reached. Working hours were rearranged by the respondent to permit employees to be present at the meeting, an implied command that they do so, which the attendance of the foremen at that meeting empha- sized. Foreman Pohlman, to make certain that the employees have no misunderstanding of the respondent's desires, made his suggestion about the employees signing the ballots. And, as already stated, it few days later the union officers were dismissed. Thus born, the Inde- pendent was the creature of the respondent and never a collective bargaining representative freely established and chosen by the employees. The respondent insists that the exclusion of the foremen from the _meetings in the cafeteria and at the Savoy theatre shows that the In- dependent was freely formed by the employees. We are unable to agree with this contention. The withdrawal of the management's 28 The respondent claims it should have been permitted to show at the hearing that a custom existed with reference to use of its cafeteria and club house for employee meetings. The Trial Examiner properly excluded this testimony . Custom cannot justify violation of the Act. Matter of Servel, Inc. and United Electrical, Radio and Machine Workers of America, Local No. 1003, 11 N. L. It. B. 1295, 1316. UNIVERSAL MATCH COMPANY 239 representatives from the meetings alone could not dissipate the effects of either their conduct or of other acts and conduct of the respondent, above set forth. As a matter of fact, representatives of the respond- ent persisted in their participation in the affairs of the Independent after the mentioned meetings. The respondent also contends that the testimony of -some 300 employees 28 to the effect that each such em- ployee was and still is in favor of an unaffiliated organization, became an active member of the Independent after the Savoy theatre meeting of April 24, and paid dues and attended most of the Independent meet- ings,24 did not discuss with the respondent's officials or supervisors prior or subsequent to April 24, 1937, his or her choice as to union or bargaining agent, and freely chose the Independent as bargaining agent and desires now to be represented by it,25 establishes that the respondent did not dominate or interfere with the formation or ad- ministration of the Independent, or support that organization. We think that the facts ' set forth above, and the record, show the con- trary.26 The further point that the employees desired and still desire to be represented by an organization which we find is illegal under the Act, is without relevance.27 Subsequent to -its formation, the Independent had continuing sup- port from the respondent through the operation of the closed-shop agreement. One year later; as set forth below, when an employee and successor officer in the Union indicated an intention to resume organi- zational activities in behalf of the Union, he too was discharged. By this act the respondent again supported the Independent. We find that the respondent dominated and interfered with the formation and administration of the Independent, and contributed support to it;'and that it.thereby, and by other acts, interfered with, restr=ained, and.-coerced its employees, in the exercise of the rights guaranteed in Section 7 of the Act.28 23 it was stipulated by the parties at the hearing that these employees if called world testify, as stated. . 21 As set forth above, a closed -shop agreement was made by the respondent with the Independent. 28 See footnote 24, sup, a 28N L B . B. v. Brown Paper Mill Company, Inc. 108 F (2d) 867 (C. C. A. 5), enf'g Matter of Brown Paper Mill Company, Inc, Monroe, Louisiana, and International Broth- erhood of Electrical Workers, affiliated with the American Federation of Labor, 12 N. L R B 60; N. L . R. B v. Newport News Shipbuilding if Dry Dock Co . et al., 60 S Ct 203. 27 See cases cited in footnote 26, supra Matter of Servel, Inc. and United Electrical, Radio and Machine 'Workers of= America, Local No 1002, 11 N L. R B. 1295. 28 See Swift & Company v. N. L. R. B., 106 F . ( 2d) 87; 106 F . ( 2d) 94 ( C. C. A 10), enf'g as mod , Matter of Swift it Company, a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America , Local No 641, and United Packing House Workers Local Industrial Union No 800, 7 N L R. B. 269; Hamilton-Brown Shoe Com- pany, a corporation v. N. L. R B. and United Shoe Workers of America, Local 125, 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 Com- 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The discriminatory discharges of Daniels, Elam, and McKinney, and the allegedly discriminatory discharge of Drybread Larry Daniels, the employee above mentioned, was discharged by the respondent on April 26, 1937. He had worked as a strip-machine operator at the plant since August 1935. We already have set forth his attempt at the cafeteria meeting on April 20 to have representa- tives of the Committee for Industrial Organization invited to address the employees; also his conversation with Neklutin in which Neklutin attempted to persuade him to withdraw from the Union. Daniels was very active in the Union and openly opposed the formation of an "inside" labor organization. At the time of his discharge he was president of the Union. On April 26, 1937, shortly prior to his discharge Daniels left his work place and went to the composition room in order to obtain a squeegee which he needed to remove some water on the floor near his machine. He encountered another employee in the composition room, and the two engaged in conversation. As they were speaking the respondent's president and Daniels' foreman entered the room. The respondent's president asked Daniels why lie was away from his work place and Daniels stated that he had gone in search of a squeegee. The respondent's president averred that there was no water near Daniels' machine, and said "I have heard a great deal about you around here." He then discharged Daniels. The respondent contends that it discharged Daniels hecnise he left his machine on various occasions during working hours to solicit membership for the Union from among the plant employees; also because he was lax in his work and frequently absen±. It called various witnesses. Its president testified that he intentionally re- frained from coming to the plant during the 2 weeks preceding the discharge because he desired to avoid any accusation of interference with the unionization then occurring, that he returned to the plant On the night of Daniels' discharge and was informed by Daniels' foreman that he had had "some difficulty" that evening with Daniels "running around the plant," that he and the foreman then sought out Daniels and found him with another employee, that he accused Daniels of not mittee for Industrial Organszation, 9 N L R B 1073. N. L. R B v Brown Paper Mill Company, Inc., 108 F ( 2d) 867 (C. C. A. 5 ), enf'g Matter of Brown Paper Mill Company, Inc., Monroe, Louisiana and International Brotherhood of Flectiical Workers, affiliated with the American Federation of Labor, 12 N I. R. B G0 , Titan Metal Manufacturing Company, etc. v. N. L. R B, 106 F. (2d) 254 (C C A 3), cert. den . 60 S. Ct 260, enf'g Matter of Titan Metal Manafactuianq Company and Federal Labor Union No 19981, 5 N. L. R. B 577 See also N. L. R. B . v The Fall Corporation, 60 S. Ct. 307 ; 104 F. 12d) 454, 102 F. (2d) 383 (C. C A. 7), enf'g Matter of The Falk Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America , Lodge 1528, 6 N I, R B 654. UNIVERSAL MATCH COMPANY 241 looking for a squeegee and discharged him. Daniels' foreman testi- fied that Daniels had solicited membership during working hours and distributed union handbills in the cafeteria, and that he, the foreman, so had informed the respondent's president on the occasion in ques- tion. The superintendent of the match strip department testified that a few days prior to the discharge he warned Daniels not to leave his work. We are convinced from the foregoing facts considered in the light of the entire record, and we find, that the respondent discharged Daniels because of his leadership in the Union and his opposition to an "inside" labor organization. Daniels was the head of the Union which the respondent proposed to destroy through formation of the Independent and by other means. Neklutin's conversation with Daniels disclosed that Daniels was confirmed in his adherence to the Union. The contention of the respondent that it discharged Daniels because he left his machine during working hours to solicit union membership is not persuasive. As heretofore set forth, solici- tation of employees during working hours in connection with the formation of an independent union enjoyed the respondent's approval, and company time and property were made available for that pur- pose. We think it significant that after a 2 weeks' absence during which union activities were going on, the respondent's president, as one of his first acts, should have discharged the head of the Union. We have no doubt that he then knew of Daniels' position and activ- ities in the Union. The respondent's other contentions that it dis- charged Daniels because he was lax in his work and frequently absent impress us as mere makeweights. Among other things, there is no showing that these facts, if true, were communicated or known to the respondent's president and operative in his decision to discharge Daniels. Daniels' foreman, who allegedly had complained to the respondent's president about Daniels, testified that he did not inform hun about Daniels' alleged "previous bad record." We find that the respondent discharged Larry Daniels on April 26, 1937, because he joined and assisted the Union and engaged in con- •certed activities with other employees of the respondent for the pur- poses of collective bargaining and other mutual aid and protection, thereby discriminating in regard to the hire and tenure of employ- ment of said employee and discouraging membership in a labor organ- ization; that by such act the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. At the time of his discharge Daniels earned between $19 and $21 a week. His hourly rate was 40 cents, and his bonus from $3 to $5 per week. Since his discharge lie has had 31/2 weeks' employment 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with private concerns at which he earned $55.50. He also has had earnings for work performed for the Works Progress Administration after March 1938. Walter Elam was laid off by the respondent on April 30, 1937. He also worked on the strip machine, and had been in the respondent's employ for more than 4 years. On April 30 he was informed by the department superintendent that he was indefinitely laid off because of "lack of work for No. 2 machine." Elam likewise was active in the Union. He distributed union pamphlets and solicited membership for the Union. At the time of the lay-off he was its secretary-treasurer. It is shown that the respondent then knew of Elam's office in the Union. A week prior to the lay-off Kaiser, the production manager, inquired of Elam whether it was true that he. was the secretary-treasurer of the Union and Elam stated that it was. The respondent's position in respect to the lay-off of Elani is that a replacement of machines in the strip-machine department reduced the amount of available work and rendered Elam's service unneces- sary after April 30. Prior to March 1937-two strip machines, No. 1 and No. 2, were kept in operation throughout the three shifts. Each machine required the attendance of three employees, and 18 workers altogether were thus employed at this kind of work. In March the respondent began using new strip machines which it previously had installed, and discontinuing its use of the No. 1 and No. 2 machines. On March 25 the No. 1 machine was shut down ; on April 27 the third shift and on April 30 the second shift on the No. 2 machine were dis- continued.29 Elam and two other employees worked the second shift on the No. 2 machine. We -are not convinced that lack of work was the cause of Elam's lay-off. Of the 18 employees. who worked on the; No. 1 and No.. 2 machines only three were laid off. These three included one other onion member.30 We are satisfied that the lay-off of Elam, like that of Daniels, was part of the respondent's attack then being made upon the Union. We have no doubt that had Elam not been a member of the Union lie would have been assigned other work along with the 15 other employees similarly situated. Elam had been longer in the respond- ent's service than other employees who were transferred. While it apparently is true that the respondent did not then follow a seniority rule in connection with lay-offs, the fact that it dismissed the employee of longer service is material to a consideration of the issue presented. 19 By May 17 the No 2 machine was shut down completely 30 with the consent of Board's counsel , the allegations of the complaint that this em- ployee had been disciiminatouly laid off were disnussed •z UNIVERSAL \MArCH COMPANY 243 We find that the respondent laid off Walter Elam on April 30, 1937, because he joined and assisted the Union and engaged in con- certed activities with other employees of the respondent for the pur- poses of collective bargaining and other mutual aid and protection, thereby discriminating in regard to the hire and tenure of said em- ployee and discouraging membership in a labor organization; that by such act respondent, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. At the time of his lay-off, Elam earned $16 a week plus a weekly bonus of $4 or $5. Subsequent to his lay-off, Elam secured temporary employment in St. Louis and some work in California, which paid him $122. His travel to California was for the purpose of obtaining employment. On March 21, 1938, the re^ipondeut reemployed Elam. Richard McKinney was discharged on April 26, 1938. He had been in the respondent's employ for 8 years, and at the time of his dismissal worked as a watchman on the second shift. McKinney, was a member of the Union and following Elam's lay-off the year p'revious' succeeded to Elam's position as secretary-treasurer of the Union. The record shows that the respondent early became interested in McKinney's union activities. In the middle of June 1937 the re- spondent's president summoned McKinney, told him that he heard that McKinney was not happy, and offered hint a new position as a truck driver if he would cease these activities.u1 McKinney did not accept the proposition. Four months later he was offered a new job with increased wages by the head of the respondent's engraving de- partment. This job was with another plant some distance away from the respondent's plant. McKinney asked time to consider the matter. About -2 weeks later Kaiser, the -respondent''s- production manager, inquired of McKinney what he had decided. McKinley stated that he determined not to accept the offer because of the time and expense involved in traveling to and from the other plant. Kaiser then com- mented that McKinney had raised an "awful stink with the C. I. O.'' around here." McKinney objected to this statement, and Kaiser replied that McKinney was a union leader solely because of personal interests. On April 12, 1938, McKinney posted inside the watchman's shanty on a bulletin board near the company time-clock, a letter addressed to the Union and its members which he had received from the Com- 81At the same time that McKinne' was, summoned, Diybiead, another union leader above mentioned, also was summoned by the respondent's president we think the cir- cumstance of the respondent's top officer calling the two union leaders supports McKinney's version of this Incident, and discloses that the iespondent's president did not abate his inteiest in the union leaders with the discharge of Daniels s%'rhis referred to Ilie Committee for Industrial Organization 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mittee for Industrial Organization. The letter stated that the instant proceedings had been initiated, that a hearing therein would be held, and that the Committee for Industrial Organization "has a charter covering the workers in your plant and has been recognized as the "bargaining agency whenever we have a majority." Two days later Kaiser removed the letter from the bulletin board and asked McKinney if he did not know that it was against the company rules to post anything on the bulletin boards. McKinney replied that he did not know, but in any event did not think that any harm would result. TNs elve days later, on April 26, McKinney was summoned to the ,office of the respondent's president. Present were the respondent's -president, Neklutin, Kaiser, and the head of the engraving department. The respondent's president asked McKinney if he had posted the letter on the bulletin board. McKinney replied that he had. The respond- ent's president then said, "Well, old pal, you are ]et out; you have -no job." The respondent denies that McKinney's union leadership or in- terest in the Union occasioned his discharge and contends that it .dismissed him solely for violation of an alleged company rule which prohibited the posting of items without its permission. This con- tention manifestly warrants no belief. Irrespective of whether the .claimed rule existed, the respondent did not discharge McKinney for -that reason. Its principal officers grouped themselves together on April 26 for one purpose only, to discharge a union leader because of his interest in establishing the Union as a legitimate bargaining repre- sentative for the plant employees. The respondent proposed to -prevent any renewal of organizational activities by the Union among its employees. We find that the respondent discharged Richard McKinney on April 26, 1938, because he joined and assisted the Union and engaged in concerted activities with other employees of the respondent for the purposes of collective bargaining and other mutual aid or pro- tection, thereby discriminating in regard to the hire and tenure of employment of said employee and discouraging membership in a labor ,organization; that by such act the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. At the time of his discharge McKinney was paid at an hourly rate of 45 cents. Since his discharge he has earned nothing whatsoever. George Drybread was laid off by the respondent on October 5, 1937. We are unable to give weight to any of his testimony.33 For 83 For purposes of our findings, conclusions, and order herein , we have completely disre- garded this testimony and accorded It no weight whatsoever. We think that the Incident concerning the alleged execution of the loyalty pledge by Rehmert, and other matters, .establish that Drybread 's testimony is unreliable. UNIVERSAL MATCH COMPANY 245 this reason, and as a matter of policy, we shall dismiss the allegations of the complaint in respect to this person. D. Interference, restraint, and coercion; the closed-shop contract As stated above the respondent executed an agreement with the Independent requiring membership in that organization as a con- dition of employment. There is no showing that this agreement has not been performed, and we presume, and find, that it has. We also have found that the respondent dominated and interfered with the formation and administration of, and contributed support to, the Independent. Accordingly, the Independent has been from its in- ception a labor organization established, maintained, and assisted by action defined in the Act as unfair labor practices, within the mean- ing of the proviso clause of Section 8 (3). It follows that the making and performance of the closed-shop contract with the Independent by the respondent was not privileged under this clause.84 Accord- ingly, we find that the respondent by requiring its employees to become. or remain members of the Independent discriminated in regard to the hire and terms and conditions of employment of its employees, thereby encouraging membership in the Independent and discouraging membership in any other labor organization, including the Union. We further find that the respondent by so discriminating in regard to the hire and terms and conditions of employment of its employees, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR 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 between the States and foreign countries, and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It is essential to an effectuation of the purposes and policy of the Act that the respondent be ordered to cease and desist from the unfair labor practices in which we have found it to have engaged and, in aid of such order and as a means of removing and avoiding the 34 Matter of Williams Coal Company and United Mine Wor7.er8 of America, District No. 23, 11 N. L. R. B 579; Matter of The Western Union Telegraph Company, a corpora- tion and American Communications Association, 17 N. L. R. B. 34. 253034-41-col 23--17 ,246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consequences of such practices, that the respondent be ordered to take certain action more particularly described below. We have found that the respondent in many ways has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by the Act. It is plain that the respondent must cease and desist from such practices and we shall so order. We also have found that the respondent dominated and interfered with the formation and administration of, and supported the Inde- pendent. The facts heretofore found establish that that organization is not nor has it ever been the employees' genuine choice of a col- lective bargaining representative, and that it is incapable of serving as a true collective bargaining agency of the employees. Its exist- ence does and will constitute a continuing obstacle to the exercise by the respondent's employees of the rights guaranteed them in the Act. Hence, not only shall we order the respondent to cease and desist from its unfair labor practices in connection with the Inde- pendent, but in aid of that order and to remove the impediment thus existent to the employees exercising freely their rights under the Act, we shall direct the respondent to withdraw all recognition from the Independent as a representative of its employees, to disestablish that organization as such representative, and to refrain from giving effect to or performing its contract with the Independent, dated May 15, 1937, and any and all renewals or extensions thereof, and all existing contracts, understandings, or arrangements concerning labor relations to which the Independent is a party. Finally, we have found that the respondent discharged Larry Dan- iels and Richard McKinney, and laid off Walter Elam because of their union leadership and activities. Elam already has been reinstated by the respondent, but Daniels and McKinney have not. In respect to Daniels, the respondent contends that it should not be directed to offer him reinstatement because he had been indicted and arrested for alleged criminal acts in 1931 and thereafter prior to his employment in 1935 by the respondent.8r, The respondent urges that this shows that Daniels is an unfit employee and a dangerous person to have in its plant. Daniels denied that he ever was convicted for any criminal offense, and the respondent expressly disclaimed an intention to prove that he was.86 Under these circumstances we do not find that Daniels committed any of the alleged misconduct. The offer of the respondent to show by proof other than conviction or plea of guilty of Daniels that Daniels had engaged in past criminal acts unrelated to his dis- charge was properly rejected by the Trial Examiner. As we stated 85 See footnote 20, supra. Be See footnote 20, supra. The respondent contends that in one case prosecution against Daniels was nolle prossed solely because of perjury suborned by Daniels' father. UNIVERSAL MATCH COMPANY 247 above in another connection'37 any other rule would involve the Board in an exploration of matters for which its procedures are unsuited,38 and which we here consider unnecessary. However, even where the respondent establishes past criminal conduct by conviction it does not necessarily follow that for that reason alone we would in all cases withhold reinstatement, if reinstatement otherwise were necessary and appropriate to remedy a situation created by unfair labor practices. That question must depend on the facts and circumstances of each case. Here the employee had given competent service to the respond- ent for almost 2 years. Indeed, on November 5, 1937, the respondent furnished Daniels with a letter of recommendation to assist him in obtaining employment elsewhere, which stated that he "had been fairly accurate in his work and was a steady worker." As already stated the alleged past misconduct had no relation to the discharge. We do not find that Daniels is dangerous to the respondent and its employees, or otherwise unfit for employment because of alleged past misconduct. But, the respondent argues, the mere fact that Daniels has a "record," even though he never was convicted, should constitute sufficient ground for the Board withholding his reinstatement. The respondent's coun- sel states that the respondent never knew of Daniels' "record" until the hearing, and had it known of that fact it never would have retained Daniels in its employ. What the respondent would have done in such a circumstance is a matter of conjecture, in so far as the evidence is concerned. We do not feel that Daniels' "record," in the absence of proof of conviction, warrants a denial of reinstatement. The situation resulting from his discriminatory discharge for union leadership and activity will be remedied and the purposes and policy of the Act effec- tuated through reinstatement. However, nothing in our Order shall be interpreted as preventing the respondent from taking steps appro- priate to the situation upon Daniels' reinstatement, provided only, that in so doing no unfair labor practices be committed.3° Accordingly, we shall order the respondent to offer reinstatement to Larry Daniels and Richard McKinney, and each of them, to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them, and each of them, whole for any loss of pay they may have suffered by reason of their respective unlawful discharges, by payment to each of them of e See footnote 20, supra. $' Cf. Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472, 480 (C. C. A. 3), cert. den . 309 U. S. 684 , enf'g Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R B 219 , 387-388. so Cf. Matter of Planters Manufacturing Company, Inc . and United Veneer Box and Barrel Workers Union, C. I. 0., 10 N. L R. B 735, 756, enf'd N. L R B. v Planters Manufacturing Company, Inc ., 105 F ( 2d) 750 (C. C A 4) ; Matter of Harnischfeger Corporation and Amalgamated Association of Iron, Steel & Tin Workers of North Amer- ica, Lodge 1114, 9 N. L. R B. 676. 689 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the offer of rein- statement, less his net earnings 40 during said period. We also shall order the respondent to make Elam whole for any loss he has sustained by virtue of his discriminatory lay-off. The record shows that the respondent offered to reinstate him on October 26, 1937, and that at that time he was in California. However, Elam did not accept the offer until the time of his reinstatement on March 21, 1938. We think that in his case back pay should terminate at a date after October 26, 1937, which would have permitted Elam a reasonable opportunity to terminate promptly his temporary employ- ment in California, if he then had employment, and in any event to return to the respondent's plant. We shall order the respondent to take certain other action which we think necessary to effectuate the policies of the Act. 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 Match Workers Local Industrial Union No. 180 was and is, and Independent Match Workers of Missouri is, a labor organi- zation, 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 Independent Match Workers of Missouri, and by con- tributing support to said organization, 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 Larry Daniels, Walter Elam, and Richard McKinney, and each of them, thereby discouraging membership in United Match Workers Local Industrial Union No. 180, the respondent has engaged 40 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 elsewhere than for the respondent , which would not have been incurred but for his unlaw- ful discharge or lay-off and the consequent necessity of his seeking employment else- where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county, municipal, or other work-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. UNIVERSAL MATCH COMPANY 249 in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 5. The aforesaid labor practices, and each of them, are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not engaged in unfair labor practices in respect to George Drybread, as alleged in the complaint. 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 respond- ent, Universal Match Corporation, St. Louis, Missouri, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Independent Match Workers of Missouri, or with the for- mation and administration of any other labor organization of its employees, and from contributing support to Independent Match Workers of Missouri, or to any other labor organization of its employees; (b) Discouraging membership in United Match Workers Local No. 180, affiliated with the Congress of Industrial Organizations, or encouraging or discouraging membership in any other labor organization of its employees, by discharging or laying off employees, or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of 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; (d) Giving effect to or performing its contract with Independent Match Workers of Missouri dated May 15, 1937, and any renewals or extensions thereof, and any and all contracts, understandings, and arrangements relating to rates of pay, wages, hours of employment, or other conditions of employment to which Independent Match Workers of Missouri is a party. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Independent Match Workers of Missouri as the representative of any of its employees for the purpose of dealing with the respondent in any manner concerning 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; and completely disestablish Inde- pendent Match Workers of Missouri as such representative; (b) Offer to Larry Daniels and Richard McKinney, and each of them, immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges; and make them whole for any loss of pay they have suffered by reason of their discriminatory discharges, respectively, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of such illegal termination of his employment," to the date of the offer of reinstatement, less his net earnings 42 during that period, deducting, however, from the amount otherwise due to each of the said em- ployees, monies, if any, 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 appro- priate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work- relief projects; (c) Make whole Walter Elam for any loss of pay he has suffered by reason of his discriminatory lay-off on April 30, 1937, by payment to him of a sum of money equal to that which he normally would have earned as wages from April 30, 1937, until a date after October 26, 1937, sufficient to have enabled him from and after October 26, 1937, to terminate promptly what employment, if any, he then had in California and in any event to return to Ferguson, Missouri, less his net earnings 43 during said period; 44 deducting, however, from the amount otherwise due him, monies, if any, received by him during said period for work performed upon Federal, State, county, munici- pal, or other work-relief projects, and pay over the amounts so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which sup- plied the funds for said work-relief projects; (d) Post immediately in conspicuous places at its plant at Fergu- son, Missouri, and maintain for a period of at least sixty (60) con- secutive days from the date of posting, notices to its employees stat- ing: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c) and (d) of this Order; (2) that the respondent will take the affirma- 41 The date of the illegal termination of employment of Larry Daniels Is April 26, 1937 ; of Richard McKinney, April 26, 1938. 42 As to the meaning of "net earnings" see footnote 40, supra. 48 See footnote 40, supra 44 In computing Elam's net earnings allowance should be made for $22 incurred by him as transportation expense in obtaining work in California UNIVERSAL MATCH COMPANY 251 tive action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that the respondent's employees are free to become or remain members of United Match Workers Local Industrial Union No. 180, affiliated with the Congress of Industrial Organizations, or of any other labor organization, and the respondent will not discriminate against any employee because of membership or activity in such organization; (e) Notify the Regional Director for the Fourteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the allegations of the complaint that the respondent engaged in unfair labor practices with respect to George Drybread and the allegations of the complaint stricken upon ruling of the Trial Examiner at the hearing be, and the same hereby are, dismissed.