The Los Angeles Spring Bed Co.

In the Matter of THE Los ANGELES SPRING BED COMPANY and UNITED FURNITURE WORKERS OF AMERICA, LOCAL 576, C. I. O. Case No. C-1351.-Decided June 10, 1940 Furniture Manufacturing Industry-Interference, Restraint, and Coercion : anti-union statements by supervisory employees, indicating respondent's hostility to outside organizations-Discrimination: charges of, sustained; 15 employees,. including union leaders, allegedly laid off for lack of work, found to have been. discriminatorily discharged because . of union activity-Reinstatement: dis- charged employees-Back Pay: awarded-Unit Appropriate for Collective Bargaining: no controversy as to ; all production employees excluding office and clerical employees, and supervisory employees not working at the trade-- Representatives : proof of choice ; authenticated list of membership applications; not contested-Collective Bargaining : meeting with union representatives with- out treating or recognizing the Union as the exclusive representatives of em- ployees constitutes refusal to bargain ; respondent ordered to bargain upon request. Mr. David Sokol, for the Board. Mr. Robert F. Chapman, Mr. James S. Wollacott, and Mr. William A. Moeller, of Los Angeles, Calif., for the respondent. Mr. Ernest Marsh, of Los Angeles, Calif., for the United. Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges duly filed by United Furniture Workers of America, Local 576, herein called the United, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint, dated June 1, 1939, against The Los Angeles Spring Bed Company, Los Angeles, California, herein called the respondent, al- leging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Na- tional Labor Relations Act, herein called the Act. Concerning the unfair labor practices, the complaint, as amended at the hearing, alleged in substance that the respondent discouraged 24 N. L. R. B., No. 51. - 528 LOS ANGELES SPRING BED COMPANY 529 membership in the United by discharging and/or laying off and refusing to reinstate the 15 persons listed in Appendix A' because they had joined and assisted the United, refused to bargain col- lectively with the United as the exclusive representative of the respondent's employees within an appropriate unit, and by the fore- going acts and` refusals and by other acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint and accompanying notice of hearing were served upon the respondent and the United. On June 15, 1939, the respondent filed its answer to the complaint denying the allegation of unfair labor practises but admitting that appropriateness of the bargaining unit as alleged therein.' Pursuant to notice, a hearing was held on June 15, 16, and 19, 1939, at Los Angeles, California, before Thomas H. Kennedy, the Trial Examiner duly designated by the Board. The Board was represented by counsel, and the respondent and the United by their respective representatives; all participated in the hearing. Full op- portunity to be heard; to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. Several rulings upon motions and objections to the ad- mission of evidence were made by-the Trial Examiner at the hearing. The Board has reviewed the rulings of the Ti•ial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On August 31, 1939, the Trial Examiner filed his Intermediate Report, copies of which were served upon all the parties, wherein he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and.Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from its un- fair labor practices, reinstate with back pay the 15 persons listed in Appendix A, and, upon request, bargain collectively with the United. Exceptions to the Intermediate Report were thereafter filed by the respondent. Pursuant to notice, and upon request of the respondent, a hearing was held before the Board in Washington, D. C., on January 23, 1940, for the purpose of oral argument. The respondent appeared by a representative and participated in the argument. The Board has fully considered the exceptions of the respondent and the argu- 1 Pursuant to the terms of a stipulation entered into by the respondent and counsel for the Board, the amended charges and the complaint were amended at the hearing by adding the name of Robert M. Edwards to the list of employees alleged therein to have been discriminatorily treated. Counsel for the Board waived objection to the respondent 's delay in Ming its answer. 530 DECISIONS OF NATIONAL- LABOR RELATIONS- BOARD ment advanced at the . hearing before the Board and, in so far as the exceptions are inconsistent 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 Los Angeles Spring Bed Company is an Ohio corporation duly licensed to transact business in the State of California. Its principal office and its factory where the respondent manufactures spring and metal beds, day beds, cots, coil springs, and wire-bed products are in Los Angeles, California. During 1938 the respond- ent purchased raw materials, consisting principally of steel, steel wire, rivets, and paint, valued at approximately $161,000. Approxi- mately 50 per cent of such raw materials originated outside the State of California. During the same period the respondent sold products aggregating $293,548 in value, of which approximately 12 per cent were shipped to, purchasers outside the State of California. The respondent employs approximately 70 production workers in its factory. It stipulated that it is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE ORGANIZATION INVOLVED United Furniture Workers of America, Local 576, is a labor or- ganization affiliated with the Congress of Industrial Organizations. It admits to membership all production employees of the respondent except office and clerical employees, and supervisory employees not working at the trade. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Fernando Gonzales, one of the employees named in the instant complaint, started to work for the respondent in July 1936. When Gonzales applied for employment Moeller, the respondent's vice president and general manager, asked him whether he belonged to a union. Gonzales replied in the negative and Moeller hired him. When Roger Johnson, another alleged victim of discrimination in the instant case, applied to Moeller for employment in September 1937 the latter asked him whether he had been a member of the LOS ANGELES SPRING BED COMPANY 531 union at his former place of employment. Johnson, too, was hired after answering this question in the negative. Alfred Bauer, a night foreman in the respondent's employ, on several occasions prior to the advent of the United in January 1939, stated to employees who were discussing unions that if a union organized the respondent 's plant all the employees would have to obtain employment elsewhere. We find that the respondent , by Moeller's interrogation of Gonzales and Johnson concerning their union affiliations , and by Bauer's in- timidatory remarks to the employees regarding the consequences of union organization in relation to their continued employment , inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. In the first week of January 1939, Ernest Marsh, an organizer for the United , began a membership campaign at the respondent's plant. Between January 3 and 13 Marsh distributed leaflets in, front of the plant and held several meetings during lunch periods in a vacant lot across the street from the plant and on the railroad tracks in the rear of the plant. These meetings were well attended by the re- spondent's employees; by January 13 several had joined the United. Moeller, the respondent's vice president and general manager, ob- served these activities and read one of the leaflets which had been distributed. On January 16, 1939, between 30 and 40 of the respondent's em- ployees attended a meeting of the United held at the home of its president, and a substantial number of them signed application cards. At this meeting a shop committee was established for the respondent's plant, with Fernando Gonzales as chairman and Gordon Lovell and Ernesto Guerrero as members. On the morning of January 18 the United intensified its member- ship campaign. Additional employees signed applications upon solicitation in front of the plant and union buttons were distributed to employees and were worn by many at work. We find that these activities, too, were observed by Moeller. During the course of the membership campaign of the United the respondent indicated , through anti-union statements of General Manager Moeller and Foremen Higgins and Davis, that it was hostile. toward union organization among its employees . We shall set forth a few examples of such statements, basing our findings in this respect upon uncontradicted testimony of witnesses called by the Board. On or about January 14, 1939, Moeller, in a conversation with Guerrero, stated that he did not want any union at the plant and that a union would not benefit the employees as the respondent was already paying higher wages than a union would demand. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly after Ashton Moore, an employee, joined the United on January 18, 1939, Foreman. Higgins told him that a "company union" was the only type of organization that had a chance at the respondent's plant. In a subsequent, conversation with Moore, Hig- gins asked the latter whether he belonged to the United. When Moore failed to reply, Higgins said that it vas .obvious that Moore was a member. Higgins then admonished Moore for joining the United and told him that he had nothing to gain from his union affiliation as he was already earning as much as he could expect to receive at the plant. When Moore retorted that he needed a union to protect his job as several employees had already been discharged, Higgins asserted that the law did not prohibit a continuous lay-off which would discourage the employees so much that they would vol- untarily leave the respondent's employ. Higgins concluded the con- versation with an anecdote concerning an alleged unpleasant expe- rience of his wife with a union. Foreman Davis asked William W. Verburg, an employee, whether the latter was the union leader who was urging the respondent's employees to join. Verburg replied in the negative. Davis stated that Moeller wanted the information and that if it was true that Verburg was the person responsible he could be dismissed. Verburg thereafter personally informed Moeller that he was not engaged in union activities, whereupon Moeller stated that he was glad to hear it as unions were destructive.' Davis told Gordon Lovell, an employee, that Moeller was not in favor of unions, and expressed concern over the security of his own job as well as that of his brother, Frank Davis, in the event the United should organize the plant. Davis asked Reuben Mirandi, an employee, what Marsh was doing in front of the plant. When Mirandi replied that Marsh was solicit- ing members for the United, Davis nodded his head and "said it wouldn't do." When asked why he had advised the employees to hide their union buttons Davis replied, in the presence of Robert M. Edwards, an employee, that he was afraid Moeller would be angry, and that he did not want the employees who wore union buttons to lose their jobs. We find that the respondent, by the anti-union statements of Moeller, Higgins, and Davis, above set forth, interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. 8 Foreman Davis and Verburg are deaf-mutes who communicate with each other in sign language. Statements herein attributed to Davis were made either in writing or by a sign code. LOS ANGELES SPRING BED COMPANY 533 B. The discharges Between January 16 and 31, 1939, at the height of the membership campaign of the United, the respondent terminated the employment of 12 of the 15 persons named in the complaint. Two of the remain- ing three were dismissed in April, and the last in June. The re- spondent contends that all were laid off for lack of work. Inasmuch, however, as the respondent asserts that it has adopted the policy of refusing to reemploy laid-off employees, the terminations are tanta- mount to discharges. We shall briefly consider each individual case. Roger Johnson was first employed by the respondent in September 1937 as a helper at 35 cents an hour. He was discharged on January 16, 1939. At time of his discharge Johnson ranked high in seniority, and was earning 45 cents an hour. Johnson joined the United on January 12, 1939, attended its meetings in front of the plant, and solicited members for it. On January 16 Foreman Allen informed Johnson that he was laid off for an indefinite period. When Allen failed to give an explanation of the purported lay-off which was satisfactory to Johnson, the latter spoke to Moeller, who assigned lack of work as the reason, stating that he was reducing the personnel. Marvin Gharet was first employed by the respondent in July 1936 as a riveter at 35 cents an hour. He was discharged on January 16, 1939. At the time of his discharge Gharet was earning 45 cents an hour. During his employment he worked in several different de- partments. On one occasion, shortly before Gharet was transferred to the night shift, Foreman Chiara told him that any of the em- ployees who joined the union .would be discharged. Gharet joined the United on January 13 and thereafter encouraged other em- ployees to join. Finding his card out of the rack on the morning of January 16, Gharet asked Cragin, a foreman, for an explanation. The latter stated that Gharet was laid off because there was a scarcity of work, and suggested that he seek employment elsewhere. Gharet applied for reinstatement on several occasions after his discharge but was told each time that there was no work. Fernando Gonzales was first hired by the respondent on July 30, 1936, as a "knotter" at 35 cents an hour. Later he was transferred to the coil machine at 47 cents an hour. He also performed certain other general work. Joining the United on January 12, Gonzales became an active member. On January 16 he was elected shop-committee chairman, a, fact well known in the plant. Two days later, on the afternoon of January 18, Foreman Allen laid Gonzales off indefinitely. When 283035-42-vol. 24-35 534 DECISIONS OP NATIONAL LABOR RELATIONS BOARD Allen and Moeller both told him that lack of work was the reason for his lay-off, Gonzales reminded them of the respondent's practice of sharing work during slack periods, and stated that he knew that work was available; whereupon Moeller or Allen said, "Well, there is no work and' conditions have changed." Thereafter, Gonzales applied for work wearing his union button, but was refused reinstatement. Joseph Morris was hired by the respondent in August 1936 as a painter at 40 cents an hour. He was discharged on January 18, 1939. At the time of his discharge Morris had the highest seniority among the painters and was earning 57 cents an hour. During slack periods he used to help in other departments. Morris joined the United on January 18 and wore his union button at the plant. Later on the same day Foreman Cragin told Morris that Moeller had instructed him to lay Morris off because of lack of work. Cragin suggested that Morris seek employment elsewhere and offered to give him a letter of recommendation. When Foreman Davis was told of Morris' lay-off he expressed surprise, stating that the respondent did not usually lay off painters. He added, however, that Moeller was not in favor of unions. Edgar Anderson, a deaf-mute, was first hired by the respondent on September 8, 1938, as a helper in the assembly department. On about January 11, 1939, Foreman Davis laid Anderson off, allegedly because of slack business, but informed him that he could work alternately each week with Vickers. Foreman Davis had previously told Ander- son's mother that her son, Edgar, would be laid off temporarily and that the men were fools to join the union. The record does not show whether Anderson was aware of this statement by Davis. Anderson joined the United on January 16. Two days later, on January 18, Anderson returned to the plant for work wearing his union button .4 Foreman Davis inquired whether Anderson had joined the union. When the latter replied in the affirmative, Davis said, "Don't come back." Ashton Moore was first employed by the respondent in 1931 as an assembler. He was discharged on January 23, 1939. During his em- ployment Moore also worked in the paint department, drove a truck, and finally was placed in the shipping department where he was work- ing at the time of his discharge. He had seniority over two other persons in that department. Moore joined the United on January 18, first wearing his union but- ton at the plant on January 23. On the latter day after lunch, Fore- 4 The complaint alleges that Anderson was discharged on January 26, 1939. The Trial Examiner, however, found that the discharge occurred on January 18, and the respondent did not except to that finding. LOS ANGELES SPRING BED COMPANY 535 man Higgins, after first telling Moore that he would not pay the union for the privilege of wearing a button, informed Moore that he would not need his services for the remainder of the week as.business was slow, but that he should report Monday. When Moore returned to the plant the Friday following his lay-off for his pay check, Higgins told him not to report for work Monday as business was still slow. Nevertheless Moore, returning to the plant on Monday, asked Moeller whether his lay-off was temporary or permanent; whereupon Moeller replied that it was permanent, stating that since business was slow Higgins could also perform Moore's work. Moore then requested to drive the respondent's truck, which he had formerly done, but Moeller refused, stating that he did not like to demote an employee and that since Moore had been at the plant a long time, the latter might want to look for another job. William W. Verburg,5 a deaf-mute, was first employed by the re- spondent in July 1929 at 50 cents an hour. He was discharged on January 26, 1939. At the time of his discharge Verburg was earning between 60 cents and 70 cents an hour as an assembler, and had the highest seniority among the assemblers. We have found above that prior to his joining the United on January 16, in response to interro- gation by Foreman Davis, Verburg denied to Davis.and Moeller any participation in union activity. However, after joining the United, Verburg wore his union button and indicated his approval of the union to other deaf-mutes employed by the respondent. On January 26 Foreman Davis laid Verburg off without assigning a reason. When Verburg requested an explanation of the lay-off from Moeller, he stated that there was no work available. Ernesto Guerrero was first hired by the respondent in 1936 as an assembler at 35 cents an hour. He was discharged on January 26, 1939. At the time of his discharge Guerrero was working in the assembly department where his earnings averaged between 70 cents and 80 cents an hour. Guerrero was one of the first employees to join the union movement at the plant. He joined the United on January 12, was elected to the shop committee, wore his union button at the plant, attended all union meetings, and recruited many union members. Although he had previously been warned, as found above, that Moeller did not want a union in the plant, Guerrero continued his union activity until his discharge. On January 26 Foreman Davis laid Guerrero off, stating that there was no work and that there would be none for a long time in the future. On February,2 when Guerrero sought employment at the 5 Referred to as William W. Verberg in the complaint. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant, Foreman Davis told him to look for another job as he would not be reemployed by the respondent. Frank Davis, a deaf-mute, was first hired by the respondent on July 19, 1936, as an assembler at 35 cents an hour. He was discharged on January 26, 1939. At the time of his discharge Davis was earning between 50 cents and 70 cents an hour. Prior thereto Davis was warned by his brother, Foreman Davis, that he would be discharged if he joined the union. However, on January 18 Davis joined the United and wore a union button at the plant. On January 26 he was laid off by Foreman Davis allegedly because of lack of work. Gordon Lovell was first hired by the respondent in August 1934 as a helper in the assembly department at 30 cents an hour. He was dis- charged on January 26, 1939. At the time of his discharge he had seniority over four other employees and was earning approximately $20 a week as an assembler. Although Lovell had been warned, as found above, of Moeller's hostile attitude toward the union, he nevertheless joined the United on January 16 and was elected to the shop committee. He acted as interpreter for the deaf-mutes at union meetings. On January 24 Lovell first wore his union button at the plant, and on January 26 Foreman Davis notified him that his services would not be needed that morning. In response to an inquiry whether the lay-off was perma- nent or temporary, Davis informed Lovell that he would be called back when business improved. By the time of the hearing Lovell had not been reemployed by the respondent. Frank Risely was first employed by the respondent in 1928 or 1929 as a riveter at 40 cents or 45 cents an hour. He was discharged on January 26, 1939. During his employment he worked in several de- partments, including the punch-press department where he was em- ployed at time of his discharge. Risely was then earning 65 cents an hour and ranked high in seniority in several departments. Risely joined the United on January 19, wore his union button at the plant, and was elected to the shop committee as a delegate from the punch-press department. On January 26 Foreman Cragin laid Risely off, failing to assign a reason for the lay-off. Thereafter, Risely, after reminding Moeller that he was an old employee who had previously worked during slack periods, asked the latter why he had been laid off ; Moeller replied that "things had changed." Veir Anderson was first employed by the respondent in February 1934 as a riveter at 40 cents an hour. He was discharged on January 31, 1939 6 At the time of his discharge he was working at the punch press and earning 65 cents an hour. Joining the United on January " The complaint alleges that Veir Anderson was discharged on January 27, 1939. LOS ANGELES SPRING BED COMPANY 537 18, he was elected to the shop committee and was subsequently elected its chairman. A few days thereafter, on January 31,. Foreman Cragin laid Anderson off indefinitely, assigning lack of work as the reason for the lay-off. Thereafter Anderson, without success, ap- plied for'work'on several occasions. Reuben Mirandi was first hired by the respondent in April 1936 as a wire straightener at 25 cents an hour. Thereafter, he was utilized as a general handy man. He was discharged on April 2, 1939. At the time of his discharge Mirandi was earning 45 cents an hour. He joined the United on January 12, attended its meetings, en- couraged the deaf-mutes to join, and wore a union button at the plant. On April 2 Foreman Davis, after stating that he was having trouble with work of the newly hired employees at the plant, laid Mirandi off without explanation, stating that "he hated to see [Mirandi] go as he liked [Mirandi] there as a handy man." Thereafter, Mirandi sought reinstatement without success. William C. Stickan 7 was first employed by the respondent in September 1936 as an assembler at 35 cents an hour. He was dis- charged on April 21, 1939. Stickan joined the United on January 18, encouraged other employees to join it, and wore his union button at the plant. On March 25 he was elected shop-committee chairman. On the morning of April 21 Stickan distributed new union buttons among the employees at the plant and on the afternoon of that day Foreman Davis laid Stickan off, stating that Stickan's services were satisfactory and that he personally disliked to lay him off. There- after, Stickan unsuccessfully sought reemployment. Robert M. Edwards was first employed by the respondent in 1930 at 35 cents an hour. He was discharged on June 2, 1939. During his employment he worked in the painting and assembling departments and, finally, in the shipping department. At the time of his dis- charge he earned 68 cents an hour. Edwards joined the United on January 18, 1939, attended meetings and spoke in favor of the union. Upon seeing Edwards wearing a union button at the plant, Higgins inquired, "Did they get you in there, to and when Edwards replied, "Yes, sir," Higgins "just shook his head and walked away." On June 1 Edwards was subpenaed to testify at the hearing in this proceeding. The next day Higgins approached Edwards and said, "Well, Red [Edwards], I got to do something that I hate to do-I have got to lay you off." When pressed by Edwards for a reason for the lay-off, Higgins said that the respondent was going 7 Referred to in the complaint as William C. F. Stickan. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to get a man who could keep books." Shortly thereafter, when Edwards asked Moeller about reinstatement, Moeller replied that he was going to put another man in Edwards' place. Edwards then reminded Moeller that he had previously said that he would try to take care of all the old men, whereupon Moeller said, "Well, men change and times change." The record shows that none of the above-mentioned employees had been reinstated by the respondent or had obtained other regular and substantially equivalent employment. All expressed a desire to return to work for the respondent. C. Conclusions regarding the discharges As we have stated, the respondent contends that the 15 men named in the complaint were discharged solely for lack of work. It ex- plains its failure to rehire any of them by asserting that for many years it has had a "definite policy of not rehiring anyone once re- leased from the payroll." It contends, further, that it was unaware of the identity of members of the United and was therefore incapable of discharging employees for membership or activity therein. Finally, to show the non-discriminatory nature of its lay-off policy, it asserts that in the period from January to June 1939, it "released" 29 persons in all from its employ. While it is true that the respondent's business was slack during January 1939, the record indicates that it thereafter improved and that between March of that year and the time of the hearing in June the respondent hired 24 new employees. The new men so hired did the same general kind of work as was previously performed by the discharged employees. Prior to the advent of the United, moreover, the respondent had pursued the policy of sharing available work in preference to laying off employees during slack periods. The respondent's assertion that it had for years refrained from rehiring laid-off personnel is completely contrary to the record. Not only did a number of the persons named in the complaint testify without contradiction that they had, in the past, been laid off and rehired,9 but the respondent itself informed the Regional Director by letter dated June 22, 1936, that "Whenever business gets dull and we are forced to lay-off help, we no doubt are willing to hire back the wellworthy deserving ones who are experienced before we hire new help to be broken in when business picks up." 10 8 The respondent did not assign inability to keep books as the reason for Edwards' lay-off or introduce evidence showing that knowledge of bookkeeping was necessary to perform the duties connected with Edwards' job. 9 Johnson, Gharet, Morris, Moore, Guerrero, Lovell, Veir Anderson, and Stickan. ]U This letter was written in connection with charges alleging discrimination on the part of the respondent which were filed with the Regional Director in 1936. LOS ANGELES SPRING BED COMPANY 539 Thus as to 12 of the men named in the complaint it appears that the respondent, in discharging them at the height of a union organ- izing campaign abruptly departed from its earlier practice of sharing work during slack periods, and that the respondent explains its sub- sequent employment of new men in their places by reference to a policy, allegedly of long standing, but which appears in fact to be an innovation. Of the remaining three men, Mirandi and Stickan were discharged in April, and Edwards in June. Their discharges occurred when the respondent's business was on the increase, so that as to them the allegation of lay-off for lack of work is entirely with- out support. As regards the method of the selection of any of these men for termination, the respondent offered no evidence save general and unsupported testimony by Moeller to the effect that Gharet, Johnson, and Morris were poor workmen. We have considered and must reject the contention of the respond- ent that it was incapable of discrimination because it was unaware of the identity of United members. Moeller and, other supervisory employees of the respondent, notably Foremen Higgins and Davis, engaged in a number of anti-union statements and interrogations indicative of the respondent's hostile interest in the progress of the United. The activities of the adherents of that union were openly conducted, meetings were held near the plant, employees wore union buttons to work. A number of the discharges occurred shortly after the employee in question had joined the United, had first worn his union button in the plant, or had engaged in some conspicuous union activity. We are convinced that the respondent, was aware of the identity of those of its employees who were actively engaged in self- organization." Of the 29 men allegedly "released" by the respondent between Jan- uary and June 1939, 15 are named in the complaint, 4 more are mem- bers of the United as to whom no charge was filed, and 10 are non-union employees. Inasmuch as the record does not indicate whether the 14 men not named in the complaint were discharged or laid off, or quit voluntarily, no inference can be drawn from these figures. Upon the entire record we are of the opinion and we accordingly find that the respondent discharged and thereafter refused to reinstate the employees listed in Appendix A because of their membership and activities in the United, and that it thereby discriminated in regard to their hire and tenure of employment, discouraged membership in the United, and interfered with, restrained, and coerced its employees in. the exercise of the rights guaranteed in Section 7 of the Act. 'We note in this connection that the respondent discharged three successive shop- committee chairman ( Gonzales, Veir Anderson , and Stickan ), as well as two other shop committeemen (Lovell and Risely). 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The refusal to bargain 1. The appropriate unit The complaint, as amended, alleges, and the respondent admits in its answer thereto, that all the production employees of the respond- ent, excluding office and clerical employees, and supervisory employees not working at the trade, constitute an appropriate unit. We see no reason to deviate from this unit. We find that all production employees of the respondent, excluding office and clerical employees, and supervisory employees not working at the trade, at all times material herein constituted and that they now constitute a unit appropriate for the purpose of collective bar- gaining, and that such unit insures to the employees of the respondent the full benefit of their right to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by Local 576 of a majority in the appropriate unit The complaint, as amended, alleges that on or about January 21, 1939, and at all times thereafter the respondent has refused to bargain collectively with the United. The respondent's pay roll for the week ending January 25, 1939, lists 67 production employees, including 6 foremen or assistant foremen not properly in the unit. However, five 1:2 employees whom we have found to have been discriminatorily discharged prior to that date were within the unit although not named on the pay roll. We accordingly find that on January 21, 1939, there were 66 employees in the unit we have found appropriate. The United introduced in evidence a list of the respondent's employees who had signed membership applications, together with the date upon which each signed. The respondent's representative checked and compared this list with the original application cards signed by the respondent's employees and did not challenge the majority representation of the United as reflected by the cards and the list. According to this list the United had, on or before January 21, 1939, been designated by 52 of the respondent's employees within the appropriate unit as their exclusive representative for the purpose of collective bargaining. The record discloses that the designation of the United by a majority in the appropriate unit continued through April 12, 1939, and at oral argument the respondent admitted that the United still represented a majority of its employees. We accordingly find that on January 21, 1939, and at all times thereafter, and on April 12, 1939, the United was and has been desig- 12 These employees are : Johnson, Gharet, Gonzales, Morris, and Edgar Anderson. LOS ANGELES SPRING BED COMPANY 541 nated and selected by a majority of the employees in the unit above found to be appropriate as their representative for the purpose of collective bargaining, and pursuant to Section 9 (a) of the Act, was, on January 21, 1939, and at all times thereafter, and on April 12, 1939, the exclusive representative of all the employees in such unit for the purposes of collective bargaining with the respondent in respect to rates of pay, hours of employment, and conditions of employment. 3. The refusal to bargain Marsh testified in detail in regard to attempts on his part to nego- tiate with the respondent on behalf of the United. James S. Wolla- cott, to whom the respondent delegated full power to act on its behalf in its dealings with the United,, failed to testify. The findings below are based on the uncontroverted testimony of Marsh which we accept as being substantially true. On January 21, 1939, Marsh informed Moeller by telephone that he represented the United which had been designated by a majority of the respondent's employees as their representative, and requested a, meeting to negotiate an agreement and discuss the reinstatement of certain employees who allegedly had been discriminatorily dis- charged. Moeller replied" that the respondent had delegated full authority in this matter to Wollacott, and that it would be necessary for Marsh to see him. Marsh communicated with Wollacott and on January 24 they met with one Muir, a Field Examiner employed by the Board, at the Board's Regional Office. When Wollacott stated at this meeting that the respondent admitted the United's majority, Marsh proposed that the respondent reinstate the discharged employees, recognize the United as the employees' exclusive representative, enter into nego- tiations for a contract, and post notices that the respondent would not indulge in further discriminations. Wollacott then replied that Moeller would not reinstate the employees and that the controversy would have to go to a hearing. He did agree, however, to submit Marsh's proposal to Moeller. At another conference between Wollacott and Marsh on January 26 at the Regional Office of the Board, Wollacott stated that he had presented Marsh's proposal to the respondent, but the "company didn't care to do anything about it." Wollacott then tendered a written , statement setting forth the respondent's position which stated in effect that until after the furniture "Mart" the respondent could not exactly determine its manufacturing program for the early part of 1939, or the number and type of employees it would need; that the employees who had been previously laid off were selected "on the 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis of proper reduced working conditions"; and that changes in "style and class 'of merchandise" will require "reorganization and changes in personnel," and possibly a further personnel reduction As the conference concluded Wollacott stated that "the company was a tough outfit, and it would be necessary to hold a hearing." On January 30, in a conversation relating to another alleged dis- criminatory discharge which occurred prior thereto, Wollacott told Marsh that the respondent felt justified in "letting the men go" and that the "matter" would have to be decided by the Board. Upon the request of Chapman, an associate of Wollacott, Marsh by letter dated April 5 set forth certain facts concerning the discrimina- tion allegedly practiced by the respondent. Chapman informed Marsh by telephone that, he had received the letter and was taking the matters raised therein under advisement. Marsh heard nothing further from Chapman. On April 12 a final conference was held at the Board's Regional Office to attempt informally to settle this case. Wollacott, Marsh, Sokol, an attorney for the Board,13 and Risely, a discharged union employee of the respondent, were present. When Sokol asked Wolla- cott if there was any way the case could be settled, Wollacott replied. that there was no way to avoid a hearing; that "Moeller had made up his mind in January that he was not going to deal with the union and the company still had the same opinion"; that the respondent felt justified in releasing the men and would not consider reemploying them; and that the respondent would not negotiate a contract with the United. The record clearly shows that although the respondent, without requesting proof, acknowledged the United's majority representation at the first conference on January 24, it has refused, upon request, at all times between January 21 and April 12 to treat and bargain with the United as the exclusive representative of the production em- ployees. The record fails to disclose any justification for this ada- mant position of the respondent. At oral argument the respondent contended that it as well as the United refused to enter into negotia- tions for a contract until the United's charges of discrimination had first been settled. This contention is not supported by the record. The respondent's position during these negotiations may best be epitomized by the statement of Wollacott who stated at the April 12 conference that Moeller had made up his mind in January not to "deal" or negotiate a contract with the United. We think it clear, from the fact set forth above, that the respondent did not on January 21 or at any time thereafter intend to bargain collectively with the. United. 23 Sokol represented the Board at the hearing. LOS ANGELES SPRING BED COMPANY 543'. We find that the respondent on January 21, 1939, and at all times thereafter, and on April 12, 1939, refused to bargain collectively with the United as the representative of its production employees in respect to rates of pay, wages, hours of employment, and other con- ditions of employment , and that it thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we deem necessary to effectu- ate the policies of the Act. We have found that the respondent refused to bargain collectively with the United. We shall order it, upon request, to bargain col- lectively with the United as the exclusive representative of its em- ployees within the unit which we have found to be appropriate. We have found that the respondent discriminatorily discharged and refused to reinstate the 15 employees named in Appendix A. We shall order the respondent to offer these employees immediate reinstatement to their former positions and to make them whole for any loss of pay they have suffered by reason of the respondent's dis- crimination by payment to each of them of a sum of money equal to the amount which he would have normally earned as wages from the date of the termination of his employment to the date of the respondent's offer of reinstatement, less his net earnings 14 during said period. 'k 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 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 the employee and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern- ment or governments which supplied the funds for said work -relief projects. 544'. DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon: the. foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Furniture Workers of America, Local 576, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The respondent, by discriminating in regard to hire and tenure of employment of the 15 employees listed in Appendix A, and thereby discouraging membership in United Furniture Workers of America,. Local 576, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. The production employees of the respondent, excluding office and clerical employees, and supervisory employees not working at a trade, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. United Furniture Workers of America, Local 576, was on Jan- uary 21, 1939, and at all times since has been, the exclusive repre- sentative of all employees in such unit for the purposes of collective bargaining,, within the meaning of Section 9 (a) of the Act. 5. The respondent, by refusing to bargain collectively with the United Furniture Workers of America, Local 576, as the exclusive representative of its employees in an appropriate unit, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. The respondent, by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. 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 Los Angeles Spring Bed Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Furniture Workers of America, Local 576, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in LOS • ANGELES SPRING BED COMPANY' ._545 any other manner discriminating in regard to hire or tenure of employment; - (b) Refusing to bargain with United Furniture Workers of America, Local 576, as the exclusive representative of ahl its pro- duction employees, excluding office and clerical employees, and supervisory employees not working at a trade; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their -own -choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the. following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to the 15 persons listed in Appendix A immediate and full reinstatement to their positions without prejudice to -their seniority or other rights and privileges; (b) Make whole the persons listed in Appendix A for any loss of pay they may have suffered by reason of the respondent's discrimi- nation in regard to their hire and tenure of employment by payment to each of them of a sum of money equal to that which each would normally have earned as wages during the period from the date of such discrimination against him to the date of the respondent's offer of reinstatement, less his net earnings 15 during said period; provided that the respondent. shall deduct from the amount otherwise due to each of the aforesaid persons a sum equal to that received by him for work performed upon Federal, State, county, municipal, or other work-relief projects during the period for which the back pay is due him under the terms of this Order, and shall pay any such amount deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Upon request, bargain collectively with United Furniture Workers of America, Local 576, as the exclusive representative of all its production employees, excluding office and clerical employees, and supervisory employees not working at a trade; (d) Post immediately in conspicuous places in its plant at Los Angeles, California, and maintain for a period of at least sixty (60) consecutive days from the date of posting notices to its em- ployees, stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondent will take 15 See footnote 14, supra. ,546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the affirmative action set forth in paragraphs 2 (a), (b), and (c) of the Order; and (3) that the respondent's employees are free to become or remain members of United Furniture Workers of America, Local 576, and the respondent will not discriminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. APPENDIX A Roger Johnson Marvin Gharet Fernando Gonzales Joseph Morris Edgar Anderson Ashton Moore William W. Verburg Ernesto Guerrero Frank Davis Gordon Lovell Frank Risely Veir Anderson Reuben Mirandi William C. Stickan Robert M. Edwards