Mall Tool Co.

In the Matter of MALL TOOL COMPANY and LODGE 1387, AMALGA- MATED ASSOCIATION OF IRON, STEEL & TIN WORKERS OF NORTH AMERICA, THROUGH STEEL WORKERS ORGANIZING COMMITTEE, AF- FILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case 1110. 0-1399.-Decided July 22, 1940 Jurisdiction : machine tool manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements; interrogation concerning union activities ; domination of labor union ; threats to close plant and to discharge employees; lock-out of employees; exacting from locked-out employees, as a condition precedent to reinstatement, termination of their union affiliation. Discrimination: lock-out of and refusal to reinstate employees because of their union activities Remedial Orders : reinstatement and back pay awarded Where prior to issuance of the Board's complaint a union, found by the Board to have been company-dominated, ceased to exist and the respondent ceased to give effect to its contract with such union, and where the Board's complaint-contained no separate specific allegation of an 8 (2) violation, the respondent was ordered to cease and desist from conduct of the sort that brought the dominated union into being and gave support to it Mr. Hyman, A. 1S'clzulsou, for the Board. Fyffe ce Clarke, by Mr. Albert J. Smith, of Chicago, Ill., for the respondent. Mr. Roscoe L. Barrow. of counsel to the Board. DECISION . AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Lodge 1387, Amalgamated Association of Iron, Steel & Tin Workers of North America, herein called the Amalgamated, the National Labor Rela- tions Board herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint, dated April 28, 1939, against Mall Tool Company, Chicago, Illinois, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1) and (3) and Section 26N I, R B, No. 87 771 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices the complaint alleged in substance that the respondent (1) on March 15, 1937, locked out and discharged Elmer Barnes, Albert Crnkovich, Frank Cullitan, Benjamin Eckardt, Ralph Lehman, Jerry Pavlovsky, Albert Rusich, Michael Rusich, and Ludwig Trotter, and at all times since March 15, 1937, refused to reinstate them because of their union membership and activities; (2) that from on or about March 1, 1937, to the date of the issuance of the complaint the respondent interrogated its employees regarding their union affiliations, advised them against joining the Amalgamated, and threatened to close the plant, and to discharge its employees if they should continue to engage in union activities; and (3) that by'these and other acts the respondent interfered with, restrained and coerced its- employees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the Amalgamated. On May 3, 1939, the respondent filed an answer denying generally the allegations of unfair labor practices contained in the complaint. Pursuant to notice, a hearing was held at Chicago,' Illinois, from May 25 through June 5, 1939, before Joseph L. Maguire, the Trial Examiner duly designated by the Board. During the hearing coun- sel for the Board moved to dismiss the complaint in so far as it alleged that the respondent discriminatorily discharged and refused to reinstate Elmer Barnes. The motion was granted. At the close of the Board's case the respondent moved to dismiss the complaint in its entirety. The motion was denied: The respondent then moved to dismiss the complaint as to each allegation that the respondent had engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. The motion was denied. At the close of the hear- ing the respondent renewed both of these motions. The former was denied and ruling on the latter was reserved. In his Intermediate Report, mentioned hereinafter, the Trial Examiner denied the latter motion also. Counsel for the Board, at the close of the hearing, moved to amend the pleadings to conform to the proof. The motion was granted. The Board and the respondent were represented by counsel and participated in the hearing. The Amalgamated was not represented. Full opportunity to be heard, to examine and cross- examine witnesses, and to produce evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. MALL TOOL COMPANY 773 On October 25, 1939, the Trial Examiner filed his Intermediate Report, finding that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. The Trial Examiner recommended that the respondent cease and desist from such unfair labor practices, and offer reinstatement with back pay to Albert Crnkovich, Frank Cullitan, Benjamin Eckardt, Ralph Lehinan, Jerry Pavlovsky, Albert Rusich, Michael Rusich, and Ludwig Trotter. Thereafter the respondent filed exceptions to the Intermediate Report and a brief in support of such exceptions. The Board received no request for oral argument from any of the parties. The Board has considered the exceptions to the Intermediate Report and the contentions made in the respondent's brief and, except in so far as the exceptions are consistent with the findings of fact, conclusions of law, and order, set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT i Mall Tool Company is an Illinois corporation having its principal office and plant at Chicago, Illinois. It is engaged in the manufac- ture, sale, and distribution of flexible shaft machines, flexible shaft equipment, and electric tools. The respondent is registered to do business in Illinois, California, Michigan, and Pennsylvania, main- tains branch offices in Los Angeles, California; Detroit, Michigan; Pittsburgh, Pennsylvania; and Philadelphia, Pennsylvania, and em- ploys salesmen who are located tlirongliout, the several States of the United States. The raw materials used in the respondent's business consist of castings; steel, rubber, wire, and other assembly items. -During 1938 from 50 to 60 per cent of the raw materials purchased by the re- spondent for use in its operations were purchased in States other than Illinois and shipped to its' plant in Chicago. Approximately 85 per cent of the products manufactured at its Chicago plant dur- ing 1938 were sold and transported to customers in States other than Illinois The respondent employs approximately 100 employees. The respondent stipulated that its operations affect commerce with- in the meaning of Section.2 (6) and (7) of the Act. II. THE ORGANIZATIONS INVOLVE!) Amalgamated Association of Iron, Steel & Tin Workers of North America is a labor organization affiliated with the Congress of In- These finding,4 nie based in part on a stipulation of facts 2830:16-42-v ol 5-50 774 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD dustrial Organizations, and is represented by Steel Workers Or- ganizing Connnittee, also affiliated with the Congress of Industrial Organizations. It admits to inemberslup persons working iii and around rolling mills, tin nulls, steel works, chain works, nail, tack, spike, bolt, and nut factories, pipe mills, and all works operated in connection therewith. Lodge 1387 of the Amalgamated restricts its membership to employees of the respondent. Mall Tool Company Employees' Security Council, herein called the Council, was a labor organization admitting to membership all employees of the respondent paid on an hourly basis and having no authority to employ or discharge. III. THE UNFAIR LA13OR PRACTICES A. Interference, 9 esti aint, and eoeicio'n 1. The lock-out The complaint alleged that on or about March 15, 1937, the re- spondent locked out and discharged a number of its employees and thereafter refused to reinstate them because of their union member- ship and activities. The respondent admitted that it closed its plant on March 15, 1937, and that when it resumed operations on March 22, 1937, the employees' named in the complaint were not reinstated, but denied that it had engaged in unfair labor practices thereby. During the latter part of 1936 two brothers, Albert and Michael Rusich, employees of the respondent, joined the Ammagamated. The - Rusichs thereafter discussed unionization with other -employees in the plant and by March 15, 1937, they had succeeded in getting 10 of them to join. During the week of March 7, 1939, these union activi- ties were brought to the attention of the respondent's management. Michael Rusich testified that on March 7, Arthur W. Mall, presi- dent of the respondent, asked him whether he had been talking in the shop "about Russia' and union-,": that he denied having talked about such matters and advised Mall that if anyone had been talk- ing about "Russia" it might have been his brother, Albert; and that Mall then told hint that John L. Lewis was "no good" and that should he join a union he would be forced to pay clues of five dollars per month or be "beat up." Albert Rusich testified that oil March 9, Mall said to him, "Say, Rusich, what are you trying to do here in the shop . . . aren't you carrying around in the shop those cards?" Mall testified that on March 7, Michael Rusich told him that the employees should receive a raise and that he advised Michael to be patient as the employees would probably receive three raises during 1937. He denied having made any of the statements MALL TOOL COMPANY 775 attributed to him by Michael, and he could not recall having had the alleged conversation with Albert. The Trial Exanuuler found that Mall made the statements attributed to him above. Mall ad- mitted that on March 9, after seeing Michael Rusich talking to Elmer Barnes, an employee, he asked Barnes, "What was he talk- ing to you about," whereupon Barnes replied that they were dis- cussing a raise. Mall then commented, "Why he should be going around agitating and making you -feel bad and getting sour on your job I don't know." That Mall was sufficiently interested in Michael Rusich's conversation with another employee to interrogate the latter as to the subject of the conversation and then make the above remark indicates that he suspected the Rusichs of engaging in union activities. In view of the foregoing, and in the light of other events discussed hereinafter we give credence to the testimony of Michael and Albert Rusich and find that on March 7 and 9 Mall made the statements attributed to him above. About March 8, 1937, Vernon Burnison, an employee, obtained a union card from Ludwig Trotter, an employee who was active in the Amalgamated. Burnison took the card to Frank A. Baustert, his foreman, explained where he had obtained it and asked Baustert whether or not lie might 'sign it. Baustert advised Burnison that Mall did not approve of unions and that if Burnison should sign it and this should later become known to Mall, Burnison probably would be discharged. Burnison did not sign the card. Baustert testified that he based his advice to Burnison that Mall did not approve of unions on statements which Mall had made to the supervisory employees in executive meetings. Whenever unions were discussed, Baustert testified, Mall would tell the supervisory employees that he "didn't want to deal with any union." Baustert further testified that he, in line with Mall's policy, advised employees who, he thought, were interested in unions that Mall was opposed to unions, and that he never hired anyone who was a member of a union. Mall admitted that unions were discussed at the execu- tive meetings, but he testified that his position, expressed in these meetings, was that lie "would always be for a union that would take into consideration the customer, the investor in our business and the men." Certain statements made by Mall on the stand indicate, however, that he was opposed to unionism in general. He testified that labor organizations are operated for the benefit of the organiz- ers and not for the benefit of the employees, and that he did not think that a labor organization could benefit his employees. He also testified, "We have never had any union in our plant; and any one who would come there to organize our men, why it was always quite a joke." In view of Mall's antiunion attitude ex- 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pressed on the witness stand, we give credence to Baustert's testi- mony above and find that Mall expressed an .anti-union attitude in the executive meetings and that Baustert, in advising Burnison against joining the Amalgamated, was acting in conformity with the respondent's settled policy.2 Baustert testified that when he discovered from Burnison that Trotter had union cards in his possession he told Mall that "there were C. I. O. cards floating around the shop." Mall denied that Baustert had given him this information, but subsequent events described below, indicate that Mall knew that union cards were being distributed throughout the plant. In view of this we give credence to Baustert's testimony and find that Baustert advised Mall that union cards were being distributed in the plant. On March 11 Mall instructed Foreman John Signorelli to discharge the two Rusichs.3 Signorelli notified Michael that he and Albert, were discharged and Michael informed Albert. The Rusichs then located Mall, attended by Signorelli, in the plant and Albert asked Mall why they had been discharged. Mall told them that while he had no complaint about their work, he did not have their "good will" and that he did not wish to employ anyone whose good will he did not have. Albert then said, "I demand Iny' human rights" and banged on the wall with his fist, about 3 or 4 feet away from Mall. Michael walked up to Mall and said, "If you're looking for trouble you're going to get it." Michael testified that during the discussion Mall asked them, "What secret organization do you belong to?" This testimony was corroborated by Albert. Mall denied that he said anything about "unions." Albert further testified that he said to Mall, "We,are good workers, we produce, we are among the best," and that Mall replied, 2 The respondent would be responsible for Baustert's activities even if Mall had not given them his express sanction N L R. B v. A S. Abell Co, 97 F. (2d) 951 (C C A 4) Swift & Co v. N L. R B , 106 F. (2d) 97 (C. C. A. 10) $ Mall testified to a variety of reasons for his decision to discharge the Rusichs Among the reasons assigned were (1) that the Rusichs were "always+talking Communism in the corner on the third floor at noon time" ; (2) that about February 11 Albert had asked Mall to employ a relative of his and had assumed a "long face" when Mall refused his request; (3) that Albert was responsible for Michael's "arrogant attitude" ; (4) that yvhen Michael talked to him on March 7 about a raise, Michael had assumed a "sneering tone of voice" and (5) that Michael later had talked to Barnes about a raise Mall's further testimony indicates that the alleged "talking Communism" was not considered to be a serious matter Interiogated as to when he had learned of this alleged activity, Mall testified, "Fete Chidi- chiino and Harold DeHaan told ine about this about three or four years ago Then we had a lot of fun about it it was not a serious matter. It was quite a joke " Asked to fix the time more accurately, lie added, "Well, let me see I would say it was-just a year before the shut-down. At that same conversation, or in the one with Chidiclnmo and Harold DeHaan, they said that they were kidding Rusich to the point where he would not talk to them any more " The other reasons assigned by Mall for his decision to discharge the Rusichs manifestly are of such a trivial nature as to pi oiide no real basis for termi- nating the employment of old and trusted employees In view of subsequent events, dis- cussed herein, it is clear, and we find, that none of Mall's purported reasons for deciding to discharge the Rusichs were his true reasons for his decision MALL TOOL COMPANY 777 "Oh, yes, you produce and create here but destroy something else- where." Willard F. Carbaugh, Chief Inspector,4 who overheard the conversation, testified that he heard Mall say that he did not "require Mr. Rusich's services any longer because of the fact of some of his activities were so detrimental that his good qualities were overbal- anced." From listening to the conversation Carbaugh gathered that the "activities" referred to were "causing unrest among the employees by some propaganda he was spreading " and he further testified, "I guess it must be some union propaganda." Mall offered to give the Rusichs 2 weeks' wages on the condition that they would leave the plant immediately . This offer was rejected by the Rusichs, and Mall then told them to return to work. We find that the respondent undertook to discharge the Rusichs on March 11 , because of their union membership and activities , and was deterred from this discrim- inatory action only by the vigorous protest of the two Rusichs. On March 12 , one Zimmerman , an employee, placed a blank mem- bership card in a dinner pail belonging to Carl Jyrcli, another em- ployee. Jyrch showed the card to Mall , who took it from Jyrch and kept it. Baustert testified that on the following morning he, Mall, and Foreman Signorelli discussed the matter of the union cards being circulated in the shop. While Mall specifically denied having such a conference , Signorelli did not testify. In view of the circumstances, and since Mall admitted that at other times he had discussed union matters with the supervisory employees, we find that Mall held the above conference with Signorelli and Baustert , as to which the latter testified. On Saturday morning, March 13, Mall told Baustert and Sig- norelli that the plant would be closed on the following Monday, March 15. Mall testified that he decided to close the plant because ". . . I had two men who became very sassy to me and said I could not fire them . . ." Baustert testified, however, that Mall told him, at the time. that the. decision-to close' the' plant-'was made, that he had received a union card, that there probably were more such cards in the shop , and that he was trying to decide what course he should take. Baustert went on to testify that Mall finally de- cided that he could stop the union activities most effectively by closing the plant; and that for this purpose the plan was to shut down the plant for a few days and then refuse to reemploy employees deemed undesirable. Frederick 'A. Pietsch, a supervisory employee,5 testified that he asked Baustert why the plant was to' be shut down, and that Baustert told him that there was "some trouble going on in Caibaugli 's duties are to inspect raw materials coming into the plant and all products produced in the plant to see that they come up to specifications. c Pietseh testified that he "generally supervised the work" in the "housing and shaft department ." He has from two to three helpers , to whom he assigns work and whose work he supervises He does not halve authority to employ or discharge them, 778 DECISIONS Of NATIONAL LABOR RELATIONS BOARD the plant" and that he thought the Rusichs and Trotter were causing the "uproar." Pietsch further testified that he later discovered why the plant was shut down, and that "it was just for the particular reason that these men, whoever they were, that they were soliciting signatures for the C. I. O." On March 13 Mall directed Baustert and Signorelli to call all the employees who, in their opinions, were "well behaved and loyal em- ployees and whose good will" the respondent enjoyed, and tell them that they should not report for work on March 15. Baustert and Signorel]i complied with the instructions, and on March 13 Sig- norelli asked Frank Schuhlnann whether' or not he would "stick" to, the respondent in the event that a union was organized in the plant. Baustert understood that he was to notify those employees who were. not engaging in union activities. Baustert, Signorelli, and Carbaugh,' following Mall's instructions,. came to the plant early on Monday morning, March 15. The doors, were locked, and a sign was posted which read, "This plant closed until further notice." As the men arrived for work Baustert and Signorelli waved them away or-motioned to them indicating that they should read the sign. Upon finding the plant closed, some of the men left the premises and advised other, employees, whom they met, of the shut-down. We find that in closing its plant on March 15, the respondent locked out its employees for the purpose of rid- ding-itself of those employees who were engaging in union activities- A number of the employees then went to a local office of the Com- mittee for Industrial Organization 6 and discussed the situation with a union representative there. As. a'result they obtained membership cards, returned to the plant to establish a picket line, and asked the other employees to join the Amalgamated. Approximately 23 employees joined the Amalgamated during the shut-down. On the night of March 15 a meeting was held, officers and a negotiating committee were elected, picket signs were prepared, and the members received instructions on orderly picketing. Several witnesses testified concerning certain anti-union statements made by Mall to- the pickets 'during the shut-down. While Mall denied having made most of the statements attributed to him, he admitted telling the pickets on March 16 ". . . -that the factory was shut down and' that they ought • to try to get jobs at other places because work was plentiful and that we did not know just when we would start up again," whereupon he also asked Schuhmann, one of the locked-out employees, "Why don't you think for yourself." He further admitted that about March 18 he told the pickets, " . . . that they could cone in and talk to me at any time, and they would be U Now Congress of Industrial Organizations. DIALL TOOL COMPANY' 779 welcome; that they can talk for themselves, that they do not need any one to talk for them . " The evidence also establishes that on March 16 Mall drove up to the picket line, looked at the picket signs, and said, "Now I see what this is all about; so the C. I. O. is behind it"; that he then pointed to the pickets and said, "I don't want any of you Union men around here"; and that later he returned and said, "All ycu men, if you want to come back to work, why, come in and see one one at a time." During the shut-down the Amalgamated's negotiating committee, consisting of Albert Rusich, Elmer Barnes, and Ludwig Trotter, had several conferences with Mall. Mall testified that at the first conference, held on March 16, one Patterson, a C. I. O. representa- tive, accompanied the committee to his office, and lie told the com- mittee that he "didn't see why they had to bring in Mr. Patterson because he was not an employee of the Mall Tool Company; that I thought they were well able to talk for themselves." He further testified that Patterson said that from 90 to 95 per cent of all the hourly paid employees had joined the Amalgamated, and requested him to enter into a contract with the Amalgamated. According to Mall, he asked them to leave the proposed contract for his further study, and told them that he would consider any plan which gave consideration to customers, investors, and employees. Another conference was held on the following day and the parties discussed seniority, wages, the job classification of employees, and the voice that the employees should have in "running the plant." A further meeting was had on March 19. Mall testified that the corn- inittee,had informed the employees that' the Amalgamated and the respondent were planning to negotiate a closed-shop contract and that he told the members of the committee that he "did not care to see them again if they did not tell the truth to the men outside." - The committee proposed a schedule of rates of pay and Mall testified that he "glanced" at it but he did not have time to study it. The respondent resumed operations on March, 22. On March 24 the committee and several other employees came to the office and said that they desired reinstatement. To this Mall replied that he "was not going to employ as many people because I did not want trouble ... " and he advised them to get jobs elsewhere. During the hearing the parties stipulated, however, that when operations were resumed the volume of work- was just as great as it was prior to the shut-down. Trotter testified that at one conference with the negotiating com- mittee Mall said that he did not like "John L. Lewis and that all unions wanted was money." Albert Rusich testified that at another conference Mall said that he was going to employ "all those em- 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees who proved themselves loyal during this trouble, and if there is any surplu- to be laid off, (it) will be ]aid off from those who will be in the union , or are in the union or are picketing or are unde- sirable for those activities"; that Barnes proposed that in the event of a reduction the union employees and non-union employees should be laid off on a ration of one to one: and that Mall refused to accept this proposal. Mall denied that he made the statement attributed to him by Albert Rusich. Barnes was not called to testify. In the light of the entire record we find that Mall made the statements attributed to him above. On March 16, 17, and 20, Mall issued the following statements, inter alia, to a newspaper for publication : We were afraid of having trouble and the men told me I could not fire them so I decided to close the plant. The C. I. O. wants a closed contract and the check-off system. The men seemed satisfied with the wages and working hours. What the ,men-don't seem to realize is that we will not operate at full force any longer. My business will be curtailed in the future, and I will have use for less men. When the C. I. O. can show us they fit in the picture to serve a good purpose to the employees, company and last but not least, the customer, I will be interested. The men are satisfied with conditions here. We have never had a union in our plant and our men don't think that they need a union. On' March 18 Mall sent a letter to each employee which stated : You will find enclosed paycheck for Monday of this week. This is being given to you at this time since you reported for work Monday, but clue to conditions were not able to perform this work. Due to these same conditions beyond our control, we do not know just when we will be able to recall you to work. We therefore suggest that you come in and get your tools in the next day or so. We are sorry for these unfortunate circumstances. Baustert testified that he received instructions from either Mall or Saunders, secretary of the respondent, to call those employees who were not members of the Amalgamated and tell them that they should disregard the letter and not come for their tools. Baustert carried out the instructions . Interrogated about this instruction Mall tes- tified, "I , vaguely • remember only that some one was told not to pay any attention to that letter." Saunders did not testify. None of the employees who had been notified prior to the lock-out that the plant would be closed on March 15 and who testified came for their MALL TOOL COMPANY 781 tools. We find that Baustert was instructed to notify those em- ployees whom he believed not to be members of the Amalgamated that they should disregard the letter. It is clear that the purpose of Mall's letter, and the instruction to non-anion employees to disregard it, was to induce Amalgamated members to leave the respondent's employ under the mistaken belief that Work would no longer be available., As already noted, the plant reopened on March 22, 1937, and most of the employees Were induced individually to return to work by -either Mall, Baustert, or Signorelli. The employees were contacted by personal visit, telephone, and telegraph, and were brought to the plant in cars by Mall, Signorelli, and Baustert. As an inducement to return the employees were promised an increase in wages and a 10 percent increase was given after the resumption of operations. All of the employees Who returned to work and who testified had terminated their affiliation with the Amalgamated upon returning to work. One of them, William Goertzinger, admitted that his return to work was conditional on terminating his union membership and activities. According to Goertzinger, on March 22 Baustert trans- ported John Benge, one Haffling, two other employees, and himself to the plant where "Mr. Mall stated if We wanted to come back -to work we could do so provided we would entirely forget about the union; that he wouldn't have union men working in his shop; that he would sooner close up the shop than have union men working there." Benge, a witness called by the respondent, denied that Mall had made this statement, as did Mall. Mall admitted, however, that he told, Baustert and Signorelli ' to recall "anyone whose behavior Was all right and whom we thought we could obtain their good will." Baustert testified that the respondent's plan was to take back those "that we would absolutely feel sure they did not belong to the union." Since the plant was shut down for the purpose of ridding it of members of the Amalgamated, it is clear from the above testimony of Baustert and Mall that those employees who were not union minded were being recalled. Under the circumstances, we give credence to Goertzinger's testimony and find that the respondent in the case of some of its employees, at least, reinstated them only on condition that, they terminate their affiliation, with the Amalgamated. - During the shut-down -Mall told Baustert that he would close the plant rather than oper- ate under "union conditions " Baustert testified that during one of the executive meetings they discussed taking the employees back and weeding them out later through lay-offs. Interrogated about this, Mall answered : "Well, there was something said about that, but that was dust merely a conversation. We proposed at least ten things to do, and probably would only do one thing." He added that he had discussed the matter with Baustert and Signorelli. Among the other plans considered was to place the members of the Amalgam- ated. should the respondent be forced to reemploy them , in a separate building on other premises, where they would not come into contact with the employees who had not joined the Amalgamated 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent by interrogating its employees con- cerning their union membership and activities, by expressing its opposition to the Amalgamated, by warning its employees that if they joined the Amalgamated they would be discharged, by threat- ening to close the plant unless the employees should terminate their affiliations with the Amalgamated, by instituting a lock-out against its employees for the purpose of ridding its plant of union members, and by exacting from certain of the locked-out employees, as a condi- tion precedent to reinstatement , the termination of their affiliations with the Amalgamated, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Domination and interference with the formation and administra- tion of Mall Tool Company Employees' Security Council About the middle of April 1937, organization of the Mall Tool Company Employees' Security Council, herein called the Council, was begun. Pietscli, a supervisory employee, testified, "I guess I was the one that suggested it." He talked to Jyrch about it and then suggested formation of "an organization of our own" to Baustert who thought it was "a good -idea." Pietsch then asked Baustert for information as to how the organization might be formed and the- latter said that he would talk to Mall about the matter. Mall later told Baustert that lie would have no objection to such an organization and gave Baustert a copy of Robert' s Rules of Order and a pamphlet containing instructions on setting up a labor organization . Baustert passed these along to Pietsch, who then called a ineetiiig in the respondent's assembly room after working hours and discussed with the employees the formation of an independent labor organization. At a second meeting of the employees, held in the same room, officers were elected and at a later meeting, held off the respondent's premises, a constitution and bylaws were adopted. About the middle of May the respondent entered into a contract with the Council recognizing it as an exclusive bargaining agent for all the employees. While the Council claimed that it had attained a majority status among the employees no proof of this was offered, and there is no evidence that any such proof was demanded. Chidichimo, president of the Council, testified that it went out of existence in September 1937. The only explanation offered for this demise was that, "The other officers resigned, so it just folded up." The Council was initiated by one of the respondent's supervisory employees. The respondent permitted the employees the use of the respondent's assembly hall for the purposes of organization and sup- plied them with material and information regarding the formation of MALL TOOL COMPANY 783 labor organizations. , Once the Council was organized, the respondent readily entered into a contract,with it. The respondent's attitude to- wards the Council is in marked contrast to its hostility towards the Amalgamated: It is clear that the respondent, having succeeded in temporarily undermining the Amalgamated, was attempting to thwart possible future attempts by that organization to organize its employees, .and to this end established the Council. - We find that the respondent dominated and interfered with the -formation and administration of the Council, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. B The refusal to reinstate certain employees who had been locked out The complaint, as amended at the hearing, alleged that the respond- ent on or about March 15, 1937, locked out and discharged Albert Rusich, Michael Rusich, Ludwig Trotter, Benjamin Eckardt, Albert Crnkovich, Frank Cullitan, Ralph Lehman, and Jerry Pavlovsky and At all times thereafter refused to' reinstate them because of their .union membership and activities. We have found aboi e that on March 15, 1937, the respondent locked out its employees for the purpose of discouraging membership in the Amalgamated and that upon reopening the plant on March 22, 1937, it sought to avoid reemploying men who were not willing to terminate their affiliations with the Amalgamated. On March 24, 1937, the Amalgamated's negotiating committee and a number of other em- ployees went to Mall to 'obtain reinstatement. Their spokesman on this occasion said, "Well, I guess it is all over. We came to get our jobs." Mall replied in effect, "I told you before that I was not going to employ as many people because I didn't want trouble, and I recom- mend that you try to- get jobs somewhere else because work is plentiful now and you will probably be better off working for somebody else." Most of'the complainants' were present on this occasion. Again on April 3, 1937, the complainants requested reinstatement and Mall told them that he was curtailing production and he would not require as many employees as he had required prior to the lock-out. Only 3 days before, however, the respondent had hired five new employees. The parties stipulated at the hearing, moreover, that the volume of- business after the shut-down was just as great as it had been prior thereto. From the date of the shut-down to the date of the hearing none of the present complainants were hired although approximately 90 new employees were employed by the respondent. It is thus clear that the respondent did not refuse to reemploy the complainants merely because there was.no work, available for them. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent now advances other reasons, however. for refusing to reinstate the complainants following the shut-down.' As to the two Rusichs, it is claimed that they were not reemployed because their attitudes had not changed, wherefore the respondent believed they would continue "talking Communism" in the plant. We have noted above that Mall testified that the Rusichs' "talking Commu- nism" was-"not a - serious matter" and that it was a "joke." The weight of the evidence establishes clearly, and we find, that Mall did not regard the Rusichs' alleged discussion of Communism as a matter of any great importance. We have no doubt that the real basis for Mall's refusal to reinstate the Rusichs lay in their union activity. As to Trotter the respondent claimed that his wages had been subjected to garnishment proceedings on two earlier occasions and his work had been unsatisfactory.' Trotter, vice persident of the Amalgamated, was first employed by the respondent in 1933 at 35 cents per hour. By 1937 his wage rate had been increased to 70 cents per hour and he often had received compliments on`his work prior thereto. There was no showing that Trotter ever had been warned or disciplined in connection with the garnishment of his wages, nor did the respondent assert this as a ground for not reemploying him when the men ap- plied for reinstatement. Foreman Baustert testified that when Mall discovered that Trotter had union cards in his possession Mall de- cided that he should not be reinstated and Trotter ". . . was listed as one of the leading instigators" of the Amalgamated. We find that the respondent did not deny reinstatement to Trotter because of the quality of his work or because of prior garnishment proceedings as to his wages. The respondent contends that Eckardt was refused reinstatement because he criticized his foreman. Mall testified that Eckardt told him at the time of the lock-out that if he were made superintendent he could handle the "situation" and there would be no "trouble," that his foreman "tried to prevent him from doing a full day's work," and that Eckardt offered to meet him and tell him "what was wrong with my foreman." Mall accepted the latter offer and, according to Mall, about March 25 they met at a certain drug store. Mall further testified that he investigated Eckardt's charge that the latter's fore- man had attempted to curtail his work and found that the foreman was merely attempting, to improve Eckardt's work. Eckardt testi- fied that the meeting at the drug store occurred about' the middle of April; that he showed Mall some letters of recommendation from some of his former employers for whom he had supervised from 150 to 1,800 men; and that he asked to be reinstated and Mall said, "Well, 8 Mall testified that since putting another employee on Trotter's fob, costs had been lowered and the work improved MALL TOOL COMPANY 785 I'll think it over." Eckardt preceded Mall to the witness stand and was not recalled to answer the charges that he had criticized his fore- man. Since Mall met Eckardt at the drug store, however, it would appear that Mall desired to obtain the information which Eckardt allegedly gave him. Eckardt further testified that during the meeting at the drug store Mall asked him, "What union do you belong to now?" Several of the pickets testified, and we find, that when Eckardt was on the picket line Mall pointed him out and said, "I don't want to see you around here any More." No reference was made to Eckardt's alleged critical attitude toward his supervisor when application for Eckardt's reinstatement was made following the lock-out. We find that Eck- ardt was refused reinstatement because of his union membership and activities. The respondent contends that Crnkovich did not apply for rein- statement. We have found that the lock-out was for the purpose of ridding the plant of union members, and it is clear that a dis- criminatorily discharged employee does not have to request reinstatement as a prerequisite to reinstatement under the Acts Moreover, Crnkovich, secretary of the Amalgamated, testified that between April 3 and April 21 he made "2 or 3" attempts to secure reinstatement, and John Innes, purchasing agent, told him that "they were curtailing production, that there was no work at the company." Innes was not called to testify. We find that Crnkovich attempted on several occasions to secure reinstatement.10 We find that the respondent refused reinstatement to Albert Rusich, Michael Rusich, Trotter, Eckardt, and Crnkovich because of their membership and activities in the Amalgamated, thereby discouraging membership in the Amalgamated. The respondent offered reinstatement to Cullitan, Lehman, and Pavlovsky, and they refused to cross the picket line, which was maintained until April 2.11 Cullitan refused the respondent's offer of reinstatement on March 21 and March 28, and the negotiating committee requested reinstatement for him on April 3. Lehman rejected reinstatement on March 21 and March 24. On March 31 Matter of Remington Rand, Inc and Remington Rand Joint Protective Board of the District Coinicil Office Equipment Workers, 2 N. L R. B 626; Matter of Pacific Greyhound Lines and Brotherhood of Locomotive Firemen and Engvnemen, 2 N L R B 431 , Matter 'of.L C Sinith & Corona Typewriters, Inc. and Inteinational Metal Polishers, Buffers and J'lateis Union of i'oith, America, 11 N L R B 1382 ° The Amalgainated's negotiating committee on March 24 and on April 3 attempted to secure reinstatement for all the employees who had been locked out, including Cinkovich 11 Upon being asked by Foreman Signorelli, AN Nether he nislied to return to work, Cullitan replied, "Yes, I would, but I'm a union man now and I would like to go back iN ith the union " When Mall asked Lehman to return to work the latter replied, "I wouldn't go through the picket line" Carbaugh asked I'avloisley to return to work but Pavlovsky said that lie would not "scab." Carbaugh then advised him "# a * that I wouldn't be scabbing, that it wasn't a union shop " 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he called Foreman Signorelli and requested work. Signorelli told him "that things were slow and that he had to lay me off for the time being." Pavlovsky rejected reinstatement sometime during the week of March 22, but was included among the employees whose reinstatement was sought on April 3, 1937. Under the circum- stances it is clear that the three employees may-be regarded as on strike in protest against the respondents unfair labor practices. The respondent contends that the refusal of these employees to accept its offer terminated any obligation it may have had to rein- state them. The respondent had discriminatorily discharged the complainants by the lock-out, and they invoked strike methods, in- cluding picketing, in protest against the respondent's' unfair labor practices. Any refusal by the respondent of a request by the three employees here involved for reinstatement was at all times subject to such order as the Board, in effectuating the purposes of the Act, might make. It is clear that, the respondent cannot refuse rein- statement to its employees because they have engaged in concerted activities in protest against the respondent's unfair labor practices.12 We find that the respondent refused reinstatement to Frank Culli- tan, Ralph Lehman, and Jerry Pavlovsky because of their member- ship and activities in the Amalgamated, thereby discouraging membership in the Amalgamated. On November 23, 1938, the complainants were sent letters direct- ing them to see Superintendent Selander, who had been hired after the lock-out, if they were interested in resuming employment. Mall instructed Selander that the men had not been employed when the plant reopened on March 22, 1937, and that a Board representative had suggested that the respondent reemploy them.'' He also claimed to have told Selander that the latter should "try to use as many of them as possible," and that "the more of these men we could employ and use to advantage the better off it would be for us." Selander interviewed all of the complainants with the exception of Albert Rusich, who applied for reinstatement by mail. At the interview Selander told the men they would hear from him later as to whether they would be employed. None of them were recalled to work despite the fact that during their respective interviews they were not informed of any circumstances which might prevent their reinstate- "Black Diamond S. S Corp v. N. L R. B., 94 F. ( 2d) 875 (C C. A. 2), cert. denied 304 U. S 579, aff'g Matter of Black Diamond Steamship Corporation and Marine Engineers' Beneficial Association, Local No 33, 3 N L R. B 84; Matter of Western Felt Works, a corporation, and Textile Workers Organizing Committee, Western Felt Local, 10 N. L R. B 407. 'a Charges alleging that the employees here involved had been discriminated against were first filed on September 23, 1938. 1 MALL TOOL COMPANY 787 ment.l' In the meantime the respondent continued, to hire new employees. At the hearing Selander gave a variety of explanations for the failure to reemploy the men who had been discriminated against. As to Trotter and Pavlovsky he claimed that they were not rehired because they were employed elsewhere at the time of their inter- views. Trotter and Pavlovsky actually were working approximately 20 hours per week at the time. The respondent, however, reinstated another einplovee who was interviewed at the same time and who was working full time elsewhere. Selander claimed'to have failed to reinstate Michael Rusich, Eckardt, and Crnkovich because they "criticized" their supervisors during their interviews. Selander testi- fied that the criticisms referred to were a statement by Crnkovich that Signorelli "was not a,good man for that kind of work"; a state- ment by Eckardt "that he knew quite a bit more than the foreman" and that his foreman had tried "to slow down" Eckardt; and a state- ment by Michael Rusich that Signorelli was "not intelligent enough to handle the job the way he thought that type of job should be handled." He further testified that he refused reinstatement to Leh- man because he was carelessly dressed, and that he had "no definite reason" for refusing reinstatement to Cullitan. Albert Rusich did - not appear for an interview , and no reason was offered for refusing reinstatement to him. We do not feel that the above -mentioned rea- sons for refusing reinstatement to the discriminatorily discharged employees on September 23, 1938, constitute the real reasons for the failure to reinstate the employees. Prior to the interviews the respondent had discriminated against the men involved, and had gen- erally shown a strong hostility toward all employees interested in the Amalgamated. No interviews were held until after the respondent learned that the Board was investigating its conduct in regard to these nien. The reasons assigned for not reinstating Trotter, Pav- lovsky, Cul litaii,• and Albert Rusich do not bear analysis. The al- leged reasons for failing to reinstate the other four employees are trivial on their face. Under 'all of the circumstances, we find that the interviews of the various employees here involved amounted to no more than an attempt by the respondent to create the impression that it was according these employees fair and impartial consideration. In any event the various reasons assigned by the respondent for not reemploying the men all arose after the men had been discriminated against. Having once violated the law as to these employees the respondent cannot now rely on subsequent events to justify its unlaw- ful conduct. The employees were at all times entitled to immediate and full reinstatement, and the respondent was not entitled to hedge 14 Two other employees interviewed at about this time by Selander were subsequently reinstated. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about the rectification of its initial wrong by treating the victims of its discrimination in effect as though they were total strangers seek- ing employment for the first time.1° IV. TILE EFFECT OF THE UNFAIR I.ABOIl PRACTLCES UI ON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, ' and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing coin- rnerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent sponsored, dominated, and interfered with the formation and administration of the Council. It is clear, however, that prior to the issuance of the complaint, the Council had ceased to exist and the respondent had ceased to give effect to its contract with the Council. The complaint contained no separate specific allegation that the respondent had dominated and interfered with the forniatiou and administration of the Council within the meaning of Section 8 (2) of the Act. We thus shall not order the respondent to disestablish the Council as the bargaining agency of the employees or to cease giving effect to the contract with the Council, but shall require the respondent to cease and desist from conduct of the sort which brought the Council into being and gave support thereto. We have found that the respondent has discriminated in regard to hire and tenure of employment by locking out its employees, in- cluding Albert Rusich, Michael Rusich, Ludwig Trotter, Benjamin Eckardt, Albert Crnkovich, Frank Cullitan, Ralph Lehman, and Jerry Pavlovsky, on March 15, 1937, and in refusing to reinstate each of the mauled employees thereafter. Our usual remedy for such discrimination is to order that the employees discriminated against be reinstated with back pay. The respondent contends, however, that the men here involved all have received employment substan- tially equivalent to that from which they were discriminatorily ex- cluded by the respondent, and therefore, the Board has no power to 11 No question is here presented of the employees having engaged-in unlawful conduct of such a serious nature as to require the Board, in the exercise of its discietion, not to duect their reinstatement. Cf Republic Steel, Corp v N L R B . 107 F (2d) 472 (C C A R) enf'g Matter of Republic Steel Corpoiataon and Steel Workers Otganizing Committee. 9 N. L.R B 219 MALL TOOL COMPANY 789 order their reinstatement. While we do not agree that where an employee who has been discriminated against has received other regular and substantially equivalent employment the Board is pre- cluded from ordering his reinstatement," it is clear from the record, and we find, that Albert Rusich, Michael Rusich, Ludwig Trotter, Benjamin Eckardt, Albert Crnkovich, Frank Cullitan, Ralph Leh- man, and Jerry Pavlovsky at the time of the hearing had not ob- tained other regular and substantially equivalent employment 17 Albert RvsiCh was first employed by the respondent during the spring of 1927 or 1928, as an engine lathe machinist. After 3 or 4 months he was transferred to the turret lathe. He voluntarily' left the respondent's employ during the fall of 1928 and was rehired on March 30, 1929. He continued to operate the turret lathe until the lock-out on March 15, 1937. He had 8 years of continuous service and 9 years of total service in the respondent's employ. He was receiving a wage of 85 cents per hour at the time of his discharge. From June 1937 to October 1937 he was employed at the All Steel Company in Chicago where he did work similar to the work which he had done for the respondent. His rate of pay, however, was only 75 cents per hour, and during 1937 two general wage increases of approx mately 10 percent each were granted by the respondent to its employees. If these wage increases had been applied to Albert Rusich, there would have been an even greater disparity between the wages which he received from the respondent and the All Steel Company. In October 1937-a lay-off at the All Steel Company seemed imminent, and Rusich talked to his foreman about it. The foreman told him ". . . it is possible you may get laid off." He then left the All Steel Company and went to California where he established a poultry business. He lost money in this enterprise. At the time of the hearing he had earned about $11.00 in wages since he left the All Steel Company in October 1937. He desires reinstate-, ment. In view of the lower wage rate paid to Rusich at the All Steel Company, the general increases which he would have received if he -had remained in the respondent's employ, the greater seniority which Rusich had with the respondent, and the more favorable pros- pects of continuance in the respondent's employ, we find that Albert Rusich at the time of the hearing had not received other regular and substantially equivalent employment. 16 See Matter of Eagle-Picker Mining & Smelting Company, a corporation, and Eagle- Picher Lead Company, a corporation and International Union of Mine, Mill d Smelter Woikers, Locals Nos 15, 17, 101, 108, and 111, 16 N L R B. 727 'a CP. Mooresville Cotton Mills v. N. L. R. B., 97 F. ( 2d) 959 (C. C. A. 4) ; N. L R. B. v. Carlisle Lumber Company, 99 F. (2d) 533, cert. denied, 59 S. Ct. 586, N. -L. R. B. v. Botany Worsted Mills, 106 F. (2d) 263 (C. C. A. 3) ; Matter of Mooresville Cotton Mills and Local No. 1221, United Textile Workers of America, 15 N. L. R B. 416; Matter of Moltrup Steel Products Company and Steel Workers Organizing Committee, Lodge No. 1202, 19 N. L R. B. 471 283036-42-vol. 25-51 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michael Rusich was first employed by the respondent on February 25, 1935, as a turret lathe operator. He worked at this job con- tinuously until the date of the lock-out. Rusich's initial wage was 40 cents per hour but at the time of his discharge he was receiving 60 cents per hour. He had been employed by the respondent for more than 2 years. Rusich received employment at the Pullman Car Company in Chicago from April 1, 1937 to August 6, 1937, and was paid 55 cents per hour. During 2 weeks in August 1937 he was em- ployed by the Walker Vehicle Company in,Chicago at a wage rate of 65 cents per hour. He worked from September 1 to September 27, 1937, at the Versonall Pressed Steel Company in Chicago at a rate of 70 cents per hour. From October 14, 1937 to June 8, 1938, he received part-time employment with the Tuthill Pump Company in Chicago. His total earnings there were $436. From October 21, 1938 to April 8, 1939, he was employed by the WPA. He returned to the Pullman Car Company on April 8, 1939, and worked there until May 22, 1939. On May 22, 1939, he was again employed by the WPA'and he was so employed at the time of the hearing. Rusich's first employment following his discriminatory discharge was for only 4 months and he received a lower wage rate there than he had received with the respondent. During 1937 the respondent granted two general wage increases of about 10 per cent each, and if the increases had been applied to Rusich, he would have been receiv- ing a much higher wage rate than he received at the Pullman Car Company. His next employment was temporary, lasting only 2 weeks, and his third employment was of the same nature. His work with the Tuthill Pump Company was a part-time job, and since he was laid off there he has been on relief, with the exception of temporary employment lasting 11/9 months. It is clear that in none of the jobs held by Rusich after the discrimination against him did he have the same prospect or certainty of continued employment .which he would have enjoyed with the respondent, but for its unfair labor practices. Rusich desires reinstatement. We find that Michael Rusich at the time of the hearing had not received regular em- ployment substantially equivalent to that from which the respondent unlawfully excluded him. Ludwig Trotter had three periods of employment with the re- spondent. His first period of employment began in June 1925 and lasted approximately 14 months. The record does not show the length of the period of his second employment. His last period of employment began on June 17, 1933, when he was employed as a flexible shaft winder at a rate of 35 cents per hour. At the time of the lock-out he was receiving 70 cents per hour. After the lock-out Trotter was employed at the Illinois Testing Laboratory where he received a wage rate of 55 cents per hour. He left there after 6 MALL TOOL COMPANY 791 weeks and entered the employ of the Walker Vehicle Company on June 15, 1937, because the latter was closer to his home and because he received 65 cents per hour there. Trotter received full-time em- ployment with the Walker Vehicle Company for about 1 year. Then he worked only one-half time for "a while". At the time of the hearing he was working about two-thirds time. Trotter drives an automobile to work. The Walker Vehicle Company is about 3 miles farther from Trotter's home than the respondent's plant. Trotter received a lower wage on both of the jobs which he' received after being discriminatorily discharged and if the rspondent had retained him in its employ and the two wage increases had been applied to him without discrimination the disparity in wage rates would have been much greater. His present employment is irregular, and, he desires reinstatement. We find that Ludwig Trotter at the time of the hearing had not received regular and substantially equivalent employment. Benjamin Eckardt was first employed by the respondent in 1926 when he worked for a few weeks-as a millwright. His last period of employment with the respondent began on December 30, 1935, when he was employed as a machinist and tool maker. At the time of the lock-out he was earning 80 cents per hour. Eckardt was employed at the Williams Hardware Company from April 1937 to August 1937, when that company ceased operating, and was paid 80 cents per hour. From September 3, 1937 to August 15, 1938, he was em- ployed at the Atlantic India Rubber Company at a wage rate of $40 per week. During a reduction in force he was laid off because he had lower seniority than other employees. On March 15, 1939, he was employed by the Ingersoll Steel and Disc Company where he was paid 80 -cents per hour. While he was in that Company's em- ploy at the time of the hearing, he had been in its employ for only approximately 11/2 months. He desires reinstatement. After he was discriminatorily discharged Eckardt received in other employ- ment a rate of pay equal to that which the respondent had paid him. If the above-mentioned wage increases had been applied to Eckardt, however, he would have received substantially higher pay from the respondent than he received elsewhere. In view of this,- and his greater seniority with the respondent with its attendant more favor- able prospect of continued employment, we find that Benjamin Eckardt at the time of the hearing had not received regular and substantially equivalent employment. Albert Crnkovieh was first employed by the respondent on October 15, 1936, as a turret lathe operator. He worked on this job con- 'tinuously until the date of the lock-out, at which time he was earning 45 cents per hour. Crnkovich-was employed at the G & W Electric Specialty Company from April 15, 1937 to September 23, 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1937,18 at a wage rate of 65 cents per hour. From October 13, 1937 to June 8, 1938, he was employed by the Tuthill Pump Company. While he received a wage rate of 55 cents per hour there, he was employed part-time only, and his total of earnings during this period was only $325. From September 8, 1938 to January 9, 1939, he was employed by the Burkhart-Smier Cooperage Company and received 25 cents per hour. He was employed at the Pullman Standard Car, Company on April 6, 1939. At the time of the hearing he was in that company's employ, and was receiving 55 cents per hour wages. Since Crnkovich was discriminatorily discharged he has had sev- eral jobs, all of them of short tenure. The employment which was unlawfully terminated had the prospect of continuance.19 Crnkovich testified that the Pullman Standard Car Company worked in "sea- sons," that he expected them to lay, off employees "pretty soon," and that he would accept employment with the respondent at his former wage rate, 45 cents per hour, although he was receiving 55 cents per hour at the time of the hearing. If the respondent had retained Crnkovich in its employ and he had received the two wage increases mentioned above, Crnkovich would have received wages from the respondent equal to the wages which he was receiving at the time of the hearing. We find that Crnkovich at the time of the hearing had not received other regular and substantially equiva- lent employment. Frank Cullitan was employed by the respondent on January 31, 1937, as a milling-machine operator and received a wage rate of 40 cents per hour. He worked at this job continuously until the date of the lock-out. He worked as an usher in the Gayety Theatre in Chicago from June 26, 1937 to July 24, 1937, and was paid $26 for this work. On July 27, 1937, he obtained employment it the McKee Door Company at a wage rate of 45 cents per hour. Later his wage rate was increased to 471/2 cents per hour. His employment there was terminated on December 27, 1937. Durin February 1938 he received part-time employment with the Sanitary Aluminum Com- pany where he earned a total of $46. Since April 3, 1938, he has been employed by the NYA. While Cullitan received a higher wage at the McKee Door Company than he had received from the respond- ent, his employment there, subsequently terminated, did not have the 's Concerning his discharge there on September 23, 1937 , Crnkovich testified , "Well, one day the foreman came up to me and told me that he heard that I had a case with the Labor Board . That was even before I ever knew of it. That night a check was waiting for me and I was discharged. The same day another man was hired in my place " 's The respondent from the time of the lock -out to the time of the hearing had hired approximately 90 new employees While some of these were hired to replace employees in the ordinary labor turn -over and many of the new employees later left the respondent's employ, there is.no indication in the record that the respondent's business has declined or that there has been a decrease in the number employed. MAIL TOOL COMPANY 793 same prospect of continuance which the unlawfully terminated em- ployment had. Furthermore, on March 22, •1937 and August 15, 1937, the respondent granted general raises of approximately 10 percent each. If Cullitan had not been discriminatorily discharged, and if the wage increases had been applied to him without discrim- ination, he would have been receiving higher wages with the respond- ent than he received from the McKee Door Company. We find, therefore, that Cullitan at the time of the hearing had not received other regular and substantially equivalent employment. Ralph Lehman was employed by the-respondent on January 12, 1937, and received a wage of 55 cents per hour. He worked for about 11/2 months and then was out of work for a short time due to illness. Following his illness he returned to work and worked continuously until the date of the lock-out. From April 5, 1937 to October 6, 1937, Lehman was employed at the G & W Electric Specialty Company at a wage rate of 65 cents per hour. From October 6, 1937,, to May 1938, he worked at the Walker Vehicle Company at the same wage rate. The latter company is "a mile or so" farther from Lehman's home than is the respondent's plant. At the time of the hearing Lehman was working independently as a welder. Concerning his earnings as a welder, he testified that it was difficult to estimate them and added, "Well, if I make $20.00 a week, why, it is a lot." While Lehman has twice received employment at a higher wage rate than he received from the respondent prior to the discrimination against him, his other employments, since terminated, did not have the same prospect of continuance that the unlawfully terminated employment had. Fur- thermore, as stated above, on March 22, 1937 'and August 15, 1937, the respondent granted two general wage increases of approximately 10 percent each. If these general wage increases had been applied to Lehman without discrimination, he would have been receiving higher wages in the respondent's employ than he received in his other em- ployment discussed above. We find that at the time of the hearing Lehman had not obtained other regular and substantially equivalent employment. Jerry Pavlovsky was employed on September 19, 1936, as an in- spector's helper and was continuously employed until the date of the lock-out. He was receiving a wage rate of 40 cents per hour when his employment was terminated. Thereafter he was employed by the Buell Manufacturing Company from April 18, 1937 to June 18, 1937, at a wage rate of 35 cents per hour; from July 2, 1937 to December 24, 1937, at 45 cents per hour; part time from July 2, 1938 to July 28, 1938; and part time from September 27, 1938 to February 23, 1939. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The first period of employment with the Buell Manufacturing Com- pany was at a lower rate of pay than Pavlovsky received from the respondent, and the last two periods of employment were for part time only. While he was employed from July 2, 1937 to December 24, 1937, at a higher rate of pay than he had received from the respond- ent, his wage in the respondent's employ at these times would have been still higher had Pavlovsky remained in the respondent 's employ and received the two general wage increases mentioned above. Also, the prospects of continuance in the respondent's employ were better than they were in, Pavlovsky's later employment , which was irregu- lar. We find that at the time of the hearing Jerry Pavlovsky had not received other regular and substantially equivalent employment. We shall order the respondent to reinstate the foregoing employees to their former positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they suffered by reason of the discrimination against them. Since the complainants did not voluntarily leave their jobs on March 15, but were discriminatorily locked out , it is clear that under ordinary circumstances it would effectuate the policies of the Act to order the respondent to grant them back pay for the period of the lock-out.20 Three of the discriminatorily locked-out employees, Cullitan, Lehman, and Pavlovsky , were offered reinstatement by the respondent, however, and refused to cross the picket line. As stated above, reinstatement was rejected by Cullitan on March 21 and March 28, by Lehman on March 21 and March 24, and by Pavolvsky some- time during the week of March 22. Later they requested reinstate- ment and the respondent refused to accept them. The negotiating committee requested reinstatement for all of the complainants, includ- ing Cullitan, Lehman, and Pavlovsky, on April 3, 1937. Lehman, however, had personally requested reinstatement on March 31. Since Cullitan , Lehman, and Pavlovsky were voluntarily refusing employ- ment from the dates of their respective refusals to cross the picket line to the date of the respondent 's subsequent refusal to reinstate them, we shall not order the respondent to grant them back pay for such periods. We shall order the respondent to grant Cullitan, Lehman, and Pavlovsky an amount equal to that which each would have earned from the date of the discrimination against him to the dates of their respective refusals to cross the picket line and from the respective dates of the respondent's subsequent refusals to reinstate 21 Cf. Matter of Cowell Portland Cement Company, a co> poration and International Union, Mine, Mill & Smelter Workers of America, Local $ 356, 8 N. L. R. B. 1020; Matter of El Paso Electric Company, a corporation and Local Union 585, International Brotherhood of Electrical Workers, et al., 13 N. L. R. B. 213. MALL TOOL: COMPANY 795 them 21 to the date of their reinstatement pursuant to our Order, less their net earnings 22 during said periods. As to the other employees involved there is no substantial basis for finding'that they would have rejected offers of reemployment had such offers been made prior to the respondent's refusal to reinstate them on April 3.23 We thus shall order the respondent to make whole Albert Rusich, Michael Rusich, Trotter, Eckardt, and Crnkovich for any loss of pay they suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to that which each normally would have earned as wages during the period from March 15, 1937, the date of the initial discrimination against them, to the date of the offer of reinstatement pursuant to our Order, less their net earnings 24 during said period. Upon the basis of the above findings of fact and the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Lodge 1387, Amalgamated Association of Iron, Steel & Tin Workers of North America is a labor organization, and Mall Tool Company Employees' Security Council was a labor organization; within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Albert Rusich, Michael Rusich, Ludwig Trotter, Benjamin Eckardt, Albert Crnkovich, Frank Cullitan, Ralph Lehman, and Jerry Pavlovsky, thereby discouraging membership in Lodge 1387, Amalgamated Association of Iron, Steel & Tin Workers of North America, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the .Act, the n Cf. Matter of McKaig-Hatch, Inc and Amalgamated Association of Iron, Steel and Tin Wor7,ers of North America, Local 1139 , 10 N L. R. B. 33; Matter of Reed and Prince Manu- facturing Company and Steel Workers Organizing Committee of the C. 1. 0., 12 N. L. R. B. 944. And see footnote 13, supra. 22 By "net earnings " is meant earnings less expenses, such as for transportation, loom, and board , incurred by an employee in connection with seeking work or working elsewhere than for the respondent , which would not have been incurred but for his unlawful 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. We shall order the respondent to deduct from the back pay due under our Order monies received by an employee for work performed upon Federal, State, county, municipal, or other work-relief projects during the period for which we are ordering the respondent to pay such employee back pay and to pay such deductions over to the proper fiscal agency of the Federal , State, county , municipal, or other government or governments which supplied the funds for said work -relief projects. zs Cf. Matter of Ford Motor Company and United Automobile Workers of America, Local 325, 23 N. L It. B 342, 383. It See footnote 22, supra 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent has engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. 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 foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent Mall Tool Company, and its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Lodge 1387, Amalgamated As- sociation of Iron, Steel & Tin Workers of North America or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discrimi- nating in regard to their hire and tenure of employment or any term or condition of employment; (b) Dominating or interfering with the administration of Mall Tool Company Employees' Security Council, or with the formation or administration of any other labor organization of its employees, and from contributing financial or other support thereto; (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 con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Albert Rusich, Michael Rusich, Ludwig Trotter, Ben- jamin Eckardt, Albert Crnkovich, Frank Cullitan, Ralph Lehman, and Jerry Pavlovsky, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (b) Make whole Albert Rusich, Michael Rusich, Ludwig Trotter, Benjamin Eckardt, and Albert Crnkovich, for any loss of pay they suffered by reason of the respondent's discrimination 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 normally would have earned as wages during the period from March 15, 1937, the date of the initial discrimination against them by the respondent, to the date of the offer of reinstatement, less his net earnings during said MALL TOOL COMPANY 797 period, and make whole Frank Cullitan, Ralph Lehman, and Jerry Pavlovsky for any loss of pay they suffered by reason of the re- spondent's discrimination 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 normally would have earned from March 15, 1937, the date of the discrimination against him by the respondent, to the date of his refusal of the respondent's offer of reinstatement, and from the date of the respondent's subsequent refusal to reinstate him to the date of the offer of reinstatement pursuant to this Order, less his net earnings during said periods; deducting, however, from the amount otherwise due to each of the said employees, monies re- ceived by said employee during said period or periods for work done on Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (e) Immediately post notices to its employees in conspicuous places throughout its plant and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating (1) that the respondent will cease and desist in the manner set forth in paragraphs 1 (a), (b), and (c) and that it will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; (2) that its employees are free to join and remain members of Lodge 1387, Amalgamated Association of Iron, Steel & Tin Workers of North America; and (3) that it will not discriminate against any employee because of membership or activity in said labor organization ; (d) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.