Aladdin Industries, Inc.

In the Matter of ALADDIN INDUSTRIES, INCORPORATED and UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL No. 171 Case No. C-408.-Decided April 00, 1940 Lamp Manufacturing Industry-Interference, Restraint, and Coercion: anti- union statements of supervisory employees; general reorganization of plant for business reasons during strike not caused or prolonged by unfair labor practices: (Chairman Madden) if effected on non-discriminatory basis does not in itself constitute any violation of the Act; (Edwin S. Smith) such reorganization under- taken at time of strike necessarily disruptive large number of strikers' continuity of employment which Act intended to preserve and in itself violative of Section 8 (1) and (3) of Act, acts accompanying reorganization of plant, as-Unit Appropriate for Collective Bargaining: all employees exclusive of executives, their assistants, foremen, office and clerical employees; same as unit agreed to by parties in consent election-Representatives: proof of choice: majority status of union established in consent election-Collective Bargaining: allegation of failure to consider grievances and pursuit of dilatory tactics in consideration of grievances presented by union pursuant to exclusive bargaining contract not sustained; allegations of refusal to bargain after sit-down strike dismissed because of union's loss of majority through discharge of sit-down strikers- Labor Dispute: sit-down strike caused by union's failure to secure dismissal of supervisory employee objectionable to employees constitutes labor dispute within meaning of Act-Discrimination: respondent's notice of discharge to all strikers: effective as discharge of and non-discriminatory as to 63 sit-down strikers ; ineffective as discharge of strikers who did not sit down ; vote for sit-down strike or failure to disclaim responsibility for it no justification for discharging or refusing reinstatement to strikers who did not sit down ; charges of discrimina- tory failure to reinstate strikers upon application : sustained as to 10 strikers who did not sit down ; dismissed as to 131 employees including 63 sit-down strikers-Reinstatement Ordered-Back Pay: 10 employees found discrimina- torily refused reinstatement. Mr. George Rose, for the Board. Mr. W. H. F. Millar, of Chicago, Ill., and Mr. Clarence 0. Davisson, of Anderson, Ind., for the respondent. Mr. Andrew Jacobs, of Indianapolis, Ind., and Mlir. Larry S. Davidow, of Detroit, Mich., for the Union. Mr. Robert Burstein, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Automobile Workers of America, Local No. 171, herein called the Union, the Na- 22 N. L. R. B., No. 101. 1195 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional Labor Relations Board, herein called the Board, by Robert H. Cowdrill, Regional Director for the Eleventh Region (Indianapolis, Indiana), issued a complaint dated August 16, 1937, against Aladdin Industries, Incorporated, Aladdin, Indiana, herein called the respond- ent, alleging 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 National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and upon the Union. The complaint alleged in substance: (1) that the respondent, by failing to consider in good faith and by delaying action upon griev- ances submitted to it by the Union pursuant to an agreement of De- cember 1936, refused to bargain collectively with the Union as the exclusive representative of the production and maintenance employees of the respondent, said employees constituting an appropriate bar- gaining unit; (2) that on March 2, 1937, by reason of such refusal to bargain the Union called a strike; (3) that thereafter the respondent refused to enter into any negotiations with the Union or its representa- tives; (4) that on or about March 29, 1937, the respondent resumed operations at its plant but has refused to reemploy 133 named em- ployees for the reason that they had engaged in concerted activities in behalf of the Union; (5) that although such employees have- applied for reinstatement on numerous occasions, either jointly or severally, the respondent has continued to hire new and inexperienced employees; and (6) that by the afore-mentioned acts and by other acts, the re- spondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The re- spondent filed an answer, dated August 20, 1937, denying that it had engaged in or was engaging in the alleged unfair labor practices and requesting that the complaint be dismissed. Pursuant to notice, a hearing was held at Alexandria, Indiana, commencing on August 30, 1937, and concluding on October 13, 1937, before Henry J. Kent, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all parties. At the conclusion of the Board's case, counsel for the Board moved that the complaint be amended by adding the names of eight persons alleged to have been discriminatorily refused reinstatement. The motion was granted. Counsel for the Board also moved to amend' the complaint to conform to the proof. The Trial Exam- iner reserved ruling on this motion. The motion is hereby granted. ALADDIN INDUSTRIES, INCORPORATED 1197 During the hearing counsel for the respondent offered to prove that the respondent, in notifying the striking employees on March 4, 1937, that they were no longer in its employ, acted upon the advice of counsel that the termination of employment of those who were in unlawful possession of the plant was a condition precedent to a suit in ejectment against them. In rejecting this offer of proof, the Trial Examiner was in error. In view of our findings set forth below, however, the error is not prejudicial." At the close of the hearing, counsel for the respondent moved that the complaint be dismissed on the ground that its allegations were not, sustained by the evidence. At the conclusion of the Board's case and at the close of the hearing, counsel for the respondent similarly urged separate motions that certain allegations of the complaint be dismissed, including the allegations with respect to the discriminatory refusal to reinstate the named employees. Some of these motions were granted, and others were denied. The Trial Examiner reserved decision on still further motions and thereafter ruled on them in his Intermediate Report. We have reviewed the above-mentioned rulings and all the other rulings made by the Trial Examiner on motions and on objections to the admission of evidence, and find that no prejudicial errors• were committed. The rulings are hereby affirmed. On February 9, 1938, the Trial Examiner filed his Intermediate Report, in which 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, and recommended that the respondent cease and desist from the unfair labor practices so found, bargain collectively with the Union, and reinstate with back pay 101 of its employees found to have been discriminated against in regard to hire and tenure of employment.2 He also recommended that the complaint be dismissed in so far as it alleged discrimination against the re- maining employees. On February 17, 1938, the respondent filed exceptions to both the rulings and the findings of the Trial Examiner. Pursuant to no- tice, a hearing was held before the Board, in the presence of J. Warren Madden. Chairman, and Donald Wakefield Smith, Member, at Washington, D. C., on April 5, 1938, for the purpose of oral argument. The respondent and the Union were represented by counsel and participated in the argument. The respondent filed a 1 See infra, Part III D 2 Apparently through inadvertence, the Trial Examiner included in the list (appended to the Intermediate Report) of those whom he recommended for reinstatement the names of three employees with respect to whom he found no discinnmation. " '1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD brief. On May 12, 1939, subsequent to the decision of the Supreme Court of the United States in the case of National Labor Relations Board v. Fansteel Metallurgical Corporation,3 the Union filed a brief, pursuant to leave granted by the Board. On May 26, 1939, the respondent filed a reply brief. On June 12, 1939, after Donald Wakefield Smith ceased to be a member of the Board, the respondent and the Union were accorded an opportunity for further oral argu- ment but made no request therefor. The Board has considered the exceptions to the Intermediate Report and the briefs and, in so far as the exceptions are consistent with the findings, conclusions, 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 The respondent is an Illinois corporation, having offices at Chicago, Illinois, and operating its plant at Aladdin, Indiana. It is engaged in the business of manufacturing and selling mantle lamps, electric lamps, lamp accessories, lamp shades, vacuum bottles, and vacuum jars. Prior to the strike of March 2, 1937, the respondent employed at its plant 504 employees and as of September 18, 1937, 537 em- ployees. The respondent is a wholly owned subsidiary of Mantle Lamp Company of America, an Illinois corporation, having its principal office in Chicago, Illinois, and engaged in the business of selling mantle lamps, electric lamps, lamp chimneys, and mantles, most of which products it purchases from the respondent. The two companies have interlocking officers and directorates. V. S. Jolui- son, president of both, owns a majority of the stock of Mantle Lamp Company. Mantle Lamp Company maintains a shipping department at the respondent's plant. It purchases most of the lamp products manu- factured by the respondent and ships them from the respondent's plant to its customers. The respondent itself handles the sale and shipment of vacuum bottles, jars, and similar products. It also ships some lamps to foreign countries. The raw materials used by the respondent in its operations con- sist principally of white metal, brass, silica sand, cotton, silk thread, Ramie yarn, feldspar, and chlorium nitrate. All these materials, with the exception of feldspar and chlorium nitrate, the sources of which are not disclosed in the record, come from points outside of the State of Indiana, and are shipped directly to the respondent's 8 306 U. S 240. ALADDIN INDUSTRIES, INCORPORATED 1199 plant by rail or truck. In its brief the respondent admits that the :major portion of the materials and ingredients used in its products .are transported to the plant from sources outside the State of Indiana. The purchases of raw materials for the fiscal year May 1, 1936, to April 20, 1937, aggregated in value $370,223.55. The respondent's entire output for the same fiscal year aggregated in value $1,188,235.41. Of this total, $219,835.41 represented the value of products sold and shipped by the respondent itself. Ship- ments of such products to points outside of Indiana aggregated in value $204,199.56 or about 93 per cent. At least 88 per cent of the remaining products, $968,400.00 in value, which were purchased and shipped by Mantle Lamp Company, were shipped to points outside •of Indiana. II. THE ORGANIZATION INVOLVED United Automobile Workers of America, Local No. 171, is a labor ,organization affiliated with the Committee for Industrial Organiza- tion,4 herein called the C. I. 0., admitting to membership the produc- -tion and maintenance employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion prior to March 0, 1937 The organizational activities among the respondent's employees began in October or November 1936, and culminated in the strike of IDecember 5, 1936, and the agreement of December 14, 1936, referred to hereafter. On a number of occasions during this period the respondent, through its supervisory force, displayed a hostile interest in the organization of its employees and made statements to combat -such activity. Thus Bill Chapman, foreman or assistant foreman of the glass-finishing department, approached Henry Druelle, an em- ployee in the same department, and asked him whether he belonged to the C. I. O. When Druelle replied in the affirmative, Chapman said, "Boy, you are making an awful error Land I will advise you just -to drop it right now . . . It is bad business." Shock Hughes, the foreman of the white-metal department, questioned Cecil Markham, an employee of that department, regarding the button he was wear- ing. When Markham informed him that it was a union button, :Hughes asked him why he wanted "to start the C. I. O. in here" and whether he was trying to put everybody out of work, and remarked that the respondent would not accept or bargain with any union. Grace Piret, an employee in the mantle department, testified that Fred Spangler, her foreman, said to her, "Grace, what are you doing Now the Congress of Industrial Organizations. 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with that union?" and that when she admitted her membership, Spangler shook his head and said, "I would advise you not to take any active part in it because I don't think Mr. Johnson will ever recognize it." Spangler denied making the statement attributed to him by Piret. He testified that Piret sought his opinion of the Union and that he professed not to know much about it, but stated that he was unable to see any relation between the operations of the re- spondent and the automobile business and doubted, therefore, the suitability of the Union. However, in view of similar statements attributed to Spangler (referred to infra) by other employees, we believe that Spangler expressed himself as Piret testified, and we so. find. Edwin Bittner, supervisor of the vacuum-bottle department, upbraided Dorothy Everett, an employee of that department, for wearing her union button and said, "If I were you, I would take it off and hide it." Charles Cummins, an employee in the glass-finish- ing department, testified that as he reported for work on a Sunday night just before or after the strike of December 5, 1936, John, Green, the foreman of the blow room, told him that the C. I. O. "would never do no good" and advised him against joining it. This statement is denied by Green. In view, however, of a similar state- ment imputed to Green by another employee, referred to infra, we are of the opinion that Cummins' testimony is entitled to credence, and that Green in fact made this statement to him. Pursuant to a request of the bargaining committee of the Union, a conference was held on December 4 between that committee and representatives of the respondent. The Union submitted a proposed contract and claimed that it represented a majority of the respond- ent's employees. Johnson, the respondent's president, questioned the Union's claim as to a majority, asserted that it should be established by definite proof, and asked that an election be conducted under the supervision of the Board. At another conference held the following morning, Robert Pugh, the president of the Union, submitted a bundle of union application cards as evidence of the Union's strength. John- son stated that it was not incumbent upon the respondent to verify the authenticity of the signatures on the cards and insisted on an election. The Union thereupon called a strike. Further conferences resulted' in the holding of a consent election on December 9 under the super- vision of the Regional Director for the Eleventh Region. At this elec- tion a majority of the respondent's employees designated the Union as their representative for the purposes of collective bargaining. On December 14 an agreement was entered into between the respondent. and "the Committee representing The International Union United Automobile Workers of America, Local 171," covering wages, hours, and working conditions. ALADDIN INDUSTRIES, INCORPORATED 1201 The anti-union statements on the part of members of the respond- ent's supervisory force did not cease with the signing of the agreement but continued thereafter. Spangler was particularly active in this respect. He told Gladys Mobley, an employee in the wick and flame-spreader department, and Helen Reeves, an employee in the mantle department, that "it was a shame" they belonged to the Union, good workers as they were, and that "some of these days" they would be out of work. On one or two other occasions, Spangler warned Helen Reeves about her union activi- ties and told her that she was going to lose her job. Mearl Reeves, another employee of the mantle department, testified with respect to a similar statement made to him by Spangler : ... the only time he [Spangler] talked to me about the union he said it was a shame that I belonged to the union as long as I had been with the company and so much as I knew about the work, and I couldn't continue on working there . . . I couldn't say anything, except I thought I would continue to work there as long as the rest of them did . .. He just laughed and walked away. Curtis Landers, an employee in the shade department, testified that Spangler expressed himself to him as not being in favor of the C. I. O. and as believing that a company union would be preferable to an out- side union. Spangler denied having made the statements testified to by Helen Reeves and Landers. However, we see no reason to dis- believe their testimony, and we find that Spangler so expressed him- self to Reeves and Landers. Similar activity was engaged in by Bill Chapman. At one time he asked Virgil Holford, an employee of the glass-finishing depart- ment, what he thought of the Union and admonished him. "If you are wise, you will stay out of it." On another occasion he called Kenneth Porter, another employee of the same department, over to one side and, pointing to a union pin in his (Chapman's) hand, asked, "Do you -know who this belongs to?" Porter replied in the negative. Chap- man then said, "Now, listen, Porter, let me give you some advice .. . Leave that alone ... When a man like John L. Lewis pulls out of it, you know it is no good." Johnny Rowe, foreman of the metal-finishing department, said to Howard Gilmore, an employee in his department who was wearing his union button, "as far as lain concerned, the union doesn't mean a thing to me ... Johnson is too big to buck, the C. I. O. can't bust him." Mrs. Culbertson, assistant to the foreman in the -mantle department, asked Juanita Athan, who worked under her super- vision, whether she had signed up with the Union and advised her not ;to do so until she had to. Several foremen engaged W. W. Lewis, an 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee in the glass-finishing department, in a conversation in which they attacked the C. I. 0., and spoke in favor of an inside union.'- Chapman remarked to him that the Union "wasn't worth a damn" and counseled him, "Lewis you are too good a man and too good a worker to get mixed up in an affair like that . . . If I was you, I would dis- card it, and get into something where you can have some protections. and if you get sick . . . you will have some money at home to take care of you." Hughes' remarks were to the same effect. He said that the Union was no good and would never "hold up." He added : It is just going to spring up for a little while ... That spreads. like prairie fire . . . it will burn for a little while ... It will be like the N. R. A., practically it will go kerflunk ... as the other did. He further advised him to be loyal to the respondent and join the company union which would provide him with money in sickness and would make it possible to thrash matters out and settle them "right at home" as they came up, whereas the C. I. 0. might cause the shut-down of the factory or its removal out of town. John Green, a turn fore- man in the blow room, spoke in the same vein. He said that the plant would be shut down and moved in the event of further trouble with. the Union. He continued : We have got a union here, we have got a company organization here that is all right ... That is what you ought to get into, instead of what you are in . . . You have got some protection in that, where you haven't in this ... Your money is going out of the state, and if you get sick, you have just got nothing, because they haven't got anything to offer you . . . they don't assure you a thing . . . If they call you out on a strike, they don't assure you you are going to get back, or that you are going to get an increase in wage, or that you are going to better your working conditions, or in fact, they don't assure you anything . . . I have never gone to the management of any company and talked with them but what I get fair consideration, without being mixed up with an organization like you are in. At the hearing Green denied having made these statements. Hughes and Chapman, however, failed to testify, thus leaving the state- ments attributed to them uncontradicted upon the record. We be- lieve that Green, Hughes, and Chapman made the statements attributed to him by Lewis, and we so find. 6 The record indicates that during this period attempts were made by a number of em- ployees to form an inside union. Several employees were charged by the Union with soliciting membership on behalf of such organization . One was in fact tried before am arbitration committee but was found not guilty. ALADDIN INDUSTRIES, INCORPORATED 1203 In addition other statements were made by the respondent's super- visory employees evidencing their impatience with the operation of the union agreement. At a discussion concerning seniority rights under the agreement, Cy Watkins, the foreman of the glass-finishing department, told Irma Dickinson, an employee in that department, that the Union "was nothing but a God damn nuisance." Mabel McCarty, floorlady in the shade department, remarked to Florence Mason, employed in that department, that they would find out "that the union would never get [them] any place, and that . . . the union was not going to run that department." On another occasion, when Virgil Holford's group in the glass-finishing department was laid off, presumably pursuant to the seniority provision in the union agreement, and Holford asked Watkins the reason for such lay-off, Watkins pointed to the union button on Holford's shirt and said, "That is what that does for you." We find that the respondent, through the above-described state- ments of its supervisory employees, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The alleged refusal to bargain 1. The appropriate unit As already noted, a consent election to determine whether the Union represented a majority of the respondent's employees was held on December 9, 1936, under the supervision of the Regional Director. With respect to the unit, the ballot provided as follows : All employees of the Aladdin Industries, Inc. on the payroll as of November 21, 1936 will be eligible to vote, except that the following shall not : 1. Executives, their assistants and foremen. 2. Office and clerical, executive-chemists and watchmen. The election was conducted by agreement of the Union and the re- spondent, neither of whom here challenges the appropriateness of the unit in which the election was conducted, nor, for that matter, the "Certificate of Election" signed by the watchers and tellers at the election in the presence of the Regional Director and Field Examiner. We have held on numerous occasions that if parties in interest them- selves have agreed upon a specified unit as appropriate for collective bargaining] it was within the exercise of our discretion to find such unit an appropriate one to effectuate the policies of the Act. We are of the opinion that a similar principle obtains here where the parties have consented to the conduct of an election by the Regional Director in a stated unit. 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The exclusion of executives, their assistants, and foremen, and of office and clerical employees, from the election unit was consonant with our usual practice. Nor does it appear that the omission of executive-chemists and watchmen was improper. We find that all the employees of the respondent, exclusive of exec- utives and their assistants, foremen, office and clerical employees, executive-chemists, and watchmen, constitute a unit appropriate for the purposes of collective bargaining, and that such a unit insures to the employees the full benefit of their right to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit prior to March 2, 1937 The "Certificate of Election" referred to above shows that, out of 517 employees eligible to vote in the unit ' here found appropriate, 362 voted in favor of the Union, 111 voted against, and 5 ballots were contested. We find that on December 9, 1936, and up to March 2, 1937, the Union was the duly designated representative of the ma- jority of the employees in an appropriate unit, and pursuant to Sec- tion 9 (a) of the Act, was 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, wages, hours of employment, and other conditions of employment. 3. The alleged refusal to bargain prior to March 2, 1937 The complaint alleges that, pursuant to the agreement of Decem- ber 1936, the respondent met weekly with the duly designated com- mittee of the Union during the period from December 1936 to March 2, 1937; that the respondent failed to consider or continually delayed taking action upon many grievances presented at these meetings; that on March 1, 1937 , the Union, in the belief that the respondent was not acting in good faith , pressed for immediate adjustment of certain grievances ; and that, the respondent having failed to make such adjustment, the Union called a strike on March 2, 1937. Pursuant to the agreement of December 14 (referred to supra), weekly meetings between representatives of the respondent and the union committee were held during the period from December 20, 1936, to March 2, 1937. The record shows that many grievances pre- sented at such meetings by the union committee were satisfactorily adjusted. Some of these grievances involved questions of seniority, compensation for time spent by employees in the glass -finishing de- partment in setting up their machines , designation of legal holidays, adjustment of losses on scrap resulting from faulty material, installa- ALADDIN INDUSTRIES , INCORPORATED 1205 tion of a ventilating system in the plating department , a chart for converting minutes into dollars and cents according to the rates of pay, compensation for unreasonable waiting time, rest periods, doors in the punch-press department, and time clocks in the various de- partments. At a meeting held on about February 6 a grievance was presented involving the decrease in pay incurred by employees working in groups as a result of the addition of new employees to such groups. At the meeting it was suggested that Arnold Madara, the chief stew- ard, and Thomas Blain , the assistant factory manager, formulate a plan to remedy this situation . This was done . At the next meeting held on February 19, Madara and Blain presented a plan whereby the older employees in a given group would be given a certain allow- ance depending on the length of time necessary for the new employee to acquire proficiency in the work of the group . The union com- mittee rejected the proposal and Elmer Davis, an organizer of the International Union, suggested that the question be referred to the union membership or to the stewards. At the same meeting the union committee demanded that the re- spondent make certain individual wage adjustments . The represen- tatives of the respondent agreed to review the wage rates of certain employees . Blain thereafter prepared certain data as a basis for discussing the matter at a future meeting. During this period a grievance concerning Mrs. Culbertson, the assistant to the foreman in the mantle department , reached its cli- max. The dissatisfaction of the employees in the mantle department with the conduct of Mrs. Culbertson was a matter of long standing. Numerous witnesses testified regarding her behavior and the ill feel- ing toward her in that department . She frequently "bawled the girls out" for insignificant things and for' the slightest infractions of the rules, made them cry by using harsh words, and created nerv- ous tension among them . This grievance came up informally for discussion at the first meeting after the execution of the contract. Blain promised to take the matter up with Spangler , Culbertson's immediate supervisor . Blain did so , and Spangler instructed Mrs. Culbertson to exercise greater care in the treatment of the employees under her supervision . Mrs. Culbertson 's name was mentioned again at a special meeting held on February 8. On the morning of Febru- ary 26 Madara informed Blain that a number of employees were com- plaining against Mrs. Culbertson and demanded immediate action. It was agreed that Allen Whipple, the respondent's chief engineer, would talk to Mrs. Culbertson. Whipple did so the same day. Mrs. Culbertson denied the truth of the charges and attributed her rigor to the low efficiency in her department. 233033-41-vo] 22--77 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 28 the members of the Union met and voted to call a sit-down strike in the event that Mrs. Culbertson was not dis charged or demoted. On Monday, March 1, the union committee in- formed the representatives of the respondent of the action taken by the Union. Blain telephoned Johnson who was in Chicago at the time. Johnson said he could not act without the evidence before him and instructed Blain to hold the matter in abeyance until his return on about Thursday of the same week. The union committee indi- cated its unwillingness to submit to a postponement. Pugh declined to discuss the questions relating to older employees in groups to which new ones are assigned and wage adjustments for individual employees. On the following day, March 2, a sit-down strike was called by the Union. It is clear from the foregoing that the respondent did, in fact, act on grievances presented by the Union and that many grievances were satisfactorily adjusted. Although at the time of the sit-down strike the matters relating to older employees in group work and to the adjustment of individual wage rates were still pending, it is clear that the respondent bargained in good faith with respect thereto. Although Blain and Davis apparently had the authority to take- action with respect to Mrs. Culbertson, under the circumstances the request to postpone the matter for 3 or 4 days until Johnson's return was not unreasonable. We find that the respondent did not refuse to bargain collectively with the Union prior to March 2, 1937. 4. The alleged refusal to bargain after March 2, 1937 The record shows that on various dates during the period between March 2 and April 2, 1937, the respondent refused to enter into any negotiations with the Union or its representatives. As noted here- after, the respondent, on March 4, discharged all the striking em- ployees. From the names listed in the restraining order issued against the Union and its members and from the testimony of em- ployees alleged to have been discriminated against, it appears that at least 110 members of the Union participated in the sit-down strike. In view of our finding below that the discharge of the employees engaged in the sit-down strike was valid, such employees must be excluded from the computation of those who have selected the Union as their bargaining representative. As already stated, 362 out of 517 employees who were eligible voted in favor of the Union at the election of December 9, 1936. Upon subtracting 110 from 362, there remains a total of only 252 employees in the appropriate unit who designated the Union as their representative. Since there were 504 employees in the appropriate unit when the sit-down strike began, ALADDIN INDUSTRIES, INCORPORATED 1207 there is, therefore , no basis for a finding that after March 2 the Union was the choice of a majority of the respondent 's employees for the purposes of collective bargaining. The allegations of the complaint that the respondent refused to bargain collectively with the Union as the representative of the employees in the appropriate unit will be dismissed. C. Events after the sit-do w"n strike; interference, restraint, and coercion As already stated, the Union called a sit-down strike on March 2', 1937. On March 4 the respondent prepared the following notice : To Striking Employees Only of Aladdin Industries. You are notified that you are not any longer in our employ. In case you wish to apply for reemployment with the company, your application will be received and given consideration. ALADDIN INDUSTRIES, INCORPORATED. These notices were attached to the pay envelopes and delivered to each employee on the morning of March 5 . The respondent then filed a bill in the Circuit Court of Madison County , Indiana, to enjoin the strikers from occupying the premises . On March 5 a temporary restraining order was issued by that Court and served upon those in possession of the plant . On March 12 a temporary injunction against the sit-down strikers was obtained by the respondent . The strikers, however, refused to comply with the orders of the Court until March 16, when they evacuated the plant. A meeting of the officers, directors, foremen, and other supervisors of the respondent was held on March 18. Johnson stated that the respondent was not earning any profits and that the plant was not being operated efficiently ; he asserted that the agreement with the Union , was:unsuccessful because of the lack of experience in' collec- tive bargaining of both the Union and the respondent ; and he ex- pressed concern over whether the respondent would be able to re- sume operations . Either Johnson or other officers of the respondent present then asked the foremen concerning the efficiency in their respective departments and requested their opinion whether it would be feasible to operate their departments successfully and profitably under conditions as they existed during the preceding few months and whether they would be willing to resume operations under such conditions. The foremen stated that it would be impossible to oper- ate the plant efficiently and that they would not, attempt to do so under the unsatisfactory conditions prevailing before the strike. On or shortly before March 24, 1937, Johnson read to the fore- men, assembled at a meeting , a printed draft of an employment 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD application which was intended for mailing to all the employees of the respondent. This application was in the form of a letter ad- dressed "To Aladdin Employees, and to Ex-Employees," and signed by the respondent. This letter, after referring to the sit-down strike, the temporary injunction issued by the Circuit Court of Madison County, and the picketing outside of the plant, states that the prom- ises of the union organizers of increased efficiency and harmony in the plant as a result of union recognition failed to materialize, but that "after the Union had been recognized at the plant, with its system of stewards, no improvement in efficiency whatever resulted therefrom, but instead further demoralization resulted in disregard for that ordinary control which must be maintained in the conduct- ing of any business if it is to endure"; and asserts that if the re- spondent cannot manufacture products at a cost which would enable it to meet the competition of other manufacturers, it must either close the plant immediately or be subjected to losses which would compel it to close later. The letter then points out the fallacy in the argument that the respondent cannot afford to move the plant because of the investments in its buildings, and explains that the ,only question is: .. . Can we, with the employees available in this community, now build a new, efficient loyal Aladdin organization that is willing to, and can, compete with the skill and products of the workers in other communities. Can we eliminate the waste, carelessness, indifference, inefficiency, and the petty grievances that have flourished in many of the departments in the plant during the past? If it can be done, then there is hope. Attention is then called to the meeting of the respondent's man- agerial staff of March 18 and to the statements of those who were present : .. Each one stated that the efficiency was low in his de- partment, that the increased efficiency that the Steward System was promised to bring was a farce, and that instead it has devel- oped into an endless system of petty politics, petty complaints, absolute indifference, and defiance of ordinary factory disci- pline, and has disorganized and demoralized the force. The Management Committee states that three-fourths of its time had been spent in trying to adjust petty complaints and that scarcely a week had gone by but what threats of strike were made. . Every man present stated that the showings made in his department had been very unsatisfactory, and that it would be impossible to successfully operate under similar conditions. ALADDIN INDUSTRIES, INCORPORATED 1209 The letter continues : We do not mean to say that every employee had lost his or her efficiency, but we are quite certain that if everyone to whom this letter is sent, will seriously think matters over, they will agree that conditions have been anything but right in the Alad- din Production Organization for quite some time. The entire factory has been shut down since March 2nd on a union issue that concerns only one department, but at a great loss to all the workers, and to the company. We understand that less than seventy-five people called the strike, which put all the rest of you workers out of your jobs. Are you workers willing to tolerate this? The Management cannot. The letter then announces that the respondent has definitely decided that it will not and cannot again operate its plant under the con- ditions which have prevailed in the past; that if it resumes opera- tions it must do so with employees who will give satisfactory service; that it will not reemploy those "who are not willing to give an honest day's work for an honest day's pay," who are dishonest, who will not cooperate with the respondent, who are disposed to loaf, who infringe the respondent's rules and stir up strife and trouble, and who boast defiance of the law; that the respondent will have nothing to do with "organizers and agitators who put themselves above the law"; and that the respondent will give every employee a "square deal " and is willing to deal with its employees "either singly, col- lectively, or in groups." Finally, the letter states: Whether the company will reopen its Aladdin plant depends upon the attitude of the workers in the community. If enough of the workers are willing to work under the conditions herein mentioned, the Management will then be ready to give favorable consideration to the opening of its plant at an early date. Other- wise the plant will remain permanently closed. Because those who participated in the strike had quit their employment, and are no longer employees of the company, and because the Management is unable to determine just which ones had quit, and which ones would have liked to have worked but were deprived of the opportunity by the strike, it will be nec- essary for you to apply for reemployment if you are interested. . .. If you do not reply immediately, the Management will consider that you do not desire reemployment with Aladdin. The back of the letter, which'provides a space for the employee's signature, states as follows: I hereby apply for employment with the company. I have carefully read the letter of the reverse side hereof and understand 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what the Management expects of its workers. If employed, I agree to faithfully do my part. The wording of the letter, hereafter referred to as the company application, met the approval of the foremen, and on March 25, copies ,of it were sent to all of the respondent's employees who were-on its pay roll on March 2. On about April 1 Johnson again called a meeting of the foremen. He repeated his dissatisfaction with the manner in which the plant had been operated, stated that it was incumbent upon each foreman to bring order in his own department, and warned that if the foremen did not place their respective departments on an efficient basis some- one else would be given the opportunity to do so. He also announced that henceforth each department would be rated as a separate unit, that the foremen would be more responsible than ever for the manage- ment of their departments, and that it would be the duty of the foremen to secure efficient and cooperative employees. Johnson then enunciated certain policies for the guidance of the foremen in their choice of employees : (1) union affiliation was not to influence the fore- men in their choice of applicants; (2) the determining factors were to be efficiency and ability; (3) seniority was not to be stressed; (4) there was to be a curtailment in the hiring of married women; although it would at first be necessary to recall to work some experienced married women in order to enable a speedy resumption of operations, thereafter the foremen were to concentrate on hiring single women; (,5) they were not to employ too many members of one family; (6) they were to avoid employing a husband and wife in the same department and having employees work under the supervision of their relatives. Thereafter, the foremen were instructed 'to review the names of the employees who had returned the respondent's application letters and select those whom they wanted recalled to work immediately. With few exceptions, all the employees who had returned the applica- tion were recalled on the basis of the recommendations and at the request of the foremen. A number of union members did not sign or return the company application because they believed that it was directed against the Union and constituted in effect a yellow-dog contract, and because it conveyed to them the meaning that the respondent would not resume operations under the Union and would not reinstate union members." 6 Thus Dorothea Burke testified that when these . applications came out, the way I interpreted them, I was signing my rights away. After I read the document on the other side of the application . . . I thought if I signed that I would be signing all my rights away. That is what I understood a 'yellow dog' contract to be." Similarly, Dorothy Johnston testified that "I read it over. and I was under the impression that it was a yellow dog contract." Vance Marley interpreted certain portions of the application to mean that the respondent "will not have anything to do with the union." According to Helen Mc- Carty, the application "leaves out our union, I understood it left the union out." ALADDIN INDUSTRIES, INCORPORATED 1211 The plant reopened on April 5. By April 17 the respondent had rehired 303 employees, including some new employees. On April 16 or 17, a committee of the Union submitted to the respondent an application for reinstatement, herein called the union application, signed by 106 employees. The application was addressed to the respondent and stated : We the undersigned employees hereby make application for reenstatement to our original positions with the Company, as previous March 2, 1937. The record presents a conflict of testimony with respect to the re- spondent's reaction to the union application. Harold Hunt, a member of the union committee, testified that one of the respondent's officers told the committee that Johnson was out of town and that no action could be taken-on the application in his absence; and that when the committee returned 2 or 3 days later, either Almquist or Blain told them that they could do nothing about it. Gilbert Kessler, another member of the union committee, testified that when the committee returned a second time they were told that the respondent had been considering the matter but had not yet reached a definite decision. Blain testified that, when the union committee first submitted the application, and Blain asked what they wanted him to do with it, Pugh replied, " ... You will know what to do with it because you will hear from Mr. Johnson about it." Blain further testified that the committee returned several days later and inquired if any action had been taken by the respondent and that Blain replied that Johnson had not yet returned and that the application was still on Blain's desk. It is clear, however, that no definite answer to the application was given by the respondent and that it was not acted upon favorably. Almquist testified that the union application was not considered by the respondent as an application of each individual listed therein to return to work, although it did serve as an indication that such employees desired to be reemployed, and some of them were in fact recalled to work. On April 26 the foremen were instructed to pass on the qualifications of the employees who had not been reinstated by that time. Each foreman was summoned separately before a round-table conference consisting of Johnson, Millar, Blain, and the time-study men, and was questioned with respect to the employees under his supervision. The comments of the foremen concerning each individual employee were discussed. The stenographer typed the substance of such com- ments and submitted it to the foreman for signature.7 7 The record does not disclose the bases used by all the foremen in arriving at their determination as to whether or not a given employee should be recommended for reinstate- ment. Stuart Goodwin. the chief inspector in charge of the white-metal department, con- 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At some time thereafter Robert H. Cowdrill, the Board's Regional Director for the Eleventh Region, communicated with the respondent with respect to the reinstatement of the union members and was informed that certain ones were being considered for reinstatement on the basis of the foremen's recommendations. The evidence shows that the respondent, upon resuming operations, made it clear that it would henceforth neither bargain with nor recognize the Union. According to Ollie Summers, foreman of the shipping department, the foremen were told at one of their meetings "that the union wasn't there any more, and that this seniority list that we had wasn't in force any more ; that as far as that was con- cerned we could tear those up or do whatever we wanted to with them." Similar statements were made by officers of the respondent to em- ployees as they were being recalled to work. Almquist told Ernest McCarty that "the union wasn't there any more." Pete Leach was told by Almquist, Goodman, and Blain that he could belong to any union he desired but that the respondent no longer recognized the Union and was not operating under the contract. Similarly, Almquist said to Inez Wolfe, "you have the right to belong to two or three ,unions if you want to, but you know, we don't bargain with any C. I. O. committee." On May 29 the respondent formally terminated its contract with the Union by dispatching to the Union the following letter : Notice is hereby given that in view of the breach of the con- tract dated December 14, 1936, entered into between the Com- pany and the Committee representing at that time its employees, the Company does not desire that the said contract be reinstated or renewed.8 On June 18 the following petition signed by about 350 employees employed at the time was presented to the respondent: In view of the loss of time and generally unsatisfactory work- ing conditions which followed the recognition of the U. A. W. A., as the sole bargaining agent for the purposes of collective bar- gaining in this plant, and feeling that further recognition of the above union would not serve our best interest, we the undersigned employees of Aladdin Industries, Inc., of our own free will and accord, request that in the future the U. A. W. A. be not con- sidered as our representative for the purposes of collective bar- sidered the attitude of the employees and their ability to cooperate as well as their efficiency but not their union affiliation . Scott based his recommendations on the work performed by the employees in his department during January and February 8 The contract provided that it was to be in effect until June 30, 1937, and was to be renewed for every 6 months thereafter "unless notice is given thirty ( 30) days prior to the expiration date by either the management or the committee." ALADDIN INDUSTRIES, INCORPORATED 1213 gaining, and that no future negotiations be entered into with them in our behalf. This petition, at least to some extent, was circulated by employees within the plant. After the reopening of the plant, the Aladdin Employees' Associa- tion, herein called the Association, an inside labor organization which had apparently come into existence before the sit-down strike, launched an organizational campaign which was conducted within the plant and, at least in part, during working hours. Certain employees circu- lated tentative bylaws of the Association and solicited the signature of membership cards. A marked interest in the campaign was dis- played by Mrs. Culbertson who requested several employees to sign Association membership cards. Blain testified that he first learned of the Association's organizational activities sometime in July when he found a copy of the Association's bylaws on his desk and when a foreman reported such activity to him. According to his testimony, Blain told the foremen that it was against the rules of the respondent to engage in activity for or against any organization and that anyone doing so was subject to discharge. There is no evidence, however, that any employee was in fact discharged or otherwise disciplined for such activity. Johnson testified that he was first apprised of the Association's activities when Blain wrote to him that the employees were apparently organizing an inside union and asked him what action to take. According to his testimony, Johnson instructed him not to do anything until he heard something more definite. The Association through its attorney, Thurman Robinson, attempted to obtain a charter of incorporation. The application for a charter was rejected on the recommendation of the Labor Commission of Indiana based on objec- tions filed by the Union which charged that the Association was com- pany dominated. Through the advice of Robinson, the Association was then organized as a voluntary unincorporated association. By September 18 the respondent had fully staffed its plant, having in its employ 537 employees. All of the old employees except 172 had been reinstated by that date. The number of married women employed by the respondent on that date represented a substantial decrease from the number employed prior to the sit-down strike. Prior to the sit-down strike the number of married women aggregated 144 as against 64 single women. As of September 18, 1937, the respective numbers were 88 and 121. During the period between the resumption of operations and the date of the hearing, the respondent, as part of the reorganization of its personnel, made certain changes in its supervisory staff. Five foremen of various departments were either shorn of their super- 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - visory powers or released from elnployment. In addition, four indus- trial engineers were added. The respondent, in its brief, contends that its determination to make changes in its personnel was not a result of the strike but was due to the fact that all but two of its departments had for some time been operating at a loss, and that during the period between the two strikes conditions became more serious because of a lowering of efficiency on the part of the employees generally. For some time prior to the advent of the Union in its plant, the respondent had been operating at a loss in most of its departments. On December 12, 1936, shortly before the execution of the contract between the re- spondent and the Union, Johnson, the respondent's president, made a statement to the union committee in which he attributed that condi- tion partly to the lack of skilled and experienced employees; and commented that such condition "can be corrected only by reducing our losses (of both material and labor) due to poor workmanship, and thereby getting better production and efficiency in the various departments." The record establishes that during the period of union activity and particularly between the two strikes there was a general lowering of efficiency in the plant. Chairman Madden is of the opinion that the respondent's reor- ganization of its plant under the circumstances hereinabove dis- cussed did not in itself violate the Act.9 The strike was not caused by any unfair labor practices and, in his opinion, its occurrence did not alter or impair the respondent's normal right to reorganize its plant on a non-discriminatory basis in order to increase the efficiency and profitableness of its operations.10 The Board does not therefore find that the reorganization in itself constitutes an unfair labor practice. However, the reorganization was accompanied by acts which did interfere with, restrain, and coerce the respondent's employees within the prohibition of Section 8 (1) of the Act. The whole tenor of the company application forms presented to the strikers makes it plain that such application was designed to condemn the Union and to bring it into disrepute among the employees, to convey the mean- 9 Mr Edwin S Smith does not agree with that view for reasons stated in his separate concurring opinion 10 It is unnecessary to decide here whether or not such a reorganization during an unfair labor practice strike is in and of itself violative of the Act However, when a strike is caused in whole or in part or is prolonged by an employee 's unfair labor practices his ordi- nary right to select his employees becomes vulnerable and a striking employee is usually entitled to reinstatement to his job upon application See Black Diamond Steamship Cor- poration v National Labor Relations Board, 94 F (2d ) 875 (C C A 2), certiorari denied, 304 U S 579 , enf'g 3 N. L. R B 84 ; Jeffery-Dell'itt Insulator Co v National Labor Rela- tions Board, 91 F (2d) 134 (C. C A 4), certiorari denied, 302 U S 731, enf'g 1 N L. R B 618, National Labor Relations Board v Louisville Refining Co, 102 F (2d) 678 ( C. C. A 6 ). modif'g, and enf'g as modified , 4 N L R B 844 , Republic Steel Corp v. National Labor Relations Board, 107 F. (2d) 472 (C C A 3), enf'g 9 N L R B 219 ALADDIN INDUSTRIES , INCORPORATED 1215 ing that the respondent would no longer operate the plant with the Union as the collective bargaining agency of its employees, and to compel the employees to abandon the Union . The employees so understood it. As stated above, a number of employees did not sign or return the company application because they believed that it was directed against the Union and that it constituted in effect a yellow-dog contract . Thereafter, the respondent announced to em- ployees as they were recalled to work ,that "the Union wasn't there any more," that the respondent no longer recognized the Union, and that "we don't bargain with any C. I. O. committee ." After the plant reopened, Mrs. Culbertson , the supervisory employee whose conduct precipitated the strike , participated in the Association's organizational campaign by soliciting membership , which campaign was conducted within the plant, and, at least in part, during working hours. We find that the respondent by these acts has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The discriminatory refusals to reinstate The complaint, as amended, alleges that the respondent discrimi- nated against 141 named employees in regard to the hire and tenure of their employment by refusing to reinstate them after it resumed operations because of their concerted activities on behalf of the Union. The record shows that by September 17, 1937, the respondent had fully staffed its plant, having 537 employees, or 33 more than when the strike began. Of these 537 employees, 332 were old and the others new. Thus 172 old employees were not reinstated. The respondent denies that any employees were refused reinstate- ment in violation of Section 8 (3) and predicates its denial primarily on the following grounds : (1) The sole cause of the sit-down strike was the respondent's refusal to grant the Union's demand to discharge Mrs. Culbertson ; such a dispute is not a "labor dispute" within the meaning of the Act since "it is not a demand for a change or improve- ment of any working condition"; therefore, the individuals alleged to have been discriminated against ceased to be employees within the meaning of the Act when they went on strike. (2) The respondent affirmatively terminated the employment of these individuals by the notice of discharge issued to the striking employees. (3) The in- dividuals alleged to have been discriminated against were not rein- stated primarily because they "disregarded reasonable rules covering their employment, were inattentive to their duties, insubordinate or incompetent in the performance of their duties"; in failing to reinstate such individuals, the respondent relied upon the recommendations of their foremen and supervisors and acted pursuant to the respondent's 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determination "to purge its organization of incompetence and unde- sirable employees solely in an effort to operate its factory on a profitable basis." The first contention of the respondent is clearly untenable. Section 2 (9) of the Act defines a "labor dispute" to include "any controversy concerning terms, tenure or conditions of employment . . ." The type of supervisor under whom an employee works is of direct concern to the employee and may be of vital importance to him. The conduct of a supervisor may affect an employee's well-being as much as low pay, long hours, or other unsatisfactory conditions of work. A dispute involving the discharge or demotion of a supervisor obj actionable to the employees is, we think, a dispute concerning a condition of em- ployment and, therefore, a labor dispute within the meaning of the Act.11 With respect to the second contention, we find that under the cir- ccumstances of this case the discharge of those employees who par- ticipated in the sit-down strike does not constitute an unfair labor practice.12 However, the employees who did not participate in the sit-down strike fall in a different category. The respondent's notice of discharge was addressed to "striking employees only." It is clear that the respondent by this notice intended to discharge only the sit-down strikers, since the respondent contends, in part, that the discharge was necessary in order to terminate any rights that the employees might have in the plant as invitees and thus enable the respondent to evict them as trespassers. 'Moreover, a discharge of the employees who did not participate in the sit-down strike, based upon the mere fact that they were striking, -would in itself constitute an unfair labor practice within the meaning of Section 8 (3) of the Act. In its reply brief, the respondent contends that all the individ- uals named in the complaint, who were all members of the Union, should be denied relief on the ground that the sit-down strike was an unlawful conspiracy representing the concerted action of the Union; that all the union members were equally responsible for it; and that therefore its consequences cannot be limited to those who "actively carried into effect [the Union's] purposes and aims" but must fall alike "on all Union members in whatever capacity, or to 11 See Restatement of the Law of Torts as adopted and promulgated by the American Law Institute on May 13, 1039, Volume 4, Section 790, Subsections ( a) and (b), p. 132, where the applicable rule is stated as follows : "Dismissal by an employer of an employee is a proper object of concerted action by his employees if the employee (a) is in a super- visory position and is reasonably believed by the employees to discriminate among workers on the basis of, or otherwise to interfere with, their labor union affiliation , or (b) Is, by virtue of his habits , conduct or character, reasonably believed by the employees to be an 11 ,unfit fellow employee . . . 21 N. L. R. B. v. Fensteel Metallurgical Corporation, 306 U. S. 240. ALADDIN INDUSTRIES, INCORPORATED 1217 whatever extent they participated, whether actively as sit-down trespassers, actively as aiders and abettors or even passively as Union members." We cannot concur in this contention. The fact that an employee voted in favor of a sit-down strike or did not openly disclaim responsibility therefor does not in our opinion serve as a justification for discharging such an employee or for refusing him reinstatement .13 It remains to be considered whether or not the respondent's refusal to reinstate the employees who did not engage in the sit-down strike was in fact due to the belief that they were unqualified and inefficient employees, or whether it was based upon membership or activity inl, the Union. There is evidence that those employees who had not signed the union application were not discriminated against because of their union membership and were selected for reinstatement on the basis of their qualifications as employees. Thus, at least 200 members of the Union were recalled to work. Also 10 or 11 employees, shown by the record to have been unsatisfactory employees, were not rein- stated, even though they had not signed the union application and had signed the company application. Under all the circumstances, however, it becomes apparent that a different treatment was accorded to the 106 employees included in the union application. Upon the basis of the considerations set forth below, we think it clear that many of the employees who signed the union application, thereby disclosing their firm adherence to the Union, were refused reinstatement because of their union membership and activity rather than because of any supposed disqualification based upon the nature of their work. Certain general matters should first be mentioned. The, respondent alleges that the failure to reinstate the employees whose names -appear on the union application was based on the rec- ommendations and efficiency ratings of their foremen and super- visors on April 26, 1937. These recommendations, however, must be considered in conjunction with the circumstances under which they were made. By April 26 Johnson had already made it clear to the foremen that he was dissatisfied with the conditions which he attrib- uted to the Union and that he would not operate the plant with the Union representing the employees. At the same time he had also admonished the foremen that the responsibility for restoring order and efficiency in the various departments and for selecting suitable 13 Cf National Labor Relations Board v Fansteel Metallurgical Corporation, 306 U S 240, where the Supreme Court held by implication that the employees who did not engage in or aid and abet in the sit-down strike were subject to reinstatement on a nondiscrimi- natory basis and that responsibility for the sit -down strike could not be imputed to such employees 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees would lie primarily with them and that if they could not do so someone else would be given the opportunity, thus linking the necessity for the elimination of the most ardent union adherents with their responsibility for restoring order and efficiency. It would be surprising indeed if the foremen, in making the recommendations of April 26, did not bear these admonitions in mind. Furthermore, the recommendations were not made independently by the foremen but in collaboration with Johnson and other officers of the respondent. Moreover, an analysis of the recommendations made concerning employees included in the union application makes it apparent that at least with respect to a number of them the claim of inefficiency was a mere pretext, not founded in fact but seized -upon after prior determination not to recommend their reinstatement. Although some of them are shown by the record to have been unsatisfactory employees and would very likely not have been recalled to work even if they had not signed the union application, others were eminently satisfactory employees." Moreover, it is significant that 14 The following are examples of such employees They were participants in the sit-down strike, and will therefore not be ordered reinstated Such participation was not , however, advanced as the reason for refusing them reinstatement The cases of the employees who signed the union application but who did not engage in the sit-down strike are discussed hereafter Dorothea Burke, who had been employed in the vacuum-bottle department, was recom- mended unfavorably by Edwin Bitner , her supervisor, in part because she allegedly did not cooperate with the time-study department and did not like to work . At the hearing Bitner admitted that she earned a good salary at her job Almquist testified that her work was known to him to have been satisfactory Whipple admitted that she was a good worker and "turned out good production ." Iva Steward, an employee in the same department who had resigned prior to the sit-down strike because of ill health , testified that Burke was the fastest operator on welding in her department and that "there wasn't anything she couldn't do." Carmen Coe, an employee in the mantle department who had been in the respondent's employ since 1929, was not recommended for reinstatement by Spangler , her foreman, be- cause she was "quite a talker, disposed to stir up trouble whenever any time study work is involved ; makes others dissatisfied " At the hearing , Spangler expressed his objections to her in very general terms * " Carmen Coe was what I classed as a troublemaker She talked too much not only during working hours , but at other times , and as a result of that she caused more or less contention and confusion in the plant" Coe's work, hoverer, had been praised by Mrs. Culbertson . Herman Durr, a witness for the respondent , who ob- served her work, testified that her work was good and that the time studies he made with her were satisfactory. Elisabeth Myers, an employee in the parchment-shade department, was not recommended favorably by John Jones, her foreman , for the reason that he questioned her attitude toward time-study work. The record shows that Myers had never been "time-studied" since the appointment of Jones as foreman At the healing Jones conceded that she was a good worker , but that she always objected to new rates He admitted, however that her con- duct in this respect was no different from the conduct of the average employee when new rates were put in effect With respect to Robert Pugh, an employee in the shade department, it was reported that his work was good until the December strike but that thereafter lie spent a great deal of time on union matters and lowered the efficiency of his group Stuart Goodman, the chief inspector , testified that the employees in Pugh 's group earned more money than those in other groups Kenneth Allen, foreman of the punch-press department, testified that Pugh was the most efficient employee in his group and that he made his rates even after the December strike Manford Ilolnres, who had worked in Pugh's group, admitted that Pugh's absences did not affect the other employees in the group Pugh testified that he ALADDIN INDUSTRIES, INCORPORATED 1219 18 of the employees who were not recommended for reinstatement had been employed in the mantle department. Spangler, the fore- man of this department, admitted that the work of almost all of the employees in his department was satisfactory. It is further signifi- cant that a number of the employees who had not signed the union application were taken back although they possessed deficiencies as employees or had been guilty of infractions of rules which in the case of employees who had signed the union application were con- sidered by the respondent serious enough to warrant a denial of reinstatement.- One final consideration is particularly significant. At the time the strike began there were 504 employees in the plant. Of this number 106 signed the union application and 398 did not. Of the 398 em- ployees who did not sign the union application, not more than 92, and very.likely less, failed of reinstatement, 4 of them for the reason that they had not applied in any manner.1e Assuming that all of these 92 employees, except the 4 just mentioned, had applied for reinstatement, it would follow that at most 22 per cent of the group of 398 who had not signed the -union application were deemed inefficient or unsatis- factory employees. A different picture, however, presents itself with respect to the respondent's treatment of the 106 employees whose names appear on the union application. The record shows that 11 of them were reinstated and 80 were not. There is no evidence as to the remain- was not paid by the respondent for time spent by him in connection with bargaining- committee meetings , and that when lie left his department to go to meetings he always saw to it that there was sufficient work for the others in his group Gertrude il'ewconb, an employee of the vacuum-bottle department who had been in the respondent's employ for almost 7 Sears, was recommended unfavorably by Bitner because "she is very hard to get along with, and cooperation with others is poor , very sarcastic and unsatisfactory " At the hearing, all that Bitner advanced as a basis for his failure to recommend her was that on one occasion she had refused to work with a certain employee and on another occasion she had refused to be transferred permanently to a new opeiation. Harry Thompson, who worked in the mantle department prior to the sit-down strike, was not recommended for reinstatement by Spangler because "he was responsible for much of the turmoil in the mantle department in recent months, used very poor judgment " At the hearing, Spangler testified that his only objections to Thompson were that he had com- plained about his rates and that he could not work haimoniously with Mrs Culbertson. tle admitted however that he worked at the rates prescribed and that his work was satisfactory 15 George King's attitude toward company rules was questioned and he frequently used to leave his machine Nleiedith Allebaugh was caught loafing Margaret Babcock was married and her husband was employed ; she apparently did not cooperate with the girls in her department and was placed in another department Mrs. Schroeder was taken back although her foreman had experienced some difficulty with her because of her inability to keep up her end of the w ork. Joseph Kuhn spent more time drinking water while woi king than any of the other employees in the glass-finishing department Elmer Brunifiel admit- tedly spent considerable time in the washroom Madge Zell had been ill frequently before the sit-down strike and her husband was working Mis Noble suffered from rheumatism 16 This figure is ari rved at as follows : As stated above, the total number of old employees who were not reinstated is 172 The record shows that 11 of the 106 employees who weie included in the union application were reinstated , SO were not , there is no evidence as to the remaining 15 Assuming that these 15 were also reinstated, there remain 80 out of the group of 106 who were not reinstated Subtracting SO from 172, the total number of old employees, who did not sign the union application and who were not reinstated, is 92, 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing 15. Thus, at least 75 per cent of this group were not taken back. With respect to 68 of them, or 64 per cent, it was alleged that they were unsatisfactory.17 It is true that a number of the employees on the union application participated in the sit-down strike and will, therefore, not be ordered reinstated for reasons stated infra. The respondent, however, does not assert that such participation was the reason for refusing them rein- statement. The respondent contends that the reorganization of its plant was on a non-discriminatory basis, that in the reinstatement of old employees ability, efficiency, and other criteria unrelated to union affiliation were the only factors considered, and that all the employees named in the complaint, sit-down strikers as well as non-sit-down strikers, were not reinstated because they did not satisfy the respond- ent's afore-mentioned requirements. The figures cited in the preceding paragraph clearly indicate that the respondent's treatment of the em- ployees who signed the union application was motivated by considera- tions other than those alleged by the respondent. All the circumstances lead to the conclusion that no real attempt was made to judge the employees whose names appear on the union application on the basis of their qualifications as employees. The names of most of the active union members, including members of the bargaining committee, are listed on such application. For the most part the employees who signed the union application had refrained from signing the company application which, we have found, in effect informed the employees that renunciation of the Union was a requisite for reinstatement. In this manner the employees who signed the union application marked themselves as its most persistent adherents and hence the logical group to be excluded from the plant to preclude the necessity for future dealings with the Union. We believe and find that the respondent had predetermined not to reinstate most of the employees included in the union application because they continued to adhere to the Union and thus distinguished themselves from those not included in such application. We now turn to a consideration of the individual employees alleged to have been discriminated against. 1. The employees with respect to whom the Trial Examiner recom- mended a dismissal of the complaint Twenty of the employees named in the complaint, listed in Ap- pendix A, did not testify at the hearing, and there is otherwise 17 There is nothing in the record to indicate that the group of 106 employees signing the union application, who were composed of individuals from the different departments, did not represent a cross-section of the plant with an average number of efficient and inefficient employees All the evidence with respect to such employees points to a contrary conclusion. ALADDIN INDUSTRIES, INCORPORATED 1221 insufficient evidence in the record to sustain the allegations of the complaint with respect to them. We shall therefore dismiss the allegations of the complaint in so far as they apply to these persons. The Trial Examiner also recommended that the complaint be dis- missed as to 20 others, listed in Appendix B. We find that the evi- dence does not sustain the allegations of the complaint with respect to them and we concur in the Trial Examiner's recommendation that they be dismissed. Since no exceptions have been taken to the Intermediate Report with respect to these individuals, we will not discuss their cases in detail. The case of Catherine Cleaver, another employee listed in Appendix B, was dismissed by the Trial Exam- iner during the hearing on motion of counsel for the Board. 2. The employees who made no application for reinstatement The record shows that five employees listed in Appendix C made no application for reinstatement in any manner. We will, therefore, dismiss the allegations of the complaint as to them. 3. The employees who engaged in the sit-down strike Of the remaining 95 employees, 63 listed in Appendix D engaged in the sit-down strike. As already stated, the respondent by its notice of March 4, 1937, discharged these employees and such dis- charge does not constitute an unfair labor practice. We will dismiss the complaint as to them. 4. The employees who did not engage in the sit-down strike We now turn to a consideration of the balance of the employees, 32 in number, alleged to have been discriminated against. One further general observation is necessary before these cases can be irdividually discussed. As indicated above, Johnson, at one of the 'foremen's meetings, instructed the foremen that, although it would at first be necessary to recall to work some experienced married women in order to enable the respondent to resume operations, they were henceforth to curtail the hiring of such women and concentrate on hiring single women. In its brief, the respondent advances as one reason for its failure to reinstate certain employees named in the complaint the fact that they were married women supported by their husbands. The record shows that before the sit-down strike the respondent employed 144 married women and 64 single and as of August. 30, 88 married women and 121 single. The record also indicates that very few new married women were hired after the sit-down strike, and that most of the 88 married women were old employees. The record further shows that the respondent recalled to 283033-41-vol 22--78 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work 13 married women whose husbands were employed by the re- spondent or elsewhere. There is no evidence that women other than those named in the complaint were denied reinstatement solely because of their marital status. On the contrary, Almquist admitted that any married woman was reinstated "if she was perfectly good. worker and she showed that she wanted to return to work." More- over, the respondent does not assign their marital status as the sole reason for its failure to reinstate the women named in the complaint but as a reason additional to the reasons of inefficiency and lack of qualifications. On the basis of the entire record, we believe that while the marital status of any given female employee might have militated against her reinstatement if her efficiency and qualifications were questionable, it would not have precluded her from reinstate- ment if she were otherwise an efficient and experienced employee. The record does not disclose the relative number of married women reinstated and denied reinstatement in each department. The record does show that of the women employed in the mantle department before the sit-down strike, 27 were single and 51 were married, and that the corresponding numbers reinstated after the sit-down strike were 22 and 35, thus leaving 16 married women not reinstated. Of the 15 married women in the mantle department named in the com- plaint who had signed the union application 11 were not reinstated.18 a. The employees included in the union application Charles Cummins. Cummins began work for the respondent in June 1934 and, with the exception of a 6 months' lay-off, worked continuously until the sit-down strike. He worked on a "lehr," or moving belt, in the glass-finishing department. He served on the picket line which was maintained after the evacuation of the plant by the sit-down strikers. Cummins did not sign the company application. He went to the plant sometime in June and was told by Almquist that all the posi- tions in the glass-finishing department were already filled and that there were no vacancies in any other department. Almquist said nothing about the quality of his work nor did he suggest that he file a company application. Cy Watkins, Cummins' foreman, recommended against his rein- statement because "he was a very poor worker and on top of this a good loafer." Cummins testified, and his testimony is uncontra- dicted, that Watkins had praised him as a lellr man prior to the 19 Theie is no evidence in the record with respect to 8 female employees who had signed the union application Assuming the unlikelihood that all 8 were martied women in the mantle department and all 8 bad been reinstated, it would result that 11 out of 23 who had signed the union application were denied reinstatement as against 5 out of the remaining 2S married women ii ho had not signed the union application ALADDIN INDUSTRIES, INCORPORATED 1223 strike. Henry Hellmers, superintendent of the blowing room and chief inspector, testified that he had observed Cummins' work and that it was satisfactory but that "he spent a lot of time sitting around clown there." John Green, a turn foreman of the blow room, testified that on one occasion, the date of which he could not remember, Cum- mins "dozed off and fell in a truck and cut his arm," and that "at lunch time when the shop would be stopped he would go to sleep and I would have to wake him up and tell him the ware was coming off the lehr." Watkins did not testify, so that his general report that Cummins was a poor worker and a loafer remains unsupported on the record. Moreover, the assertion that he was a poor worker is contradicted by the testimony of Hellmers that his work was satis- factory. Furthermore, the respondent does not attribute the failure to reinstate him entirely to Watkins' report but also to the fact that he failed to present himself for employment until June when there were allegedly no vacancies in the glass-finishing department. The record, however, shows that operations in the glass-finishing depart- ment were not fully resumed until about 4 weeks after the plant re- opened, and that only 303 employees had been rehired by April 16. It cannot, therefore, be contended that there were no jobs available in the glass-finishing department on April 17 when Cummins had signed the union application. Under all the circumstances, we be- lieve that Cummins was denied reinstatement because he had applied through the Union and had thus indicated his continued adherence ,to the Union. Mary Cunningham-. Cunningham is unmarried. She has been in ,the respondent's employ since June 1933 and worked in the parch- ment-shade department. She served on the picket line and did not return the company application. Cunningham personally communicated with Almquist with respect to work on June 25. She indicated her willingness to work at any Job available. Almquist told her that she would be considered for the lacquer department in July or August when the work in that department would pick up. Almquist testified that she was still being considered for reinstatement. John Jones, the foreman of the parchment-shade department, did not recommend her favorably allegedly because "she was slow and she didn't make her rates." At the hearing, Jones admitted that "her work was all right" but insisted that "she was slow ... she didn't seem to have much initiative" although he could not remember whether she made her rates or not. Almquist, however, testified that according to factory reports she was "a good worker." It is clear from the record that the assertion that she was an unsatisfactory ,employee has no basis in fact. The tenuousness of such assertion is 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further made clear in the respondent's brief which states that Cun- ningham "is, still being considered for employment when an opening is available and has not previously been re-employed because she was a slow worker and did not make her rates." If she had been an unsatisfactory employee, presumably she would not have been con- sidered for reinstatement at any time. There is nothing in the record to indicate, nor is it contended, that when the union applica- tion was submitted to the respondent there was no work available for Cunningham. We believe that the real reason for her non-rein- statement was that she had signed the union application and had thus manifested her continuing loyalty to the Union. Irma Dickerson.19 Dickerson, who is married, had been in the re- spondent's employ for 8 years. For 5 years prior to the sit-down strike she worked in the glass-finishing department. Dickerson failed to return the company application. The evidence does not disclose whether any report was made concerning her quali- fications as an employee. Almquist testified that she had not been reinstated because she had not sent in her application when work in her department was resumed and because, due to a change in opera- tion, it was necessary to eliminate one operator in her group, so that all the available positions were filled by the other employees in her group. We cannot credit Almquist's testimony, because it overlooks the fact that at the date of the union application, which includes Dickerson's name, operations in the glass-finishing department were not yet fully resumed. It is not contended that the other operators in her group who were recalled to work were entitled to preferred treatment because of seniority or greater efficiency. We find that she was denied reinstatement because she had applied for reinstatement through the Union and thus manifested her continuing loyalty for the Union. Edythe Disbennet. Disbennet began to work for the respondent in 1929. Prior to the sit-down strike she was employed in the mantle department. She did not sign or return the company application. Edythe Disbennet is the wife of Clay Disbennet, a supervisor in the wick and flame-spreader department which, according to the testi- mony of Spangler, is closely associated with the mantle department. Spangler reported that she was a satisfactory employee but recom- mended that she should not be reinstated in the mantle department on the ground that the respondent's policy against assigning an em- ployee to a department supervised by a relative of such employee was applicable to her. He advanced no reason, however, against her being placed in another department. 19 Also referred to as Erma Dickerson. ALADDIN INDUSTRIES, INCORPORATED 1225 Sometime in April , after the presentation of the union application to the respondent, Disbennet spoke to Almquist concerning work. Almquist asked her, "You signed the general application , didn't you ?" She replied in the affirmative . Almquist then asked whether she wanted to sign another application . Disbennet retorted, "I have signed one application, I think that will be enough." Almquist finally promised to put her to work if he could find a place for her, stating, however , that he would not assign her to the mantle depart- ment because her husband was supervisor of the wick and flame- spreader department . Disbennet communicated with Almquist on several further occasions but was met with the statement that he had not yet found an opening for her. Almquist admitted that, from all reports, she was a good worker. He testified, however, that he experienced difficulty in finding a vacancy for her in another depart- ment. We are not convinced that the real reason for denying reinstate- ment to Disbennet in the mantle department was that she fell within the respondent's policy against hiring an employee in a department under the supervision of a relative of such employee . While the wick and flame-spreader department may have been closely related to the mantle department , Disbennet came under the sole supervision of Mrs. Culbertson, the forelady of the mantle department. That the wick and . flame-spreader department was considered separate and apart from the mantle department for the purposes of this policy is shown by the fact that Mrs. Culbertson 's step-daughter and sister, Margaret Fox and Mrs. Whittaker, respectively, who had worked under Mrs. Culbertson before the sit-down strike , were both trans- ferred to the flame-spreader department after the sit-down strike. Nor do we believe that Disbennet was not given employment in an- other department , because Almquist encountered difficulty in finding a place for her. As already indicated, many new employees were hired by the respondent after April 17, the date of the union appli- cation. We find that Disbennet was not reinstated to the mantle department or given employment in another department for the rea- son that she had signed the union application and remained loyal to the Union. Ethel Dyer. Dyer is married . She had been in the respondent's employ continuously from 1928 until the time of the sit-down strike and worked in the mantle department . She served on the picket line and did not return the company application upon receiving it, although she apparently did file one in May. Dyer testified , and it is not denied that on different occasions Mrs. Culbertson had praised her work by saying that "she could put [her] any place, and go away, and know that it was did right." i 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spangler recommended against her reinstatement in the mantle department because she "wanted to be transferred to some other work. She was dissatisfied with-the work she was doing. We have no other work that she can do to better advantage . In view of her being dis- satisfied with the work she was doing, would recommend that she be given consideration for some other department." In May she spoke to Almquist regarding her job. Ahnquist told her that "she could have been one of the first ones back to work, but [she] didn't act like [she] wanted to work." Almquist then con- sulted with Blain who said that it would not be advisable to put her back in the mantle department because there might be difficulty be- tween her and Mrs. Culbertson . Dyer remonstrated that a number of girls had been recalled to work who had caused far greater trouble than she had . Almquist finally promised to secure a job for her in another department . Dyer has heard nothing since then. At the hearing, Spangler assigned as a reason against Dyer's rein- statement that "she wasn't able to work harmoniously with Mrs. Cul- bertson" and that "she was not very harmonious on [her] group." He could not, however, recall any argument in which she may have been involved. Spangler also asserted that "she was very solemn and sober, acted merely as if she was angry about something." Almquist testified that the principal objection to her was her marital status. There is no evidence and it is not contended that Dyer was hot a satisfactory employee. Whether or not there was difficulty between her and Mrs. Culbertson , it is apparent that Spangler did not attach any importance to it, since he made no mention of it in his report. Moreover, a number of employees who had openly criticized Mrs. Cul- bertson before the sit-down strike and had filed grievances against her had been reinstated. That Spangler could find nothing tangible against Dyer as an employee is further indicated by his other allega- tions that she was dissatisfied with the work that she had been doing and that "she was very solemn and sober." We believe that the objec- tion to her as a married woman was an afterthought rather than the real reason for denying her reinstatement , since her marital status was not stated as an objection in Spangler 's report nor was it mentioned to her when she spoke to Almquist and Blain. Moreover, as already stated, it was admitted that the marital status of an employee did not preclude her from reinstatement provided she was a satisfactory employee and had indicated her desire to return to work. It is further significant that Dyer had been employed in the mantle department where comparatively few married women whose names appear on the union application were reinstated. We find that Dyer was denied reinstatement because her name was included in the union application and because she was deemed to have remained loyal to the Union. ALADDIN INDUSTRIES, INCORPORATED 1227 Elijah Ellars.20 Ellars began to work for the respondent in 1933. He was employed as a punty-gatherer in the blowing room. He did not sign the company application. - Hellmers, the superintendent of his department, reported that "he- is a pinity gatherer and is the poorest workman we have had in this line; always crabbing, never satisfied. I have more punty gatherers than I need because of the change for the coming season. Neverthe- less, I would not want this man back under any circumstances." At the hearing, Hellmers testified, and his testimony is not contradicted; that Ellars was difficult to get along with and repeatedly disobeyed the instructions of his supervisors in important matters. We find that Ellars was not reinstated because he was considered an unsatisfactory employee. Ruby Godwin. Godwin is married and has been in the respondent's. employ 2 years. She worked in the parchment-shade department dur- ing the entire period of her employment except for a short period before the sit-down strike when she was employed in the glass-finishing department. In his report regarding her qualifications, Cy Watkins stated that she had worked in the glass-finishing department only 1 week; that John Jones, the foreman of the parchment-shade department where she had previously worked, considered her a very slow operator and_ very slow at learning new operations; and that, for this reason, he did not want her in his department. Watkins' report is substantiated by the testimony of Jones, who at the time of hearing was no longer in the respondent's employ, that Godwin was a slow operator and did not make her rates. We find that Godwin was not reinstated primarily because she was a slow operator. Virgil Hol f ord. Holford had been with the respondent since 1933. He was employed as a carry-in boy and blocker in the glass-blowing department. He did not return the company application. Hellmers' report with respect to Holford was as follows I have all the carry-in boys I can use on account of the change in the line for the coming season. I don't need any blockers. In fact, I am going to have my hands full to keep those I already have busy. He laid off whenever he felt like it. Hellmers testified that he had nothing against Holford's work as, a carry-in boy but that Holford had worked as a blocker only for a period of 3 months. The allegation that Holford "laid off whenever he felt like it" was apparently based only on the fact that he once left the respondent's employ for a job elsewhere and then returned- 20 Referred to in the complaint as Elijah Ellers 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Almquist testified that there had been no work available for Holford since the date of the union application but that he would be con- sidered for employment if it became necessary to hire an additional employee in his line of work. Hellmers, however, testified that he did not know of Holford's application until April 26, and that he would have considered him if he had signed an application before the plant resumed operations. Hellmers also admitted that his de- partment had not been operating at full capacity on April 17 so that more people must have necessarily been taken on since that date. On the basis of all the facts, we find that Holford was denied rein- statement because he had applied through the Union. Herman Horn. Horn had been in the respondent's employ since 1932 and worked as an electrician in the maintenance department. He did not return the company application. Horn has been an officer of the Union since the sit-down strike and served on the committee which submitted the union application to the respondent. After the sit-down strike Horn was convicted of rioting but his sentence was suspended. About 5 weeks before the hearing Horn secured what he considered a steady and a better job elsewhere. At the hearing, he stated that he did not wish to return to the respondent's employ after he had secured his present job. Martin Burden, the foreman of the maintenance department, rec- ommended against Horn's reinstatement on the ground that he was "continually loafing in the plant; unsatisfactory, and while he has posed as an electrician, he was really incompetent for the job. Under no consideration would I want him back . . ." At the hearing Bur- den testified that he had received many complaints about Horn's work, that he frequently admonished him about it, and that he concluded that Horn was lazy, and did not want to do his work properly. Under all the circumstances we believe that Horn was denied rein- statement because he was in fact an unsatisfactory employee. Melvin Kane. Kane had worked for the respondent off and on since 1932. He was employed in the experimental department as a machinist's helper. He served on the picket line and did not return the company application. Walter Engh, the foreman of the experimental department, testi- fied that Kane was a "good man" but his work required a great deal of supervision; that prior to the sit-down strike the work had ac- cumulated in the department; and that he therefore suggested to Almquist that he secure an experienced toolmaker. Engh further testified that prior to the sit-down strike he had attempted to transfer Kane to the machine shop. Engh's testimony is supported by Alm- quist, who asserted, however, that he would have tried to place Kane ALADDIN INDUSTRIES, INCORPORATED 1229 in another department if he "had come out and applied for work." Almquist does not contend that all the positions in the machine shop had been filled by April 17, the date of the union application. We must conclude that if Kane had signed a company application rather than the union application he would have been recalled to work. W. W. Lewis. Lewis was first employed by the respondent in Sep- tember 1936 and worked as a tank-man in the glass-finishing depart- ment. He returned the company application 3 or 4 days after the plant reopened. Hellmers reported : "He was a tank man. This is a very important job and Lewis is negligent in attending properly to his work. I do not feel I can risk the man on the job." The record shows that the work of a tank-man, which consists of the regulation of the tempera- ture in the glass tank, requires constant attendance,, and that if the temperature is allowed to vary it might result in defective glass and require the lay-off of the whole group of employees working in con- nection with the tank for a period of time. It is not disputed that Lewis absented himself from work frequently. According to his own admission, he was absent twice for a period of 1 week each time during the brief duration of his employment. We find that W. W. Lewis was not reinstated because he was con- sidered unsuitable for his position. Margery Marley. Margery Marley had been in the respondent's employ since 1928. Prior to the sit-down strike, she worked as an inspector in the glass-finishing department. She returned the com- pany application on April 30. Her foreman, Cy Watkins, recommended against her reinstatement on the ground that "her work was not satisfactory. Many of the bad lamps that got out can be laid directly to her inspection. I also caught her cheating in her count." Hellmers testified that he had experienced difficulty with her in that her count on the ware which passed through her inspection was occasionally incorrect. There is also some evidence that at times she rejected as scrap passable ware. Marley attempted to explain that the incorrect counts in the amount of ware inspected by her was not due to her fault but to the fault of other employees. Whether or not Marley was in fact- dishonest or responsible for mistakes in the count of ware, we believe that she was not reinstated because she was not considered a satisfactory employee, and we so find. Vance B. Marley. Vance Marley first began to work for the re- spondent in 1933. Before the sit-down strike he was employed as a lehr-man in the glass-finishing department and he also did some inspecting and grinding on the lehr. He served on the picket line and did not sign the company application. 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cy Watkins reported that "he was a regular trouble-maker and a loafer, generally all around an unsatisfactory workman and should have been discharged a long time ago. Under no circumstances would I consider rehiring this man for my department." John Green, a turn foreman of the blow room, testified that Marley "would do just what he thought was right; that is, so much work, and if he thought he had too much he didn't want to do it." Hellmers also testified that he had found fault with Marley on one occasion when he refused to work at the end of his turn because he was not certain whether he would be paid at the rate of time and a half for such work. Under all the circumstances we find that the record does not support the allegation of the complaint that the respondent discriminated against Marley because of his union affiliation. Helen May McCarty. McCarty has worked for the respondent since 1933 in the shipping room. She served on the picket line and did not return the company application. McCarty testified, and it was not denied, that her work had occa- sionally been praised by her supervisors. Almquist testified that according to reports she was "a good fast worker." Ollie Summers, her foreman, also admitted that she was a "fair worker" but he recommended against her reinstatement because she talked a great deal during working hours and was "a sort of trouble-maker." McCarty explained, however, that her work in "picking" orders for shipment made it necessary for her to confer with the girls in the shade department and that she was never reprimanded for failing to attend to her duties. We are not convinced that McCarty was refused reinstatement because she talked during working hours. It is unlikely that she would have been a "good fast worker" if this charge against her were true. We find that she was denied reinstatement because she applied for reinstatement through the Union and thereby indicated her adherence to it. Thelma-Newrovnb. Newcomb is married. She began to work for the respondent about 3 weeks before the sit-down strike. She was employed as an "extra" in the vacuum-bottle department. Bitner, the foreman of her department, reported that her work was "not first class" and that he therefore displaced her. We find that the record does not support the allegation of the complaint that the respondent refused to reinstate her because of her union affiliation. Kenneth Porter. Porter had been in the respondent's employ since December 1933. He was employed in the glass-blowing department, where he worked as a carry-in boy and as a blower. He did not re- turn the company application. Hellmers' report concerning Porter was as follows: ALADDIN INDUSTRIES, INCORPORATED 1231 Kenneth Porter, blower, on account of new line which is made press and blow, we will not have much work for blowers . Before the shut-down I used him as a carry -in boy, and we haven't any work at this time for Mr. Porter. At some time after the plant reopened, Porter told Almquist that he had a possibility of securing work as a carpenter at a lumber com- pany and inquired as to his chances of employment with the re- spondent. Almquist informed him that due to the change in the method of operation they were running only one "blow shop" which was being operated by Joe Kuhn, a blower of greater experience, and that there was no work available for an additional blower. He, therefore, advised him to accept work with the lumber company. Porter agreed with Almquist that he would earn more money as a carpenter at the lumber company than as a carry-in boy with the respondent which only paid at the rate of 45 cents an hour in contrast to the rate of $1 an hour paid to blowers . Porter thus indicated that he was not anxious to work as a carry -in boy, even if such work were available. Porter has not communicated with Almquist since that time. Under all the circumstances , we find that the record does not support the allegation that the respondent discriminated against Porter because of his union affiliation. Mabel Rebucck. Rebuck is married. She was first employed by the respondent in October 1930. Prior to the sit-down strike she worked in the glass-finishing department . She served on the picket line several times. She signed a company application on April 27 and on various occasions personally communicated with Almquist. She was met with the reply that she would be called to work if needed. Almquist admitted that she was a good worker and that the only reason for not having reinstated her was her marital status. Since the marital status of a female employee was not in other cases con- sidered sufficient to preclude such an employee from reinstatement, provided she was a satisfactory employee and had indicated her desire to return to work, we find that Rebuck was not reinstated because she had signed the union application. Ralph Stokes. Stokes began to work for the respondent in 1933 and was employed in the shipping room. He returned the company application on March 29. Summers recommended against his re- instatement because he was "unreliable, inefficient, and not a steady worker; needed a boss back of him all the time to get him go- ing ..." The evidence shows that Stokes , who was an "order picker," was accused of selecting easy orders, leaving the difficult ones to the other employees ; that he did not carry his end of the 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work; that he was frequently caught loafing; and that he had a high record of mistakes. We find that Stokes was denied rein- statement because he was considered an unsatisfactory employee. Anna Thompson. Thompson is married. She had been with the respondent since August 1933 and worked in the lacquer depart- ment. She did not sign the company application. John Rowe, the foreman of the lacquer department, made the following report on her : She was a lacquer sprayer, married woman, husband has a good job in town. I have no work for her now, and because she is a married woman I think it would be best to put un- married women on these jobs. 11 At the hearing, Rowe, admitted that Thompson "was a very efficient worker. She did her work well and she stayed on the job." He testified that the only reason for her not being recalled to work was that she was a married woman. He also testified that he had heard she was going to have an operation. It is apparent that Rowe did not attach any significance to the possibility of her under- going an operation, since he did not even mention it in his report and advanced her marital status as the only reason against her re- instatement. With respect to the latter reason, it is significant that Rowe hired a married woman who had not been in the respondent's employ before the sit-down strike. We find that the respondent refused to reinstate Thompson because she had signed the union application and thereby manifested her loyalty to the Union. Mary Tomlinson. Tomlinson is married and at the date of the hearing was 64 years old. She had been in the respondent's employ approximately 8 years. Before the sit-down strike she worked in the mantle department. On April 9 Tomlinson signed and returned a company applica- tion. Shortly thereafter, Spangler, who was apparently satisfied with her work, requested Almquist to summon her to the office and speak to her about returning to work. Almquist did so. She was interviewed by both Almquist and Blain. She told them that she intended to work only for a short time. Blain testified that she made an unfavorable impression on him; that she acted as if she did not care whether she was given work or not; that she appeared to him "defiant, independent, resentful, and sharp-tongued"; and that he, therefore, recommended against her reinstatement. Alm- quist testified that, after consulting with Blain, it was decided not to reinstate her but to hire a younger employee in her place. The contention that the unfavorable impression Tomlinson made on Blain was a factor in the refusal to reinstate her is not entirely convincing. There is, however, no evidence that she was denied re- ALADDIN INDUSTRIES, INCORPORATED 1233 instatement because of her union affiliation . On the contrary, the evidence shows that the decision not to reinstate her was made after she signed the company application and before she signed the union application . We find that the record does not support the allega- tion in the complaint that the respondent discriminated against Tom- linson because of her union affiliation. We find that the respondent discriminated against Charles Cum- mins, Mary Cunningham , Irma Dickerson, Edythe Disbennet, Ethel Dyer, Virgil Holford, Melvin Kane, Helen May McCarty, Mabel Rebuck, and Anna Thompson in regard to hire and tenure of em- ployment, thereby discouraging membership in a labor organization, and it interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We find that the respondent did not discriminate against Elijah Ellars, Ruby Godwin , Herman Horn , W. W. Lewis, Margery Mar- ley, Vance B. Marley, Thelma Newcomb , Kenneth Porter, Ralph Stokes, and Mary Tomlinson in regard to hire and tenure of em- ployment, thereby discouragin g membership in a labor organization. b. The employees not included in the union application Quentin Fox, tiijhitt Highbaugh, Adam Lauderdale, Florence Mason, Olive Melling, Esther Montgomery, Joseph Sahrr,, Thelma Simpson, and George Terhune. All of these nine employees signed and returned copies of the company application immediately or shortly after they had received them from the respondent. Although they were all members of the Union, none of them had distinguished themselves by reason of their union activity , and only two , Florence Mason and Olive Mehling, had served on the picket line. The evi- dence with respect to most of these employees shows valid reasons for their non -reinstatement . Whitt Highbaugh , an employee in the glass-blowing department, stated in his application that he wished employment as a glass -gatherer, a position which requires skill and for which lie was not qualified . The work of Adam Lauderdale, a steam-boiler fireman, required constant supervision , and he had reached the age when it was felt dangerous to entrust the power plant in his hands . It was believed that Florence Mason, an em- ployee in the parchment -shade department, had moved to Anderson, where her husband, who had been an employee of the respondent and who had refused ,an offer of reinstatement , had secured employ- ment. In her application, Olive Mehling stated that she desired steadier work than she had been assigned before the sit-down; it was impossible to comply with her request because of the irregular nature of the work in her department. Since the resumption of operations the respondent has had no etching work of the sort engaged in by 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Esther Montgomery before the strike. Joseph Salim, who was em- ployed as a porter, was in ill health and an unsatisfactory employee. George Terhune, who worked as a porter and janitor, was the sub- ject of complaints from various departments and was an unsatisfac- tory employee. While the evidence with respect to the lack of qualifications as employees of Quentin. Fox and Thelma Simpson, employees of the glass-finishing department and of the lacquer de- partment, respectively, is not entirely persuasive, there is, on the other hand, no evidence that the refusal to reinstate them was in any way associated with their union affiliation. We find that the respondent did not discriminate against these nine employees in regard to hire or tenure of employment, thereby discouraging membership in a labor organization. Nathan DeLonq, Marie Kelly, and Cynthia Marley. The respondent contends that it failed to reinstate DeLong, Kelly, and Marley, em- ployees of the glass-finishing department, partly because their jobs had already been filled when they applied for work. The record shows that DeLong first applied for reinstatement on May 11, Kelly on or about June 1, and Marley, in the last part of June. Their jobs had been filled before application was made and there is no evidence that any other employees have since been hired for work similar to that previously performed by these employees. We find that the respondent did not discriminate against these three employees in regard to hire or tenure of employment, thereby discouraging membership in a labor organization. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, A, C, and D above, occurring in connection with the operations de- scribed in Section I above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom. In order to effectuate the purposes and policies of the Act, and as a means of removing and avoiding the consequences of the respondent's unfair labor practices, it is essential that in aid of our cease and desist order the respondent be directed to take certain affirmative action, more particularly described below. We have found that the respondent has discriminated against the employees listed in Appendix F in regard to hire and tenure of em- ALADDIN INDUSTRIES, INCORPORATED 1235 ployment. We will order the respondent to offer them reinstatement with back pay. The offer of reinstatement shall be without prejudice to their seniority and other rights and privileges. Such reinstate- ment shall be effected in the following manner : All persons hired for the first time after April 17, 1937, the date of the union application, shall if necessary, to provide employment for those to be offered reinstatement, be dismissed. If, after this is done, there is not, by reason of a reduction in the force of employees needed, sufficient employment immediately available for the remaining em- ployees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees, in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities. Those employees remaining after such dis- tribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the prin- ciple set forth in the previous sentence, and shall thereafter, in accordance with such list, be reemployed in their former or substan- tially equivalent positions as such employment becomes available and before other persons are hired for such work. The respondent shall make payment to each of the employees or- dered to be offered reinstatement an amount equal to that which each would have earned as wages during the period from April 17, 1937, to the date of the offer of reinstatement, or placement on the prefer- ential list, less his net earnings 21 during that period, had the respond- ent, on April 17, 1937, reinstated the employees listed in Appendix F in acordance with the principles set forth in the preceding paragraph. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Automobile Workers of America, Local No. 171, is 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 the employees listed in Appendix F, thereby discouraging 21 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for 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 Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B 440 Monies received for work performed upon Federal, State , county, municipal , or other work-relief projects are not considered as earnings, but as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging 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. 5. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 6. The respondent has not engaged in unfair labor practices, with- in the meaning of Section 8 (3) of the Act, with respect to the employees listed in Appendices A, B, C, D, and E. 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 re- spondent, Aladdin Industries, Incorporated, Aladdin, Indiana, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in United Automobile Workers of America, Local No. 171, or any other labor organization of its em- ployees by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment; (b) 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 ac- tivities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to the employees named in Appendix F immediate and full reinstatement to their former positions, without prejudice to their seniority and other rights and privileges, in the m°mner set forth in the section entitled "The Remedy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in -said manner offer them employment as it becomes available; ALADDIN INDUSTRIES, INCORPORATED 1237 (b) Make whole the employees named in Appendix F for any loss of pay they may have suffered by reason of the respondent's refusal to reinstate them on April 17, 1937, and thereafter, by payment to each of them, respectively, of a sum of money equal to that which each would have earned as wages during the period from April 17, 1937, to the date of the offer *of reinstatement, or placement on the prefer- ential list, less his net earnings'22 if any, during said period, deducting, however, from the amount otherwise due each such employee, monies received by such employee during said period for work performed upon Federal, State, county, municipal, or other work-relief proj- ects; 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; (c) Post immediately in conspicuous places at its plant, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the re- spondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; (3) that the respondent's employees are free to become or remain members of United Automobile Workers of America, Local No. 171, and the respondent will not discriminate against any employee because of membership or activity in that organization ; (d) Notify the Regional Director for the Eleventh Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed in so far as it alleges that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (5) of the Act. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, in so far as it alleges that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, with respect to the employees named in Appendices A, B, C, D, and E. Charles Blackford Thomas Dauenhauer Arthur Edwards Louise Ellis Paul Gaither Fred Guard APPENDIX A Richard Haulegen Orval Hendryz Wayne Hutchinson Beatrice Lentz Helen Lentz Thelma Lentz 22 See footnote 21, supra. 283033-41-vol. 22-79 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Edward Molik Ethel Nevils Mary Ann Prisehoff Margaret Rigsby Gertrude Smith Marvin Street Myrtle Street Anna Whatley APPENDIX B Catherine Cleaver Robert Davis Fred De Long Augusta Disbennet James Fox Floyd Huffman 23 Roy Lewis Ernest Walter McCarty Fred Nichols Harriet Noble Grace Everett Piret 24 Juanita Hartman Arnold Madara Ethel Madara Frank Alexander Martha Alexander Bonnie Athan Juanita Athan William Barth Lula Beigh Jessie Bennie Dorothea Burke Frances Carver George Clear Carmen Coe Kenneth Craig Odis Crum Simon Crum Rotha Cuneo Martha Diehl Mildred Pyle Bertha Short J. W. Steenbarger Emma Stevens Owen Basil Timmons Arthur Trout Harry Watson Margaret White Inez Pauline Wolfe Zura Zink APPENDIX C Earl Ryan Thelma Agnes Thompson APPENDIX D Henry Druelle Bob Dyer; Jr. Henry Ealing Dorotha Everett Marybell Ewing William Frazee Howard Gilmore Donald Gross Dorothy Gross Emma Hicks Harold Hunt Naomi Hunt Luna Kelley Gilbert Kessler Harry Klein 25 Audrey Landers 4 21 Referred to in the complaint as Floyd Hoffman 24 Referred to in the complaint as Grace Everett 25 Referred to in the complaint as Harry I{lien. ALADDIN INDUSTRIES, INCORPORATED 1239 Curtis Landers Cecil Markham Edythe McCord Gladys Marley Elizabeth Myers Samuel Myers Sherman Myers Gertrude Newcomb Leota Phillips Owen Piret Blanche Prewett Robert Pugh Wayne Pyle James Reeves Helen Reeves Mearl Reeves Nathan De Long Elijah Ellars Quentin Fox Ruby Godwin Whitt Highbaugh Herman Horn Marie Kelly 27 Adam Lauderdale W. W. Lewis Cynthia Marley Margery Marley Edward Reiley Kennard Ryan Paul Savage Ova Scott Dorothy Schott (Johnson) Howard Simmons Pearl Snelling Dwight Russell Stanley 26 May Stokes Harry Thompson Purl Tutorow Eddie Williams Mary Williams Homer Williams Virgil Wolfe APPENDIX E Vance B. Marley Florence Mason Olive Mehling Esther Montgomery Thelma Newcomb Kenneth Porter Joseph Sahm Thelma Simpson Ralph Stokes George Terhune Mary Tomlinson APPENDIX F Charles Cummins ' Virgil Holford Mary Cunningham Melvin Kane Irma Dickerson Helen May McCarty Edythe Disbennet Mabel, Rebuck Ethel Dyer Anna Thompson MR. EDWIN S. SMITH, concurring: I concur in the Decision and Order but I would find, in addition, that the undertaking by the respondent of a general reorganization of the plant at a time when its striking employees sought reinstate- 21 Referred to in the complaint as Russell, Stanly 27 Referred to in the complaint as Marie Kelley. 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment to their jobs, in itself, apart from other discrimination against any individual employees, constituted discrimination in regard to tenure of employment, designed to discourage membership in the Union, as well as interference with, restraint, and coercion of its employees in the exercise of the rights guaranteed to them by Section 7 of the Act. While there is evidence that the respondent's dissatis- faction with the functioning of the plant antedated the strike, it appears that the respondent seized upon the strike as the occasion for effecting the reorganization. The Act recognizes the right of employees to strike and as an incident thereto preserves to them their status as employees during a strike.28 A general reorganization such as here involved is necessarily disruptive of the continuity of employ- ment of large numbers of the strikers and hence inevitably an inter- ference with and discouragement to union or concerted activity. I would therefore hold that the reorganization, occurring as it did, constituted in and of itself an unfair labor practice within the meaning of. Section 8 (1) and (3) of the Act. In view of the fact that Chairman Madden does not so hold, however, it is unnecessary to consider the appropriate remedy for such unfair labor practice at this time. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order. 28 See Mackay Radio d Telegraph Co. v. National Labor Relations Board, 364 U. S. 333.