Taylor Milling Corp.

In the Matter of TAYLOR MILLING CORPORATION and AVERY SMITH AND JAMES L. WYKES Case No.' C-1309.-Decided August 8, 1940 Jurisdiction : grain milling industry.. Unfair Laboi Practices Interference, Restraint, and Coercion anti-union statements; interrogation con- cerning union activities; threats of discharge; inducing employees not to become union members by wage increase. Discrimination: discharge for, union membership and activity; charges of dis- crimination as to seven persons, dismissed. Under proviso of Section 8 (3) of Act employer is entitled to discharge employees who joined `rival labor organization 'in violation of employer's closed-shop agreement. Remedial Orders: reinstatement and back pay awarded. Mr. 'Charles M. Brooks, for the Board-', Gibson, Dunn & Crutcher, of,Los Angeles, Calif., by Mr. J. Stuart Neary, for the respondent. Mr. George E. Bodle, of Los Angeles, Calif., for Avery Smith and James L. Wykes. , Messrs.` C. J. Hyans and A..1V.' Petersen, of Los Angeles, Calif., for the A. F. of L., Mrs. Evelyn Neilson', Cooper and Mr. N. Barr Miller, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charge's and amended charges I duly 'filed by Avery Smith and James L. Wykes, the National Labor Relations Board, herein called' the Board, by the Acting Regional Director for the, Twenty- first Region (Los Angeles, ' California), issued its complaint, dated March 10, 1939,' against Taylor' Milling Corporation; , Los Angeles; California; herein called the respondent, alleging that the respondent had engaged in and was engaging' in unfair labor practices affecting commerce within the meaning of -Section 8 (l`) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. I The, second amended charge-the basis upon which the complaint issued-was amended during the hearing. See footnote 2, infra. 26 N. L. R. B., No. 40. 424 TAYLOR MILLING CORPORATION 425 Concerning the unfair labor practices, the complaint, as amended at, the hearing,2 alleged'in substance that (1)' on or about various date's between February 29, 1936, and June 24, 1938, the 'respondent dis- charged or laid 'off, and had refused and still refuses to reemploy certain named employees, herein collectively called the charging employees, for the reason that each ' of said employees, joined' or assisted one of the labor organizations named in Section II, infra, thereby discriminating in regard to hire and tenure 'of employment of each of said employees' and discouraging membership in each of t;he said labor organizations; (2) at various times between November 1935 and March 10, 1939, the respondent urged, persuaded, warned, and offered wage increases' to induce its employees to refrain from joining a labor organization, threatened its employees, with discharge if they, became or remained members of a labor organization, and made other anti-union statements; and (3) by the foregoing acts and each of them, the' respondent interfered with, restrained, and, coerced its employees in the exercise of the rights guaranteed in-Section 7 of'the Act.' Copies of the complaint and accompanying notices of hearing thereon were duly served upon the respondent; upon Smith and Wykes who filed the charges, and upon the labor organizations hereinafter. named s ' On or about March 27, 1939, the respondent filed an answer, in which, it admitted certain allegations as to its business but denied the jurisdiction of the Board on the ground that 'its business 'did not directly or substantially affect interstate commerce; denied the alleged unfair labor practices;,and pleaded certain' affirmatige defenses.' On or about, the same date, the respondent also filed a demurrer, alleging that 'the complaint was indefinite, ambiguous, and unintelligible; that it did not state facts sufficient to constitute a cause of action; and that the action against the respondent by its former employees as' seat forth' thereinwas barred by lathes.' Pursuant to the amended notice,'a hearing was held in Los Angeles,' California,. on March 27, 28, 29, 30, 31, and April 4, 5, 10,,1,I, 12, "13„ 14, ' 1939,, before' Thomas H. 'Kennedy, the; Trial Examiner duly, designated by the Board. The 'Board, the respondent, and the. charging employees were represented by counsel and participated in the hearing.' At the hearing on March 27, 1939, the American Feder- ation of Labor, hereinafter called the.A. F, of L., orally petitioned the Trial Examiner to intervene on behalf of, its locals involved in this proceeding. Intervention was allowed on March 28, 1939, upon,the ] On March 27 , 1939, the complaint was amended by adding to it the name .of the successor to one of the labor organizations involved in this proceeding. By stipulation, the respondent's answer was amended accordingly. On March 28, 1939, the complaint was amended without objection 'to show its issuance 'as' of that date, subsequent to the filing of an amendment to the second amended charge 3 On or about March 18, 1939 , the Acting Regional Director issued an amended notice , continuing the hearing until March 27, 1939, copies of which were duly served upon the parties. 4 During the hearing, the demurrer was amended to embrace the amended charges as well as the amended complaint. 426 DECISIONS OF NATIONAL LABOR RELATION S BOARD filing of a written petition therefor, as required by the Board's Rules and .Regulations.' - Thereafter the A. F. of L appeared by represent- atives and participated in the hearing Full opportunity to be heard, to examine witnesses, and to introduce evidence bearing on, the issues was afforded all parties. At the opening of the hearing, the A. F. of L moved, and the respondent-joined in, the motion, to strike allegations in the complaint as to the discriminatory discharge or lay-off of certain of the respond- ent's employees named therein The Trial Examiner denied the niotion''without prejudice to its renewal at the conclusion of the Board's case. I t was so renewed, at which time the respondent also mowed.'fo dismiss the complaint. Rulings on these motions were reserved by the Trial Examiner. At the close of the hearing, the respondent again, made several motions to dismiss the complaint Riiliiiga on these motions were likewise reserved. Said motions were, subscquently denied in part and granted in part by the Trial Examiner in his Intermediate Report. At the conclusion of the Board's case, the Trial Examiner grantcd*a motion to conform the pleadings to the proof.' Diiring the course, of the hearing the Trial Examiner ruled on'sevefal other motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby afhrmed, except the rulings on the motions to * dismiss which are affirmed only in so far as they are consistent with the findings, con- clusions,' and order, hereinafter set forth. On June 12, 1939, the Trial Examiner issued his Intermediate Re- port, copies of which were duly served upon the parties He found that the respondent hacl'engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) ahd (7) of the Act. He recommended that the respondent cease and desist from its unfair labor practices'and take certain affirmative' action, including an award of back pay to William V. Johnson and, the reinstatement with back pay of Avery Smith, James L. Wykes, Walter Crouch, J. L. Cross;, Phillip G. Nash, Everett Cleland, alid Charles Walling who, he found, were discriminatorily discharged. He further found that the respondent had not engaged in unfair labor practice's within the meaning of Section 8 (3) of the'Act with respect to 'S: E. 'Miller and Steven E. Abbott, and recommended that the refevant 'allegations of the complaint be dismissed. Exceptions to the Intermediate Report were filed by the respondent and the A. F. of L. on July 13, 1939. On August 8, 1939, the respond- ent filed a brief in support of its exceptions Pursuant to notice duly ' Article II, Section 19 6 The respondent and the A F of L took exception, claunin, denial of due process The ceceptioos are hereby denied . See National Labor Relations Board v Consolidated Edison Company of New York, Inc , 305 U. S. 197 TAILOR MILLING CORPORATION 427 served upon the parties, a hearing was held before' the Board in Wash' ington, D. C , on November 30, 1939, for the purposes of oral'•ar'gu-' meat. Both the respondent and the A. F. of'L. were represented-by counsel. The charging employees did not appear. The Board has considered the exceptions of the respondent and tlie•' A. F., of L. to the Intermediate Report, and the respondent's brief. In, so far as said exceptions are inconsistent with the findings, con- clusions, and order hereinafter set forth, the Board finds thetii to be' without merit.' After the close of the hearing, on May 13,1940, by stipulation of all' the parties, copies of certain relevant contracts were offered in evi dence. We hereby accept the evidence so offered and it is 'Hereby made a part of the record in this case. ' ' Upon the entire record in the case, the Board makes the following:' FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 7 The respondent, it Delaware corporation having its principal office and place of business in Los Angeles, California, is engaged.in the manufacture and sale of livestock and poultry feeds, and the processing and; sale of grain products and fertilizer materials. It also owns and operates two subsidiaries in Oakland and Stockton, California, re-n spectively, neither of which is involved in this proceeding. , At its Los, Angeles plant, the respondent normally employs about 50 to 60 warehousemen and truck drivers. ,During the year 1938 the respondent used in excess of 129,000 tons of raw materials, more than 43,000 tons, or about 34,per cent, of which w6re purchased and shipped from outside the State .of California: During the same year, 5.47 per cent of the respondent's finished products were sold and delivered outside the State and, to foreign countries. The gioss sales for the year amounted to about $5,200,000: The respondent contends that too infinitesimal a volume of the raw materials and finished products transported to and from its Los Angeles plant move across California- boundaries to affect the total stream of interstate and foreign commerce. This contention is not tenable.' . I I'll II. THE ORGANIZATIONS INVOLVED " ' ' International Longshoremen's and Warehousemen's Union, Local 1-26, herein called Local 1-26, is a labor organization affiliated with the Congress of Industrial Organizations, herein called the C. I. 0. 7 The findines in this sect ion ate based on a st ipulvtion of facts 8 See National Labm Relations Board v Fanblotl, et ht , doing business as Sonterr die ] Ifg Co. and Somerset Mfg Co , 306 U S 601, National Laho, Relations Board v Cowell Portland Cement Company , 108 F (2d) 198 (C C A.9). 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It, admits to membership, all of the respondent's warehousemen and truck drivers. International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local 208, herein called Local 208, is a local of the International Brotherhood of Teamsters, Chauffeurs, Stable- men and , Helpers of America, herein called the Teamsters, -affiliated with the American Federation of Labor, herein called the A. F. of L. It admits to membership the respondent's truck drivers. Flour, Grain, Feed, Cereal Warehousemen's Local Union 757, herein called Local 757 , was a local of the Teamsters, affiliated with the A. F. of L.. It existed as a labor organization until about Decem- ber 1938 and admitted to membership the respondent's warehousemen. Flour, Feed and Cereal Workers Union, Local 21830, herein called Local, 21830, ' affiliated. with the A. F., of L., is the successor labor organization to Local 757. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In either November or,December 1935, Local 208 began to organize the respondent's employees and by February 1936 about 65 per cent of the employees had become affiliated with that organization. Dur- ing that . period the respondent through its plant 'superintendent; Felix Dosier,9 plainly expressed its opposition to the unionization of its employees and sought to elicit information from them concerning' their organizational activity. In December 1935 William Johnson, a truck driver, told Dosier that if he [Johnson] continued to haul from the harbor he would have to, join the' truck drivers' union.10 Dosier replied that "he didn't want the union man (sic) working in the • place' . . . if the men had to belong to the union to haul out of the harbor, that they wouldn't : put this, truck on,that run," adding, "they wasn't ready to close the plant down yet." Johnson was laid off at the end of February 1936.11 Shortly before Johnson's lay-off Dosier asked Avery Smith, a ware- houseman, whether he [Smith] "knew anything about the- "union" or "of any of the boys that had joined the union," and whether he "thought the men was really going to organize," and said to Smith,. "there is not going to be a union in this.mill as-long as I am superin- ' Dosier, left the plant about August 15, 1937, for a period of 3 months because of illness. , He returned for a brief period'but in April 1938 suffered a cerebral hemorrhage which totally sncabacitated him. He was unable to testify at the hearing Consequently the statements hereinafter set forth , which were imputed to hun, stand undenied upon the record. `While we have taken into consideration the respondent's, unavoidable inability to offer Dosser as a witness , there is nothing in the record which leads us to doubt the veracity of the witnesses testifying to Dosier's statements and conduct iG Local 208 was apparently demanding that the truckers hauling in that area become members of the union. ii Johnson 's lay-off is discussed more fully in Section III C, antra. TAYLOR MILLING CORPORATION ' f '429 tendent here . . . all of the' men that does not join' the union; 'and those men that have joined the union that'drop out' of'the union'I am going to see that they get a'raise, and those men tli'at don't drop out, it is just going to be too bad." J. L. Wykes and J. L. Cross, other warehousemen, testified to similar conversations' with' Dosier at about the same time. We find that such conversations occur"red as related by Wykes and Cross. i Between November or December 1935 a'nd March 1936, Johnson, Smith, and Wykes had applied for membership in Local 208. Smith, Wykes, and Cross testified without contradiction and `we find that they had received wage increases about the' middle of March 1937. We further find that as revealed in Dosier's statements to the`employ- ees, such wage increases were given to discourage' their 'affiliation with the Union. Smith and Wykes did not thereafter perfect their membership in Local 208 and the organizational movement among the men subsided. ' ' ' , ' '' , In August 1936' Walter Crouch applied to Dosier fora job.','' Dosier asked, "Do you belong to any, union organization?" ' Crouch re- sponded, "No . . . Do I have to be a member in order to get a: job?" And Dosier replied, "If you want a' job you let the union'alone:" In March or April 1937 Local 208; together with Local 598, 'a'gen- eral warehousemen's'union also affiliated with the A. F! of L.;'iigain initiated an organizational campaign among the respondent's em- ployees. Early in April, Wykes and Smith made second applications for union membership and became active in union affairs. , "About the same time Crouch applied for membership., Thereafter on nu- merous occasion's, Dosier attempted to elicit union information'from Crouch. On one such occasion, about the end :of April, Dosier asked Crouch "to tell me about this union." Crouch replied that he had "nothing to say," and Dosier said, "Red, I am perfectly satisfied with your work . . . I think it is a shame . . . that you are going to let yourself tie up in this union . . . because . . . I shall ' discharge every man I find connected with this union." 12 A few days after Smith and Wykes were dismissed on May 1, Dosier approached Jake Hobbs, an employee in charge, of the fertilizer department,13 and asked him "how I felt about unions, and promised me that if I would stay out of the union at this time that he would see to it that my salary was raised sufficiently to satisfy me in return for my loyalty to the company; to which I agreed." Shortly thereafter Hobbs received two successive"raises. Between May and August 1937, he had several other conversations with Dosier, which 12 In June 1937 Dosier transferred Crouch to another department. On May 1, 1937, Smith and, Wykes were both dismissed by Dosier. The circumstances surrounding their dismissals are set forth more fully in Section III B, infra. 13 Hobbs left the respondent's employ voluntarily in June 1938. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hobbs described as being "nearly all alike. He would try to pump me about certain individuals." 14 We find that by Dosier's anti-union statements and threats of dis- charge, his repeated solicitation of union information, and his offer and grant of wage increases to discourage union affiliation, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.15 B:- The strike and subsequent agreements with the Teamsters About July or August 1937, Local 757 was formed and the ware- housemen who were members of Local 208 and Local 598 were trans- ferred to the new organization." In August 1937 representatives of Locals 208 and 757 jointly made several efforts to confer with the respondent regarding recognition of their organizations. These efforts failed and on August 23, 1937, the two locals called a strike among the respondent's employees. The strike lasted 2 days. It was terminated upon an agreement 11 between the respondent and Locals 757 and 208 and the strikers returned to work. The agreement provided inter alia for the exclusive recognition of each organization as the representative for the re- spective members in its jurisdiction, and that all non-striking employ- ees were to become union members by noon the next day, August 26.18 Immediately thereafter the respondent entered into collective bargaining negotiations then being currently conducted by the Milling Association,!' of which the respondent was a member, with repre- sentatives of Locals 208 and 757. On October 1, 1937, the Milling Association and Local 757 entered into a written agreement for the 11 The respondent sought to impeach the testimony of Hobbs by various character witnesses Robert Dosier stated that he knew Hobbs to have "a reputation of being an exaggerator " but that he was not convinced that he would lie under oath " The Trial Examiner found, "in view of all the testimony and from his observation of the witness," that Hobbs' testimony was credible We concur in his conclusion iE The respondent urges that all the evidence of Dosior's statements and acts set forth above should be stricken because, among other reasons , the asserted failure of the complainants to file charges promptly operated to prevent the respondent from offering its former superintendent , Felix Dosier, as a witness In this connection the respondent states in its brief " They [the complainants] have slept on their rights, and although there is no statute of limitations provided in the Act the equitable doctrine of laches, we believe, applies." We find this contention to be without merit Sec 3fatter of Colorado lfilling and Elevator Company and Denver Trades and Labor Assembly , 11 N L R B 66, 68, and footnote 29, infra 16 The record does not disclose the purpose of this transfer of jurisdiction from one local to another of the same' parent organization , the Teamsters i7 The memorandum of the agreement, which was not signed by the parties, reads as follows It is agreed that Flour , Feed, Cereal & Warehousemen 's Local 757 and the Truckdrivers Local 208 be the sole bargaining agency for the respective members in their jurisdiction , and that there shall he no ill-feeling between the employees of the Taylor Milling Corporation who left the premises on Monday afternoon , August 23, 1937 and those who remained , but will become paid-up union members by noon August 26 , 1937 There shall be full cooperation between the employees and the employer , the Taylor Milling Corporation Thirty-eight strikers signed the document , which was treated by the parties as a designation of the unions as their bargaining agent 18 Thereafter a system of shop stewards was established in the respondent 's plant for the purpose of dealing with grievances 10 An association of employers engaged in the industry in that region TAYLOR MILLING CORPORATION 431 duration of 1 year covering certain specified categories of warehouse- men and other employees, exclusive of truck drivers. That written agreement provided that when Local 757's membership among the respondent's employees constituted 51 per cent all new persons' em- ployed in the categories enumerated should become members. of Local 757 of the Teamsters within 15 days of employment.20 -, On April 1, 1938, this agreement was modified in writing by the parties to provide that both present employees and new employees must become members of the appropriate local of the Teamsters. The respondent contends, and we find, that this modification was merely a clarification of the terms of the original understanding between the parties.21 On the basis of the record we find that the written contract of October 1, 1937, with Local 757, was a closed-shop contract covering all categories of employees of the respondent except truck drivers. The respondent (lid not enter into a written contract with Local 208 on October 1, 1937. However, both the respondent and Local 208 maintained that the respondent entered into an oral agreement with Local 208 covering the truck drivers as a result of the same sego tiatlons and at the same time that Local 757 secured its written agree- ment covering other categories of employees. Dexter Lewis, president of Local 208, testified that such an 'oral contract was entered into with the Milling Association, including the respondent, obligating the latter's members who operated trucks to pay the wage scale and abide by the working conditions as negotiated by written agreement between the Teamsters locals and the Motor Truck Association of Southern California, an organization of employ- ers engaged in the trucking business in that area.22 At the hearing the respondent denied that it was committed to the full scope of Local 208's oral agreement with the 'Milling Association.23 However, it did admit, and we find, that it was committed to the recognition of Local 208 as the sole bargaining agent for its truck drivers. The respondent and Local 208 also contend that the oral agreement 20 Excepted were casual and seasonal labor 21 Herbert V Nootbaar, the iespondent 's representative in these negotiations, testified with regard to the modification of April 1, 193$ , that the Teamsters ' representatives stated that they believed that a certain portion of the contract as it was originally written left room for a "misundeistanding " and that they re- quested a iewritmg of the contract for that reason Aage Peteisen , regional representative of the Teamsters , testified that the amendment was designed to make the subsisting contract "air tight " 22 Lewis testified that it was Local 208's practice to enter into one such written contract within a geo- graphical area and to make oral agreements on the same terms covering truckers employed by concerns in that area which were not parties to the written contract but which operated trucks incident to their prin- cipal business 23 Herbert V Nootbaar , the manager of the respondent 's grain department and its representative in the collective bargaining negotiations , testified that he had no recollection of having made a comnntnient as to the wages and working conditions of the respondent 's truck drivers, saying " I feel sure I wouldn't have because of operations , as we had them were unprofitable, and we were trying to work our operations some- what differently from the other mills in the sense that . the other folks had them doing strictly driving and we were truing to operate a system of the diners being salesmen and making the deliveries in other words a seem-office man " 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provided as, a condition of employment that all truck drivers should become and remain members of Local 208. Local 1-26 disputes that contention. We' are of the opinion that the respondent and Local 208 entered into an oial closed-shop contract covering the respondent's truck drivers on or about October 1, 1937, and that such agreement was still in effect on June 24 and 25,1938 .21 In the first place the strike settle- ment agreement of August 25,, 1937, provided that all persons then employed by the respondent, including truck drivers, should become members of the appropriate local of the Teamsters. The respondent testified that during the negotiations following the strike settlement it orally agreed with Local 208 that the subsisting strike settlement agreement was. toIcontinue. This testimony is not contradicted and there is nothing in the record which'causes us to doubt its veracity. In the second place the written contract with Local 757, covering warehousemen and other employees except truck drivers, emanating from- the same negotiations, was, as we have found, a closed-shop contract.' Herbert V. Nootbaar, the respondent's representative in the negotiations, testified at the hearing that during the course of the negotiations' on the closed-shop question no distinction was made between truck drivers and other employees, that lie understood that he was dealing with regard to' all employees of the respondent, and that lie agreed on behalf of the respondent that the respondent would require membership in the appropriate locals of the Teamsters' organ- izations as a condition of employment of, all, its employees, including truck,'drivers. Finally the actions of both respondent and Local 208, as will be set forth subsequently, were consistent with a closed-shop agreement covering truck drivers. On the basis of the entire record we find that the respondent and Local '208 entered into an oral closed-shop agreement covering the respondent's truck drivers on or about October 1, 1937.25 We further find that such closed-shop contract was still in effect on June 24 and ' 24 On June'24 and 25, 1938, a'strike occurred among the respondent's employees which resulted in the dis- charge of three truck drivers, Phillip O Nash, Everett Cleland, and Charles walling, because they had joined the C. I. 0 See facts stated infra 85 This finding is in no way inconsistent with the previously stated testimony of Dexter Lewis, president of Local 208, that the Milling Association including the respondent agreed to abide by the wages and working conditions provided in a master agreement with the Motor Truck Association of Southern California. The master agreement was introduced into the record by stipulation of the parties after the close of the hear- ing and after the case was transferred from the Regional Office to the Board It reveals that its terms became effective on November 2, 1937 It does not expressly commit each employer to operate a closed shop but contains the following provision The Union agrees that . . members of the Association will be notified not less than thirty-six (36) hours before any regular employee, member of the Union, of a member of the Association be taken off the job because of his failure to maintain good standing in the Union. However, in view of the uncontroverted testimony of the respondent that it agreed to a closed shop, it is unnecessary to determine whether this clause creates a closed-shop contract and equally unnecessary to decide whether the respondent agreed to abide by all of the terms of the master agreement TAYLOR MILLING CORPORATION 433 25, 1938, since a period of 8 to 10 months is not an unreasonable length of time for such a contract to extend.26 About the end of March 1938, Local 1-26 commenced organizational activities among the respondent's employees and.obtained a numbei: of applicants for membership, including the respoiident'rs three truck drivers.27 On the morning of Jiine 24, 1938, employees who-,had joined,.Local 1-26 appeared at work wearing C I. 0. buttons. C. J. 'Hyans, a' representative of Local 757, came to. the plant during the morning. He in turn summoned Pitts, a Local 208 representative. Hyans discussed the situation with the 'management. Nootbaar testified without contradiction that Hyans said "they'were going to exorcise{ their prerogative [under the current contracts] of insisting that . all the men on the job be A. F. of L. men, and that they would determine that and instruct us which men we could permit to remain on the, job and those we could not." We find that the statement was made as related. The management acquiesced in the demands,of Locals 757 and 208. During the lunch hour Hyans and Pitts told the employees that "those who wished to remain A. F. of L. could remain ' .''.. , on the, job and those who were C. I. 0. men could not work there. There- upon, the employees were separated into two groups -one group consisting of those who chose to remain members of the A. F. of L., the other consisting of those who refused to relinquish, their affiliation, with Local 1-26 of the C. I., 0. Robert Dosier, plant.superiiitendent, at the request of Hyans, removed the time cards of the men in the . C. I. 0. group. The employees in the CA. O. group wereI then told that they would have, to relinquish their jobs and were requested to leave the respondent's premises. ' They did so and during the, afternoon formed a picket line at the entrance of the respondent's plant. The three truck drivers were not at the plant at the time,of r the above-related incidents but returned from their delivery routes between 4 and 5 o'clock that afternoon. All three were wearing C. I. 0. buttons when they made their, daily report to Jack K. Skiniier, the respondent's truck dispatcher and order clerk, .and joined the'_ picket line the following morning, June 25.28 The discharged em- ployees were replaced by new employees furnished by Locals. 757 and 208. ' 29 See footnote 24, supra 27 Phillip C Nash, Everett Cleland, and Charles Walling 26 Their allegedly discriminatory discharge is discussed in Section III, C, infra 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The discharges 1. Johnson, Smith, and Wykes William V Johnson 29 was employed by the respondent about July 1935 as a warehouseman and subsequently, beginning about the end of November 1935, as an "extra truck driver." In the latter capacity he was paid 40 cents an hour. About the first of December 1935, he applied for membership in Local 208 and became active in organizational work. On February 29, 1936, he was discharged. On March 15 or 16, 1936, he obtained substantially equivalent em- ployment. He does not desire reinstatement with the respondent. Shortly after his affiliation with Local 208, Johnson informed Dosier, as previously related, that if he "continued to haul feed and foodstuffs from the harbor ... [he] would have to join the truck drivers' union" and was advised ". . . if the men had to belong to the union to haul out of the harbor, that they wouldn't put this truck on that run." About, a month later, a few days prior to Febru- ary 29, Dosier told Johnson that lie would no longer he needed because "we are laying that truck off the road." To this Johnson remarked, "I know that isn't the reason," and Dosicr replied, "Well, I have to give you some excuse." Johnson was the only driver discharged at this time. Just. after the termination of Johnson's employment, about the first of March, Dosier said to Cross, another warehouseman, "I got rid of a rat a while ago [referring to Johnson] ... The son-of-a-bitch, he has been in here trying to organize the mill, trying to got it to go union . . . There will be no union here as long as I ani here." The respondent contends that Johnson was laid off when the respondent decided to discontinue the use of the truck which he was driving. The evidence does not support that contention. Johnson testified without contradiction that on March 4, 1936, lie saw the truck which he had been driving "on the road" being operated by a driver whom he did not i ecognize.30 We find therefore that Johnson's truck was continued in operation. 2i The respondent contends in its brief that the doctrine of ]aches should estop the Board from considering the allegations in the complaint concerning Johnson's discharge because of his failure to file charges more promptly We do not agree with this position The Act contains no period of limitation on the vindication of the public rights protected Where we considered a similar contention in Matter of Colorado Milting & Elevator Company and Denver Trades and Labor Assembly, 11 N J, R B 66, we held the doctrine of lathes inapplicable to the proceeding under the Act, stating The Board acts in the public interest to effectuate an important national policy designed to eliminate the causes of certain obstructions to the free flow of commerce by the mitigation and elimina- tion of unfair labor practices which tend to cause industrial strife and unrest Such benefits as the Board's remedial orders confer upon individual employees are only incidental to the exercise of its power to effiotuatc the policies of the Act by remedying conditions created by unfair labor practices It is well settled that the equitable principle of lathes is not applicable to the government acting in the public interest See United States v Nashville, Chattanooga & St Louis Railway Company, 118 U S 120, 125, Undid States v Beebe, 127 U S 338, 344, United States v Insley, 130 U S 263, 266, Federal Trade Commission v Algoma Lumber Co et at , 291 U S 67 30 At oral ar_ument counsel for the respondent stated that the truck Johnson had been driving was not taken out of op,, ation but that the harbor run had been discontinued following Johnson's lay-off. TAYLOR MILLING CORPORATION 435 The termination of Johnson's employment occurred at a time-when the respondent was actively and successfully resisting Local 208's first organizational effort among its employees, as we have found in Section III A, supra. Johnson was discharged by Dosier as part, of the respondent's then current campaign to discourage the organization, of its employees after Dosier had directly threatened to discontinue' the harbor run for that express purpose. Upon all the evidence we find that the respondent discharged Johnson because of his aflilliition with and activity in behalf of Local 208.31 Avery Smith and James L. Wykes entered the respondent's employ in June 1935 as warehousemen. We have previously mentioned their affiliation with Local 208 during its first membership drive in-1936 and their failure to perfect their membership under threats of dis- charge. In the spring of 1937, during Local 208's second drive, they again made application for membership in Local 208 and thereafter actively solicited union applications from then fellow workers. Both were discharged about a month later, on May 1.32 They desire- reinstatement. - ' Around the end of April 1937 Felix Dosier told Crouch, on one occasion when he was appealing to Crouch for union information,' "You know, Wykes and Smith are the two ring-leaders in this union business and . . . 1 am going to get rid of them . - . I shall dis- charge every man that I find connected with this union . :-,this is just between you and I. 1 haven't any witnesses, nor neither.hiive you. My word will stand just as good as yours." Moreover, on May 1, the date of their dismissal, Dosier said to Hobbs, "Well, you know Mr. Wykes and Smith are getting their time in full today, don't you-? Of course, it is not over union activities . . We don't have to, use that reason." Dosier approached Smith and Wykes at their "station" in the plant early on- thii morning of May 1 and advised' them that they ti- ere "being let out." Smith asked, "What was the cause of the lay-off." Dosier replied that it was "due to a slackening of production, that they had to make a change, and they were going to put some of the men on nights on days." Later that day when Smith and Wykes went to Dosier for their pay checks, Smith reminded him that "there' 31 The respondent argues that the cessation of Johnson's employment was a lay-off and not a discharge and that he had made no application for reinstatement We reject that contention'in our finding above, but even if contrary to our finding Johnson was laid off and not discharged the respondent's action with respect to him was discriminatory within the meaning of Section 8 (3) of the Act and no application for reinstatement vas necessary See Matter of Greyhound Lines, Inc and Local Division No 1063 of the Amal- gamated Association of Street, Electric Railway & Motor Coach Employees of Arnerica, I L R B 1, enforced in National Labor Relations Board v Pennsyloanta Greyhound Lanes, 91 F (2d)178(C C A 3),303U S 261 32 Charges that Smith and Wykes were discriminatorily discharged Here filed with the Board by the A F of L shortly after their dismissals, about May 4, 1937, and were subsequently withdrawn by the A F of L about July 23, 1937 The respondent urges that the doctrine of laches is applicable and bars consideration of the allegations of the complaint with respect to these individuals We find no merit in. that contention See footnote 29, supra Equally untenable is the contention of the respondent that the Board is estopped by its failure to issue a complaint on the A F of i, charges from prosecntmg the present charge and complaint. See footnote 36,1 nfra. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was lots of men,in the mill that had been there a very short time." At the same time, Smith offered to do manual labor on the so-called "bull gang'." until the respondent's production again increased. Dosier did not 'accede to that suggestion, saying "it couldn't be done . ,. . `I just got, to let you go.' " Wykes also asked for work on the "bull gang" and Dosier refused, saying "they needed men that would work overtime.;" , . No other employees were laid off on or about May 1. Thereafter, Smith and Wykes were replaced by two employees with more seniority but two other employees, with less seniority, namely Jess Luttrell and Crouch, were promoted from manual labor to work on the packing machines, which was the type of work Smith and Wykes had been engaged in at the time of their discharge. The respondent maintains that Smith and Wykes were laid off because of a "slackening of production" and because of their unwill- ingness to work overtime. There is no dispute that there was a slackening of production, but the men's alleged unwillingness to work overtime is controverted. It was the respondent's practice to permit its employees the choice of working overtime unless the pressure of work was such as to neces- sitate its demanding that everyone work beyond 4 o'clock. Smith and Wykes both admitted that they had frequently left the plant promptly at 4 p. in. when overtime work was available, but denied having ever,ignored a blanket overtime order, with one exception in the case of,Smith. On December 24, 1936,.Smith quit at 4 o'clock, allegedly without knowing'that overtime work had been ordered. However, he,was penalized for that action by the loss of a day's work. Robert Dosier, who until his promotion to plant superintendent in 1938, had, been warehouse foreman, testified that Smith and Wykes had worked overtime but that such occasions had been" few and far between" and that the real complaint against them was "their failure to cooperate with the, company in working until the work was done within a reason- able,time.'.'. That testimony indicates that the respondent may have had cause, to believe Smith and Wykes indifferent toward overtime work. But upon the evidence as a whole, particularly Felix Dosier's anti-union bias and activity and his statements to Crouch and Hobbs regarding these dismissals, we are satisfied and find that the respondent utilized the occasion offered by the reduction in production to dis- charge Smith and Wykes because of their membership in and activity on behalf of Local 208. Prior to their dismissal, Smith and Wykes were earning 6232 cents and 55 or 5832 cents an hour, respectively. Between May 1, 1937, and the, date of the hearing, Smith earned about $1,000 and Wykes about $1,050. At the time of the hearing both were employed by the Works Progress Administration. TAYLOR MILLING CORPORATION, .437 We find that the respondent discriminated with regard to the hire and tenure of employment of William V. Johnson, Avery Smith;; and James L. Wykes, thereby discouraging membership in Local,208 and thereby interfering with, restraining, and coercing its employees in•the exercise of the rights guaranteed in Section 7 of the Act. 2. Crouch, Cross, Miller, and Abbott , , Between August 1937, when bargaining relations ,were 'established between the respondent and Locals 208 and 757, ,and.the advent of Local 1-26 about April 1938, the respondent discharged or laid off four employees: Walter Crouch, J. L. Cross, S. E. Miller, and Steven E. Abbott. The complaint alleged that such discharges, or lay-offs were due to their activities on behalf of Local 757. In,its ; answer, the respondent denied -the- allegations, and pleaded that said discharges or lay-offs were for "just cause." ' Crouch went to work for the respondent as a warehouseman in August 1936. He applied for membership in Local 208 about the first of April 1937, and after the formation of Local 757 about July 1937, transferred his affiliation thereto. In August he participated in the strike conducted jointly by Locals 208 and 757 and after its termi- nation returned to work. He was laid off about a month later, on September 30, the day before Local 757's bargaining contract became effective. The respondent contends that Crouch was dismissed because of inefficiency and in pursuance of a vote of the union membership conducted by the shop stewards.33 This contention is supported by the evidence adduced at the hearing. Because of a seasonal slump, the respondent was faced with the necessity of laying off one or more warehousemen. Robert Dosier, who was then acting plant superin- tendent in the absence of his father, suggested to the shop stewards that either Crouch or one Claude Floyd should be laid off-Crouch, because of his unsatisfactory work during the preceding. month '14 and Floyd because he had the least seniority. There being no, una- nimity among the stewards, Dosier proposed that the choice between Crouch and Floyd be made by the employees.35 A secret ballot was taken by the stewards without inteference from the respondent and Crouch rather than Floyd was chosen for lay-off., The respondent adhered to that choice. The Trial Examiner found that Crouch "was discharged because of his refusal- to supply respondent with information concerning the 33 Stewards were stationed in the plant immediately following the respondent's recognition of Local 757 as the bargaining agent for the warehousemen, after the termination of its August strike , but before the execution of its October 1 contract 34 The record discloses that Robert' Dosier had had cause on two different occasions to complain to'the shop stewards about Crouch 's poor sewing of grain sacks and the resultant loss of grain therefrom. 35 All the employees including Crouch were members of the union because of the existence of the closed- shop strike settlement agreement of August 25, 1937. 323429-42-vol 2G 29 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities of the Uniori." The incidents relied upon by the Trial Examiner occurred in the late spring of 1937, during a period of open hostility toward Local 208, whereas Crouch's lay-off did not occur until the respondent had recognized and granted Local 208 a union shop. We find that by laying off Crouch the respondent did not discriminate with regard to his hire and tenure of employment within the meaning of Section 8 (3) of the Act. Cross was employed by the respondent as a warehouseman for the second time in 1932, having previously been so employed for a period of about 4 years. In May 1937 he applied for membership in Local 208 or Local 598 and later transferred to Local 757. He actively solicited union memberships and in addition held office in Local.757. He participated in the August 1937 strike and thereafter returned to his regular work as a sack sewer. In January 1938 he was assigned to the "bull gang," as a laborer. He was laid off, together with five other persons, including Miller and Abbott, on February 16, 1938. Local 757 sought to secure an adjustment of Cross' grievance but did not regard his lay-off as a discrimination to discourage union membership. Cross' lay-off was out of seniority and was protested by Local 757 on that ground. Thereafter, the respondent gave him a week's severance pay and agreed to reemploy him as a casual worker, but refused to reinstate him as a regular employee. Cross did not accept the offer of casual employment. The respondent contends that Cross was laid off because of "slack work" and because "he was too old to handle his end of the work." At the time of the hearing, Cross was 59 years old. There is a conflict in the evidence concerning Cross' efficiency, but in our view of the case it is unnecessary to resolve that conflict. In February 1938 when Cross was laid off there was a subsisting. contract between the respondent and Local 757 which had been in existence for approxi- mately 4 months. There is no showing during that period of hostility on the part of the respondent toward Local 757 or antagonism toward individual employees because of their union membership. Under all the circumstances we find that Cross' discharge or lay-off on February 16, 1938, was not an unfair labor practice within the meaning of Section 8 (3) of the Act. Miller and Abbott were employed by the respondent as warehouse- men in the fall of 1937, Miller in August, prior to Local 757's strike, and Abbott in October, during the existence of Local 757's bargaining contract. Both applied for membership in Local 757 shortly after being hired. They were laid off in order of seniority, on February 16, 1938. About May 15, 1938, the respondent offered, through Local 757, to reemploy them. Local 757 was unable to locate either one of them and furnished the respondent with new employees instead. TAYLOR MILLING CORPORATION 439 The repondent contends, and the Trial Examiner found, that Abbott and, Miller were discharged or laid off because of "slack work." We agree with the Trial Examiner's finding. The charging employees did not except to this finding. Therefore, we will not discuss the evidence in detail. We find that the respondent has not, by discharging Walter Crouch, J. L. Cross, S. E. Miller, and Steven E. Abbott, discriminated in regard to their hire or tenure of employment within the meaning of Section 8 (3) of the Act. 3. Nash, Cleland, and Walling 36 About 3 months subsequent to the advent of Local 1-26, on June 24, 1938, the A. F. 'of L. closed-shop contracts were invoked and the C. I. 0. strike occurred at the respondent's plant. As previously stated, the respondent's three truck drivers, Phillip G. Nash, Everett Cleland, and Charles Walling, participated in the strike 31 and were replaced by new employees furnished by Local 208. All three men applied for membership in Local 1-26 about March 1938. They were then members of Local 208 in good standing and continued to be at least until their alleged discharge on June 24.38 The respondent maintains that Nash, Cleland, and Walling were discharged pursuant to its subsisting closed-shop contract with Local 208 within the proviso to Section 8 (3) of the Act, and, alternately, that they were not discharged but voluntarily quit in sympathy with the striking warehousemen. The weight of the evidence supports the contention that they were discharged rather than that they voluntarily quit, and we find that the respondent discharged the three truck drivers.39 If the closed-shop contract was valid within 36 The respondent contends that the Board is barred from prosecuting the present charge and complaint as to these three employees because previous charges alleging their discriminatory discharge had been dismissed by the Board without issuance of a complaint The contention is without merit, but inasmuch as we find these three discharges were not in violation of the Act it is unnecessary to consider it in detail However, we point out in passing that the doctrine of res ludicata cannot prevail under the circumstances here disclosed since the prior charges were dismissed without any adjudication of the merits See Matter of Ingram Manufacturing Company and Textile Workers Organizing Committee , 5 N L. R. B. 908 37 On the afternoon of June 24, after completing their respective daily "runs," they drove into the plant grounds wearing their C I 0 buttons They were not given their orders for the next day, as was custom- ary The following morning they joined the picket line 33 During the hearing it was stipulated that dual unionism was cause for expulsion from Local 208 Al- though Local 208 had not formally expelled , or instituted expulsion proceedings, on June 24 , against Nash, Cleland , and Walling, the union representative demanded that the respondent dismiss them for their refusal to relinquish their membership in Local 1-26, in accordance with the terms of Local 208 's subsisting closed-shop contract The respondent did not act unreasonably by acceding to that demand See Matter of United Fruit Company and International Longshoremen & 1Varehousemen 's Union, District #3, Local #901, affiliated with C 1 0 ,12 N L R B 404, !Matter of Ansley Radio Corporation and Local 1221 , United Electrical & Radio Workers of America, C 1 0 , 18 N L R B , No 108 37 The three truck drivers testified that they returned to the plant from their daily runs between 4 30 and 5.30 p in on June 24 They were wearing their C I 0 buttons Each was met by Jack Skinner, the respondent 's dispatcher in charge of the drivers, who said to them that their C I 0 buttons indicated that, they would be on the picket line instead of working the next day Each was also told by Skinner that the truck drivers could not work for the respondent if they wore C. I 0 buttons or were members of the C. I. 0 The three turned in their reports and left the plant . They returned the next morning and, with a group of employees who had gone on strike the preceding day, went to Superintendent Dosier at the plant and told him they were ready to go to work. Dosier told the group that because of the respondent's agreement with 440 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD the proviso to Section 8 (3), the discharge of the three truck drivers by the respondent was not a violation of the Act. The proviso to • Section 8 (3) of the Act provides that an employer is not precluded from making an agreement requiring membership in a labor organization not established, maintained, or assisted by any action defined in the Act as an unfair labor practice and which is the representative of the employees, as provided in Section 9 (a), in the appropriate bargaining unit covered by such agreement when made. The oral contract was entered into by the respondent with an unassisted labor organization. At the time of its execution, on or about October 1, 1937, Local 208 represented a majority of the respondent's truck drivers, and we so find. We also find that the truck drivers employed by the respondent constituted, at the time of the making of the oral agreement on October 1, 1937, and at all times material herein, a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (a) of the Act, and that said unit insured to such employees the full benefit of their right to self- organization and to collective bargaining and otherwise effectuated the policies of the Act.40 On the basis of the above-stated finding we conclude that said contract is valid within the proviso to Section 8 (3) of the Act.41 We have previously found that the contract was in effect on June 24 and 25, 1938, when Nash, Cleland, and Walling were discharged. That the three truck drivers were aware of the existence of a closed-shop agreement between Local 208 and the respondent seems clear from the fact that they were all in the employ of the respondent at the time of the August 1937 strike and knew that the strike settlement agreement required membership in Local 208 as a condition of continuing employment with the respondent. However, it is unnecessary in this case that the record show that the three truck drivers had personal knowledge of the existence of such an agreement. The agreement was entered into with representatives the A F of L Teamsters he could not take them back so long as they were members of the C I 0 Hyans, a representative of the A F of L , was present at the interview and told the striking employees that they could work only if they relinquished membership in the C I 0 . The truck drivers and other strikers' returned to the picket line Skinner denied the statements attributed to him and testified that each of the drivers said that he was quitting The truck drivers deny that they told Skinner they were quitting and in view of their efforts to return to work the next day we cannot credit Skinner 's testimony We find on the basis of all the evidence that they were discharged The respondent contends that the truck drivers could not have been discharged because Skinner had no authority to hire or discharge employees It is unnecessary to determine this contention because Superintendent Dosier 's action on the morning of June 25, when the truck drivers returned to the plant , was a discharge even if Skinner 's statement of the evening before did not effect a discharge 4i This finding is predicated upon the following facts (1) the respondent and the Teamsters bargained separately for the truck drivers and for warehousemen , and self-organization had placed the truck drivers in a separate local from the respondent's other employees , (2) the truck drivers spend most of their time away from the plant , and (3) both the respondent and representatives of Local 208 recognized that the problems relating to wages and working conditions of the truck drivers were essentially different from those relating to other of the respondent 's employees . See Matter of Century Biscuit Company and United Baking Workers L I U, No 86, 9 N. L R B 1257, 1260 41 The Trial Examiner found that the alleged oral agreement had not been established by the record and accordingly found that Nash, Cleland , and Walling were discriminatorily discharged. TAYLOR MILLING CORPORATION 441 of Local 208, a labor organization of which all three drivers. were members, and they must be presumed to have had knowledge of the acts of their representatives and to be bound by such acts.42 Thus, the truck drivers joined Local 1-26 of the C. I. O. with full knowledge that it violated the terms of their employment with the respondent. On the basis of the above-stated facts and conclusions, we find that the closed-shop agreement operates as a defense to the charge of dis- crimination contained in the complaint. Accordingly,, we find that the respondent has not, by discharging or laying off Phillip G. Nash, Everett Cleland, and Charles Walling, unlawfully discriminated in regard to their hire or tenure of employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in and is engaging in unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act.43 We have found that the respondent discriminated with regard to the hire and tenure of employment of Johnson, Wykes, and Smith because of their union activities. In order to effectuate the policies of the Act, we shall order the respondent to offer to those employees, with the exception of Johnson,44 reinstatement to their former positions without prejudice to their seniority and other rights and privileges. The respondent contends that Smith and Wykes are not eligible for reinstatement on the ground that they halve obtained regular and substantially equivalent employment and, hence, are not employees within the meaning of Section 2 (3) of the Act. In May 1937,following their discharge, Smith and Wykes were hired by the A. F. of L. as 42 Cf Matter ofAnslev Radio Corporation and Local 1221 United Electrical & Radio Workers of America, C 1 0., 18 N. L R B 1028. 43 As pointed out herembefore, International Brotherhood of Teamsters , Chauffeurs, Stablemen and Helpers, Local 208, was succeeded so far as,concerned the warehousemen by Flour, Grain, Feed, Cereal Warehousemen's Local Union 757, which in turn has been succeeded by Flour, Feed and Cereal Workers' Union, Local 21830. The record also shows that Local 208 has relinquished its jurisdiction over the respond- ent's truck drivers to Local 848 of the Teamsters In order to effectuate the policies of the Act, it is neces sary to , and we shall, order the respondent to cease and desist from discouraging membership in Flour, Feed and Cereal Workers' Union, Local 21830, or any other labor organization which may have members among the respondent's employees 4, In the case of Johnson, we have found that he does not desire reinstatement with the respondent Ac- cordingly, we shall not order the respondent to reinstate him. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union organizers and later, about October of the same year, were promoted to business agents. According to Wykes, he received about $15 per week in the former capacity and about $35 per week'in the latter. In February 1938 that employment terminated. Their work with the A. F. of L. was completely different in character, wages, hours, working conditions, tenure and incidents of employment from their work for the respondent. It was temporary in nature and was given to two active union members penalized for such activity under the circumstances here disclosed. We find that it did not constitute regular and substantially equivalent employment. However, even if contrary to our finding such employment was regular and substan- tially equivalent, we do not so construe the language of Section 10 (c) of the Act as to deny us power to require their reinstatement with back pay in order to effectuate the policies of the Act 45 and we find the respondent's contention 'to be without merit. The respondent also contends that Wykes and Smith are barred from reinstatement by (1) their alleged conduct since their dismissal by the A. F. of L. and (2) their alleged ineligibility for membership in Local 21830, the successor to Local 757 and to its closed-shop contract. The contention is not supported by the record in either respect. As to the first allegation, the respondent adduced evidence during the hear- ing intended to show that Wykes and Smith had attempted to sell confidential union information and had offered their services as labor spies to various local employers. That evidence, however, was hear- say and self-serving in character and we are not persuaded by it.4s With regard to the second allegation, the respondent relies upon the fact that charges had been preferred by Local 757 and were still pending against Smith and Wykes. But it was revealed during the hearing that about 3 or 4 weeks prior thereto the A. F. of L. had offered, in response to the respondent's request for a new employee, to send Smith back for reemployment. That fact raises the pre- sumption, in the absence of an unequivocal showing to the contrary, that Smith and Wykes are not ineligible for membership in A. F. of L. Local 21830. In view of all the evidence, we find that Smith and Wykes are not barred from reinstatement for the reasons alleged. In addition to an order of reinstatement, our usual remedy where we have found a discriminatory discharge is an order directing the respond- ent to make whole the discharged employee for any loss of pay suf- fered by reason of the discharge by payment of a sum of money equal to the amount such person would normally have earned as wages from 45 See Matter of Eagle-Picher Milling & Smelting Company, A Corporation and Eagle-Picher Lead Com- pany, A Corporation and International Union of Mine, Mill & Smelter Workers, Local Nos. 15, 17, 107, 108, 111, 16 N. L R. B 727. Cf. National Labor Relations Board v Botany Worsted Mills, Inc., 106 F (2d) 263 (C. C A. 3), modifying, and enforcing as modified, and remanding for further determination Matter of Botany Worsted Mills, Inc and Textile Workers Organizing Committee, 4 N. L. R B. 292. 40 See Matter of Thompson Cabinet Company and Committee for Industrial Organizat 'on, Local Industrial Union No. 115, 11 N. L. R. B 1106. TAYLOR MILLING CORPORATION 443 the date of the discriminatory discharge to the date of the offer of rein- statement, with certain deductions. In its exceptions the respond- ent contends that the claims of Johnson, Wykes and Smith are barred by lathes. Johnson was discharged on February 29, 1936. The original charges in these proceedings were filed on November 14, 1938. Johnson was not named in this charge. It was only when the charges were amended in March 1939, more than 3 years after his discharge, that Johnson was included among the persons alleged to have been discriminatorily discharged by the respondent. By that time Johnson had had other employment for almost 3 years and did not desire reinstatement to his employment with the respondent. There is no showing that during the lapse of time any efforts were made to obtain his reinstatement or any other adjustment of his discriminatory discharge. Under these circumstances we shall not order the respondent to make any payment of back pay to Johnson.47 Wykes and Smith were discharged on May 1, 1937. Charges were filed with the Board by the A. F. of L. about May 4, 1937, but were withdrawn in July 1937. No subsequent efforts were made either by the A. F. of L. or any other agent of Wykes and Smith to obtain reinstatement or other redress for the alleged discrimination practiced against them until the filing of charges in this proceeding on November 14, 1938. We are of the opinion that the respondent should not be required to make Wykes and Smith whole for any loss of pay between the time the charges were withdrawn by the A. F. of L. in July 1937 and refiled by Wykes and Smith in November 1938.48 We shall therefore order the respondent to make whole Wykes and Smith for any loss of pay they may have suffered by reason of the discrimination with regard to their hire and tenure of employment by payment to each of them, respectively of a sum of money equal to the amount which they each normally would have earned as wages from.the date of said discrimination to the date on which the charges filed by the A. F. of L. were withdrawn and from November 14, 1938, the date on which the charges in this proceeding were filed, to the date of the offers of reinstatement, less their respective net earnings 49 during said period. 47 Matter of Inland Lime and Stone Company and Quarry Workers International Union of North America, Branch No 259, 8 N L R B 944, Matter of Firestone Tire and Rubber Company of California and United Rubber Workers of America , Local 100. 22 N L R B. 580. 48 Matter of Crowe Coal Company and United Mine Workers of America, District No 14, 9 N L . R B 1149 46 By "net earnings" is meant earnings less expenses, such as for transportation , room , and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America , Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B 440 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 o: governments which supplied the funds for said work -relief projects . See Matter 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. International Longshoremen's, and Warehousemen's Union, Local 1-26, and International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local 208, and Flour, Food and Cereal Workers' Union, Local 21830, are labor organizations within the meaning of Section 2 (5) of the Act. Flour, Grain, Feed, Cereal Warehousemen's Local Union 757 was a labor organization within the meaning of Section 2 (5) of, the Act. , 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of William V. Johnson, Avery Smith, and James L. Wykes, and thereby discouraging membership in Local 208, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) 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 discriminated in regard to the hire and tenure of employment of Walter Crouch, J. L. Cross, S. E. Miller, Steven E. Abbott, Phillip G. Nash, Everett Cleland, and Charles Walling, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Taylor Milling Corporation, and its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in Flour, Feed and Cereal Workers' Union, Local 21830, or any other labor organization of its em- ployees by discharging, laying off, 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 other term or condition of their employment; of Eagle-Pieper Mining & Smelting Company, A Corporation, and International Union of Mine. Mill & Smelt- er Workers, Local Nos 15, 17, 107, 108, and 111, supra "Net earnings" do not include , however, unemployment insurance benefits or direct relief payments received during the period of unemployment resulting from the unlawful discharge No deductions from back pay shall be ordered therefor . See Matter of Pennsylvania Furnace and Iron Company and Lodge No. 1328, International Association of Machinists, 13 N. L. R. B. 49. TAYLOR MILLING CORPORATION ° ' '445 (b) In any other manner interfering; with', '`estraining; or,soereing its employees in the exercise of their rights to self-organi'zation' `too form, join, or assist labor organizations, to bargain collectively th'r'ough representatives of their own choosing, and to engage ,in, concerted activities for the purposes of collective bargaining , or, oIIJ 1" ther r mutual aid or protection, as guaranteed in Section 7 ',of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: , ri,i^ •, t ,. ,, (a) Offer to Avery Smith and James L. Wykes immediate and full reinstatement to positions held by them on May, 1,, 1937, without prejudice to their seniority and other rights'an'd,privileges, (b), Make whole Avery Smith and James i . Wykesi fort any, loss, of pay they may have suffered by reason of their discharge, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the periods from May 1, 1937, to the date in July 1937 when the charges filed byr the .A. F.- tof L. 11 were withdrawn, and from November 14, 1938,, to, the ,ate ,of t he offer of reinstatement,' less his respective net earnings 50 during said periods; deducting, however, from the amount otherwise, due, each of them, monies received by them respectively, during, said period }for work performed upon Federal, State, county, municipal,', of other work-relief projects, and pay over the,amourts so deducted' to the ''I ,, . t,;, , „ t I it , appropriate fiscal agency of the Federal, * State, county,, municipal= or other government or governments which supplied the funds for; said work-relief projects; (c) Immediately post notices in conspicuous places at its plant, and maintain for a period of at least sixty (60) ,consecutive days from the date of posting, notices to its employees stating: (1) that the're- spondents 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 respondent 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 and remain members of Flour, Feed and Cereal Work- ers' Union, Local 21830 or any other labor organization of the re- spondent's employees, and the respondent will not discriminate against any employees because of membership or activity in any such organization; (d) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the -Act with 60 See footnote 49 supra. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regard to,Walter Crouch, J. L. Cross, S. E. Miller, Steven E. Abbott, Phillip B. Nash, Everett Cleland, and Charles Walling, be and it hereby is, dismissed. MR. EDWIN S. SMITH, concurring in part and dissenting in part: I concur in the findings and decision of the Board that the discharges of William V. Johnson on February 29, 1936, and of James L. Wykes and Avery Smith on May 1, 1937, were discriminatory discharges discouraging membership in Local 208, and in the dismissal of the complaint relating to Walter Crouch, J. L. Cross, S. E. Miller, and Steven E. Abbott. . However, I am not in accord with the opinion of the Board that the discharges of the three truck drivers, Nash, Cleland,'and Walling, were lawful within the meaning of the proviso clause of Section 8 (3) of the Act and that the complaint as related to them should there- fore be dismissed. In the first place, I am not convinced under all the' circumstances that there was any closed-shop agreement cover- ing the truck drivers. However, assuming the existence of a valid 'closed-shop contract, for the reasons stated in my dissenting opinion in Matter of Ansley Radio Corporation and Local 1221 United Elec- trical ct Radio Workers of America, C. I. 0.,11 it is clear to me that the proviso clause of Section 8 (3) does not permit an employer who has made such a contract to enforce its terms, at the request of the contracting labor organization, at a time when a majority of the employees in the appropriate collective bargaining unit covered by such contract have transferred their allegiance to another labor or- ganization and this fact is known to the employer. I am therefore of the opinion that the respondent violated Section 8 (3) of the Act 'by discharging the three truck drivers because of their membership `in Local 1-26. 51 18 N. L. R. B. 1028.