M. F. A. Milling Co.

In the Matter of M. F. A. MILLING COMPANY, MISSOURI FARMERS' ASSOCIATION, INC. and UNITED GRAIN PROCESSORS, LOCAL 20692, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR , Case No. C-1595.-Decided August 15, 1940 Jurisdiction : grain milling industry. Farmer's association and the cooperative grain processing Company controlled by the association are engaged in interstate commerce within the meaning of the Act. Unfair Labor Practices. Interference, Restraint, and Coercion- anti-union statements; declarations of union preference; interrogation concerning union activities; inducing employee not to become or remain members of union by offer to "care take of him." Discrimination. discharges for union activities; charges of discrimination as to several persons, dismissed. Filing of suits by union members in justice court against employer under State statute prohibiting employer from reducing wages without 30 days' notice, on assurance that union would support such activity held to be union activity, a discharge for which was a violation of the Act. Remedial Orders : reinstatement and back pay awarded. Mr. Henry H. Foster, Jr. and Mr. Daniel J. Leary, for the Board Mr. Charles F. Newman and Mr. Ronald Stewart, of Springfield, Mo., for, the Milling Company. Mr. Rubey M. Hulen, of Columbia, Mo., for the Farmers' Associa- tion. Mr. J. P. Baker, of Springfield, Mo., for the Union. Miss Margaret M. Farmer, of counsel to the Board: DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Grain Processors, Local 20692, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint dated October 21, 1939, against M. F. A. Milling Company, Springfield, Missouri, 26 N. L. R. B., No. 64. 614 M. F. A. MILLING COMPANY 615 herein called the Milling Company, and Missouri Farmers' Associa= tion, Inc., Columbia, Missouri, herein called the Farmers' Associa- tion,' alleging that said respondents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint with accompanying notice of hearing were served upon the respondents and upon the Union. ' With respect to the unfair labor practices, the complaint alleged in substance (1) that the respondents discouraged membership in the Union by discharging from the employ of the Milling Company on specified dates Everett Miller, Emmet Hughes, Charles Bayes, Roy Arndt, Glen Owen, J. P. Baker, Otto Muggelberg,z B. E. Citty, and Harold Hoteling, and by refusing to reinstate said employees (with the exception of Glen Owen who was reemployed March 13, 1939) for the reason that said employees joined and assisted the Union, and, (.2) that by the foregoing acts, and by speeches to their employees, by discrimination in the allotment of work to the detriment)of members of the Union, by the transfer of Otto Muggelberg, a member of the Union, to less desirable work, and in other ways, the respondents interfered with, restrained, and coerced their employees at Spring- field, Missouri,' in the exercise of the rights guaranteed in Section 7• of the Act. On October 27, 1939, the Farmers' Association,-'and on October 31, 1939, the Milling Company filed separate but similar answers in which each respondent denied that the respondents were engaged' in interstate commerce, denied that either respondent had engaged in or was engaging in the unfair practices alleged, and averred by way of affimative defense that Emmet Hughes, Everett Miller, Glen Own, Charles Bayes and Roy Arndt, were laid off in 1937, together with other employees, because of a decline in the business of the Milling Company, and that J. P. Baker, Otto Muggelberg, B: E. Citty, and Harold Hoteling were discharged from the employ of the-Milling Company because said employees had filed law suits against the Mill- ing Company without prior notice to said respondent of their inten- tion to do so. Pursuant to notice, a hearing was held at Springfield, Missouri, from November 27 to December 1, on December 5, 11, and 12, and from December 18 to 23, 1939, before Horace A. Ruckel, the Trial Examiner duly designated by the Board. The Board and the respond- ents were represented by counsel, the Union by its representative, and all participated in the hearing. Full opportunity to be heard, to I The Milling Company and the Farmers' Association are sometimes referred to herein as the respondents. 9 Incorrectly designated as Otto Muggleberg in the complaint. I 2 The instant case is concerned solely with individuals employed at the Milling Company in Springfield, Missouri. . 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examine and cross-examine witnesses, and to introduce evidence bear- ing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner denied a motion of counsel for the Milling Company made prior to the hearing to make the complaint more specific, definite, and certain in specified respects, but ruled that should evidence in regard to said matters be adduced at the hearing which should surprise the Milling Company, he would grant said respondent time to prepare its defense. The Trial Examiner denied motions by the respondents made during and after the hearing to dismiss the complaint. The Board has reviewed the rulings'upon motions and objections to the admission of evidence made by the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On May 28, 1940, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all parties, in which he found that the respondents had engaged in unfair labor practices, affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from such practices and that they reinstate with back pay Everett Miller, J. P. Baker, Otto Muggelberg, B. E. Citty and Harold Hoteling. He found further that the respondents had not discrimina- torily discharged Glen Owen, C. Bayes, Emmet Hughes, or Roy Arndt, or discriminatorily transferred Otto Muggelberg from the mixer to the drag in 1938, and recommended that the complaint in respect to the discharge of Bayes, Hughes, Owen, and Arndt, and as to, the transfer of Muggelberg in 1938, be dismissed. On July 5, 1940, the respondents filed exceptions to the Intermediate Report, and on July 15, 1940, filed a brief with the Board. The respondents also requested oral argument before the Board. Pur- suant to notice, a hearing was held before the Board in Washington, D. C., on July 19, 1940. The respondents were represented by counsel and presented argument. . The Board has considered the respondents' exceptions and briefs and, save as the exceptions are consistent with the findings, conclu- sions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following:. FINDINGS OF FACT I. THE RESPONDENTS A. The business of the respondents The M. F. A. Milling Company, a non-profit corporation organized under the laws of the State of Missouri as an agricultural producers' corporation, with its principal place of business at Springfield, Mis- souri, is engaged in the milling of flour and dairy feed and in the sale M. F. A. MILLING COMPANY 617 of these and other commodities to farmers' exchanges or elevators affiliated with the Missouri Farmers' Association. Its policies are, by its constitution and bylaws, subject to the approval of the Farmers' Association. Between January 1 and October 31, 1940, the Milling Company made purchases of the value of $1,594,071.70, of which 21.93 per cent were from sources outside the State of Missouri, and sold commodities, principally flour and dairy feed, to the value of $1,787,014.93, of which 8.12 per cent represented sales outside the State of Missouri. The business of the Milling Company is seasonal and its payrolls vary from approximately 35 to approximately 80 employees. The Missouri Farmers' Association is a producers' non-profit agri- cultural cooperative association, organized under the laws of the State of Missouri, with its principal offices in Columbia, Missouri. The articles of incorporation of the Farmers' Association state its purpose to be, inter alia, "engaging in any activity in connection with the procuring, purchasing for and selling to its members, for their use, merchandise, feed, machinery, fertilizer, supplies and equipment, and to finance said activities, or any one or more of the activities above set forth." In pursuance of this purpose, the Farmers' Association, through its board of directors, organized, controls, and' manages the M. F. A. Oil Company, a corporation engaged in the purchase of com- modities such as oil, gasoline, tires, tubes, and farm machinery from sources outside the State of Missouri.4 It also potentially controls the policies and operation of the Milling Company through the provisions in the articles of incorporation of the Milling Company whereby (1) the board of directors of the Farmers' Association chooses from its own number one-half the members of the board of directors of the Milling Company and exercises a veto power over the decisions of the other half of the members of such board of directors and (2) the policies of the Milling Company are specifically made subject to the approval of the Association. Affiliated with the Association are approximately 250 local cooperative exchanges and elevators. The character and extent of their affiliation' begins, terminates, and varies from time to time; the affiliation is a voluntary one, depending on the stockholders, directors and manager of such enterprises. B. The Farmers' Association'as a respondent The respondents contend that the Farmers' Association is not a proper party to the instant proceedings for the reasons that (1) it is not engaged in commerce within the meaning of Section 2 (6) of the Act; (2) it has not dictated the labor policies of the mill and is not responsible therefor; and (3) it has not participated in any manner in the acts alleged in the complaint to be unfair labor practices. 'The record indicates that there are other companies owned and controlled by the Farmers' Association. Their names are not, however , disclosed by the record. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the Farmers' Association, through its control and management of the M. F. A. Oil Company and through its control of the policies of the M. F. A. Milling Company (companies, a substan- tial portion of whose operations described in Section I A above, are carried on in interstate commerce), is engaged in commerce within the meaning of Section 2 (6) of the Act. It does not, however, appear from the record that the Farmers' Association has dictated the labor policies of the Milling Company or has exercised control over or interfered in the hiring or discharge of any of the employees of the Milling Company. We find in Section III A, below, that remarks made in the course of a speech by C.. E. Lane to the employees of the Milling Company, in which speech he described the operations of the Farmers' Association, constituted interference with, and restraint and coercion of the em- ployees of the Milling Company in the exercise of the rights guaranteed in Section 7 of the Act. The evidence concerning the sponsorship of said speech is insufficient, however, to show that Lane spoke as a representative of the Farmers' Association as well as of the Milling Company or that his remarks constituted interference by the Farmers' Association in the labor policies of the Milling Company. We find further, in Section III C, below, that the Milling Company engaged in certain other unfair labor practices against its employees, within the meaning of Section 8 (1) and (3) of the Act. Inasmuch, however, as it has not been shown that the Farmers' Association exercised its potential control over or interfered with the labor policies of the Milling Company, we shall dismiss the complaint in so far as it alleges that the Farmers' Association engaged in unfair labor practices. II. THE ORGANIZATION INVOLVED United Grain Processors, Local 20692, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees engaged in the processing of grain of milling plants and mills in Springfield, Missouri. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion During the spring of 1936, J. P. Baker, a packer in the mill, and several Milling Company employees attended a meeting of a grain processors' union in Springfield, Missouri, which was affiliated with the American Federation of Labor. Baker testified that the following day the superintendent of the mill, C. L. O'Neal, informed Baker that he had learned of the meeting, that he was opposed to union activity, and that he would resign before he joined a union. None of the Milling Company. employees joined the local union at this time and M. F. A. MILLING COMPANY 619 their interest in union organization waned. Baker testified also that in February or March 1937 he complained to O'Neal concerning cer- tain conditions of employment; that O'Neal told him that he (O'Neal) had always been good to Baker, that he could not see why Baker should cause the mill "all this labor trouble," and that if Baker would just line up with O'Neal, the latter would take care of him. O'Neal denied the occurrence of the two conversations described above. We are of the opinion, however, in the light of all the evidence in the case, that they occurred substantially as related by Baker. The initial step in the formation of the Union was taken on May 1, 1937, at a meeting of 15 mill employees, held during the noon hour. Baker announced that "from now on [the group] would be known. as . an organization." The following day Baker and six others, two of whom were not employees of the mill, requested the secretary of the Central Labor Union in Springfield to telegraph to the American Federation of Labor for a charter for the new group as a local of 'the Grain Processors' Union. On May 3 a petition was circulated in the plant, called a "gentle- man's agreement," bearing the statement: "We the undersigned do hereby pledge ourselves as individuals to jointly, agree as- gentlemen for the purposes of forming a certain organization known as Grain Processors Organization and becoming charter members' of the Amer- ican Federation of Labor for the purpose of protecting our legal rights and interests." Approximately 40 employees signed this document. On May 9 the new group held an organization meeting, at which approximately 26 employees signed membership cards. Baker was elected president. On May 14 C. E: Lane, a member of the board of directors of the Milling Company, spoke to the mill employees concerning the business of both the Farmers' Association and the Milling Company. 'During the course of his remarks, he stated that he was friendly to organized labor but that he regretted the "smoke screen between farmers and labor" and warned his hearers that they were working for farmers in a farmers' mill, and that if the wages in the mill got out of balance with the farmers' income, the farmers would bring their sons in to run the mill. This speech alarmed some of the members of the new organization and at least two put their union buttons into their pockets. At about this time John F. Johnson, manager of the mill,, questioned Baker concerning the new organization. Baker testified that when Johnson learned that the Union was affiliated with the American Federation of Labor, he remarked that he preferred the American Federation of Labor to the Congress of Industrial Organizations; that he then inquired concerning the amount of dues, said he did not 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD see any reason for sending dues away from home, expressed the opinion that it would be better to keep money from dues in town, and suggested that the employees form "their own organization" at the mill; that he also expressed the opinion that the farmers would never recognize a closed shop. Johnson denied only that part of Baker's testimony concerning the sending of dues out of town. We find, as did the Trial Examiner, that the incident occurred as testified to by Baker. In the spring or early summer of 1937 Johnson asked the opinion of Glen Owen, a union member, concerning the Union, and when Owen said he was strong for unions on account of their seniority policies, Johnson replied that seniority was practiced at the mill as long as a man kept up with his work. He then remarked that he did not see why the men could not get together on a company union and inquired concerning Owen's opinion of company unions. Owen replied that he knew nothing of company unions. To refute the allegations that the Milling Company interfered with the rights of its employees, said respondent introduced credible and uncontradicted evidence that Johnson had from time to time stated publicly to his employees that they were free to join any "political, religious, or other organization," and that he cautioned Baker not to repeat the conversation, detailed above, containing the suggestion that the employees form a company union. The respondent contends that such speeches on Johnson's part proved its neutrality in regard to union activity in the mill and rendered its employees free to join the organization of their own choosing. We cannot agree with this contention. Remarks of a coercive character made privately by officials of employers to influential employees can nullify in large part the public utterances of such officials. We find that the respondent, Milling Company, (1) by O'Neal's remarks to Baker in 1936 and 1937, (2) by Lane's speech to its em- ployees on May 14, 1937, and (3) by Johnson's suggestions in 1937 to Baker and Owen concerning the formation of a company union, inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. 'The discharges of Miller, Hughes, Bayes, Arndt, and Owen in 1937 On September 1, 1936, the Milling Company employed 45 persons. Shortly thereafter the effect of a drought throughout the State of Missouri and neighboring States began to be reflected in its business. In contrast with other years business increased steadily from Septem- ber 1, 1936, to March 15, 1937, due to a deficiency of pasturage and the corresponding demand for grain feed. By March 15, 1937, the number of mill employees had increased from 45 to 79. However, the officers of the Milling Company were aware that their business would decline as soon as it was possible for the farmers, who were the Milling M. F. A. MILLING COMPANY 621 Company's customers, to graze their stock. Sometime early in March John F. Johnson, the manager of the mill, informed the employees that it would be necessary to discharge a number of men in the near future, and that men would be retained primarily on the basis of efficiency. The threatened discharges began in the latter part of March and continued until the latter part of August. During this period 44 employees were either discharged or quit their employment. The Milling Company did not discharge these employees in the order of their seniority. A study of its employment records reveals, however, that by August 19, 1937, it had discharged every employee save one of those whom it had employed after March 1936 and only one whom it had employed prior thereto, and that those retained were for the most part skilled employees of several years experience. Seventeen of the employees discharged during this period Were union members. The complaint alleges that 5 of the 17, Everett Miller, Emmet Hughes, Charles Bayes, Roy Arndt, and Glen Owen, were discharged because of their union membership and activity. Everett Miller was employed by the Milling Company in 1933. At various times during the period of his employment he had operated 'a packing machine and had worked in the elevator and in the ware- house. O'Neal, the superintendent of the mill, testified that Miller had proved unsatisfactory in every department to which he had been assigned; that he had proved to be too slow on the packing machine; that the foreman in the elevator had complained that "he couldn't get anything out of Miller"; that Stanfield, the foreman in the warehouse, had complained upon several occasions that Miller was loafing and talking; and that finally on August 17, 1937, Stanfield discharged Miller on O'Neal's recommendation. O'Neal's testimony is not en- tirely consistent with other evidence in the record. It appears that Miller was retained on the packing machine until it was discontinued. Miller testified that the foreman of the elevator praised his work b and Stanfield testified that he had complained to O'Neal only once concerning Miller. Stanfield testified that he discharged Miller be- cause he observed him leaning against sacks of grain in a freight car talking to another employee. Stanfield admitted, however, that be did not reprimand Miller upon this occasion and that he did not notice to whom Miller was talking. The Trial Examiner found that Miller was discharged because of his union membership and activity. We do not, however, concur in this finding. Although Miller describes himself at the bearing as "an active union member" we are unable to find any evidence of his union activity. We find that Everett Miller was discharged on August 17, 1937, for reasons other than his union membership and activity. 5 The elevator foreman did not testify at the hearing. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner found in his Intermediate Report that Emmet Hughes was discharged on May 20, 1937, during a period of declining production because he was one of the youngest men in the employ of the Milling Company and because of his previously demonstrated unreliability as an employee; that Charles Bayes was discharged on May 24, 1937, because of inefficiency and physical incapacity for the work assigned him; that Roy Arndt was discharged on July 19, 1937, for reasons not connected with his union membership and activity; and that Glen Owen was discharged on July 19, 1937, because of the decline in the Milling Company's business and because he was one of the youngest men in the mill doing his type of work. The Trial Examiner found further that the Milling Company did not discrim- inate against Otto Muggelberg in transferring him from the mixer to the drag in 1938, because of his union membership or activity. We concur in these findings. The Trial Examiner recommended that the complaint, in so far as it alleges that the above-named employees were discriminatorily discharged in 1937 and in so far as it alleges that Otto Muggelberg was discriminatorily transferred to the drag in 1938, be dismissed. Since the Union did not except to these recom- mendations we will not discuss the evidence in detail in connection with these employees. We find that the Milling Company discharged Emmet Hughes on May 20, 1937, Charles Bayes on May 24, 1937, Roy Arndt on July 19, 1937, and Glen Owen on July 19, 1937, for reasons other than their union membership and activity. We find further that the Milling Company did not discriminatorily transfer Otto Muggelberg from the mixer to the drag in November 1938. C. The discharges of Baker, Citty, Muggelberg, and Hoteling in 1939 J. P. Baker was the president of the Union and its leader in the mill from May 1936 until his discharge on February 15, 1939. During this period he sought constantly to keep the Union before the eyes of the mill employees by soliciting attendance at union meetings and by urging those who had resigned to rejoin. In his capacity as presi- dent during this period he signed union contracts with mills other than that of the respondent in and around Springfield. That the Milling Company was well aware of Baker's prominence in union affairs is shown by the fact that Johnson, manager of the Milling Com- pany, testified at the hearing that he had known for a long time prior to February 1939 that Baker was president of the Union, and by the fact that upon several occasions between the summer of 1937 and the winter of 1938 Baker, as union representative, had interviewed John- son and other supervisory officials concerning the discharge, or rein- statement of union members. M. F. A. MILLING COMPANY 623 Late in January 1939 Johnson announced at a meeting of mill employees that the Milling Company had decided to adjust wages in order to conform to the requirement of the Fair Labor Standards Act.6 The hours and wages at the mill had been the subject of discussion at union meetings upon numerous occasions since October 24, 1938, the effective date of the Fair Labor Standards Act, and on February 1, 1939, a few days after Johnson's announcement, Baker, as a union representative and a member of a union committee which included Otto Muggelberg and Bernard Citty,7 two other union members em- ployed by the Milling Company , interviewed Johnson concerning the details of the proposed rate change . Baker testified without contra- diction that Johnson stated at the interview that the Milling Company planned to reduce the hourly rate for the first 44 hours worked per week from 40 cents to 38% cents and to increase the rate to 57% cents (or time and a half) for time worked in excess of 44 hours ; and that Johnson illustrated this plan by saying that it would amount to payment for eleven-twelfths of the time worked at the rate of 38% cents per hour and for one-twelfth of the time worked at 57% cents per hour. Baker testified further that Johnson stated that the new wages were not to be made retroactive to the effective date of the Fair Labor Standards Act and that when he, Baker, complained that the Milling Company could not reduce wages in the proposed manner, Johnson replied that the Milling Company could reduce wages at any time. On February 2, which was pay day , Johnson called the employees together to announce and explain the new rate schedule. Baker testified that he understood Johnson to state again that the hourly rate for the first 44 hours worked per week would be 38%% cents and that the hourly rate for additional time would be 57% cents. Johnson on the other hand, testified that he explained that thereafter the men would be paid at the hourly rate of 38% cents for the first eleven-twelfth of the time worked, and at the hourly rate of 57 % cents for the remain- ing twelfth of the time worked per week, and that he stated specifi- cally that this schedule was not based upon any specified number of hours worked per week. The fact that the pay checks which had been made out at the time of the speech were calculated upon the basis which Johnson asserts he explained at this time tends to corroborate his testimony . On the other hand Baker's subsequent statement and activities convince us that he testified accurately as to his understand- ing at that time of the new schedule. Johnson explained further that the revised rates would result in a slight increase in pay for each em- ployee for a 2-week pay period, and requested employees who felt ' Fair Labor Standards Act of 1938 , C. 676, 52 Stat 1060 7 Due to a misunderstanding concerning the meeting place Muggelberg and Citty were not present at this interview. ` 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD satisfied with the new schedule to raise their hands. Baker did not raise his hand and Citty and Muggelberg, the only two other union members at the meeting,' after first raising their hands, took them down. Baker thereupon protested the rate change on the ground that it constituted a wage reduction and requested that he be paid on the former basis. Johnson, however, refused to discuss the matter further at that time, stating that any employee, who wished to do so could speak with him in his office. He then distributed pay checks for the preceding pay period, calculated on the basis of the new rate, and adjourned the meeting. The union members, Baker, Citty, Muggelberg, and Hoteling, refused to accept their checks at that time, but on the advice of the attorney for the Central Labor Union, ac- cepted them on February 4 under protest. Baker immediately began a union membership campaign in the mill in order to strengthen both the employees and the Union in resistance to the new rates. On the morning of February 3 he distributed pamphlets in the mill explaining the Wages and Hours Act. On the evening of that day he, as union president, and one Andrews, the union secretary, filed a complaint in the name of the Union with the Wages and Hours Division of the Department of Labor in Washing- ton, D. C., in behalf of the union members in the mill, alleging that the respondent had violated the Fair Labor Standards Act.' On Feb- ruary 6, 1939, Baker reported the inauguration of the new wage schedule at the mills and the filing of the complaint in regard thereto, to the union membership at a regular bi-monthly union meeting. The Union voted to support the filing of the complaint and any further action in the matter which seemed to Baker to be necessary. On Saturday morning, February 11, Baker and Muggelberg in- formed Arthur Morris, superintendent in the mill, that they had worked 44 hours that week and that they would work overtime if Morris so desired, but that the new wage schedule was "a legal matter" and that they had not accepted it. Morris replied that if the new schedule was a legal matter they should leave (or make) it a legal matter and should not bother him about it. Baker and Muggelberg considered this reply tantamount to a new refusal on the part of the Milling Company to discuss the wage rate, and immediately sum- moned Citty and Hoteling to talk over this development in the situa- tion. Baker reminded them that the Union had voted to support any action which seemed necessary, in order to resist the new rate. He stated that they might do as they chose as individuals, but that he 8 It appears that Hoteling was absent from the meeting 9 The complaint to the wages and Hours Division stated "ever since the wage and Hour Law became effective October 24 , 1938, the Company has worked all employees 48 hours a week without time and one-half for the extra 4 hours . . . On February 2, 1939, the Company made known that it was going to abide by the wage and Hour Law, but doing it by reducing the rate of pay from 40 cents an hour to 3834 cents an hour, so that time and one -half will be paid for all work over 44 hours and still work the employees 48 hours a week . The reduction in pay was made retroactive to January 16, 1939." M. F. A. MILLING COMPANY 625 represented the Union and intended to file suit against the Company under a Missouri statute prohibiting an employer from reducing wages without thirty (30) days notice to the employees upon penalty of a fine of $50.10 Citty, Muggelberg, and Hoteling then expressed their intention of filing similar suits and so notified the attorney for the Central Labor Union. The Milling Company does not contend, nor does it appear, that any working rule at the mill prohibited or penalized the action of an employee in filing suit against the Milling Company. The Milling Company was served with process in the suits on Monday, February 13. Johnson, upon advice of counsel, immediately summoned Baker, Citty, Muggelberg, and Hoteling to his office and interviewed each of them individually concerning the filing of the suits in the presence of Steury, the president of the Board of Directors of the Milling Company, Morris, the superintendent of the mill, and a stenographer. The transcript of the conferences with Citty, Muggel- berg, and Hoteling made by the stenographer and introduced into evidence, show that Johnson in each case stated in substance that the mill had not reduced wages; that under the new rates checks for a 2-week pay period were slightly higher than before; that the employees had indicated that they were satisfied with the change and that the Milling Company had been very much surprised to be served with process. He then asked each employee if the filing of the suit was his own idea and inquired as to whether such employee thought that he had "done the right thing" in instituting legal action. Baker refused to talk to Johnson in the presence of the stenographer and company representatives. He submitted to an interview by Johnson alone. His testimony indicates that the conference did not differ materially from that held with the others. At no time in any of these confer- ences did Johnson threaten the employees with discharge or offer to retain them in his employ in return for withdrawal of the suits. Muggelberg and Hoteling stated in their conferences that Baker had influenced them in filing their suits and indicated that they were uncertain as to the wisdom of such action. Baker and Citty told Johnson that they had filed their suits pursuant to their own ideas of what action was "right" under the circumstances. On February 15, 2 days after the conferences, Johnson discharged Baker. The next day, February 16, he discharged Citty. Six weeks later, on March 28 and 30 respectively, after ascertaining that Mug- gelberg and Hoteling did not intend to withdraw their suits, he discharged them. The Milling Company contends that Baker, Citty, Muggelberg, and Hoteling were discharged solely for the reason that they filed the suits described above. It contends further that the record shows conclusively that the four employees filed their suits as individuals and not as union members and hence that their action 10 Revised Statutes of Missouri (1929) Section 4590. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cannot be described as union activity. It denies through Johnson that it knew that the Union was interested in the question of wage schedules at the mill or that the union members among its employees had attempted to organize the mill on the basis of the wage issue during the first 2 weeks in February 1939. We do not doubt that the filing of the suits was the immediate cause of the discharge of the four employees. We are of the opinion, however, that the suits constituted union activity on the part of Baker, Citty, Muggelberg, and Hoteling, and that the Milling Company must have been aware of this fact. Johnson had known for some time that the four employees were union members. He knew that Baker was the president of the Union, and knew that Baker and other union mem- bers had interviewed him and other supervisory employees in con- nection with the discharge of employees in 1937 and with the rein- statement of Hoteling in 1938. In connection with the union interest in the mill's wage schedule in February 1939 and the knowledge of the Milling Company of such interest, we note that although Johnson denied that he had known of the Union's interest in filing the suits, he did not contradict the testimony of Baker, that Baker had inter- viewed him on February 1, 1939, in regard to the proposed wage schedule as a union representative, and as a member of a union committee. The union members were, so far as the record reveals, the only ones who protested and continued to protest the inauguration of the new rates. The day following the inauguration of the new rates pamphlets on the Wages and Hours Law were openly distrib- uted in the mill by Baker. Moreover the 4 men filed their identical suits simultaneously, through the Union's attorney. Under these circumstances we do not believe it possible that the Milling Company was unaware of the Union's interest and activity in regard to the question of wages in the mill. We think it clear that the filing of suits by Baker, Citty, Mug- gelberg, and Hoteling, constituted union activity. Baker, the union president, was the moving spirit in this activity and in his conversa- tion with the other three union members, urged them to file suit on the grounds that the Union was behind any action which they would take. We find that the four employees filed suits in reliance on this assurance; and that their activity in this respect was union activity. It is to be noted, moreover, that even in the absence of any union, the filing of the suits by the four employees constituted concerted activity of employees for their mutual aid and protection, within the meaning of Section 7 of the Act. The Milling Company realized that the activity was concerted and not primarily individual, as appears from the remarks and questions of Johnson -during the con- ferences with said employees concerning the filing of the suits and M. F. A. MILLING COMPANY 627 from his subsequent action in regard to this matter. Its discharge of these employees for engaging in such activity constitutes interference, restraint, and coercion within the meaning of Section 8 (1) of the Act. We find, as did the Trial Examiner, that the Milling Company by discharging J. P. Baker on February 15, 1939, B. E. Citty, on February 16, 1939, Otto Muggelberg, on March 28, 1939, and Harold Hoteling, on March 30, 1939, discriminated in regard to their hire and tenure of employment, discouraged membership in the Union, and inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the Milling Company set forth in Section III above, occurring in connection with the operations of the Milling Company described in Section I A above, have a close, inti- mate, 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 Milling Company has engaged in certain unfair labor practices we shall order it to cease and desist therefrom and to take certain affirmative action designated to effectuate the policies of the Act by restoring as nearly as possible the situation that existed prior to the commission of the unfair labor practices. We have found that the Milling Company discriminatorily dis- charged J. P. Baker on February 15, 1939, B. E. Citty on February 16, 1939, Otto Muggelberg on March 28, 1939, and Harold Hoteling on, March 30, 1939. We shall order the Milling Company to offer each of said employees immediate and full reinstatement to his former position without prejudice to his seniority or other rights and privileges and to make him whole for any loss of pay he has suffered by reason of the Milling Company's discrimination against him by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of such discrimination to the date of such offer of reinstatement less his net earnings ff during said period. 11 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 unlawful discharge and the consequent necessity of his seeking em- ployment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amerua , 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. 628 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. United Grain Processors Local No. 20692, affiliated with Ameri- can Federation of Labor, 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 J. P. Baker, B. E. Citty, Otto Muggelberg and Harold Hotel- ing, and thereby discouraging membership in United Grain Processors Local No. 20692, the Milling Company 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 by Section 7 of the Act, the Milling Company 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 Milling Company has not, by discharging Emmet Hughes, Charles Bayes, Roy Arndt, Glen Owen, or Everett Miller, or by trans- ferring Otto Muggelberg to the drag in 1938, engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, M. F. A. Milling Company (Springfield, Missouri) its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in United Grain Processors Local No. 20692, affiliated with American Federation of Labor, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment, or to any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and 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: M. F. A. MILLING COMPANY 629 (a) Offer to J. P Baker, B. E. Citty, Otto Muggelberg , and Harold Hoteling, immediate and full reinstatement to their former or sub- stantially: equivalent positions , without prejudice to their ; seniority; or, other -rights and, privileges ;,,. ,} ' •, ) (b) Make .whole J. ^ P. Baker,,, B.. E: Citty,, Otto Muggelberg, and Harold Hoteling, and each of them for any loss of, pay he may have suffered by reason of the respondent Milling Company's 'discrlmrna: Lion against him by payment to him of a sum of money equal to that which be would normally hive earned as wages from the date of "such discrimination to,the'date of the Milling Company's offer ,,of•reinstate- ment pursuant to this Order , less his net earnings 12 during said,period; deducting, however, from the amount otherwise due,, each of said employees monies received by him, ' during said period for, work ,per formed upon Federal , State, county , municipal , or other, work-relief' projects iznd pay 'over 'the;amount so ordered to'tlie appropriate 'fiscal' agency " of the Federal,'St'ate, county, municipa'l,'or'otlier government or govenunents which_suppliedI the, funds, for said work-'chef projects, (c) Post immediately inconspicuous places at its mill and ,mamtain for,'a, period of at least' sixty . (60) consecutive, days from . the date of postirig'noticos to its employees 'stating: ' '( 1)'that the Milling Company will 'not' engage in the conduct from which 'it' is "ord'ored ' to ceas'e' and desist in paragraphs 1. (a) and ,(b) 9f this Order ;, (2) that th'e.Milling Company ,will .take, the. affirmative . action,set forth, in ,paragraphs 2 (a) iitnd (b) of this Order; and (3) that the Milling Company 's employ- ees'ar`e"free to' become or remain 'members' of"the United Grain Pro- ces's'ors Local 96,.'20692 , affiliated with ' American Fed eration of Labor, and that the, Milling Company„'will not discriminate against any employee ' because of membership or: activity„ in. that . organization; (d) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the, date of this Order what steps: the Milling Company has taken to, comply,herewith; , . AND IT , IS FURTHER ORDERED that the corllplalnt be, sand It hereby is dismissed, ' in so far as it alleges that ' the Milling Company` liar discriminated in regard to the hire andtenur`e of empl'oyrrrent`of Ern-met Hughes , Charles Bayes , Roy Arndt, Glen Owen , Everett Miller, `or that the Milling Company has discrimindt 'ed in 'regar'd"to ,the terms'or conditions of employment of Otto •Muggelberg by transferring him to the drag in 1938; AND IT IS FURTHER ORDERED that' the complaint be, and it hereby is dismissed , in so far as it alleges that the Missouri Farmers' Asso- ciation has engaged in ,unfair labor, practices ,, within the meaning of Section, 8, (1) and (3) of the National , Labor Relations Act. 12 See footnote 11, supra. , • . 323429-42-vol. 26-41 1^