Kokomo Sanitary Pottery Corp.

In the Matter of KoKoMo SANITARY POTTERY CORPORATION and NATIONAL BROTHERHOOD OF OPERATIVE POTTERS, LOCAL No 26 Case No. C-913.Decided August 1, 1940 Jurisdiction : pottery manufacturing industry. Unfair Labor Practices. Company-Dominated Union: employer participation in formation of, prior to effective date of Act and continued domination thereafter, solicitation of mem= hers,and contribution of support to, subsequent to effective date of Act. D_ascrimination• refusals to reinstate employees in accordance with terms of strike settlement; charges of discrimination as to certain persons, dismissed Employer, who, after agreeing to giveGprefdrence in employment to laid-off employees and to persons who went on strike prior to effective date of Act, hired new employees to fill jobs which could have been performed by persons named in preferential list, held to have discriminated against listed persons as a class, although record does not show precise extent of discrimination as to each. Where strike was not caused by unfair labor practices, but strike-settlement agreement provided that employer should offer jobs as vacancies occurred, strikers need make no further application in order to be entitled to non- discriminatory consideration by employer in filling vacancies. Remedial Orders : reinstatement and hack pay; company-dominated union disestablished. Employees who, after beirg discriminatorily refused reinstatement, went on strike, and'thereaftcr were offered reinstatement, held entitled to back pay, notwithstanding strike, to date when offer of reinstatement was made. Where respondent checked off ` moneys from employees' wages for the purposes of insurance protection and company-dominated union dues, and the record does not show the amounts allocated to each item, the respondent was ordered to repay the whole sum checked off Definitions Persons laid off prior to effective date of Act but not discharged, held employees after adoption of Act. Strike which began in February 1935 held "current" as of September 1936 because of pendency of settlement negotiations, although strikers had been replaced and production fully resumed prior to adoption of Act and picket line was dispersed in July 1935 M7. George Rose, for the Board. Wolf & Love, of, Chicago, Ill., and Mr. C. Leo Williams and Mr. F A Welsh, of Kokomo, Ind., for the respondent. Mr. Joseph A. Padway and Mr. Herbert S. Thatches, of Washington, D. C., Mr. James M. Duffy, of Liverpool, Ohio, and Mr. Glenn McCarter and 1117. Russell Yon Cannon; of Kokomo, Ind., for the Union. Mr. Richard A. Perkins, of counsel to the Board. 26 N L. R. B , No. 1. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by National Brother- hood of Operative Potters, Local No. 26,.herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eleventh Region (Indianapolis, Indiana), issued its complaint dated November 24, 1937, against Kokomo Sanitary Pottery Corporation, 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 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and a notice of hearing thereon were duly served on the respondent, the Union, and Ko-San Club, a labor organization hereinafter sometimes referred to as the Club. Concerning the unfair labor practices the complaint alleged in sub- stance that the respondent discouraged membership in the Union by terminating the employment of 42 named employees and refusing to reinstate them, because of their membership and activity in the Union; dominated and interfered with the formation and administra- tion of the Club and contributed support thereto ; and thereby, and by other facts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On December 6, 1937, pursuant to an extension of time granted by the Regional Director, the respondent filed an answer in which it admitted certain allegations of the complaint relating- to the nature of the respondent's business and the existence of the Club, but denied the other material allegations of the complaint. Pursuant to the notice of hearing and a notice of postponement, which was duly served upon the respondent, the Union, and the Club, a hearing was held at Kokomo, Indiana, from December 13 to 17, 1937, before Henry-J. Kent, the Trial Examiner duly designated by the Board. The respondent, the Union, and the Club did not appear or participate in the hearing. The evidence adduced at the bearing consisted of the testimony of witnesses called by counsel for the Board and documentary evidence produced by the respondent on return to subpena-daces tecum. On August 26, 1938, the Trial Examiner filed an Intermediate Report in which be found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Sections 8 (1), (2), and (3) and 2 (6) and (7) of the Act, KOKOMO SANITARY POTTERY CORPORATION 3 and recommended that the respondent cease and desist from such unfair labor practices, reinstate 39 employees with back pay, and completely disestablish the Club as the collective bargaining repre- sentative of any of the respondent's employees. As to three persons named in the complaint as having been discrimmatorily refused reinstatement, the Trial Examiner recommended that the complaint be dismissed. On September 8, 1938, the respondent asked for an extension of time within which to file exceptions to the Intermediate Report. On September 12, 1938, the Board granted all parties until September 22, 1938, to file exceptions. On September 22, 1938, the respondent filed exceptions to the Intermediate Report, together with a request for oral argument and for leave to offer certain unspecified evidence. The Board by order dated September 26, 1938, granted the request for oral argument at a time to be fixed later and denied the request for leave to introduce additional evidence, without prejudice to the right to renew the request at the argument. On October 13, 1938, the Board issued and served on all parties notice of a hearing to be _ held on November 15, 1938, for the purpose of oral argument., On October 17, 1938, the respondent requested a postponement of the oral argument. This postponement was denied on October 20, 1938. On November 9, 1938, the Board notified all parties of the indefinite postponement of the oral argument previously scheduled. On January 15, 1939, Wolf & Love, attorneys, who had not previously appeared of record in the proceeding, telegraphed the Secretary of the Board, stating that they had prepared a petition for a re-reference of the proceeding to a Trial Examiner, to be presented at the oral argument "directly by respondent" and that if the petition appeared insufficient to justify the relief therein prayed, they requested a continuance for 25 days to enable them to prepare adequately. On January 17, 1939, pursuant to notice, a hearing for the purpose of oral argument was held before the Board in Washington, D. C. No counsel appeared for the respondent, which was represented by two of its officers. They presented a certain petition hereinafter discussed but made no argument on the merits of the case. The Union appeared by counsel and by certain officers, argued the case on the merits, and opposed any reopening of the record or re-reference to a Trial Examiner. The petition presented January 17, in addition to legal argument, set forth certain matters by way of excuse for the respondent's failure to participate in the hearing before the Trial Examiner, alleged the availability of evidence said to be material which the respondent was prepared to adduce, and prayed that the Board "reopen the record, and require the taking of further evidence before a Trial Examiner, 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or other agent or agency of the Board, or enter such other order as may be appropriate and just under the circumstances." On February 8, 1939, the Board entered' an order denying the re- spondent's petition of January 17 except that the respondent was granted leave, subject to objection, to offer certain documents'in evidence by filing the same with the Chief Trial Examiner. - We shall briefly discuss the considerations underlying this ruling. First, as to the respondent's showing in support of its request, the petition alleges as follows: At the time of issuance of the original notice of hearing before the Trial Examiner, the respondent's president, one Max Gerber, was traveling in Pennsylvania'and New York on the respondent's business., On November 26, 1937, after receiving the original notice of hearing, Gerber's secretary wrote the Regional Direc- tor stating that Gerber was absent and could not then be reached, but would be at a certain address in Now York City during the following week. The Regional Director replied by letter dated November 27, 1937, stating that no adjournment would be possible, that Gerber's secretary was responsible for keeping Gerber notified and suggesting that the respondent's counsel be consulted. Gerber telegraphed the Regional Director on December 1, 1937, stating that business detained him in New York City and requesting a continuance until December 20. On December3, 1937, the Regional Director telegraphed the respondent announcing that the hearing previously set for December 6 would be postponed indefinitely. Gerber remained in the East in reliance on this last communication from the Regional Director. The petition further alleges: the Regional Director advised the respondent by wire on December 7, 1937, that the hearing would begin December 13. Gerber's secretary wrote the Regional Director on December 9, statingthat Gerber could not return to Kokomo before December 16; and the Regional Director replied by telegram on Decem- ber 10 that the hearing would proceed as previously noticed. The respondent had not' retained counsel by reason of the expense and because competent counsel was not available in the respondent's community, and none of the respondent's employees was authorized to retain counsel in Gerber's absence. The respondent finally secured counsel on January 15, 1939, according to the petition,-over a year after the issuance of the complaint and only 2 days prior to the oral argument requested. by the respondent and postponed from Novem- ber 15, 1938. It is plain that no: principle of judicial usage or practice or any rule, regulation, law, constitutional provision, or requirement of justice entitled the respondent upon such a showing to any further oppor- tunity to be heard or adduce additional evidence.', If the respondent corporation is so organized as to be' incapable of carrying on business ' Cf National Labor Relations Board v American Potash and Chemical Corp. (C. C. A 9) 98 F. (2d) 448. KOKOMO SANITARY POTTERY CORPORATION 5 during its president 's absence and if no subordinate with any authority is left in charge, the respondent must suffer whatever inconvenience may ensue therefrom. The hearing lasted from December 13 through December 17, 1937. Gerber's secretary wrote on December 9 that he could not return to Kokomo prior to December 16. The respondent could have procured counsel to attend the hearing and upon a proper showing, if such were possible, move for a continuance before the Trial Examiner under Article II, Section 14, of National Labor Relations Board Rules and Regulations-Series 1, as amended-which provided that the Trial Examiner should rule on motions made during the hear- ing; Gerber could have testified on December 16 and 17; and the Trial Examiner would presumably have granted such additional time as might have been necessary for the respondent to present its case. The assertions that the respondent could not afford counsel and that competent counsel could not be had locally we lay on one side as frivolous. If the respondent can engage in manufacturing operations it can retain counsel. We cannot believe that the bar of Kokomo, Indiana, and vicinity is incapable of furnishing proper representation for the respondent; in any event the respondent had time to go else- where: It may be remarked here that the respondent's answer to the complaint, filed December 6, 1937, and its exceptions to the Inter- mediate Report, filed September 22', 1938, appear to have been drawn by someone familiar with legal phraseology although they bear the name of no attorney and the respondent asserts that it did not secure counsel until January 15, 1939. The respondent 's actions subsequent to the hearing, in requesting oral argument, then asking for a continuance , and when the argument was finally set down nearly 4 months after the request, filing a dilatory petition and neglecting to make an argument on the merits , furnish additional reason for doubting that the respondent had ever in good faith endeavored to present a defense on the merits. The Board has, however, granted the respondent an opportunity to offer certain documents in evidence. One of the issues in the case was whether, and if so, when, the respondent had offered reemploy- ment to the persons alleged in the complaint to have suffered dis- crimmation. The respondent's petition of January 17, 1939, referred to copies of letters offering reemployment and postal registry receipts said to be in its possession . Our order of February 8, 1939, granted the respondent leave to offer the same in evidence, subject to objection. The respondent on March 3, 1939, in purported compliance with our order of February 8, 1939, filed with the Chief Trial Examiner its "Verified Offer of Proof" containing certain copies of letters , postal registry receipts, envelopes , and proof of mailing, receipt, or non- delivery of said letters , and in addition , certain argumentative ma- terial by way of assertions concerning matters not covered by the 323429-42-vol 26---2 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leave to offer evidence granted by us on February 8, 1939. Pursuant to the terms of our order of February 8, 1939, the Union on March 10, 1939, duly filed its written objection and argument in support thereof. The Union's objections go to the relevancy of 'the material offered. There is no contention that the letters were not in fact sent; most of the addressees testified at the hearing before the Trial Exam- iner that they had received letters; the only question remaining was as to the dates. We hereby overrule the objection of the Union to the offer in evidence of the letters, postal registry receipts and proof of mailing, receipt, or non-delivery of said letters, and the same are hereby admitted and made a part of the record. The Union's objec- tion is sustained as to all other matters included in the respondent's "Verified Offer of Proof." The respondent submitted with its Verified Offer of Proof" another request for oral argument. This is hereby denied. As stated above, the respondent has neglected to avail itself of its opportunities to make argument, and it is not now entitled to any further opportunity. The receipt of the documentary evidence solely in the Board's discretion does not enlarge the respondent 's rights in this respect ; as hereinafter appears, the documentary evidence is received with the effect of limit- ing the respondent's liability rather than extending it. Any further opportunity of argument would be merely a repetition of that of which the respondent neglected to take advantage on January 17, 1939. The Board has considered the respondent's exceptions to the Intermediate Report, and, except in so far as they are consistent with the findings of fact, conclusions of law, and order below, finds them to be without merit, and they are hereby overruled. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Kokomo Sanitary Pottery Corporation is an Indiana corporation engaged in the manufacture of pottery and earthenware products, including toilet bowls, tanks, and lavatories, at its factory in Kokomo, Indiana. The clay used in the respondent's processes is compounded of several ingredients, including feldspar from North Carolina and Tennessee, ball clay from Tennessee and from England, china clay from South Carolina, ground silica and sand from Illinois, ,and chemi- cals from Ohio. The respondent installs on its products brass fittings obtained from Indiana, Michigan, and eastern States. According to the estimate of G. H. Machin, secretary of the respondent, given at the hearing, about 60 per cent of the raw materials used in the respond- ent's manufacturing processes are obtained from without the State of Indiana. KOKOMO SANITARY POTTERY CORPORATION 7 The respondent's 1936 production was about 30,000 pieces. Machin testified variously that 40 per cent, or "a greater proportion," of the respondent's products is distributed outside the State of Indiana. The respondent's answer contains an admission of paragraph 2 of the complaint, which alleges that the respondent had purchased and transported a substantial part of its raw materials from outside Indiana for use at its Kokomo plant and had caused its products to be sold and transported in interstate commerce from the Kokomo plant into and through States other than Indiana. In the principal operations carried on"at the respondent's pottery, clay is mixed, cast into molds, dried, glazed, and burned. The respondent employed at the time of the hearing about 175 persons, of whom about 160 were engaged in production. II. THE ORGANIZATIONS INVOLVED National Brotherhood of Operative Potters, Local No. 26, is a labor organization affiliated with the American Federation of Labor. The Union admits to membership all the employees of the respondent except office workers, engineers, superintendents, and executives. Ko-San Club is an unaffiliated labor organization Although it exists primarily for social and recreational purposes and has not been very active (see Section III infra) its former chairman, Richard Lee, testified at the hearing, and we find, that the Club has discussed wages, working conditions, and grievances with the respondent's management. Although the respondent's exceptions urge that the Club is not a labor organization within the meaning of Section 2 (5) of the Act, we find that it is a labor organization.'- A further discussion of the Club appears in Section III, infra. III. THE UNFAIR LABOR PRACTICES A. Chronology of events The Union was formed among the respondent's employees on September 8, 1933, and received a charter from its parent international organization on September 28, 1933. By February 1934 the Union numbered about 40 members, and during that month its committee approached Gerber to negotiate for an increase in piece rates. Gerber's immediate response was to conduct an election among the employees by means of ballots presenting h choice of the Union, a "shop union," and an insurance organization. The two candidates other than the Union had not been heard of prior to this time, so far as the record shows. The Union received 58 votes and the other candidates 29 and 9, respectively. When the results of the ballot became known, Gerber refused the wage increase which the Union had requested. 2 Matter of Atlanta Woolen Mills and Local No 2807, United Textile Workers of America , 1 N L R B 316. DECISIONS OF NATIONAL LABOR RELATIONS BOARD Soon after this incident Gerber circulated among the-employees a petition for the lowering of standards of quality required of the respondent's product by a code of fair competition adopted pursuant to the National Industrial Recovery Act. Several employees refused to sign. Gerber discharged them, then restored all but one Baldwin to work. Agents of the (old) National Labor Relations Board 3 held a hearing on Baldwin's discharge in Indianapolis in the summer of 1934, and as a result Baldwin was reinstated. A few days after the hearing, Gerber assembled the employees and denounced as "disloyal" those who had testified in behalf of Baldwin. In the fall of 1934 solicitation of membership in the Club took place among the respondent's employees. The origin of the Club does not appear clearly in the record. The Club was connected with the Benefit Association of Railway Employees, an accident insurance society organized under the laws of Illinois. A representative of the insurance society, in the presence of Harper; superintendent, asked employees to purchase policies of insurance and held out the induce- ment that the society would discuss grievances with the respondent. Several supervisors solicited membership for the Club among employ- ees on the job during the fall and winter of 1934 George Ellis, head inspector, Machin, secretary of the respondent, and McGuire and Parsons, foremen, were active in behalf of the organization described variously as the Club or "this insurance." On January 11, 1935, the respondent laid off Karl Dresch, financial secretary of the Union. A further lay-off on January 14 eliminated Russell Von Cannon, recording secretary, and Verne Phillips, a union member who had previously refused to join the Club. Soon after this Gerber called to his office the union shop committee, composed of Robert Smith, Victor Simmons, and Orville Groves, and after showing them a chart of the location of the work benches in the shop, where the benches of Von Cannon, Dresch, and Phillips were marked with red pins, told the committee that those men were not loyal workers and would never come back to work. Gerber also said that the lay- offs in general were due to a change in the casting operation and that other employees to be laid off would be recalled as soon as the benches were fixed. A number of lay-offs then followed in the casting depart- ment during the latter part of January and early in February. Within the next few days, without having recalled the men previously laid off, the respondent hired several new employees,-three at least, according to Robert Smith. About February 1, 1935, Orville Sargent, then storeroom boss and later casting-department foreman, circulated a "yellow-dog" contract or petition among employees on the job and also among employees who had previously been laid off, promising the latter reinstatement if 3 Established by executive order of the President on June 29, 1934. KOKOMO SANITARY POTTERY CORPORATION 9 'they would sign.' Sargent then called a meeting in the, shop and announced that "what was left of the Union," acting as the Ko-San Club, would hold an election of officers. The union memberspartic- ipated and succeeded in electing one of their number, Frank Lloyd, as president of the new organization. The management sent for Lloyd and a committee appointed by him, but when the union men refused to enter into a contract proposed by Welsh, the respondent's manager, he told them to resign, and said, "We want an agreement here of some kind with you fellows. If anybody don't want to go along with this agreement with the Ko-San Club, why we want their names so we can get rid, of them." The Union took a strike vote on February 8, 1935, and instituted a strike on February 11. Welsh unsuccessfully solicited Glen McCarter, a union member, to remain at work, and stated that the strikers "will never be working in here again." The plant was shut down for a month, then reopened with a cur= tailed production, and within 60 days after reopening was running full force The Union maintained a picket line at the plant until July 13, 1935, when the line was dispersed through the arrest and con- viction of pickets in a prosecution subsequently dismissed by the higher courts of the State. 11,uring this strike, which continued to September 14, 1936, there were several conferences between representatives of the respondent and of the Union, attended on several occasions by municipal officials and also by Board agents, after union representatives had filed charges alleging that the respondent had engaged in unfair labor practices.5 The respondent's officials repeatedly refused to consider a joint application for reinstatement made by the Union, and insisted that the discharged employees and former strikers make individual applications, to be dealt with as the respondent saw fit. The evidence leaves no doubt that the requirement of individual applications so insisted upon by respondent as a prerequisite to a consideration of the reinstatement of workers well known to it was wholly without justi- fication on any business basis, and was imposed for the purpose of humbling the Union and rendering ineffective the efforts of its repre- sentatives on behalf of the men. The men finally acceded to the respondent's condition in substance and .on September 14, 1936, a settlement agreement was executed. The agreement was in the form df a letter addressed to "National Labor Relations Board, Indianapolis, Indiana," containing separate undertakings on the part of the respondent and the union shop com- 4 We do not credit Sargent's version of this incident so far as inconsistent with the foregoing statement in the text, his testimony was evasive and improbable as respects his professed ignorance of the origin of the petition or contract 3 Charges alleging that respondent had engaged in unfair labor practices within the leaping of Section 8 ( 1) and (5) of the Act were filed on October 7, 1935, and February it, 1936. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mittee, the members of which were required by the respondent to sign ostensibly as individuals rather than in their representative capacity. By this agreement the respondent's obligation was expressed as follows: In consideration of the withdrawal of charges heretofore filed with the National Labor Relations Board against F. A. Welsh Manufacturing Company 6 and Kokomo Sanitary Pottery Com- pany, we hereby agree to reemploy all employees on the list attached hereto at the positions thereon indicated before anyone else is employed. The companies agree to notify these men by registered mail at the address indicated on the list when such a position is available and to employ them if they report within three (3) days after the notice is given. If the party notified does not report or refuses the position another available appointee on the list will be notified under the same terms and conditions. After all the men have been thus notified and given opportunity to work this agreement will expire. The union committee agreed to the following: In consideration of the above agreement, we hereby withdraw the charges filed against the above named corporations, condi- tioned on their faithful performance of the agreement. Attached to the agreement was a list containing the names of 52 employees with their addresses and job, classifications. The names were arranged in alphabetical order under each classification, and there is no indication on the face of the document as to the order in which the listed men were to be recalled. Gerber did, however, offer orally to reinstate first the men who were then out of work, and Von Cannon, union secretary, accordingly furnished Gerber with a list showing which men were currently working. Between September 14, 1936, and March 13, 1937, the respondent sent letters to no more than 8 of the 42 individuals named in the complaint, all of whom were on the agreed list. The letters, which were substantially uniform, did not offer reinstatement uncondition- ally; they merely invited the addressees to come in and make appli- cation within 3 days or be considered as having no further interest in employment by the respondent. The disposition of the cases of the individuals recalled, so far as the record shows, is as follows: Jack Flick was mailed a letter on September 16, 1936. Flick did not testify and the record does not disclose whether he reported for work. His name does not appear on any of the pay rolls from Septem- ber 15, 1936, to March 31, 1937, or on the pay roll for December 5, 1937,-these being all the pay rolls in evidence. 0 A company associated with respondent in a manner not disclosed by the record. KOKOMO SANITARY POTTERY CORPORATION 11 Thomas Budd received a letter mailed September 23, 1936, and went to the repsondent's plant to make application. The manage- ment referred Budd to a physician for an examination, which he passed. The respondent's officials told Budd it would be 2 or 3 days before his job would be avaliable. When he returned Leo Williariis, respondent's plant manager, told him that he, Williams, would let Budd know when to come back again. Budd heard nothing more from respondent until April 1937,-as will appear below. Walter Denham also received a letter dated September 23, 1936. He did not testify, and his name appears on none of the pay rolls from September 15, 1936, to March 31, 1937; neither does it appear on the pay roll of December 15, 1937. The record does not disclose whether he made application in response to the letter. Gordon Rumfelt was mailed a letter dated October 6, 1936. He did not testify, and his name appears on none of the subsequent pay rolls in evidence. The record does not show what response if any Rumfelt made, or the result if any was made. Paul Clark received a letter dated November 16, 1936, and re- ported to apply for work. He was referred to a physician for exam- ination. Thereafter Leo Williams told Clark that he would not be put to work because, the physician's report showed that he had defective vision in one eye. Clark (lid in fact have a bad eye, but his condition was no worse than it had been during the previous 10 years, in the course of which he had worked for the respondent a year and a half. Clark had a conversation with Williams in August 1937, when Williams told him there was "nothing personal" against him but that he would be unable to work for the respondent again "under union conditions." Frank Clem received a letter dated October 1, 1936, and made application pursuant thereto. After having a physical examination Clem went to work and continued until February 1937, when he left in consequence of a dispute with his foreman. Williams assured Clem he could have a job any time he wished to go back, but Clem never returned. Russell Dunlap received a letter from respondent in the fall of 1936 while he was working elsewhere, and he did not make any application. At a later date he talked to respondent's officials and was offered a job, but having received an offer from another employer, he went to work elsewhere. Charles Moran returned to work after the settlement agreement was made and left before March 1937. He did not testify at the hearing, and it does not appear whether he received a notice to report, neither does it appear whether his separation from the respondent's employ after his return was voluntary. His foreman testified that he did poor work after his return. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Other than the above-mentioned 8 persons, none of the 42 persons named in the complaint were recalled to work from the date of the settlement on September 14, 1936, to March 1937. Of the 10 persons named on the agreed list but not in the complaint, 3 apparently returned to work at the respondent's plant during this period and another was recalled while employed elsewhere and did not return. The other six who were on the agreed list and are not included in the complaint do not appear on any of the pay rolls during the period under discussion, and the record does not disclose whether they were offered reinstatement.? Comparison of the September 15, 1936, pay roll-representing the composition of respondent's personnel as of the date of the settlement agreement-with succeeding pay rolls up to and including March 15, 1937, shows that, excluding the office force and persons named in the strike-settlement agreement, 58 names not on the beginning pay roll appear on one or more subsequent pay rolls. Moreover, during this period 33 names not among those listed in the settlement agreement appear on the pay rolls first under one job classification and later under another; evidently there were that many vacancies which were filled by transfer. Although the precise extent of the breach of the agreement cannot be determined from the record for,the reason that the pay-roll classifications do not coincide with the jobs set after the names of those listed in the settlement agreement, it is evident, and we find, that the respondent breached its agreement by passing over many men listed in the complaint in filling positions which they should have received under the agreement. - The following is a tabulation of the number of new names appear- ing on pay rolls from September 30, 1936, to March 15, 1937, together with the number of positions filled by transfer during that period, adopting the classifications used on respondent's pay-roll lists in evidence, excluding office personnel and disregarding positions filled by men named in the settlement agreement: Job classifications New names Transfers Total Labor ----------------------------------------------------------- 22 16 38 Miscellaneous--------------------------------------------------- 13 2 15 Inspection ----------------------------------------------------- 5 2 7 Kiln 9 7 16 Caster - ------------------------ 6 3 9 Shipping -------------------------------------------------------- 2 3 Mould-- ------------------------------------------------------- 1 0 Maintenance-_ ----------------------------- 0 Power-------------------------------------------------------- 0 Total---------------------------------------------------- 58 33 91 7 One may have been sent a notice, on the basis of von Cannon's statement that the respondent sent 13 letters in all during the 6 months following the settlement KOKOMO SANITARY POTTERY CORPORATION 13 The following shows the distribution among job' classifications, as listed in the settlement agreement, of the 34 men who were not re- called during the period in question, and the 2 men 8 who, after being were refused reinstatement. recalled, Job Classifications: Number of Men Casters------------------------------------------- 25 Washdowns----------- 15 Tanks---------------- 7 Washdowns-Tanks--- 2 Washdowns-Jets----- 1 25 Hustlers ------------------------------------------ 3 Kiln Shed ---------------------------------------- 2 Sprayer------------------------------------------ 1 Brickmason--------------------------------------- 1 Saggermaker------------ - ------------------------ 1 Warerooms, Packers, etc --_------------------------ 2 Pug Mill, Sagger Shop----------------------------- 1 Total-------------------------------------- 36 It is apparent that the basis of job classification used in the pay-roll lists is not strictly comparable to that used in the settlement agree- ment. It is certain, however, that the respondent employed 6 new men as casters and transferred 3 others to that work, although 25 casters remained available on the agreed list, and- we are convinced, particularly in view of the large number of persons hired at the equivocal classifications of "Labor" and "Miscellaneous," that the other jobs filled during this period also could have been filled by men named in the agreed list. - On one occasion after the execution of the agreement of September 14, 1936, and before March 1937, Raymond Alexander, president of the Kokomo Central Trades and Labor Council, conferred with Williams, the respondent's plant manager, in an attempt to induce the respondent to recall men from the preferential list in compliance with the agreement. Williams told Alexander that certain men on the preferential list, because of their prominence in the Union, would never be recalled to work. Among those to whom Williams referred in this connection were Everett Tucker, then president of the Union, Russell Von Cannon, recording secretary, Orville Groves, former shop committeeman, and Harry Turley. Subsequent to the execution of the settlement agreement, Fisher Peel, one of those named in the preferential list, was referred to the respondent by the Indiana State Employment Service, with which the respondent had placed a "standing order" for potters. Peel reported to Williams and inquired why he had not been recalled pursuant to 8 Thomas Budd and Paul Clark. 14' DECISIONS OF NATIONAL LABOR RELATIONS BOARD the agreement. Williams said, "Oh, forget about that contract. Let's talk about something else." He also told Peel that he would be afraid to put Peel back to work, because "Them guys in there [meaning the employees then working] would kill you." Williams also said, "We have a shop committee here now [meaning the Ko-San Club] what we call the employment committee. Any applications that are made they have to O. K. them before they are hired into the shop." In August 1937 Williams told Paul Clark, one of those on the preferential list, that lie "would be unable to work there under union conditions." The members of the Union became convinced that the respondent was not complying with the strike settlement, and that it was hiring persons other than those on the agreed list. Accordingly, on March 17, 1937, the Union's shop committee demanded of Gerber and Williams that the respondent perform its agreement. Williams ad- mitted having hired at least one new employee in violation of the agreement . The union representatives asked the respondent's officials to reinstate 15 men at once . Williams postponed action on this request. The Union thereupon instituted what it called a strike. Apparently none of the employees then working ceased to work; the "strike" was participated in only by persons whose reinstatement had not been effected pursuant to the settlement agreement. The only immediate effect of the "strike" was that labor organizations affiliated with the Union put the respondent's products on their unfair lists. When the respondent did send out letters notifying the men on the agreed list to come in and file applications , a number of them failed to report, as will appear below. On March 25 the shop committee again conferred with Welsh, who stated that he would not displace 15 men, and that those on the agreed list would be required to file individual applications. The Union thereupon kept its strike in effect. Beginning at about the time of the negotiations between the respond- ent and the shop committee in March 1937, and continuing in April and May 1937, the respondent sent out letters to all the individuals named in the complaint save Clark, inviting them to come in and file applications. Two such letters, those to Fowler and Downing, were delivered several days prior to the calling of the strike of March 17. The record does not indicate whether Fowler made any response. Downing reported on or about March 17. Williams and Machin inquired whether he was a union member or wanted "a committee in the shop ," meaning the Ko-San Club , to represent him, and when he expressed a preference for individual bargaining, referred him to a physician for an examination as a preliminary to reinstating him. The strike was called on the same day and Downing did not return KOKOMO SANITARY POTTERY CORPORATION 15 to the plant . Thirty-one men named in the complaint were sent letters on various dates in March, April, and May, 1937 while the strike was on; none of, them returned to work prior to the hearing. At the hearing a number of the men were asked whether they wished to return to work for the respondent . Several replied gener- ally in the affirmative, while others attached conditions, such as, that the Union arrive at a satisfactory agreement with respondent. The record does not show that the Union has ever called off the strike which began March 17, 1937. Beginning in November 1938 the respondent addressed letters to a number of the men, offering them positions. At the argument before the Board on January 17, 1939, union representatives stated that those who received such letters had not accepted the offer owing to the pendency of this proceeding. B. The employee status of the strikers named in the complaint The complaint alleges that the respondent engaged in unfair labor practices within the meaning of Section 8 (1) of the Act since July 5, 1935, and in unfair labor practices within the meaning of Section 8 (2) since "sometime prior to August 14, 1936," and that the strike which terminated on September 14, 1936, was caused by such unfair labor practices . The allegations of the complaint as to the non -reinstate- ment of employees in violation of Section 8 (3) of the Act relate to a period subsequent to September 14, 1936, the date of the strike- settlement agreement . It is alleged that the respondent 's refusal to reinstate the persons named in the complaint was " contrary to the respondent's written agreement." The strike which ended on September 14, 1936, had its beginning prior to the effective date of the Act and cannot, therefore, be said to have been caused by unfair labor practices. Although, as we find below, the respondent did engage in unfair labor practices within the meaning of Section 8 (1) and (2) of the Act , continuously from July 5, 1935, to and after September 14, 1936, the record does not support a finding that those practices resulted in prolongation of the strike. The respondent asserts that the persons named in the complaint have at no time since the effective date of the Act been its "em- ployees," with the consequence (so we gather , for the respondent does not make it explicit) that the respondent has not engaged in dis- crimination as to them. The respondent 's contention is without merit. The discrimination of which Section 8 (3) speaks includes practices directed against persons other than employees, as by dis- crimination in regard to hire.' In any event, however, the indi- viduals in question were and are employees. As to those who went on strike in February 1935, their work ceased as a result of a labor dispute which was plainly current until September 14, 1936, as evi- 9 ]Clatter of Waumbec Mills , Inc. and United Textile Workers of America , 15 N. L R. B 37. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dented by the pendency of negotiations for settlement.10 Those who were laid off in January and February 1935 were likewise "employees" by virtue of their lay-off status until September 14, 1936;11 the re- spondent never discharged them, despite its failure to comply with its promise to recall them when the casting shop was made ready. Moreover these employees also joined the strike which remained current until September 14, 1936. The status of the persons named in the complaint as "employees" since September 14, 1936, is further affirmed by the settlement agreement which described them as em- ployees and placed them on a preferential list. The strike of March 17, 1937, has not altered the employees' status in this respect. We find that the persons named in the complaint have been "employees" of the respondent at all times material hereto. C. Effect of the settlement agreement; conclusions regarding discrimination • We have shown that the respondent breached its settlement agree- ment of September 14, 1936, by hiring new employees for positions to which it had agreed to reinstate persons on the preferential list.12 The Board does not concern itself with the breach of contract as such; it is concerned solely with whether the breach constituted unfair labor practices as well. The strike which ended on September 14, 1936, is not found to have been caused or prolonged by unfair labor practices. In the circum- stances the respondent's obligation under the Act was merely to refrain from discriminating, for reasons of union membership or of participation in the strike, against any striker who should apply for reinstatement. The agreement of September 14, 1936, quite aside from the con- tractual obligations to which it gave rise, altered the positions of the parties under the Act. Normally the -respondent's obligation to accord non-discriminatory consideration to the employment of any striker would arise only when that striker made application for rein- 10 National Labor Relations Board v Mackay Radio & Telegraph Co , 304 U S 333, 344 It North Whither Heights Citrus Ass'n v National Labor Relations Board, 109 x' (2d) 76 (C C A 9). .2 No occasion is here presented for the application of our rule that agreements whereby unfair labor practices are compromised, and in the negotiation of which a Board agent participates, bar consideration of preceding unfair labor practices Matter of Shenandoah-Dines Mining Company and International Union of Mine, Mill, and Smelter TVorkers, 11 N L R B 885, Matter of Godchaux Sugars, Ins and Sugar Mill Workers' Union, Locals Nos 21177 and 8188, affiliated with the American Federation of Labor, 12 N L R B. 568 The allegations of the complaint as to discrimination relate solely to the period subsequent to the execution of the agreement and are based upon actions allegedly constituting a breach thereof The charges which the Union withdrew in consideration of the settlement agreement related to alleged unfair labor practices within the meaning of Section 8 (1) and (5) of the Act which are not here in issue Finally, although we hereinafter consider unfair labor practices within the meaning of Section 8 (1) and (2) which began prior to the date of the agreement, such practices continued thereafter and the agreement is no deterrent to our consideration thereof Matter of Chambers Corporation and Allied Stove Mounters and Stove Processors International Union, Loral No. 86, 21 N L R B , 808 KOKOMO SANITARY POTTERY CORPORATION 17 statement. But the agreement evidences a continuing application for reinstatement by the strikers therein listed, and evidences the respondent's acknowledgement thereof. The respondent assumed responsibility, for taking the first step toward the resumption of the normal working relationship and relieved each listed striker of the necessity of applying for work precisely when work for him was avail- able. Under these circumstances the repondent would be estopped from asserting, in excuse for its failure to consider a striker for em- ployment in an existing vacancy, that the striker in question had not applied. We accordingly hold that whenever, between September 14, 1936, the date of the agreement; and March 17, 1937, the date on which the Union again resorted to strike, a vacancy occurred at the respond- ent's plant for which any striker listed in the agreement was eligible, the respondent was under the same obligation to consider such striker for-employment as though, at the precise time of the occurrence of such vacancy, he had personally presented himself to the respondent as an applicant for reinstatement. In that period, as we have shown, the respondent sent letters, purporting to comply with the terms of the agreement, to not more than 13 of the 52 strikers who were listed therein. Such letters were sent to 8 of the 42 persons named in the complaint. Although these letters sent by the respondent in the period in question merely invited applications for employment 13 and thus fell short of the requirements of the agreement which contemplated outright offers of employment, we are of the opinion that they constituted a sufficient first step in the performance of the respondent's obligation under the Act. Accord- ingly, we find that the respondent did not discriminatorily refuse to reinstate Flick, Denham, Rumfelt, or Dunlap, four men listed in the complaint who were sent letters but who are not shown to have responded. The complaint as to them will be dismissed. We similarly find that the respondent did not discriminate in regard to the hire and tenure of employment of Clem or Moran,, for it appears that they returned to work for the respondent pursuant to letters which it sent them. We shall dismiss the complaint as to them, too. There remain for consideration the cases of 36 men named in the complaint, 34 of whom, during the period in question, were not re- called, and 2, Budd and Clark, who presented themselves for work pursuant to notice but failed of reinstatement. As to the 34 men who were not recalled, the record compels the conclusion that the respondent, despite its agreement to accord them 13 The text of a typical letter is as follows You may arrange to call at our employment office and make application for a position. Your failure to adhere to this within thiee days will indicate to us that you are no longer interested in employment in our company. Is DECISIONS OF NATIONAL LABOR RELATIONS BOARD preference in reinstatement, failed to consider them for employment in suitable jobs, and that it did so solely because it was opposed to employing the listed strikers, as a class. It will be recalled that during the period under consideration the respondent filled 58 positions with new employees and transferred 33 individuals from one position to another while inviting not more than 13 of the 52 men on the preferen- tial list to apply for work. Ignoring 25 men classified as casters on the preferential list, the respondent maintained a "standing order" for casters with an employment agency, hired 6 new men as casters, and transferred 3 other employees to the work of casters. The re- spondent's consistent and long-continued hostility toward the Union provides the only plausible motive for its behavior. Our belief that that motive underlay the respondent's actions is confirmed by the statement of Plant Manager Williams to Raymond Alexander that certain men on the preferential list would not be recalled because of their prominence in the Union, and by his remarks to Fisher Peel and Paul Clark. Had the respondent, though breaching its agreement to grant preferential reinstatement, measured these men for reinstatement along with others upon some non-discriminatory basis, it may be that not all of them would have secured employment. Nothing in the record, however, rebuts the presumption that these men were excluded from consideration solely because of their membership in the Union and their participation in its strike. The respondent's discrimina- tion against them as a class renders it impossible for the Board to determine which of the men, if any, would have failed of reinstatement had they been ordinary laid-off employees and not former strikers. The respondent has failed, moreover, to "disentangle the consequences for which it was responsible from those for which it was immune 7 j¢ We find that the respondent discriminated against all 34 men whom it failed to recall between September 14, 1936, and March 17, 1937. The case of Thomas Budd, who received an invitation to apply for work and who presented himself in response thereto but whose appli- cation was held without action until the Union again resorted to strike, requires a similar finding. The treatment which the respondent accorded the strikers as a class, together with the fact that no explana- tion is given why Budd was denied work, convinces us, and we find, that the respondent refused to reinstate Budd because he had been a striker. We accordingly find that the respondent, between September 14, 1936, and March 17, 1937, denied consideration to the continuing application for reinstatement of its 35 employees listed in Appendix "A" hereto, and refused to reinstate said employees, because of their 14 National Labor Relations Board v . Remington Rand, Inc , 94 F (2d) 862 (C. C. A. 2), cert denied 304 U S 576 See also Matter of Ford Motor Company and United Automobile Workers of America, Local No, 325, 23 N. L R B 342. KOKOMO SANITARY POTTERY CORPORATION 19 membership in and activities on behalf of the Union, and that the respondent thereby discouraged membership in the Union, discrimi- nated in regard to the hire and tenure of employment of said employees, and interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. Paul Clark was invited to make application for employment but was refused reinstatement on the pretext that he was physically unfit, although his condition at the time of his application for reinstatement (shortly after November 16, 1936) was the same as it had been while he was working for the respondent. In the light of the entire record, and of Williams' remark to Clark in 1937 that the latter would be unable to work for the respondent again "under union conditions," we find that the respondent, on or about November 16, 1936, refused to reinstate Clark because he was a member of the Union and had participated in its strike, and that the respondent thereby discour- aged membership in the Union, discriminated in regard to Clark's hire and tenure of employment, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We find, further, that the union's strike of March 17, 1937, was provoked by the respondent's unfair labor practices and was still in progress at the time of the close of the hearing. D. The Ko-San Club We have referred briefly to the Ko-San Club in our account of the sequence of events. It clearly appears that the Club was intro- duced among the employees by the respondent through the instru- mentality of the Benefit Association of Railway Employees. The respondent utilized the Club to frustrate self-organization of its employees and through it secured a contract, tending to perpetuate such restraint. The respondent also instituted a check-off system whereby it deducted from employees' wages sums representing both insurance premiums and dues for the Ko-San Club (or Welfare Club, as it appears on the standard insurance pay-roll deduction authoriza- tion). The Club received financial contributions from the respondent for carrying on social activities. The general membership of the Club has met rarely and irregularly; committee meetings have usually been held in respondent's plant. The . Club commonly posted its notices on the respondent's bulletin board. On one occasion sub- sequent to September 14, 1936, Plant Manager Williams asserted that the respondent had delegated to a Club committee the power of passing on applications for employment.l5 Although the formation of the Club preceded the effective date of the Act, its continued existence since that date constitutes a restraint 15 Cf. National Labor Relations Board v. Sunshine Mining Co , 110 F. (2d) 780 (C. C. A. 9). 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon self-organization of the respondent's employees; 16 in any event the respondent's continued domination of the Club by overt acts since the adoption of the Act clearly appears. We find that the respondent has dominated and interfered with the administration of the Glub and contributed financial and other support to it, and thereby interfered 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 respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States and with foreign countries, and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom. In order to effectuate the policies of the Act and as a means of removing and avoiding the consequences of the respondent's unfair labor practices, it is essential that in aid of our cease and desist order the respondent be directed to take certain affirmative action, more particularly de- scribed below. We have-found that the respondent has dominated and interfered with the administration of the Ko-San Club and has contributed sup- port to it. In order to effectuate the policies of the Act we shall order the respondent to withdraw all recognition from the Club as a epresentative of any of its employees for the purpose of dealing with rt concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work, and completely to disestablish the Club as such representative. The policies of accident insurance with which the Club is in some manner associated appear to be individual contracts between the insurer and the employees, so that the connection of the Club therewith is not essential to the main- tenance of the insurance in force. Our order will not affect such in- surance contracts if the assured wish to continue the same in force, provided always that the granting of such insurance be not em ployed by respondent as a device for contributing support to the Ko-San Club or any other labor organization.17 We have found that the respondent has checked off its employees' wages sums of money designated as "regular monthly dues [payable 16 National Labor Relations Board v Newport News Shipbuilding and Dry Dock Co , 308 U S 241. '7 Matter of Titan Metal Mfg. Co. and Federal Labor Union No 19981, 5 N L R B 577, 594, Matter of Utah Copper Company , a corporation , and International Unios of Mine, Mall, and Smelter Workers, Local No 892, 7 N L R. B 928, 944-5 KOKOMO SANITARY POTTERY CORPORATION 21 to the Ko-San Club] (including insurance premium)." The check-off apparently amounted to $1.00 monthly, and there was no division of this sum between the two items of insurance premium and dues. Our practice is to require the_ repayment of moneys checked off for the benefit of an employer-dominated labor organization.'8 We see no reason to depart from that policy in this case merely because the sums checked off here may represent, to an indefinite extent, the consideration for insurance protection which would of course be lawful were it not linked with the Ko-San Club.- The respondent caused the commingling of insurance premiums with moneys going to the support of an organization maintained by unfair labor prac- tices, and will be required to repay the whole sum which has accrued since July 5, 1935. Having found that the respondent engaged in unfair labor practices within the meaning of Section 8 (3) of the Act by discriminating in regard to the hire and tenure of employment of 36 employees, in that it failed to consider them for vacancies and refused to reinstate them subsequent to September 14, 1936, in disregard of their continuing application for reinstatement, we shall order the respondent to rein- state the employees in question and to make them whole for any loss of pay they may have suffered by reason of the respondent's dis- crimination against them. Paul Clark was invited by respondent to apply for reinstatement on November 16, 1936, but upon application he was wrongfully denied reinstatement. He has never received any further offer from respondent. Although the Union went on strike after Clark was refused reinstatement, we cannot presume in the absnce of an offer to him that he would have refused an offer.19 We shall direct the respondent to offer Clark reinstatement and to make him whole for any loss of pay he may have suffered by reason of the respondent's refusal to reinstate him by payment to him of a sum of money equal to that which he would normally have earned as wages from Novem- ber 16, 1936, to the date of such offer of reinstatement, less his net earnings 20 during that period. is Matter of the Heller Brothers Company of Newcomerstown and International Brotherhood of Blacksmiths, Drop Forgers, and Helpers, 7 N L R B 646, Matter of Lone Star Bag and Bagging Company and Textile Workers Organizing Committee, 8 N L R B 244, Matter of West Kentucky Coal Company and United Mine Workers of America, District No 23, 10 N L R B 88 ii Cf Matter of Lindeman Power and Equipment Co and International Association of Machinists, 11 N L. R B 868. 20 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 work elsewheie 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 earn- ings, but as provided below in the Ordei, 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 Republic Steel Corpora- tion v National Labor Relations Board (C C A 3)107F (2d) 472, cert granted 309 U S 684 323429-42-vol 26-3 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 23, 1936, the respondent invited Thomas Budd to apply for reinstatement, but when Budd applied the respondent put him off and made no further offer until April 23, 1937, when the Union was on strike. Budd did not respond to the last-mentioned notice or to another notice dated December 7, 1938, while the Union was still on strike. On April 23, 1937, when Budd failed to respond to the second notice, he assumed the status of a striker, and we shall treat him in the same manner as the other strikers as regards reinstatement and back pay. None of the 34 other men named in the complaint was offered reinstatement between September 14, 1936, and March 1937. We have found that the respondent discriminated against them as a class by filling vacancies with other persons during that period. All 34 failed to respond to notices sent in March 1937 and thereafter, and each assumed the status of striker upon receipt of his first notice to report. Appendix A hereto lists the names of Thomas Budd and the 34 men who were not recalled between September 1936 and March 1937. The respondent will be required to, offer them, upon application, immediate and full reinstatement to their former positions with the respondent, dismissing, if necessary , all persons hired after September 14, 1936. We shall order the respondent to make such employees whole for any loss of pay suffered by them by reason of the respondent's unfair labor practices , by paying to each of them a sum of money equal to that which he would normally have received as wages, but for the respondent's discrimination, between September 14, 1936, and the date when he went on strike (such date as to each employee being set after his name in Appendix A) less his net earnings during said period. In accordance with our usual practice in cases involving strikers who went on strike as the result of unfair labor practices, our order will further provide that each of the employees listed in Appendix A whom the respondent refuses, on application, to offer reinstatement pursuant to our Order, shall be entitled to payment of a sum of money equal to that which he would normally have received as-wages during the period from 5 days after such refusal to the date of the respondent's offer of reinstatement. We shall dismiss the complaint as respects the allegations concerning Jack Flick, Walter Denham, Gordon Rumfelt, Frank Clem, Russell Dunlap, and Charles Moran, who either returned to work between September 14, 1936, and March 1937, or received notices to apply for reinstatement during that period and failed to respond. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: KOKOMO SANITARY POTTERY CORPORATION 23 CONCLUSIONS OF LAW 1. National Brotherhood of Operative Potters, Local No. 26, and Ko-San Club are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Ko-San Club, and contributing support thereto, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of Paul Clark and of the employees listed in Appendix A, and thereby discouraging membership in National Brotherhood of Operative Potters, Local No. 26, and encouraging membership in Ko-San Club, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. 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. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act 6 The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act by refusing to reinstate Jack Flick, Walter Denham, Gordon Rumfelt, Frank Clem, Russell Dun- lap, or Charles Moran. 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 Kokomo Sanitary Pottery Corporation, and its officers, agents, suc- cessors, and assigns shall: 1 Cease and desist from: (a) Discouraging membership in National Brotherhood of Operative Potters, Local No. 26, or any other labor organization of its employees, and encouraging membership in the Ko-San Club, or any other labor organization of its employees, by refusing to reinstate any of its em- ployees, or in any other manner discriminating in regard to hire and tenure of employment or any term or condition of employment; (b) Dominating or interfering with the administration of Ko-San Club or with the formation and administration of any other labor organization of its employees and from contributing support to said Ko-San Club or to any other labor organization of its employees; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion as guaranteed-in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds wil effectuate the policies of the Act: (a) Upon application offer to the employees listed in Appendix A hereto annexed, who have not been fully reinstated, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, all persons hired after September 14, 1936; (b) Offer to Paul Clark immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (c) Make whole the employees listed in Appendix A for any loss of pay they may have suffered by reason of the respondent's discrimina- tion, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from September 14, 1936, to the date when he went on strike (such date being set after the name of each employee listed in'Appendix A), and during the period from five (5) days after the respondent's refusal of his application for reinstatement pursuant to the terms of this Order to the date of the respondent's offer of reinstatement, less his net earn- ings during said periods; provided, however, that the respondent shall deduct from the amount otherwise due to each of the said employees, monies received by said employee during said periods for work performed upon Federal, State, county, municipal, or other work- relief projects, and pay over the amount so deducted to the appro- priate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work- relief projects; (d) Make whole Paul Clark for any loss of pay he may have suf- fered by reason of the respondent's refusal to reinstate him on No- vember 16, 1936, by payment to him of a sum of money equal to that which he would normally have earned as wages during the period from November 16, 1936, to the date of the respondent's offer of reinstate- ment pursuant to the terms of this Order, less his net earnings during such period; provided, however, that the respondent shall deduct from the amount otherwise due Clark, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief ,projects; KOKOMO SANITARY POTTERY CORPORATION 25 (e) Withdraw all recognition from Ko-San Club as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, of other conditions of employment, and completely disestablish it as such represetntative; (f) Reimburse individually, and in full, all its employees for all clues and assessments, if any, which it has deducted from their wages on behalf of the Ko-San Club; (g) Post immediately in conspicuous places throughout 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 respond- ent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c); (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), (e), and (f) of this Order; (3) that the respondent's employees are free to join and remain members of National Brotherhood of Operative Potters, Local No. 26, and that the respondent will not discriminate against any employee because of membership or activity in said labor organization; (h) Notify the Regional Director for the Eleventh 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 discriminated in regard to the hire and tenure of employment of Jack Flick, Walter Denham, Gordon Rum- felt, Frank Clem, Russell Dunlap, and Charles Moran, be and it hereby is, dismissed. APPENDIX A Charles E. Brown January 7, 1939 Thomas Budd April 23, 1937 James Coe April 28, 1937 Clem V. Dlllman April 7, 1937 Raymond Downing March 16, 1937 Karl Dresch April 16, 1937 Ellis Fowler May 13, 1937 William Glover April, 20, 1937 Orville Groves April 1, 1937 James Groves April 17, 1937 Fred Hale December 7, 1938 Harley Isaacs April 26, 1937 R. V. Jackson April 28, 1937 Ewing Karnes April 29, 1937 Frank Lloyd March 29, 1937 Glen McCarter May 8, 1937 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Levi McCarter May 13, 1937 Paul Otiker April 29, 1937 Dave Partlow April 7, 1937 Fisher Peel April 28, 1937 Verne D. Phillips April 27, 1937 Paul Randall March 17, 1937 Orville Rioth May 8, 1937 Thomas Shufebotham April 12, 1937 Dennis Simmons April 1, 1937 James Simmons April 16, 1937 Victor Simmons March 29, 1937 Robert Smith April 26, 1937 Leslie B. Thompson April 3, 1937 Everett Tucker April 29, 1937 Harry Turley April 3, 1937 Russell Von Cannon April 26, 1937 Lon Waggoner May 13, 1937 John Watson May 3, 1937 Floyd Wilson April 20, 1937 MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.