American Smelting & Refining Co.

In the Matter of AMERICAN SMELTING & REFINING COMPANY and, OMAHA SMELTERMENS UNION #461, INTERNATIONAL , UNION OF MINE, ,MILL & SMELTER WORKERS, AFFILIATED WITH THE CONGRESS, OF INDUSTRIAL ORGANIZATIONS Cases Nos. C-1617 and B-1834.-Decided February 3, 1941 Jurisdiction : lead refining industry. Unfair Labor Practices Company-Dominated Union: formation of successor organization by commit- teemen of predecessor-management's participation in formation of : suggest- ing to employees that successor organization not be affiliated with any national labor union-contribution of support to : permitting inside union election on company time and property; notifying employees, at time out- side union was requesting recognition, that general wage increase was made at request of inside union; favoring inside union by disparity between requirements for recognition of inside and outside union, by interfering with and coercing union activities of employees belonging to outside union. Discrimination: lay-off and refusal to reinstate one employee and delayed reinstatement of 'another employee because of their union activities ; dis- missal of allegations as to one employee. Remedial Orders: reinstatement and back pay ordered; disestablishment of company-dominated unions. Investigation and Certification of Representatives : evidence of existence of question : request,that certification be obtained-election postponed indefinitely because of employer's unfair labor practices. Unit Appropriate for Collective Bargaining : all production and maintenance employees, with the exception of executive, administrative, technical, super- visory, professional, clerical, and office employees, and, including in such exceptions foremen, assistant foremen, relief foremen, engineers, metallurgists, chemists, assayers, secretaries, accountants, auditors,, clerks, stenographers, watchmen, and students. ,Mr. Daniel J. Leary,' for the-Board. Crofoot, Frazer, Connolly cC Stryker, by Mr. W. C. Frazer and Mr. W. M. McFarland, of Omaha, Nebr., and Mr. R. Worth Vaughn, of New York City; for the respondent. - Mr. Louis N. Wolf, of Joplin, Mo., and Mr. Gobel F. Cravens, of Heiiryetta, Okla., for Local 461. ' - Mr. Jackson B. Chase, of Omaha, Nebr., for the Association. Miss Mary Metlay, of counsel to the Board. 29 N. L. R. B., No. 69. 360 4 AMERICAN SMELTING' & REFINING COMPANY DECISION AND ORDER STATEMENT OF THE CASE t 361 Upon charges and amended charges duly filed by Omaha Smelter- mens Union #461, International Union of Mine, Mill & Smelter Workers, affiliated with the Congress of Industrial Organizations, herein called Local 461, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint and amended com plaint dated November 10, 1939, and April 6, 1940, respectively, against American Smelting & Refining Company, Omaha, Nebraska, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the 'National 'Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the amended complaint and notices of hearing thereon were duly served upon Local 461, the respondent, and Omaha A. S. & R. Company Employees Association, herein called the Association. On November 22, 1939, the Association filed a motion to intervene with the Regional Director. On November 29, 1939, the Regional Director granted the motion, limiting the Association's intervention to such extent "as its interest may appear." With respect to the unfair labor practices the complaint, as amended, alleged in substance (1) that on and after July 5, 1935, the respondent continued in operation and continued to dominate and interfere with the administration of Employees Representation Plan, herein called the Plan, a labor organization which it had pre- viously instigated and formed among its employees; (2) that on or about August 10, 1937, it dominated and interfered with the for;ua- tion of the Association, the successor to the-Plan, and has since dom- inated and interfered with its administration and contributed finan- cial support thereto by (a) encouraging and allowing supervisory and other employees acting in its interest to organize, promote, encourage and coerce membership into the Association and the Plan on the respondent's property and time at its expense; (b) furnishing meet- ing places on its property for the Association and the Plan; (c) furnishing direct financial and other support to the Association and Plan, and providing supplies, equipment, and services for the elec- tion of officers of the Association and Plan; and (d) ' recognizing the Association on September 29, 1937, and thereafter continuing to recognize it as the exclusive bargaining agent of its employees ; (3) 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it terminated the employment of Lawrence Behney on or about May 31, 1939, and delayed the reinstatement of Richard Knuizen and Orville Johnson until September 19 and 28, 1939, respectively, because of their membership and activity in behalf of Local 461; (4) that in May and June 1939, it withdrew from 21 named em- ployees their seniority status and other rights and privileges inci- dent thereto by, inaugurating a new seniority policy because of their membership and activity in Local 461; and (5) that by the afore- mentioned acts as well as by discouraging, intimidating, and coercing its employees to refrain from becoming members or continuing mem- bership in Local 461, by making derogatory and, defamatory state- ments about Local 461 and its officers and by other acts and conduct, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights. guaranteed in Section 7 of the Act. On November 13, 1939, the respondent filed its answer, and on April 13, 1940, its amended answer admitting allegations of the amended complaint as to the nature of its business but denying that it had engaged in or was engaging in the unfair labor practices as alleged. On April 15, 1940, the Association filed its answer denying, among other things, that it was the successor to the Plan or that the respondent had dominated and interfered with its formation and administration or had contributed support thereto. On May 18, 1939, Local 461 filed with the Regional Director for the Seventeenth Region a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent and requesting an investigation and certification of representatives, pursuant to Section 9 (c) of the Act.' On October 3, 1939, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and au- thorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and, acting pursuant to Article, III, Section 10 (c) (2) and Article II, Section 37 (b) of said Rules and Regulations, further. ordered that the representation proceeding and the proceeding with respect to the alleged unfair labor practices be consolidated for the purposes of hearing. Pursuant to notice a hearing was held at Omaha, Nebraska, from April 23, 1940 through May 4, 1940, before P. H. McNally, the Trial Examiner duly designated by the Board. The respondent, Local 461, and the Association were represented by counsel,' participated in I On July 19, 1939, the respondent filed a petition requesting an investigation and certi- fication of representatives. The petition was subsequently dismissed. 2 Counsel for Local 461 appeared at the hearing in the representation proceeding and for a short period thereafter in the proceeding with respect to the unfair labor practices. AMERICAN SMELTING & REFINING COMPANY 363 the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues. During the course of the hearing the respondent moved to dismiss the allegations of the complaint with respect to the discriminatory withdrawal of seniority status and other rights and privileges incident thereto of certain named employees. The Trial Examiner reserved ruling on the motion and subsequently on motion by the Board to dismiss the same allegations the motion was granted without prejudice. At the conclusion of the hearing the respondent, moved to dismiss several allegations of the complaint. The Trial Examiner reserved ruling on such motions and denied them in his Intermediate Report. During the course of the hearing, the Trial Examiner ruled on other motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. On June 7, 1940, the Trial Examiner filed an Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), and (3), and Section 2 (6) and (7) of the Act. He recommended that the re- spondent cease and desist from the unfair labor practices found, reinstate with back pay Lawrence Behney, make whole Orville John- son, disestablish and withdraw recognition from the Plan and the Association, and mail to its employees a letter advising them that the respondent's letter dated September 1, 1939, is to be disregarded. He recommended further that the complaint be dismissed in so far as it alleges that the respondent discriminatorily delayed the reinstatement of Richard Knutzen. On July 3 and 15, 1940, the respondent and the Association, respectively, filed exceptions to the Intermediate Report. Local 461 did not file exceptions to the Intermediate Report. On July 13 and 26, 1940, the respondent and the Association, respec- tively, filed briefs with the Board in support of their exceptions. On October 8, 1940, pursuant to notice, a hearing for the purpose of oral argument was held before the Board in Washington, D. C. The respondent and the Association were represented by counsel and participated in the argument. The Board has considered the exceptions filed by the respondent and the, Association to the Inter- mediate Report, and the briefs and oral argument in support thereof, and, in so far as the exceptions are inconsistent with the findings, con- clusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : 364 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT American Smelting and Refining Company is a New Jersey cor- poration having its principal place of business in Jersey City, New Jersey. It is engaged in mining, concentrating, smelting, refining, selling, and distributing various ores and metals. Its mines, smelters, refineries,.and plants are located in Texas, Colorado, Maryland, Illi- nois, Montana, Utah, New Jersey, Oklahoma, California, and Wash- ington. The respondent is engaged at its Omaha, Nebraska, plant, with which this proceeding is concerned, principally in the refining of lead bullion. Substantially all lead bullion is shipped to the respond- ent's plant in Omaha, Nebraska, from the States of Texas, Colorado, Utah, and Montana. Practically all of the refined product is shipped by the respondent to points outside the State of Nebraska. The monthly bullion tonnage processed at the Omaha plant during the period from December 1, 1938 to March 31, 1940, ranged between a minimum of 3,800 tons and a maximum of 13,000 tons. The respondent admits that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Omaha Smeltermens Union #461, International Union of Mine, Mill & Smelter Workers, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the respondent in its Omaha plant. Omaha A. S. & R. Company Employees Association is an unaffili- ated labor organization, incorporated under the laws of the State of Nebraska, admitting to membership employees of the respondent in its Omaha plant. . Employees Representation Plan is an unaffiliated labor organization admitting to membership employees of the respondent in its Omaha plant. III. THE UNFAIR LABOR PRACTICES A. Domination and interference with the Plan and the Association and the contribution of support to them; other interference, restraint, and'coercion 1. The Plan In August 1933 the respondent formed and introduced the Plan in its Omaha plant to "secure cooperation and agreement" between it and its employees and to "induce and maintain united action of AMERICAN SMELTING & REFINING COMPANY 365 labor and management". At the time of the inauguration of the Plan the respondent printed and distributed to its employees pamphlets containing the formal outlines of the Plan. The Plan functioned through an Employees Representation Com- mittee elected annually from among the non-supervisory production and maintenance employees of the respondent. Meetings of the Com- mittee, 'which were held on respondent's property during working hours, were attended by the respondent's personnel manager. With the exception of the'right to vote, the personnel manager was accorded equal privileges with the committeemen in his participation in the meetings. A copy of the minutes of all meetings were furnished to the plant manager,, Kershaw Harms. Elections were held on the respondent's property during working hours and the ballots used in the elections were furnished by the respondent. All expenses incident to the Plan operation were paid by the respondent. The grievance machinery established by the Plan provided that the final disposition of grievances was to be made at a conference between the committeemen and the plant manager. All decisions made at this conference were binding upon the respondent and its employees. The Plan made no provision for group assemblage of employee members to discuss in a body matters affecting wages, hours, and other working conditions. It made no provision for group decision upon a course of action or for group instruction to Plan leaders. Membership was automatic and was an attribute of employment, not a matter of self- organization. The Plan as conceived and established by the respond- ent was an organization entirely its creature, capable of affording a degree-of employer controlled representation, but preventing true collective bargaining. k - The Committee, insulated from the collective action of its constitu- ency and subject to the control and restraint of the respondent, admit- tedly continued to function until about April 13, 1937,3 nearly 2 years after July 5, 1935, the effective date of the Act. We find that the respondent by the above-described course of conduct engaged in subsequent to July 5, 1935, dominated and interfered with the administration of the Plan, and contributed support thereto, and thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. ` 2. The Association On April 13, 1937, after the constitutionality of the Act was affirmed' by the Supreme Court of the United States, the Plan Committee met. George Barritt, a witness for the respondent and a Plan committeeman, s As we shall hereinafter indicate , the Plan continued in operation until September 1937. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that at this meeting he asked Otto Wills, the respondent's per- sonnel manager, whether or not the Plan could continue to meet on company property. Wills referred the problem to Harms, the plant manager, and arranged for the Committee to meet with Harms that day. Harms informed the Committee that he believed that they could continue to meet providing there were no representatives of the respondent present, but that he-was doubtful as to whether they could continue to meet on the respondent's property. The respondent con- tends that the Plan thereafter ceased to function. I George Burk and Theodore Sanko, employees of the respondent, tes- tified that in the summer of 1937 an election of Plan committeemen was conducted among the employees of the respondent on the respondent's property and during working hours under the leadership of Ernest Abersfeller, who had been chairman of the Plan on April 13, 1937, and that Burk, Sanko, Svendsen, Barna, Cornett, and Koontz were elected to the Committee for the first time and that Brzenski was reelected. Burk and Sanko further testified that on August 10, 1937, subsequent to the election, a meeting was held during working hours in the lunch room of the respondent's plant and attended by the former and the newly elected committeemen and that the employees were notified of the proposed meeting by word of mouth and by a notice posted in the plant dressing room. According to the testimony of Burk and Sanko,. Abersfeller, acting as chairman, explained to the incoming committee its functions. Thereafter, a discussion of the Act and its effect upon the Plan took place, as a-result of which it was decided to hold a meeting of the respondent's employees outside the plant to determiner the advisability of forming an independent association: It is undisputed that the-election followed the procedure of Plan elections, and it was to all appearances a Plan activity. Abersfeller was called as a witness and made no explanation of his aforesaid elec- tion activity. _ Abersfeller denied that any meeting of the Plan took place subse- quent to April 13, 1937. However, Barritt's testimony is irreconcil- able with this denial. Although Barritt also testified that the last meeting took place April 13, 1937, he identified the last meeting of the Plan that he attended with the presence of Burk, Sanko, and Svend- sen,4 none of whom were members of the Committee on April 13, 1937. Furthermore, Barritt's recollection of the last meeting he attended coincides with the testimony of Burk and Sltnko in material respects. 4 Barrett had a very strong recollection of Burk 's and Sanko's presence at this meeting. He even recalled a conversation he had with Burk at that time G Barritt testified that Sanko was newly elected to the Committee and was elected sec- retary at that meeting He further testified that the meeting was attended by Abersfeller, Potter, DeSanti , Brzenski , Burk, Sanko , Svendsen , and himself. This confirms the testimony of Burk and Sanko concerning the presence of both the former and the newly elected committeemen at the meeting. AMERICAN SMELTING & REFINING COMPANY 367 Barritt also testified that the meeting admittedly held August 19, 1937, at which the respondent's employees voted to form the Associa- tion took place approximately a month after the last Plan meeting that he attended.° It is undisputed that the respondent at no time prior to the hear- ing took any action to disestablish the Plan. Moreover, Harms' re- sponse to the Committee's query concerning the validity of the Plan clearly left them with the inference that the Plan could continue to function. The Trial Examiner found that an election to select "rep- resentatives to the Plan Committee" was held about August 1, 1937, on "company time during working hours," and that the respondent caused the election to be held. In view of the foregoing, we credit the testimony of Burk and Sanko. We find, on the basis of the testi- mony of Barritt and the entire record, that there were meetings of the Plan Committee on both August 10 and April 13, 1937. Burk testified that after the meeting of August 10, 1937, Harms approached him and asked him what had occurred at the meeting. On being informed of the intention to form a labor organization he stated to Burk in substance that he would assist the organization and cooperate with it if they would refrain from affiliating with the A. F. of L. or the C. I. 0. Harms admitted having had many talks with Burk at various times, but stated that he did not- specifically , recall this conversation. He denied having made reference to the A. F. of L. or the C. I. O. and substantiated this denial with the theory that neither organization was at that time attempting to organize the plant. However, that the respondent considered this a possibility is clearly indicated in the letter sent to all plant managers shortly prior to August 10, 1937, in which it recognized the possibility that its employees might join an unaffiliated or affiliated, labor organiza- tion.7 The Trial Examiner found that Harms made the statements substantially as testified to by Burk and we so find. Sanko testified that on or about August 13 Harms approached him, complimented him on his election and stated in substance that he could "go a long way helping us" if the employees did not affiliate with an "outside organ nation." Harms testified that he did not recall this conversation. The Trial Examiner found that Harms made the statement substantially as testified to by Sanko and we so find. I In addition to the foregoing, Frank DeSanti , another witness for the respondent , testi- fied that after his election to the Committee in November 1936, another Plan election took place in which he was defeated , by Burk The minutes of the Plan meetings intro- duced by the respondent indicate that between November 1936 and April 13, 1937, no further elections were conducted by the Plan and that prior to April 13, 1937, Burk had never been a Plan representative . Obviously the election DeSanti referred to took place after that date and corroborates the testimony of Burk and Sanko The circumstances under tahich this letter was read to the respondent's employees will be hereinafter discussed. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is apparent that Harms by the foregoing discussions was guid- ing the newly elected committee members, who were unaccustomed to being agents of the respondent, away from "outside" influence. On August 19, 1937, the meeting arranged by the newly elected Plan committeemen was held outside the respondent's plant and attended by approximately 50 of the respondent's employees. Burk presided at the meeting. An attorney who had been invited to attend by Brzenski explained the Act to the assembled employees, after which the employees decided to form an independent association. Burk and 'Sanko testified that the Plan committeemen were designated at that meeting to assist the attorney in drafting the constitution for the Association. Henry Ostronic, a witness called by the respondent, testified that no particular individuals were designated to assist- in drafting the constitution. Abersfeller denied that the Plan com- mitteemen were designated, but admitted that a committee, the com- position of which he did not recall, was appointed to assist in the drafting of the constitution. It was undisputed that Burk, Sanko, and Svendsen did, in fact, assist in drafting the constitution.,, We find that the Plan committeemen were designated at the meeting to assist in drafting the constitution. On August 27 the employees again met outside the plant. The constitution was read, adopted, and signed by most of the employees present. It was unanimously decided at this meeting that foremen would be eligible to membership in the Association. For 1 or 2 weeks thereafter Burk went from department to department in the plant securing a substantial number of additional signatures to the constitution.9 This was known to various representatives of the respondent who took no action to prevent such activity'0 Sanko testified that in September 1937, prior to the election of the Association officers, Harms called a meeting of the Plan com- mitteemen and informed them that he was attempting to obtain a wage increase for the respondent's employees. The Association was discussed and Harms congratulated the committeemen on "'the open and above manner" in which the organizing was being conducted. Burk testified that on September 10 or 16, 1937, Harms called another 8 Peirano , an employee who also assisted in drafting the constitution , was not a mem- ber of the Plan Committee However, the testimony indicated that he was asked by Burk to assist them because he was at that time a law student 'The constitution contains 145 signatures . There was varying testimony that between 50 and 00 employees attended the meeting at which the constitution was signed . There- fore, at least 55 signatures were obtained by Burk in the plant 10The Trial Examiner stated that Burk secured the signatures with the approval of the respondent . Burls testified that once he was told by his foreman to "Watch his step" and that once Harms told him that lie w as devoting too much of his working time to organiza- tional activities However, no further protests were made and it is apparent that Burk circulated the constitution openly in the plant and secured signatures to it and that the respondent, despite the rebukes, did not stop his activity. AMERICAN SMELTING & REFINING COMPANY 369 meeting of the Plan committeemen and that Harms informed them that he had hoped to withhold the wage increase until the formation of the Association so that the Association could be credited with gaining it, but he found that he could no longer withhold the increase. Harms denied that he had called either of these meetings or that he informed anyone that he intended to withhold the wage increase so that the Association would be credited with it. He admitted that the wage increase was' discussed and that a wage increase was granted September 19, 1937. We find that Harms informed the committee- men of his desire to credit the Association with the wage increase. Harms testified that sometime in September 1937 between four and six employees, among whom he believed were Burk, Svendsen, and John McNamara, called on him and informed him that the employees were forming an association and wanted to know what the respond- ent's position was concerning such an association. Harms informed them that the respondent would recognize the Association if it could establish the fact that it represented a majority of the respondent's employees. Harms then read to them a letter sent by the respondent ,to all its plant managers in June 1937. The letter stated in substance that the company would not engage in conduct prohibited by the Act; 'that it would not employ detectives or paid spies ; and that, as it stated, this does not mean that the management does not have a , legitimate, concern in the groupings and preferences of the employees in regard to a choice of representatives and concerning other questions arising out of their employment, nor that the management is not entitled to be fairly informed in this respect or to acquire such 'information through normal intercourse with its employees .. . The respondent further stated in this letter that if its employees formed an' independent union and the membership of such union constituted a majority of its employees , the respondent would recog- nize that union; that if an outside union had been designated by a majority of the employees and the management had satisfactory evi- dence of the fact by an election, certification or otherwise it would recognize such union ; that in the absence of any union the respondent would deal with any group or any one of its employees ; that execu- tive, administrative , managerial, supervisory, professional, or employees confidential in their nature, such as metallurgists, engineers, chemists, assayers, foremen, assistant foremen, secretaries, account- ants, and auditors would be considered by it to be supervisory em- ployees ; and finally, that the respondent would not agree to a ,closed-shop provision, to the check-off, or to the inclusion' of the aforementioned employees in any ' agreement that it entered into with any union chosen by its employees. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The letter unmistakably conveyed to the committeemen and to the respondent's employees, to whom it was subsequently read," the respondent's interest in and its intention to interfere with the ad- ministration of the Association and its determination to keep under surveillance the activities of the committeemen. The disparity be- tween the proof of majority required from an unaffiliated and an affiliated organization clearly indicated its preference for the for- mer.12 Moreover, it foreclosed genuine collective bargaining by de- termining ex parte, before any demand for a closed shop or any con- tract had been submitted to it, that it would never consent to a closed shop, the check-off, or the inclusion of specified classifications of employees in any agreement it entered into.13 For reasons which we have previously discussed in earlier cases with respect to notices similar in content to the letter in question, we find that this letter was coercive in intention and effect.14 The election of board members of the Association was held in the plant between September 19 and 24. Nomination ballots were dis- tributed to employees during working hours. Nominees were elected in each department and a general election was subsequently, conducted in the plant; the employees voted as they went on or came off their respective shifts. The ballots were placed in a depository, constructed, with the respondent's consent, by one of its employees. Burk testified that Wills, pursuant to instructions from Harms, sup- plied mimeographed' ballots for - the election. Harms and Wills de- nied this. ,A mimeographed ballot purporting to be one of the ballots used in the election was introduced in evidence. We find, as did the Trial Examiner, that the respondent supplied the ballots used in the election. On September 29, 1938, the newly elected board, consisting of Burk, Brzenski, Archie Potter, Barna, and Svendsen, all of whom had served on the Plan Committee, and Mike Kersher, John Mc- Namara, Bill Bell, and Joe Peirano, met with Harms. Harms, after verifying the signatures to the constitution by comparison with the pay-roll records, recognized the Association as the exclusive bar- "The letter was read at Burk 's request to the respondent's employees at a membership meeting of the Association, held September 24, 1937 12 Cf . Matter of Burnside Steel Foundry Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No 1719, 7 N L R B 714. 13 The respondent subsequently published a roster of specific employees who it decided fell within the excluded classifications These employees were not admitted to member- ship in the Association despite the unanimous decision made by the employees assembled at the August 27. 1937, meeting to include foremen 14 Matter of Roberts B)os, Inc., and Furniture Workers Union, Local 1561, 8 N. L R B. 925; Matter of Blue-Bell Globe Manufacturing Company and Amalgamated Clothing Workers of America, 24 N L R B 126; Elkland Leather Company V National Labor Relations Board, 114 F. (2d) 221 (C C A 3), enf'g Matter of Elkland Leather Company, Inc and National Leather Workers Association, Local No. 37, 8 N. L . R B 519 , cert. denied 311 U S 705. AMERICAN SMELTING & REFINING COMPANY 371 gaining representative of its employees. The following day Harms posted a notice informing the employees of such recognition. Thereafter Harms met regularly each month with the Association board to discuss grievances and general conditions of employment. No collective bargaining agreements were ever submitted- to the respondent by the Association. On November 4, 1938, approximately '19 employees joined Local 461 and signed an application for a charter. John Knutzen 1' testi- fied that on November G, 193811 Harms asked him to step- into the foreman's office. ' There he found Hermanson and Booth, two other employees of the respondent, «'ho had been sent to the office by their foremen. According to Knutzen's testimony, Harms stated that he had heard that an "outside" organization was' attempting to organ- ize the employees of the plant; that it could not do anything for them; that all it wanted was to get their money; and that he had always considered the employees in the plant as part of "one big family" but that if the "outside organization was successful he would do nothing further for them. Knutzen further testified that Harms requested them to speak to the employees and stop them from.joining the "outside" union. ' Harms recalled this meeting and placed it in the spring of 1939. He testified that he asked the foreman to send to him three represent- ative employees in the departments; that he told these employees that too much union activity was being conducted in the plant by the Association and Local 461; and that they were to inform the em- ployees that it must stop. Hermanson, a witness called by the re- spondent, corroborated Harms' version of the incident. However, on cross-examination Hermanson stated that the incident occurred prior to his election to the Association board. Hermanson was elected to the Association board on December 7, 1938, and was re- elected in February 1939. Harms testified that at the time he` spoke to the three employees he did not know whether they were members of the, Association or of Local 461. Undoubtedly had Hermanson been a member of the Association board at the time the conversa- tion took place Harms would have known of Hermanson's affiliation. The Trial Examiner found that Harms made the November 1938 statements substantially as recounted by Knutzen, and in view of the, foregoing we credit the testimony of Knutzen.' "John Knutzen is the father of Richat d Knutzen , one of the employees whose reinstate- ment was alleged to have been discriminatorily delayed 16 November 6 falls on Sunday . Harms testified that he never appears at the plant on Sundays Knutzen may be mistaken about the precise date this incident occut:red 11 The respondent testified that organizational activity became intensive in its plant in the spring of 19x9 There was no claim that this condition existed in November 1938 - 413(102-42-vol 29 25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Knutzen also testified that in November 1938,'$ Wills interrogated him concerning his opinion of the C. I. 0. and that of his son. He then said, according to Knutzen, that "they did not need the C. I. 0. because a good organization was already in the plant". Wills denied that he had made the statement attributed to him by Knutzen. The Trial Examiner credited the testimony of Knutzen. We find that Wills made the statements substantially as alleged by Knutzen. Knutzen further testified that in February 1939 he asked Collins, his foreman, whether or not he should pay dues to the Association since he was in doubt as to his eligibility to membership at that time. Collins told him that the respondent ,wanted all of its older employees to belong to the Association. Collins was not called as a witness. Harms testified that he never conveyed such information to Collins. The Trial Examiner credited the testimony of Knutzen. We find that Collins made the statement substantially as testified to by Knutzen- and that the respondent is responsible for such statement.'° , In February 1939 the Association conducted an election at the respondent's plant bit not during working hours. All employees of the plant, approximately 107, voted in that election. In May 1939 Local 461 renewed its organizational activities. Knutzen testified that at that time Harms approached him in the locker room and told him that he knew Roy Scott, the organizer for Local 461; that Scott was a double-crosser who "would cut your throat for 5 cents"; and that it would be too bad if Local 461 succeeded in organizing the plant: y He ,further stated, according to Knutzen, that rather than grant_a,r^'closed-shop contract the respondent would shut down its plant. Harms recalled a conversation in the locker room and testified that he had known Scott and might have discussed Scott :with Knutzen, although he denied having made the foregoing statements. The Trial Examiner found that Harms made the statements attributed to him by Knutzen, as related above, and we so find. About May 12, 1939, the Association met with internal strife. At a meeting, apparently controlled by Local 461 advocates, a motion to dissolve the Association was passed. Within the next few days new officers were appointed and the Association continued to function. 18 Knutzen places this incident approximately 2 weeks subsequent to the previous inci- dent There as some evidence that this incident took place prior to November 9, 1938. 19 Cf. Swift & Company v. National Labor Relations Board , 106 F ( 2d) 87 ( C. C. A. 10) (rehearing denied 106 F (2d) 94 ), enf'g as modified Matter of Swift & Company, a cor- poration, and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. cot and United Packinghouse Workers, Local Industrial Union No 300. 7 N. L. R. B. 269; Natignal Labor Relations Board v. A. S . Abell Co ., 97 F. (2d ) 951 (C. C. A. 4) enf'g as modified Matter of A. S. Abell Co., a corporation, and International Printing and Pressmen's Union, Baltimore Branch, Baltimore Web Pressmen 's Union No 31, 5 N. L. R. B. 644 AMERICAN SMELTING & REFINING COMPANY 373 On May 13, 1939, a group of employees called on Harms and informed him that the dissolution of the Association had taken place but asserted that a majority of its members were not represented at the meeting at which this was done and that a majority of the Association members still wished the Association to continue to represent them. On May 15, 1939, Harms,,still recognizing the board of the Association, called them in to discuss a pending lay-off. Abersfeller, president of the Association prior to the dissolution, informed Harms of the dissolution and said that they no longer represented the respondent's employees. On May 17, 1939, Scott, organizer for Local 461, met with Harms and, stating that Local 461 represented a majority of the respondent's employees, requested recognition. Harms testified that he told Scott that in view of the fact that he had bargained, with the Association in the past and that they had also informed him that they represented a majority of the employees, he did not know which organization to recognize. On May 20,- 1939, Hermanson called on Harms and in- formed him that he was the newly elected president of the Association and that the Association still continued to represent a majority of the employees. Harms, despite the reports of the dissolution and despite the claims of Local 461, continued to recognize'the Association without requiring from it any proof of majority representation.20 On May 18 Local 461 filed its petition with the Board. About this time the operations of the respondent were reduced and approximately '50 employees were laid off. In the latter part of August 1939, when the employees were being recalled to work, Harms took steps to prevent union discussions by the employees during working hours. He notified the Association board and the executive board of Local 461 that he would not tolerate union activity during working hours and requested them to inform their members of that fact. On September 1, 1939, he sent a letter to all employees then working in the plant and subsequently to new employees. This letter, among other things, called attention to nn'- certain employment conditions then prevailing and stated that joining a union would have no effect on their obtaining or retaining their jobs; that all employees would be treated alike whether they were' union or non-union employees "regardless of what statements to the contrary may have been made" to them; that the respondent would continue its policy of maintaining high wages; that the respondent had filed a petition with the Board under Section 9 (c) to determine the union controversy and would abide by the result; and finally that m There was some evidence that in August 1939 the Association submitted to Harms evidence that it represented a majority of the respondent's employees However, Harms testified that subsequent to September 1937 he had at no time required the Association to show proof of a majority 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was to be no union solicitation or activity during working hours or on the respondent's property." The respondent contended that the union activity engaged in by its employees at the plant at that time was interfering with their work and that the above measures were necessary to insure more efficient operation of the plant. The respondent's concern with the effect union activities had on its operations manifested itself at a time when Local 461 was attempting to organize its employees. In view of the fact that the respondent not only tolerated similar activities at the time when the Association was organizing 22 but accorded it assistance and cooperation, we can only conclude that the respondent's desire to maintain efficient plant operation was a pretext to prevent organization by Local 461.23 The respondent argues that the restric- tion against union activities was imposed equally upon the Association and Local 461. However, since its effect was to maintain the status quo, which at that time was favorable to the Association, it is clear that the respondent intended the weight of these restrictions to fall principally on Local 461.24 On October 13, 1939, pursuant to a request made by the secretary of Local 461, Harms met with a committee of Local 461 composed of employees of the respondent and Sponsellar, an outside representative of the Union, to discuss the respondent's failure to recall seven of their members. Harms refused to discuss the grievance in the presence of Sponsellar and Sponsellar was required to withdraw from the conference. On November 8, 1939, Local 461 requested another conference with Harms but failed to state its purpose. Harms refused to grant this conference, stating that "while I am ready at any time to discuss with any individual employee or group of employees any grievances that 'they may have, I do not feel that I am in a position to meet generally with your organization as there has never been a determination by the Board that your organization is entitled to bargain for and repre-, 'sent the employees of the plant." 25 21 As noted above the respondent issued a similar letter which was read to its employees in September 1937. 22llarms testified that in August 1937 there was "a lot of activity in the plant" and "groups of men stopped to talk to each other all over the plant." Barritt testified that prior to the formation of the Association "everybody was talking about it and Burk was going around asking employees about it " 23 This is clearly demonstrated by the extremes to which the respondent went when it forbade distribution of handbills by Local 461 on its parking , lot. Subsequent to a dis- tribution of handbills by two members of Local 461 on its parking lot, the respondent sent a letter to Local 461 informing it that it objected to such activity on its property and stating what its boundary lines were 24 See Matter of Mc6'oldrick' Lumber Company, a corporation, at al., and Lumber and Sawmill Workers Union, affiliated with the American Federation of Labor, etc ., 19 N. L. R B 887 21 Ile further stated that if Local 461 would submit in writing any specific grievance that It had concerning any employee or group of employees he would consider the matter further AMERICAN SMELTING & REFINING -COMPANY ,375 The respondent's circumspection in dealing with Local 461 was conspicuously absent in its relations with the Association. On De- cember 22, 1939, Harms posted a notice of a general wage increase. The notice stated that it was posted at the request of the Association and that the wage ' increase was granted as 'a result of negotiations with the Association . We find that the respondent intended thereby to encourage adherence to the Association. To sum up, the Association, formed under the leadership of the members of the newly elected Plan Committee , who were guided by Harms and encouraged by the respondent 's expressed interest therein, continued to reflect the control and influence exerted by the respond- ent over the Plan,26 an influence and control which the respondent never publicly disclaimed to its employees. From the respondent's many acts of friendliness to the Association , its contributions of sup- port thereto, its dictates concerning eligibility to membership , its uni- lateral determination of what matters were proper subjects for col- lective bargaining, the As 'sociation's docile acceptance thereof '27 and the respondent's facile recognition of the Association , it is evident that'the respondent sought, openly and continuously, to maintain its domination and control of its employees' efforts at "self-organiza- tion," that the respondent's employees were not in fact free from the respondent's domination of the Plan, and that their acceptance of the Association was not their free and.voluntary act but was the product of the respondent's continuing interference with and domina- tion of the efforts directed toward self -organization. In contrast to the encouragement and support that - it accorded the, Association , the respondent's numerous expressions of hostility to Local 461 were unequivocal . It made disparaging and discrediting statements regarding Local 461 and its leadership ; it threatened ,lack of cooperation with Local 461 in the event that Local 461 was successful in organizing the employees ; its cautious refusal to meet with representatives of Local 461 was coincident with its unqualified recognition of the Association subsequent to the dissolution meeting.28 2° Cf Westinghouse Electric & Manufacturing Co. v National Labor Relations Board, 112 F. (2d) 657 (C. 'C. A. 2), enf'g Matter of Westinghouse Electric & Manufacturing Co. and United Electrical Radio and Machine Workers of America , Local #$10, 18 N. L. It. B. 300, cert granted, 312 U. S. 660; National Labor Relations Board V. Newport News Shipbuilding it Dry Dock Co , 308 U. S . 241, reversing modification of Board order 101 F. ( 2d) 841 (C. C. A. 4 ) enf'g as modified Matter of Newport News Shipbuilding it Dry Dock Co and Industrial Union of ` Marine Shipbuilding Workers of America, 8 N. L R. B 866; National Labor Relations Board v. Rath Packing Company (C. C. A. 8 ), decided October 31, 1940, enf'g Matter of Rath Packing Company and United Packing House Workers Local Industrial Union No. 600, through the Packinghouse Workers Organizing Committee, affiliated with the Committee for Industrial Organizations, 14 N L. It. B. 805. 27 Matter of Keystone Freight Lines and International Brotherhood of Teamsters , Chauf- feuls, Stablemen, and Helpers, Local 523, 24 N. L. It. B. 1153. ° Cf. Matter of Taylor Trunk Company and Luggage Workers Union, Local No. 50 of the International Ladies' Handbag, Pocketbook and Novelty Workers Union, 6 N. L. It. B. 32. 376 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD Employees are not oblivious to employers' preferences thus expressed'29 nor are they unresponsive.S° Finally, the respondent sought to impede and hamper the organ- izational efforts of Local 461 by establishing restrictive rulings and by demonstrating in its letter of September 1, 1939, the futility of taking collective action, applied equally it is true to the Association and Local 461, but only, after it had carefully nurtured the growth and development of the Association. We find that the respondent, by the above-described course of conduct, has dominated and interfered with the formation and ad- ministration of the Association and has contributed support thereto. We further find that thereby and by its acts and statements evincing hostility to Local 461 and design to discourage membership therein the respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. B. Discrimination with regard to hire and tenure of employment The complaint, as amended, alleges that the respondent discrim- inatorily discharged Lawrence Behney and thereafter refused to re- instate him, delayed the reinstatement of Richard Knutzen and Orville Johnson, and' withdrew from several named employees their seniority status and other rights and privileges incident thereto by inaugurating a new seniority policy. The respondent in its answer, as amended, denies sucli discrimination. At the hearing, on' motion of counsel for the Board, the complaint was dismissed without pre- judice in so far as it related to the alleged discriminatory withdrawal of seniority status. We turn to a consideration of the circumstances surrounding the termination of employment of Lawrence Behney and the delayed reinstatement of Johnson and. Knutzen. Lawrence Behney was employed by the respondent as an unskilled worker for more than 5 years prior to May 30, 1939. In April and May 1939, a general lay-off in the respondent's plant occurred. 29 Cf. Matter of Texas Mining and Smelting Company and International Union of Mine, Mitt d Smelter Workers, Local No. 412, 13 N. L. R. B. 1163. ' 21 International Association of Machinists, Tool and Die Makers Lodge No. 35, etc., v. National Labdr Relations Board, decided by United States Supreme Court,' November 12, 1940, affirming 110 F. (2d) 29 (App. D C.), enf'g_Matter of The Serrick Corporation and International Union, United Automobile Workers of America , Local No . 459, 8 N. L. R. B. 621; National Labor Relations Board v. Griswold Mfg Co, 106 F. (2d) 713 (C C. A. 3), enf'g Matter of The Griswold Mfg. Co. and Amalgamated Association of Iron, Steel d Tin Workers of North America, Lodge No. 1197, 6 N L. R. B 298; Bethlehem Shipbuilding Corporation, Ltd, et al v . National Labor Relations Board, 114 F. (2d) 930 (C. C A 1), enf'g Matter of Bethlehem Shipbuilding Corporation , Limited and Industrial Union of Marine and Shipbuilding Workers of America, Local No. 5, 11 N. L. R . B. 105, cert . Sled November 19, 1940. AMERICAN SMELTING & REFINING COMPANY 377 Behney, one of the last employees to be laid off, was laid off on May 30, 1939. - On May 1, 1939, Behney was transferred from the smelting depart- ment to the sampling and unloading department at a reduced rate of pay. He objected to this transfer on the ground that another em- ployee, McGraw, who had less seniority than he, was retained in the smelting department. Wills, the personnel manager, advised Behney that if he remained in the sampling and unloading department he might work during the shut-down. McGraw was laid off on May 20, 1939, and Schrader, another employee working in that department, remained working until May 30, 1939.31 During the previous shut- down in 1938, Behney, was the last employee laid off and the first rehired. On the basis of the foregoing and the fact that at the time of his transfer, work that Behney might have performed was still available in the smelting department, we conclude that the respondent intended by _Belmey's transfer prior to the termination of such work to retain Behney during the shut-down. On May 16 and 17, respectively, Santiago and Fedor, unskilled employees working in the refinery department, were laid off in the final lay-off in that department. Both, however, were recalled on May 23, because, as the respondent alleged, additional help was temporarily needed in the sampling and unloading department. The respondent asserted that on May 30 it was confronted with the problem of retaining one employee among the four then working in the plant, namely, Behney, Santiago, Schrader, and Fedor, to per- form unskilled labor in various departments including the refinery department. All four employees were qualified for the work re- quired. Behney had greater seniority than the others'32 and Fedor was experienced in the refinery department. The respondent con- tended that it selected Fedor to remain because Fedor had refinery' experience. Behney joined Local 461 on November 4, 1938, but did not become active until May 1939. On May 18 he accompanied a representative of Local 461 and two other of the respondent's employees to Kansas City to file the original petition in this case. The following day Behney, in answer to an inquiry, replied within the hearing of his foreman that he had "been to Kansas City to see the Labor Board." Harms admitted having had knowledge of Behney's trip to the ad Behney had 2 months greater seniority than Fedor until May 30, or was transferred to the sampling and unloading department prior to the lay-off. Behney testified that on May 30, 1939, Schrader, Fedor, Santiago and himself were working in the sampling and unloading department. Harms, in response to the Trial Examiner 's query concerning whether the four employees were left in the smelting depart- ment on May 30, stated that they were left in the plant 32 Behney had 2 months greater seniority than Fedor 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regional Office of the Board in Kansas City within a few days after it had been made, but testified that he, believed he had received this information from a Field Examiner of the Board. It is apparent that when the respondent laid off Fedor on May 17 and retained Behney it indicated at that time its preference for Behney. There was no evidence that the respondent's operations had been so altered on May 30, 1939, as to warrant a different basis for selection on that day. The Trial Examiner found that Behney's employment with the respondent was terminated because of his action in initiating the process of the Board.- On the basis of the foregoing we conclude that Behney's participa- tion in the action which initiated the proceeding before the Board was the determining factor in his lay-off. Following his lay-off Behney requested reinstatement in several interviews with Harms, the first of which occurred on May 31. Harms and Wills testified that in these interviews Behney appeared in an angry and quarrelsome mood, issued threats against Harms, his children, and the plant, and in general engaged in objectionable conduct. ' Harms further testified that because of such conduct en-' gaged in by Behney on May 31, 1939, he thereafter refused to rein- state Behney.34 Behney denied that he had conducted himself in the manner alleged by Harms and Wills. Harms testified that on May 31, after creating a scene in Wills' office concerning a rating he had received and threatening to punch the foreman who gave him the rating, Behney "busted" into, his office demanding his vacation pay. Harms told him that if he was called back to work and was entitled to it, he would at that time receive his vacation. Behney testified that he inquired about his vacation and asked Harms why he had been laid off instead of Fedor. Harms further testified that "he got very mad and wanted to know when he would be put back to work and I told him I didn't know., He then said that if he didn't get work within the next day or so he was going to come down and burn up or blow up the plant. . . . He said he was going to do that if he went to the penitentiary or electric chair for it. And, with that he turned and ran out." Harms stated that a crowd had gathered outside his. office during this altercation, at- 33 The respondent contended that Harms did not know prior to May 30 , 1939, that Behney had participated in filing a petition with the Board , but believed that Behney had partici- pated in filing charges against the respondent. It therefore argued that the Trial Ex- aminer's finding in ielymg on knowledge by Harms of the filing of a petition rathei than the charge was erroneous we find no merit in that argument . It is immateiial whether Harms believed that Behney had participated in the filing of a petition or of a charge Either action threatened its attempts to thwart genuine collective bargaining by, its employees as Harms testified that the second time Behney visited him , approximately 2 weeks sub- sequent to May 31, 1939 , he told Behney that if he had not engaged in the alleged violent and abusive conduct on May 31 with wills and himself , Behney would have been reinstated at that time.- AMERICAN SMELTING & REFINING COMPANY 379 tracted by Behney's shouts. No one in the alleged crowd was called to testify. Harms also testified that on June 20 Behney called on him a second time and informed him that he heard that rumors were circulating that he had threatened "to burn the plant" or injure Harms' children. According to Harms, Behney denied that he had made the threats attributed to him and stated to Harms that all he had said was that he had "children at home who were hungry and he would see that they were fed if he should burn for it," and that if Harms understood otherwise he had the wrong impression. Behney again asked Harms when he would be reinstated. Harms told him that if he had con- ducted himself 'at the time he was laid off as he should have and "hadn't made those threats and raised a rumpus" he would have been put back at that time, "that he was one of the last men to be laid off and would have been one of the first put back." Harms further testi- fied that Behney was "quite calm and peaceful" when he came in but was "quite angry and wrought-up again" when he left. Behney approached Harms during this incident in a suppliant and inoffensive manner, and Behney's version of his use of the word "burn" appears reasonable and credible. Harms testified that Behney approached him a third time about the middle of July and again asked when he would be reinstated. Harms stated, "I told him I didn't know, but I didn't think I would give him the job back, that I would have to be convinced that he was an entirely different man from what he had shown himself to- be before I would agree to put him back, that I didn't think his conduct since he had been laid off warranted our consideration of his re- employment." In response to this, according to Harms, Behney again issued threats and was abusive. The attitude thus expressed by the respondent appears unneces- sarily harsh in contrast with its previous tolerance of misdeeds and bursts of temper by Behney, which Harms testified, had occurred 2 or 3 years prior to May 30, 1939.35 Harms' persistent and equivocal refusal to reinstate Behney 36 un- doubtedly must have provoked Behney to some burst of temper. Nevertheless, in view of the respondent's failure to produce Harms' 3; Two or 3 years prior to the termination of Behney's employment, he had engaged in an argument with one foreman in the plant, in a fist fight with another, and had sought assistance from wills when he was detained in a police station on some minor matter. In view of the fact that Behney was the last person to be laid off in the 1938 layoff and the fist to be rehired, apparently the respondent in determining priority of recall ignored this conduct as Ilis refusal was never decisive ; it was couched on May 31 as "I don't know," or on June 20 as "I didn't think I would give him his job back," and "if he hadn't made this rumpus . . be would have been one of the first to be reinstated ," and then again several weeks thereafter, as quoted above, "I told him I didn't know." 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD secretary or- any one of the alleged crowd '37 to corroborate his testi- mony concerning the "crowd" incident, and on the basis of the record, we "do not believe he was provoked to the extent alleged by the re- spondent. The respondent, however, could well anticipate that as a result of its discriminatory lay-off of Behney, and subsequent failure to indicate its disposition to cease the discrimination, Behney would be resentful and belligerent. This is particularly true since Harms was aware of the fact that Behney questioned Fedor's retention on May 30, and stated that he had been laid off because of his union activity.88 In view of the respondent's provocative conduct in connection with Behney, its equivocal refusal to reinstate him, its unrelenting harsh- ness in the face of Behney's supplication," viewed particularly in the light of its past history of tolerance, the fact that Harms assisted Behney in procuring another position,4° that no evidence was intro duced indicating that the respondent's decision to discharge Behney subsequent to his lay-off was either communicated to Wills or indi- cated in the respondent's employment record between May 31 and June 20, 1939, and the finding by the Trial Examiner that Harms sought to establish a record of events which would conceal his true motive in discharging Behney, we are convinced that Behney's con- duct on May 31, and subsequently when he applied for reinstatement, was not the reason motivating the respondent in refusing to rein- state him.41 On consideration of the entire record we conclude that the respond- ent laid off and refused to reinstate Behney because he joined and as- sisted Local 461. We find that the respondent, by laying off Behney on May 30, 1939, and subsequently refusing to reinstate him, has dis- criminated in regard to hire and tenure of employment, thereby dis- couraging membership in a labor organization, and interfering with, restraining and coercing its employees in the exercise of rights guar- anteed in Section 7 of the Act. Orville Johnson was employed by the respondent in 1936.42 While in the employ of the respondent, Johnson worked variously as a 81 Harms testified that the office of his secretary , the superintendent and the scrap buyer was separated from his by a thin partition IsBoth Harms and wills testified that Behney told them he had been laid off because of his union activity. so At the fourth visit Behney appeared with his wife who also pleaded that he be given his job back. 40 See Matter of Quality Art Novelty Co, Inc and United Paper Workers, L I. U_ No 290, et al ., 20 N. L. R B. 817. . 9"See Matter of Continental Box Co , .Inc and Federal Labor Union No 21,328, 19 N. L R. B 860 enf'd Continental Box Co., Inc. v. National Labor Relations Board, 113 F. (2d) 93 (C. C. A. 5). 4' He first entered the respondent's employ in 1926 , resigned in 1928 , returned 4 months later, and resigned again the latter part of 1929 AMERICAN SMELTING & -REFINING COMPANY 381 crane operator, blast furnace operator , foreman in the smelting de'- partment, salvager, 'helper to first-class mechanic in the construction department, refinery mechanic , and carpenter's helper in the mechan- ical department . Six or 7 weeks prior to his lay-off in June 1938, he was transferred from the construction department where he worked as a mechanic's helper, to the residue department where he per- formed various operations . When he was recalled in November 1938, he was sent to the residue department for a short period prior to his transfer to the carpenters' shop. Johnson remained in the carpenters' shop as a mechanic's helper until .his lay-off on May 19, 1939. He was reinstated on September 28, 1939, to the sampling and unloading department for approximately 3 or 4 weeks , and Lhen transferred back to the carpenters' shop. The complaint alleges that the respondent delayed his reinstatement until September 28 because of his union membership and activity. Johnson joined Local 461 on May 10, 1939 , and shortly thereafter he was elected to its executive board. In August 1938 Harms re- ceived a C . I. 0. news bulletin containing , in an item devoted to Local 461, the names of its executive board. In the first or second week in September 1939, Johnson accompanied by Richard K.nutzen, distributed handbills for Local 461 on the respondent's parking lot. They were seen by Wills as he drove by in his car. Thereafter, Local 461 received a letter from the respondent dated September 27, 1939, in which it objected to the distribution of handbills on its property.43 Johnson participated in the distribution of handbills on two other occasions. He testified that the second one occurred prior to his recall to work and approximately one week subsequent to the first distribution. He could not recall whether or not the last distribution also occurred prior to his recall. Johnson applied for reinstatement three or four times between the first week in September and September 25, 1939. He was re- called on September 28, 1939, as a result of the last interview. The respondent contends that Johnson was not recalled prior to Sep- tember 28, 1939, because its mechanical department was not operat- ing at that time. • It is undisputed that several employees with less seniority than Johnson were reinstated and several new employees were hired on or before September 8, 1939, in departments other than the mechanical department but in which Johnson had had experience. It is also undisputed that there was no available work in the mech- nical department until after September 28, 1939. +a The record Is In conflict as to the precise date the first distribution of the handbills occurred . Both Johnson and Ifnutzen testified that the first distribution of the handbills occurred the first week of September . However, Knutzen also testified that he received the respondent 's letter of objection , referred to above, approximately 10 days thereafter. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent contends that it' did not recall Johnson prior to September 28, 1939, for the reason that it had adopted a policy of not permitting the mechanical department employees to work in any other department. On the basis of the record, we do not credit the respondent's contention. The record shows that this policy was not practiced in 1938 when Johnson was recalled to work in the residue department. The respondent asserts that this was a policy adopted subsequent to 1938.44 This is a convenient assertion but does not explain why the respondent reinstated to the sampling and. unloading department,,one Burjarski who was employed as a helper in the mechanical department at the time of his lay-off, nor why it relaxed this rule subsequently to employ Johnson in the, sampling and unloading department where he worked for a period of 3 or 4 weeks prior to his resumption of work in the mechanical department. Wills stated that he did not reinstate Johnson to the sampling and unloading department until September 28, 1939, because he be- lieved until the last interview he had with Johnson on September 25, 1939, that Johnson wished to be reinstated to his former position, and that he promptly ' reinstated him to the sampling and unloading department when he learned that Johnson would accept this job. Wills further testified that during this interview, after Johnson re- quested reinstatement, he informed Johnson that the only thing he could offer Johnson was "labor work." According to Wills, Johnson stated that he, had been,out of ' work so long that he would accept that job. Johnson testified that at the final interview, Wills told him he could be reinstated if he was willing to work in the sampling and unloading department, that Johnson said he would be glad to, and that Wills stated, "I thought you'd be." We do not credit the respondent's explanation as to why it relaxed its policy to reinstate Johnson. The fact that Johnson expressed his willingness to work in any department is certainly no justification for an exception to a rule which, in the first instance, was intended to be applied despite the wishes of its employees. Obviously acceptance of work is an expression of willingness to perform such work. We find that the respondent did not adopt a policy which precluded it from recalling Johnson on September 8. In view of the fact that Johnson was recalled in 1938 to a depart- ment other than the mechanical department, and the respondent's admitted practice of making extensive transfers from one depart- ment to another,45 we credit Johnson's version of the final interview "At first Harms testified that the policy was put into effect following the 1938 lay-off However , after admitting that the policy was not applied to Johnson in his recall in 1938, he testified that the policy was put into effect in 1939 for the first time. +', harms testified in the representation proceeding that the "custom of switching from one department to another w as quite extensive " AMERICAN SMELTING & REFINING COMPANY 383 and we find that Wills knew, prior to September 25, 1939, that Johnson would be willing to accept work in the sampling and un- loading department. On the basis of the foregoing, we are convinced that the respondent delayed Johnson's reinstatement from September 8, 1939, to Sep- tember 28, 1939, solely because of his' membership and activity in behalf of Local 461. We find that the respondent, by delaying the reinstatement of Orville Johnson, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in Local 461, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Richard Knutzen. The Trial Examiner found that the respondent had not discriminated against Knutzen by reason of his union ac- tivity and recommended that the complaint be dismissed as to him. Local 461 did not take exception to the Trial Examiner's recom- mendation. We have examined the evidence in respect to his case and concur in the Trial Examiner's finding. We will dismiss the complaint as to Richard Knutzen. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE We find that the activities of the respondent set forth in Section III, above, occurring in connection with the operations of the re- spondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged. in unfair labor practices we shall order it to cease and desist therefrom and to take certain affinnative action designed to effectuate the policies of the Act and restore, as nearly as possible, the situation that existed prior to the commission of the unfair labor practices. • We have found that the respondent dominated and interfered with.the administration of the Plan and the formation and ad- ministration of the Association in an attempt to circumvent the provisions of the Act and to deny to its employees the rights guaran- teed to them by, Section 7 of the Act. We shall, therefore, order the respondent to withdraw all recognition from the Plan and the Association and to completely disestablish them as labor organiza- tions representing its-employees for the purposes of dealing with the respondent. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have found that the respondent discriminatorily laid off and subsequently refused to reinstate Lawrence Behney. We shall, there- fore, order the respondent to offer him immediate reinstatement to his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges.46 We shall further order the respondent to make whole Lawrence Behney and Orville Johnson, whose reinstatement we have found the respondent discriminatorily delayed, for any loss of pay they have suffered by reason of the respondent's discrimination against them by payment to Lawrence Behney of a sum of money equal to the amount which he normally would have earned as wages from the date of the lay-off to the date of the offer of reinstatement, and by payment to Orville Johnson of a sum of money equal to the amount which he normally would have earned as wages from the date of the respondent's refusal to reinstate him to the date of his recall, less the net earnings 47 of each during such period. ' VI. THE QUESTION CONCERNING REPRESENTATION At the hearing in April 1940 counsel for Local 461 and the re- spondent stipulated that a question concerning representation ex- isted. 48 On September 29, 1937, the respondent recognized the Asso- ciation as the exclusive bargaining agent of its employees. On May 17, 1939, Local 461 notified the respondent that it represented a ma- jority of its employees and requested the respondent to recognize it as the exclusive bargaining agent of its employees. The respondent refused to recognize Local 461 prior to certification by -the Board and continued to recognize the Association. A report by the Regional +8 Behney's conduct subsequent to his discharge , while not to be commended was pro- ioked by the respondent and is not under all the circumstances of sufficiently serious nature to warrant his being barred from reinstatement . Matter of Continental Box Co., Inc. and Federal Labor Union ## 21323, 19 N L. R. B. 860, enf'd, Continental Bow Co, Inc. V. National Labor Relations Board, 113 F. (2d) 93 (C. C. A. 5) ; Republic Steel Corporation v National Labor Relations Board, 107 F (2d) 472 (C. C. A. 3), cert. denied 309 U. S. 684, enf'g as mod Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N L. R B 219 . We hold that the effectuation of the policies of the Act requires that Behney's discriminatory lay-off be remedied by his reinstatement . Matter of Harnishfeger Corporation and Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1114, 9 N. L R. B. 676. "By "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for the unlawful discrimination and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Conrpany and United Brotherhood of Carpenters and Joiners If 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 shall be considered as earnings . See Republic Steel Corporation v. National Labor Relations Board, decided by United States Supreme Court, 311 U. S 7 48 The Association refused to enter into this stipulation AMERICAN SMELTING & REFINING COMPANY 385 Director shows that Local 461 represents a substantial number of employees within the unit claimed by it to be appropriate. 49 vil. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE APP11OPRIA-TE UNIT The respondent, Local 461, and the Association stipulated: at the hearing that all production and maintenance employees, with the exception of executive, -administrative, technical, supervisory, pro- fessional, clerical, and office employees, including in such exceptions foremen, assistant foremen, engineers, metallurgists, chemists, assay- ers, secretaries, accountants, auditors, clerks, stenographers,, and watchmen, constituted an ' appropriate unit. We see no reason-to alter the unit agreed upon. The respondent and Local 461 disagree with respect to the in- clusion of E. Partridge, a group of employees acting as relief fore- men, and a group of students in the appropriate unit. - E. Partridge. Local 461 contends that E. Partridge acts as•a fore- man and therefore should not be included in the appropriate, unit. The respondent denies that Partridge acts as a foreman. Partridge is employed as a head refinery scale man. At times as many as three employees work under his supervision. The molding crew also work under the direction of Partridge when engaged in' loading cars. In September 1937 the respondent listed Partridge among those employees it considered to be in a supervisory capacity.5° At the date of the hearing, Partridge was performing the same work he had performed in September 1937. 10 The Regional Director reported that Local 461 submitted 73 membership cards an- thorizing it to represent the signers for the purposes of collective bargaining , dated from November 1938 to November 1939 Seventy of the cards bear signatures which the Regional Director found to be genuine and of iginal and the remaining 3 cards bear typewritten names The parties stipulated at the hearing that the Regional Director checked the list of names submitted by Local 4 61 with the pay roll current at that time and found that all but three or four appeared on he respondent's pay roll On April 24, 1940, there were approximately 175 employees in the appropriate unit - 60 Shortly after the formation of the Association the respondent posted a list of em- ployees who it decided were supervisory employees and ineligible to membership in the Association. Partridge as included'in this list 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that Partridge acts in the capacity of a foreman in his department and we shall exclude him from the bargaining unit. Relief foremen. Local 461 contends that S. Stanesic, W. Schrader, Art Hermanson, Alex Barna,-E. Abersfeller, and Charles Hymes, Sr. are employed as relief foremen and therefore should be excluded from the appropriate unit. • The respondent contends that these em- ployees should be included in the appropriate unit. The record shows that S. Stanesic, W. Schrader, Art Hermanson, and Alex Barna substitute for the regular foreman one day each week. On that day each of these employees direct and supervise the employees in their respective departtents. They receive a higher rate of pay when they substitute for the regular foremen. E. Abers- feller assumes the duties of a regular foreman one day each month. The record does not support the contention of Local 461 that Charles Hymes, Sr. acts at any time as a foreman. ' , We find that S. Stanesic, W. Schrader, Art Hermanson, Alex Barna, and E. Abersfeller are relief foremen and that relief foremen -perform the work of regular foremen with sufficient regularity to warrant their exclusion from the appropriate unit. We shall exclude the relief foremen from the appropriate unit. The students. The respondent, at the request of the University of Omaha, employs a group of students who attend the University. These students work for the respondent approximately 2 to 4 days each week pursuant to a work-study program of , the University. About six students were employed by the respondent at the date of the hearing. Local 461 desires to exclude the students from the ap- •propriate unit and the respondent desires to include them. We do not believe that these students have a substantial interest in the terms and conditions of employment of the regular employees of the re- spondent. Accordingly, we shall exclude the students from the appropriate unit. 'e,find that all production and maintenance employees employed at the Omaha, Nebraska, plant of American Smelting & Refining Company with the exception of executive, administrative, technical, supervisory, professional, clerical, and office employees, and includ- ing in such exceptions foremen, assistant foremen, relief foremen, engineers, metallurgists, chemists, assayers, secretaries, accountants, auditors, clerks,, stenographers, watchmen, and students, constitute a unit appropriate for the purposes of collective bargaining and that- said unit will insure to employees of the respondent the full'benefit' of their right to self-organization and to collective bargaining and ,otherwise effectuate the policies of the Act. AMERICAN SMELTING & REFINING COMPANY IX. THE DETERMINATION OF REPRESENTATIVES ' 387 We find that the question concerning representation which has arisen can best be resolved by the conduct of an election. Local 461 requests that employees employed by the Company sub- sequent to May 17, 1939, be excluded from participation in the election. It alleges that the respondent may have increased the number of its employees subsequent to that date for the sole purpose of defeating Local 461's majority. There is no evidence in the record to support this allegation. The request of Local 461 is denied. , We shall therefore follow our usual practice and direct that the employees of the respondent eligible to vote in the election shall be those employees within the appropriate unit on the respondent's ,pay roll next preceding the date of an election which we shall in the future direct, including those who did not work during such pay-roll -period because they were ill or on vacation or because they were temporarily laid off,"' but excluding those who quit or were discharged for cause prior to the election. Since, however, the respondent has, by engaging in various unfair labor practices, interfered with the exercise by its employees of the rights guaranteed them by the Act, we shall not now set the date for the election. We shall direct the election, however, upon receipt of information from the Regional Director that the circumstances permit a free choice of representatives unaffected by the respondent's unlawful acts. ' Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF L. kw 1. Omaha Smeltermens Union x$461, International Union of Mine, Mill & Smelter Workers, affiliated with the Congress of Industrial Organizations, Omaha A. S. & R. Company Employees Association, and Employees Representation Plan are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the administration of the Plan and the formation and administration of the Association and contributing support to each of them, 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 employ- ment of Lawrence Behney and Orville Johnson, thereby discouraging - MEmployees temporarily laid off aie maintained on the respondent's pay roll for a period of 90 days Thereafter they are separated from the respondent 's employ. 413602-42-aol 29-26 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in Local 461, the respondent has engaged in and is en- gaging 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. A question affecting commerce has arisen concerning the repre- sentation of employees of the .respondent within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 7. All production and maintenance employees employed at the Omaha, Nebraska plant of American Smelting & Refining Company with the exception of executive, administrative, technical, supervis- ory, professional, clerical, and office employees, and including in such exceptions foreman, assistant foreman, relief foreman, en- gineers, metallurgists, chemists, assayers, secretaries, accountants, auditors, clerks, stenographers, watchmen, and students, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. 8.- The respondent. has not engaged in unfair labor practices within the meaning of Section 8 (3) of -the Act with respect to Richard Knutzen. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, American Smelting & Refining Company, Omaha, Nebraska, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Omaha Smeltermens Union, #461, International Union of Mine, Mill & Smelter `Yorkers, affili- ated with the Congress of Industrial Organizations, or any other labor organization of its employees, by discharging or. refusing to reinstate any of its employees, or in any other manner discriminat- ing in regard to their hire or tenure of employment or any terms or conditions thereof; ' (b) In, any manner dominating or interfering with the ndmin- istration of Employees Representation Plan or Omaha A. S. & R. Company Employees Association, or with the formation and admin- istration of any other labor organization of its employees, and from AMERICAN SMELTING & REFINING COMPANY 389 contributing support to Employees ' Representation Plan or Omaha A. S. & R. Company Employees Association , or to any other labor organization of its employees; (c) Recognizing Omaha A. S. & R. Company Employees Associa- tion as the representative of any of its employees for the purpose of dealing with - the respondent concerning grievances , labor disputes, wages, rates of pay, hours of employment , or other conditions of work; (d) In dny other manner interfering with, restraining , or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations , to bargain ' collectively through representatives of their own choosing , and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection , as guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold from employees Representation Plan and Omaha A. S. & R. Company Employees Association and any successor thereto all recognition as representatives of any of its employees for the purpose of dealing with respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of 'employment , and completely disestablish Em- ployees Representation Plan and Omaha A. S. ",& R. Company Employees Association as such representatives ; (b) Offer Lawrence Behney immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges; (c) Make whole Lawrence Behney and Orville Johnson for any loss of pay they have suffered by reason of the repsondent 's discrimi- nation against them by payment to Lawrence Behney of a sum of money equal to that which he normally would have earned as wages from May 31 , 1939, to the date of offer of reinstatement, and by payment to Orville Johnson of a sum of money equal to that which he normally would have earned as wages from September 8, 1939, to the date of reinstatement, less their respective net earnings during said periods: (d) Post immediately in conspicuous places at its plant, and main- tain for a period of at least sixty ( 60) consecutive days from the date of posting , notices to its employees stating : (1) that the re- spondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b); (c), and (d ) of this Order; (2) that the respondent will take the affirmative action set forth in,paragraph 2 (a), (b), and (c) of this Order; and (3) that the respondent 's employees are free to become or to remain members 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Omaha Smeltermens Union #461, International Union of Mine, Mill and Smelter Workers, affiliated with-the Congress of Industrial Organizations and that the respondent will not discriminate against any employee because of membership or activity in that organi- zation; (e) Notify the Regional Director for the Seventeelltll 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, as amended, be, and it hereby is, dismissed in so far as it alleges with regard to Richard Knutzen that the respondent has engaged in and is engaging in unfair, labor practices within the meaning of Section 8 (3) of the Act. CHAIRMAN HARRY A. MILLIS took no part in the consideration of the above Decision and Order.