Illinois Electric Porcelain Co.

In the- Matter of ILLINOIS ELECTRIC PORCELAIN COMPANY and ILLI- NOIS ELECTRIC PORCELAIN WORKERS OF MACOMB, FEDERAL LABOR UNION No. 21787, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Cases Nos. C-1312 and R-1333.-Decided April 19, 1941 Jurisdiction : electric porcelain products manufacturing industry. Unfair Labor Practices - In General: employer responsible for acts of its foreman in questioning an employee concerning the union, notwithstanding foreman's explanation that no one had instructed him to engage in such activities, had not told anyone about it, and had spoken to the employee as a friend. Interference, Rest? anit, and Coercion: anti-union statements ; questioning em- ployees, as to membership in the union; urging and warning employees not to join or remain members of the union; attacking the union: disparaging union's claims and questioning its purposes through the speech of its presi- dent; discreditin; the leadership of the union; attempts of its supervisory officials to secure the withdrawal of employees from the union : surveillance of union meeting Notices posted by employer to the effect that all grievances of employees must be submitted to grievance committee of employer-dominated labor organization which had been granted exclusive recognition by the em- ployer, contravened the express terms of Section 9 (a) and also consti- tuted support to the labor organization in violation of Section 8 (2) as well as interference with and restraint upon the rights of employees in violation of Section 8 (1) Placing limitation upon representatives of the employees with whom the employer will confer by requiring that such representatives must them- selves be employees constitutes interference with the rights of employees guaranteed in the Act. Company-Dominated Liniori.: formation of, following appearance of outside or- ganization and attempt of outside organization to bargain-approval of, sig- nified in president's speech ; aiding and permitting active solicitation during working hours and continuing such activity even atter inside union was granted recognition and posting of notices prohibiting such activities-support to : granting preference in work to members of-interference : anti-union state- ments ; interrogation concerning union membership ; inducing employees to forego outside union ; threatened shut-down should outside union be successful in organizing plant-discrimination- discharging nearly all officers of outside union and many of its members-indicia : hasty recognition of, notwithstanding claim of outside union that it represented a majority and its request for an election to be held- under the Board's supervision , consummation of agreement without any negotiations preceding its execution Diseriminatioi: lay-offs motivated by employees' union affiliation and in one case because of close relationship to active and known members of union 31 N. L. R. B., No 20 101 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD likewise laid off, rather than alleged lack of work ; discharge of one employee previously discriminatorily laid 'off because of his union affiliation rather than the alleged infraction of a rule ; discharge because of employee's union affili- ation and not because lie had deliberately wasted usable material , as alleged by the employer ; alleged lay-off or discharge of six employees, dismissed. Testifying Under the Act: lay-off because employee gave testimony under the Act. Remedial Orders : disestablishment of company-dominated union; abrogation of contract ; reinstatement of employees discharged ; employees laid off who were reinstated awarded back pay from date of discrimination to date of reinstatement ; employee was discriminatorily laid off, reinstated, and subse-' quently discriminatorily discharged, awarded back pay from date of lay- off to date of reinstatement and from date of discharge to date of offer of reinstatement, employee who was discriminatorily discharged awarded back pay from date of discharge to date of offer of reinstatement. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition ; election necessary, to be held at such time as the Board shall in the future direct. Existence of question concerning representation not precluded by reason of the fact that the employer has declined to meet with the petitioning union on the ground that the employer had entered into a contract with another union found to be employer-dominated. Unit Appropriate for Collective Bargaining : all employees, excluding officers, office employees, clerical employees, superintendents, foremen, assistant fore- men, watchmen, and salesmen ; no controversy as to. Mr. Jack G. Evans, for the Board; ' Gumbart & Grigsby, by Mr. E. D. Grigsby of Macomb, Ill., and Miller, Elliott cPe Westervelt, by Mr. Donald G. Beste of Peoria, III.-; for the respondent. Mr. Fred Olds, of East St. Louis, Ill., and Mr. Daniel D. Carmell, of Chicago, Ill., for the Union. Mr. Roswell O'Harra, of Macomb, Ill., for the Association. Mr. Louis Cokin and Mr. David H. Karasick, of- counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On Nprvepnber 12, 1938, Illinois Electric Porcelain Workers of Macomb, Federal' Labor Union No. 21787, herein called the Union, filed with the Regional Director for the Thirteenth Region (Chicago, Tllinois) charges, and on December 6, 1938, January 27, 1939, and, February 19, 1939, amended charges,' alleging that Illinois Electric Porcelain Company, Macomb, Illinois, herein called the respondent, I Further amended charges were filed after the commencement of the hearing as noted' below. ILLINOIS ELECTRIC PORCELAIN COMPANY 103 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.2 On November 12, 1938, the Union filed a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of the respondent and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On February 1, 1939, the National Labor -Relations Board, herein called%the Board, acting pursuant to Section 9 (c) of the Act and Ar- ticle III, Section 3 and Section 10 (c) (2), and Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and further ordered, for the purpose of hearing 'and all other purposes, that the complaint case and the representation case be consolidated and that one record of the hearing be made. . Thereafter, upon the charges and amended charges filed, the Board, by the Regional Director for the Thirteenth Region, issued its com- plaint dated February 19, 1939, 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 Act. Copies of the complaint and petition, ac- companied by notices of hearing thereon, were duly served, upon the respondent, the Union, and Electric Porcelain Workers Association of Macomb, Illinois, herein called the Association. With respect to the unfair labor practices, the complaint alleged in substance that : (1) the respondent fostered, dominated, and interfered with the formation and administration of the Association, and contrib- uted financial and other support thereto; (2) the respondent discrimi- natorily laid off or discharged 11 named employees 3 on various dates between October 17, 1938, and January 4, 1939, and failed or refused to reinstate 2 of the employees4 so laid off or discharged; and (3) from on or about March 24, 1937, down to and including the date of the issuance of the complaint, the respondent urged or warned its employees to refrain from joining or retaining membership in the Union, endeavored to discredit the Union and its leaders, spied upon meetings of its employees, and by the foregoing and other acts inter- 2 The original charge and the second amended charge each contained allegations that the respondent had also committed unfair labor practices within the meaning of Section 8 (5) of the Act. However, the third amended charge and the complaint , which was based thereon, omitted allegations of a violation of Section 8 (5). 3 Dalton Purdy, Wayne Morris, John Gates, Nell Olson, Herschel Jones, Kerman Kepler, Mary Harding, Nida Purdy , Benny Bartlett, Sarah Aemmer , and Max Olson. * Herschel Jones and John Gates. 104 DECISIONS OF NATIONAL LABOR RELATIONS'-BOARD fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On February 24, 1939, the respondent filed an answer to -the com- plaint which denied the allegations of unfair labor practices and con- tained affirmative allegations with respect to the unfair labor practices charged in the complaint.5 - Pursuant, to notice, a hearing was held from March 9 to 29, 1939, at Macomb, Illinois, before Madison Hill, the Trial Examiner duly desig- nated by the Board. The Board, the respondent, the Union, and the Association were represented, by counsel or by their representatives; -all_ participated in the hearings Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues-was afforded all parties. On March 15 and on March 22, 1939, during the course of the. hear- ing, the Union filed with the Regional Director a fourth amended charge and a fifth amended charge, alleging, respectively, the dis- charge of Fred Teel oli March 8, 1939, because he had joined and assisted the Union, and the discharge of'Gaillard Pendell on March 20, 1939, for the same reason and for the additional reason that he had given testimony under the Act. On March 22, 1939, the Board, by its attorney in the case, issued an amended complaint against the respond- ent alleging that it had engaged in unfair labor practices within the meaning of Section 8 (1), (2), (3), and (4) and Section 2 (6) and (7) of the Act. The amended complaint, in addition to the allegations contained in the original complaint, incorporated the averments con- tained in the fourth and fifth amended charges with respect to the dis- charge of Fred Teel and of Gaillard Pendell. The respondent, by its counsel, waived statutory notice, and on March 31, 1939, filed its answer to the amended complaint which denied the. allegations of unfair labor practices and incorporated by reference the affirmative allegations set forth in its original answer. Prior to, at the beginning, and at the close of the hearing, counsel for the respondent moved to dismiss the complaint and the amended complaint on various grounds.7 The motions were denied. Counsel See footnote 8, infra. s A representative of the Association was present during the hearing but did not take any part therein or move to intervene . The Association appeared by counsel in the representa- tion case and introduced evidence relative to its formation and recognition T Prior to the bearing, the respondent filed a R ritten motion to dismiss, assigning as grounds therefor, the following , (1) that the third amended charge , upon which the com- plaint was based, was insufficient and incapable of supporting the complaint ; (2) that it did not contain a clear and concise statement of all the facts constituting the alleged unfair labor practices and failed to state the names of the individuals involved and the time and place of events alleged to have occurred ; ( 3) that it failed to name the officers and agents of the respondent who were alleged to have committed certain acts ; ( 4) that a fatal vari- ance existed between the third amended charge and the complaint because the third amended charged averred that the employees named therein had been discharged while 'the complaint alleged that these employees had been laid off or discharged ; ( 5) that the third ILLINOIS ELECTRIC PORCELAIN COMPANY 105 for the Board moved to strike the affirmative pleadings in the respond- ent's answer and amended answer, and at the close of the hearing also moved to amend the pleadings to conform to the proof. Both motions were granted.' After the hearing, the respondent filed a brief with the Trial Examiner. On June 14, 1939, the Trial Examiner issued his Inter- amended charge failed clearly and concisely to state the facts constituting the alleged domi- nation and interference, and support of the Association by the respondent ; ( 6) that the third amended charge failed to name the individuals involved or the facts constituting an alleged agreement whereby the respondent granted a prefernce to members of the Associa- tion with respect to hours and working conditions ; ( 7) that the third amended charge failed to state the names of the individuals involved , the time and place of occurrence, and the facts constituting allegations that the respondent had spied upon meetings of employees and had questioned and warned employees concerning their membership and activities in the Union , ( 8) that the third amended charge was not properly subscribed and sworn to ; (9) that by reasons of the foregoing objections , the third amended charge and the complaint were fatally insufficient and defective ; ( 10) that the third amended charge and the com- plaint were so vague , indefinite, insufficient, and unlawful that it was impossible for the respondent adequately to investigate the charges and prepare its defense ; ( 11) that the representation proceeding and the complaint proceeding ought not to be consolidated, that the Board had no jurisdiction or authority either to conduct an investigation in the repre- sentation proceeding or to certify the representatives designated by the employees as their bargaining agent; and (12 ) that the petition for investigation and certification of repre- sentatives was apparently executed in blank and before the date thereof, that it was not properly subscribed and sworn to, and that it was otherwise insufficient , indefinite, irregular, and unlawful. In addition to its written motion, counsel for respondent at the commencement of the hearing and before any witnesses had been called or evidence adduced, orally- moved to dis- miss the complaint and, among other things, made the following statement in support thereof : . . . the Respondent has reason to believe and does believe that the individuals consti- tuting the National Labor Relations Board are prejudiced against all employers and against this Employer , and in favor of all labor unions and in favor of the labor union filing the charge here ; that the feelings and prejudices of said members of the National Labor Relations Board are such that a fair and impartial hearing cannot be had by the Respondent in this proceeding. We further show that Respondent has been informed and verily believes that per- jured testimony is' to be offered against it and that it will offer substantial and direct evidence as to the untruth of such perjured and untrue evidence , but that it has reason to believe and does believe that the National Labor Relations Board will credit and believe and base its findings on testimony adverse to this Respondent, and not other- wise, and will discredit and disbelieve all evidence in favor of this Respondent where a conflict exists, and that if findings are made by the Board on such perjured and untrue evidence Respondent has no relief before any court under the provisions of the law... - We have carefully considered the foregoing matters alleged by the respondent and find that they are without substance. We expressly affirm the rulings of the Trial Examiner denying the respondent ' s motion to dismiss. 8 The Trial Examiner granted the motion of counsel for the Board to strike all but one of the affirmative defenses set forth in the respondent's answer and later granted a similar motion with respect to the amended answer. An allegation that the respondent "has many other and varied defenses not specifically herein set forth the nature of which will be shown at the trial of the cause herein " was permitted to remain on the theory that the respondent thereby indicated its intention not to be limited by the specific defenses recited in its answer, although the Trial Examiner stated that he did not believe the respondent -would be so limited in any event . The allegations striken were as follows : ( 1) that in addition to the persons named in the complaint the respondent laid off many other employees on or about the same dates , that it did not know whether the employees laid off were members of the Union but believed that many of them were not union members and some of them were or became members of the Association ; ( 2) that the respondent did not know and had no means of knowing who were members of the Union ; ( 3) that the investigation of the Board with respect to the matters alleged in the charges was conducted in a manner which was 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report, copies of which were duly served- upon all parties. The Trial Examiner found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and (4) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from such practices and that it withdraw recognition from and completely disestablish the Association as a bargaining representative of any of its employees, offer reinstatement with back pay to Fred Teel and John Gates, make whole Dalton Purdy, Wayne Morris, Kerman Kepler, and Nida Purdy for any losses of pay they may have-suffered by reason of the respondent's discrimination against them,9 and take certain other remedial action. He further recommended that the complaint, as amended, be dismissed in so far as it alleged that the respondent had discriminated against Nell Olson, Mary Harding, Sarah Aemmer, Max Olson, Benny Bartlett, and Herschel Jones. On June 26, and July 12, 1939, the respondent and the Union, respectively, filed exceptions to the Intermediate Report. - On June 26, 1939, the respondent requested oral argument before the Board. Subsequently all parties waived their right to appear before the Board for the purpose of oral argument. On July 24 and 25, the respondent and the Union, respectively, filed briefs in support of their exceptions. During the course of the hearing, the Trial Examiner made nu- merous rulings on motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Ex- aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. In its exceptions, and in its brief filed in support thereof, the respondent contends, -among other things, that it was prejudiced by conduct of the Trial Examiner at the hearing, unfair to the respondent and partial to the Union ; (4) that the respondent had offered and was ready and willing to settle the charges in a manner it believed to be fair and proper ; and (5 ) that, by virtue of the rules of the American Federation of Labor, the Union had no jurisdiction to organize in plants of the type operated by the respondent. The Trial Examiner granted the motion to strike the first'and second allegations on the ground that, while relevant to the issues , both allegations were already included in the answer and further statement of them was therefore superfluous . The motion to strike the third, fourth , and fifth allegations was granted on the ground that they were not relevant to the issues involved . The respondent was not prejudiced by the ruling of the Trial Exam- iner in granting the'motion to strike.- Not only was the respondent assured sufficient lati- tude in the presentation of its case by retention of the broad averment that it had "many other and varied defenses ," but it introduced evidence bearing upon the first and second allegations listed in its affirmative defense and specifically argued its position with respect to these allegations both in its brief filed with the Trial Examiner and its brief filed with the Board. 11 8 The Trial Examiner also found that the discharge of Gaillard Pendell on March 20, 1939, constituted a violation of Section 8 (3) and 8 (4). Pendell was offered reinstatement -on March 23 , 1939, and returned to work on the following day. ILLINOIS ELECTRIC PORCELAIN COMPANY 107 that the respondent was deprived of its right to give testimony, and, in general, was denied due process of law and its right to a fair and impartial hearing. We have examined and reviewed the record in the light of the respondent's contention and have specifically directed our attention to those instances at the hearing cited by the respondent in support of its position. Our examination discloses that on occasion during the hearing the Trial Examiner was un- dignified in his manner, of response to counsel. Such conduct is unbecoming, a hearing officer and would merit serious reprimand, were the officer still in the Board's employ. After careful analysis and consideration of the record, we are, however, convinced that such conduct on the part of the Trial Examiner did not prejudice the respondent nor deprive it of a_ fair hearing with opportunity to present relevant evidence and properly to save its exceptions to all adverse rulings.10 The Board has considered the respondent's and the Union's excep- tions to the Intermediate"Report, and their briefs in support thereof, and, in so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. - Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, an Illinois corporation, owns and operates a plant at Macomb, Illinois, where it is engaged in 'the business of designing, manufacturing, selling, and distributing electric porcelain products. The principal raw materials used by the respondent are clay, spar, flint, and fuel. In 1938 the respondent expended approximately $51,000 for the purchase of raw materials, 30 per cent of which was shipped to it from points outside the State of Illinois. During the same year, the respondent sold products valued at approximately $362,000, of which amount approximately 70 per cent was derived from sales requiring shipments to points outside the State of Illinois. The respondent employs approximately 165 employees: 10 Moreover, we have also considered the fact that the Trial Examiner was harassed by the respondent's counsel whose conduct was clearly contumacious . Illustrative of the con- duct to which we refer in this respect was the statement made by counsel for the respond- ent at the commencement of the hearing , as set forth above (see footnote 7; supra), which In itself was contemptuous and would have justified the Trial Examiner in issuing an order barring such counsel from further participation in the hearing. Article II, Section 31, of National Labor Relations Board Rules and Regulations-Series I, as amended ; see Matter of Weirton Steel Company and Steel Workers Organizing Committee, 8 N. L. R. B. 581. The Trial Examiner, however, neither issued such an order nor reprimanded counsel for the impropriety of his remarks. _ 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE ORGANIZATIONS INVOLVED Electric Porcelain Workers of Macomb, Federal, Labor Union No. 21787, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the respondent. Electric Porcelain Workers' Association of Macomb, Illinois, is an unaffiliated labor organization, admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Prior to the year 1938 there had been no labor organization in the respondent's plant. As hereafter noted, the Union began its organi- zational drive early in October 1938 and later in the same month the Association was formed During the prior year, the National Broth- erhood of Operative Potters, herein called the Brotherhood, had at- tempted unsuccessfully to organize the respondent's employees. The Brotherhood held a meeting in the latter part of March 1937, and invited a number of the employees to attend. Ivan Hughbanks, an employee, testified that Frank Rigg, superintendent of the respondent, requested him to attend the meeting and notified him that he would be accompanied by Ernest Johnson, a foreman in the plant; and that when Hughbanks told Rigg on the following morning that the meet- 'ing "didn't amount to nothing," Rigg I eplied, "Well, I think it amounted to a whole lot." Hughbanks further testified that on December 9, and again on December 10, 1938, Frank Rigg asked him to sign an affidavit stating that Rigg did not send Hughbanks to the meeting of the Brotherhood. Christ Aemmer, an employee who worked in Foreman Johnson's department, testified that one of the employees in the department had given his invitation to attend the meeting of the Brotherhood to Johnson, and that during the after- noon Johnson told Aemmer, "I got an invitation to go up to the union meeting tonight, and I am going to get an earful." Aemmer further stated, that on the day following the meeting Johnson said, "You sure are a good one. That friend Quinn of yours was at the union meeting. They ought to ride that son-of-a-bitch out of town on a rail." Quinn was an organizer for the American Federation of Labor. Kerman Kepler, an employee, testified that on the day fol- lowing the meeting Foreman Johnson asked Kepler why lie had not attended, and that Johnson stated, "I was there and got plenty on the sons-of-bitches." Frank Rigg denied that he asked Hughbanks to attend the meeting of the Union ; he did not, however, deny that on the following morn- ILLINOIS ELECTRIC PORCELAIN COMPANY 109 ing he had made the statement attributed to him by Hughbanks, nor did he deny the incident with respect to the affidavit. Foreman Johnson admitted that he went to the meeting with Ivan Hughbanks, but declared that he spoke to no one before going, and stated that he did not recall telling Christ Aemmer that he was going to, "get an earful." Johnson did not deny Aemmer's testimony with respect to- Quinn,,nor did he deny that he had made the statement as testified by Kepler. In view of the inconclusive character of the denials of Rigg and Johnson, the corroborative nature of the testimony of Hughbanks, Aemmer, and Kepler, which is in substantial agreement, and the fact that the record is replete with instances of similar statements and conduct of Rigg and Johnson, some of which are noted hereafter, we accept as true the testimony of Hughbanks, Aemmer, and Kepler as above related. Sarah Aemmer," an employee who first began to work for the re- spondent in 1918, testified" that at about the time of the meeting of the Brotherhood in March 1937, Superintendent Rigg came to her and said he understood that an employee named Heaton had made a remark about the A. F. of L. coming in the plant, and that Rigg declared : If you hear anyone talking about the union or agitating, you come to me and let me know, and we will let them go right away. We don't want anything like that in our plant. Rigg denied having made this statement. We do not accept Rigg's denial as credible. We find, as did the Trial Examiner who saw and heard the witnesses, that Frank Rigg made the statement attributed to him by Sarah Aemmer. In August 1938, Kerman Kepler was reading a newspaper pub-' lished by the Brotherhood when Johnson came over and stated, "If old man Kettron gets hold of this, it will be too bad for you." John- son did not expressly deny this testimony, but declared that he did not recall having made such a statement. In view of other conduct attributed to Johnson and undenied by him, we credit Kepler's testi- mony, as did the Trial Examiner. In December 1937 Dalton Purdy, an employee who at the time was an assistant foreman but later, resigned that position and was elected president-when the Union was organized, engaged in a discus- sion with other employees concerning the poor condition of the re- spondent's business, and suggested that a union label on the respondent's products might be helpful. Albert Pendell, Purdy's "Variously designated in the pleadings, exhibits, and Intermediate Report as Sara Kepler Ammers, Sara Keppler Aemmers , Sara Ammers, and Sara Aemer. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foreman at the time, heard of this conversation which he reported to Superintendent Rigg. Upon Rigg's instructions, Pendell told Purdy that he should refrain from mentioning union stamps if he wanted to work in the plant. Rigg testified that he'had instructed Pendell to tell Purdy that "he should not be talking like that" inasmuch as -Purdy was an assistant foreman. However, it is clear that neither Rigg in giving these instructions nor Pendell in executing them, assigned as a reason therefor the supervisory position of Purdy. In October 1938, shortly after some of the employees joined the Union, they were questioned about their union activities by various members of the respondent's supervisory staff. On October 15, 1938, _Rigg confronted Dalton Purdy, president of the Union, and said, "I hear you boys are trying to organize." Purdy replied that he knew nothing about it. Rigg stated, "I hear you,and Morris are the in- stigators of this thing." Purdy declared that he had heard some talk about trying to organize, but that he did not think it could be done at the plant. Rigg said, "It wouldn't do you any good. You would just be out a lot of dues. The Old Man has spent out $25,000.00 now to try and keep things going." Rigg admitted that he had heard rumors that the A. F. of L. was organizing in the plant and that he asked Purdy about it because he had heard that Purdy was one of the instigators of the Union. We find that this conversation occurred as Purdy testified. Harold Taylor joined the Union and was elected corresponding secretary on October 10, 1938. Benny Bartlett also joined the Union and was elected vice president on the same day. Taylor testified that on October 15, while he was standing in the plant during work- ing hours with Benny Bartlett, Superintendent Rigg approached the two men and said, "I hear that you are up to your neck and ears in this union business." Taylor's testimony was corroborated by Bartlett and was not denied by Rigg. .Taylor further testified that on November 3 Rigg came to him and asked, "What is this I hear you telling about the A. F. of L. being recognized?"; that Taylor replied he_ had not said anything, but that he had heard it; and that Rigg "told-me to keep my mouth shut or something would happen." Rigg testified that Taylor was spreading word in the plant that Henry Kettron, vice president of the respondent, had recognized the A. F. of L., and that'Rigg merely told Taylor that if he was going to say anything around the plant he ought to tell the truth. Rigg's version of this statement is not convincing, particularly when viewed against the background of his manifest hostility toward the Union as indicated in the record and in part as related above. We accept as true the statement made by Rigg as attributed to him by Taylor. ILLINOIS ELECTRIC PORCELAIN COMPANY 111 Early in October 1938,' according to the undisputed testimony of Carl Wickline, a kiln burner in the plant, Superintendent Rigg asked him if the Union had asked to-sign him up. When Wickline replied that ita had not, Rigg said, "Well it seemed to me like they had been to everybody else." Nor were Rigg and Johnson the only members of the respondent's supervisory staff who evinced an interest in the formation of the Union and the persons responsible for it. Three or four days after Charles Croxton, an employee in the tube and casting department, joined the Union on October 10, 1938, he was questioned by his foreman, Francis Hollenback. Hollenback asked Croxton if he knew anything about the Union, what had started it, and if he knew any of the reasons; he also told Croxton that no one would be fired because of it. Hollenback admitted this conversation, but explained that no one had instructed him to question Croxton, that he told no one about it, and that he had spoken to Croxton merely as a friend. Accepting Hollenback's explanation as true, neither his friendliness with Croxton nor his absence of specific authority to interrogate an employee about union activities provides sufficient ground for relieving the respondent of responsibility for his acts. Seemingly innocuous in itself, Foreman Hollenback's interrogation of Croxton becomes significant when considered in relation to the efforts of Rigg and Johnson to discover the union affiliations of the employees and the degree of their success in organizing. On November 14, 1938, 5 days after the respondent granted ex- clusive recognition to the Association which we hereafter find to have been dominated by the respondent'12 Charles W. Kettron, Sr., president of the respondent, spoke to the employees in the plant. The address was delivered at the request of Tom Ebey, president of the ,Association. Kettron, Sr., held in his hand one of the circulars which had been distributed by the Union to the employees. His remarks were directed to the statements contained in this circular. Among other things, he said the following : Of course, you all know why we are here today, just to talk over.our own problems, that is all there is to it. We have had here in the city, for the last few months, a representative of the American Federation of Labor, who is trying to organize the people of this plant. I don't want to question your right for a moment to join that union, if you want to, that is your privi- lege. It is your privilege to join a union or not join one. You don't have to do either one. When this Company started business, one of the fundamental rules laid down by the Board of Directors and stockholders 12 See Section Ill B, infra. i 112 I DECISIONS OF NATIONAL LABOR RELATIONS BOARD was that labor should have a square deal'. I will defy any man to say you have not had it. I don't care who he is. We have gone along here for 28 years together. There has not been a time in that 28 years that you people have not had the privilege of appointing a committee to come in the office and talk things over. If you have not done so, it is your own fault. You have that privilege today, organized or not organized. First, I want to give my' attention pretty fully to this literature they have left with you. The one thing I want to talk -about is your rights as my employees. No one questions the rights in here. You have always had them. I brought these rights to them [sic] when I started to organize my company. First, "have you not a right to a job?" I don't know. It is pretty hard to get them these days. I don't know where to set up a law to say a man had a right to a job. I want to say this: any man who has a job in this Company has a right to that job just as long as he treats his job right. Do you under- stand me? I think I have got something there. You have a right to your job just as long as you treat the job right. "Have you not a right to know what profits your company is making?" I don't know whether you have a legal right or not, but I will say to' these people here you have a right to know what this company is making any time you want to send a committee to the office to find out. And "Who is getting them?". I don't think you have a right to know who is getting them. I have not the right to tell you because that is the private business of the stockholders of this company. The dividends they receive is their own business. The stockholders in this crowd can tell you any time they want to what they receive. If you want to send a committee to the office, I will tell you what dividends were declared, but can't tell you who, they went to. I think I would get fired if I did, and, believe me, they have got a right to fire me, just as much as you. "You have seen wages reduced until you cannot live on -them." That was and is, a lie. Wages have not been reduced as a general thing. There may be some instances where they, have been reduced some, but they have not been reduced in this company. Just a little more on that. 40 cents an hour is the union scale in the Porcelain Industry and you are getting it. Could they do more for you? Possibly they could. . I don't know. I know one thing, they could come in here and raise hell. ` ILLINOIS ELECTRIC PORCELAIN COMPANY 113 "Collective Bargaining." Has there ever been a time that the employees of this Company did not have collective bargaining? Some of the later employees, maybe you who have gone to work more recently, don't know, but any of them working here 12 or 15 years, they know you have always had the privilege. You are welcome to send a committee to the office at any time to talk mat- ters over. "Cooperation between company and employees." I wish we had more of it. I hope that your Association that has been organ- ized and recognized will see that we do have more cooperation among the employees. I will state a fact. The other day there come a lot of bushings through the plant on this floor, as beau- tiful ware as I ever saw in my life, but, on account of the work done in one department of this factory, those bushings were ruined. That could have been prevented. I used to work in a pottery. I took pride in my work and the man that made those bushings took pride in his work. If I had made my stoneware - right and it had been spoiled on account of work in another de, partment, I would have beat the superintendent to it in dealing with the people who spoiled it. This is cooperation. When you do your work right, see that somebody else don't-spoil it before it gets to the warehouse. Help the superintendent. He is busy, has all he can do. My time is up, but if you want to listen, I will talk some more. Now, the question of the union stamp. I understand these fel- lows have come in and said that we should have the union stamp on our products, that no doubt we might get more busi- ness. First, I want to say to you that the places that are strongly unionized in the United States are the larger cities, such as Chi- cago, New York, St. Louis, Rock Island. Our standard porcelain does not go to the larger cities. It is used in smaller towns like Macomb and even on the farms. So far this year we have sold 2,500,000 knobs for electric fence to go on farms. That is enough to put up 15,000 miles of fence. Do you think the farmer wants to see a union label on the fence? Farmers hate and despise the union label. We have sold some four million bull dog knobs to' be used in small houses in the small towns and in the country. Do you think a union label would help us? I know it would hurt us. We can come on down to ordinary line insulators.' They are sold to Utilities for running lines through the country. I do know they- are not interested in any proposition of that kind: They are having a struggle for their life. They are not buying 114 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD much of anything, but what little they buy, the question of union has never been raised that I know of. There is another product we make, bushings. You know what transformer bushings are. They are sold in the large cities, but so far we have never had a question raised as to union label, or any other kind. These are manufactured and sold to Utilities, but the bushing business is not a large part of our business. Take it as a whole, I think we would lose business by having a Union Label. ' Now,_ in our meeting of a week ago when we met with the representatives of our employees, there were 2 men from the Federation Union, there were 2 from the Porcelain Workers Association, Mr. O'Harra appeared as the attorney for the Porce- lain Workers, Mr. Olds appeared as attorney for the American Federation of Labor and there were 3 directors and my son Henry (Vice-President) and Mr. Roark and Frank Rigg. We talked the literature over there and one of the things I told Olds, speaking of this bunch of literature, I said "There is not one thing you promise our people that they have not had ever since this company was organized." Nobody denied it and you people know you have had it. What do you expect to ac- complish if you went into the union? I don't think you would be accomplishing anything except to raise hell. I can talk to you now. A month ago I could not. If I had, I would have been taken before the labor board. If any of you want to ask any questions, I- will try to answer them. I wish you would. Anything? My life's work is in this plant men and I am here to defend it. I am here to fight for it if necessary. I hope somebody has a question they want to -ask. I have done the talking and now it is your turn. I don't see anything else to talk about. It requires but a casual examination of President Kettron's speech to ohserve that it was composed of a series of attacks upon the claims and purposes of the Union. The temper of this speech was charac- terized by the statement that the Union could offer the employees no advantages which they did not already enjoy and that nothing could be accomplished by'joining the Union "except to raise hell." State- ments contained in the Union's circular were separately discussed and attacked; the statement that wages had been reduced was charac- terized- as a "lie"; the suggestion that a union label on the respondent's products might help business was countered with that statement that farmers, to whom the respondent sold its products "hate and despise the union label," and that such a, label "would hurt us." The right of the employees to engage in collective bargaining was acknowledged ILLINOIS ELECTRIC PORCELAIN COMPANY 115 Lut interpreted as a right merely to present grievances or demands through employee committees. It is to be noted that this speech was delivered but 5 days after the Despondent had granted recognition to the Association. And although the Union was attacked through- out the speech, nowhere is there to be found the slightest expression or implication of hostility to the Association. We find that the speech of Kettron, Sr., delivered to the employees on November 14, 1938, which attacked the Union, disparaged its claims, and questioned its purposes, was reasonably calculated to have, and did have, the effect of discouraging union membership.13 Christ Aemmer testified that in the middle of November 1938 Fore- man Johnson approached him in the plant and stated : "Let me sign you up with the company. Get a release from the A. F.' of L:" Johnson's version of the incident is that he stated to Aemmer, "Why, don't you get a release from the A. F. of L.?" On cross-examination by counsel for the Board, Johnson first explained that he was "just kidding," but finally admitted that his reason for requesting Aemmer to secure a release from the Union was: Because I am loyal to the Company, that is why. From the things I have heard and read in the past, I don't think it would benefit our shop one bit. I think too much of Mr. Kettron, and I am a loyal worker. On November 21, 1938, Gaillard Pendell, an employee, received a call from the Chief of Police of Macomb, Illinois, who told him he had heard that Pendell had theartened, to "get" Kettron, Sr., and advised him to see Kettron, Sr., and straighten the matter out 14 Pendell saw Kettron, Sr., the following day. During the course of the conversation , Kettron, Sr., stated that he had belonged to two unions years ago, that unions did not amount to anything and that the "Union would not be quite the right thing to bring into the plant."- Kettron, Sr., denied that he had spoken about union matters during -this conversation. In view of the derogatory remarks concerning the Union which Kettron, Sr. made to Albert- Pendall a short time after this incident, as related below, we are of the opinion that Kettron's denial is not credible. We find, as did the Trial Examiner, that Kettron, Sr., made the statement concerning the Union as Gaillard 'Pendell testified. "See National Labor-Relations Board v. Elkland Leather Company, Inc , et at, 114 F. (2d) 221 (C C. A. 3), cert. denied 61 S Ct 170 , enf'g Matter of Elbldnd Leather Company, Inc, and 'National Leather Workers ' Association, Local No 37, 8 N L. R B 519; National Labor Relations Board v Chicago Apparatus Company, 116 F ( 2d) 753 (C C A 7), enf'g Matter of Chicago Apparatus Company and Federation of Architects, Engineers, Chemists and Technicians, Local 107, 12 N L R B 1002; Matter of New Era Die Company and International Association of Machvmsts, Lodge 2113 (A F of L ), 19 N L It. B 227 14 During the course of Kettron s speech on November 14, Gaillard Pendell was reported to have said, "We will get the old son-of-a-bitch yet " Both at the hearing and at the time be went to see Kettron, Pendell denied that he had ever made such a statement. 441843-42-vol 31--9 1 116 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 6, 1938, Albert Pendell, a foreman and brother of Gaillard Pendell, was discharged. He called upon Kettron, Sr., the following day and requested reinstatement. During the conversa- tion, Kettron, Sr., said that he had done a lot of worrying, that "this union business was nothing but a bunch of rats out of East St. Louis" who were always starting trouble, and that he did not want to have anything to do with them. Kettron, Sr.'s, version was that he "men- tioned to Mr. Pendell that to these union members that ordinarily the non-union members were known as `rats' and `scabs"' and "that Fred Olds [the Union organizer] was from East St. Louis which, ih my estimation, was the toughest spot in the United States." - We find, as did the Trial Examiner, that the ' statements were made in the manner related by Albert Pendell.15 On December 3, 1938, Albert Pendell, who was then still a foreman, told 'Superintendent Rigg that one Allison, an employee in Pendell's department, had stated that he did not want to do a particular job, and that he had been assigned to other work since he was benefitting neither himself nor the company. According to Pendell, Rigg in- structed him to put Allison back on the original job "and if he don't do it, we will show that A. F. of L. bastard if we can't can him." Rlgg testified that Allison did not want to do the work in question because it was a piece job on which he could not earn as much money as at day work; that Rigg told Pendell that, "everybody else has made money on it, he should be as good as anybody else. If he refuses to do it, just let him go." The plausibility of Pendell's testi- mony in this regard is strengthened by the fact that this incident occurred a short time after a number of the employees who belonged to the Union had been laid off 1c, and after the Union had filed charges with the Board. We accept as true the testimony of Albert Pendell in this respect, as did the Trial Examiner who had an opportunity to both hear the witnesses and observe their demeanor. On January 17, 1939, the Union held a meeting at a hall in down- town Macomb. A number-of the employees who attended the meeting testified that, at various times between 9 and 11: 30 p. in., they saw Superintendent Frank Rigg sitting in his automobile which was parked a short distance from the hall. Garnett Rigg, son of the superintendent and chairman of the grievance committee of the Association, together with the president and two of the committeemen of the Association, also sat in an automobile parked directly opposite the entrance to the hall. In explanation of his presence, Frank Rigg testified that at about 8: 30 on the night in question he drove down- 10 Even if we were to accept Kettron, Sr.'s testimony as the correct interpretation of his statements, it is obvious that his remarks were made for the purpose of discrediting the leadership of the Union and, as such , in themselves constituted an unfan labor practice 10 See Section III C, infra ILLINOIS ELECTRIC PORCELAIN COMPANY 117 town with his wife to attend a theatre; that the theatre and the hall are located in the same block; 17 that he parked his car a short distance above the entrance to the hall; that at 10: 30 p. in. he and his wife left the theatre and entered his automobile, but that due to the cold weather he remained parked for approximately 15 minutes to warm up the motor, that he saw several of the employees leaving the hall; and that he had not known that the Union was holding a meeting that night. The fact that the six union members who testified as to this inci- dent variously stated that they observed Frank Rigg as early as 3 hours before and as late as 45 minutes after the time Rigg himself stated he was present convinces us that so great a discrepancy be- tween their testimony and that of Frank Rigg cannot reasonably be regarded as minor variants or differences of opinion which are normally to be expected in an examination of several witnesses con- cerning the same incident. The cumulative effect of the testimony of the union employees in this instance, coupled with the' fact that both before and after this period Frank Rigg was hostile to and inquisitive concerning the membership of the Union, convinces us that we cannot accept his explanation of his presence in the vicinity of the union meeting place at the time in question. We find', as did the Trial Examiner, that on the evening of January 17, 1939, Frank Rigg engaged in surveillance of the union meeting. We find that the respondent in March and December 1937, in October, November, and December, 1938, and in January 1939, by making the anti-union statements set forth above, by questioning its employees as to membership in the,Union, by urging and warning its employees not to join or remain members of the Union, by attacking the Union, disparaging its claims and questioning its purposes through the speech of the respondent's president, by discrediting the leader- ship of the Union, by the attempts of its supervisory official to secure the withdrawal of employees from the Union, by its surveillance of the Union meeting, and by each of the foregoing and by other acts, interfered with, restrained, and coerced its 'employees in the exercise of the rights guaranteed them in Section 7 of the Act. B. Interference with, domination of, and contribution of support to, the Association In the early part of October 1938, several of the respondent's em- ployees became interested in forming a labor organization affiliated with the American Federation of Labor, herein called the A. F. of L. " Dalton Purdy testified that the hall is 50 or 60 feet off the street corner, and that the theatre is in the next block. - 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 7, 1933, these employees met at the home of Kerman Kepler. Don Kroider, secretary-treasurer, of the Central Trades and Labor Union of Macomb, was invited to attend this meeting for the purpose of instructing the employees about-organizing a union. On October 10, 1938, a group of employees composed of John Gates, Benny Bartlett, Harold Taylor, Charles Croxton, and Wayne Morris met at the latter's home. Kroider- was also present at this meeting, as well as Fred Olds, a general representative of the A. F. of L. Dalton Purdy, Benny Bartlett, John Gates, and Harold Taylor were, elected temporary officers. An application committee was formed composed of Wayne Morris and Charles Croxton. On the following day, another meeting was held at the home of Meredith Huston, an employee, and a number of the employees present signed application- cards. Between October 10 and 20, the Union conducted an organisa- tional campaign among the respondent's employees. On October 13, 1938, Dalton Purdy, Harold Taylor, John Gates, Mitchell Burkhardt, Gaillard Pendell, Wayne Morris, and Benny Bartlett made applica-, tion for a charter. The Union was granted a charter by the A. F. of L. on October 20. Between October 17 and 25, the respondent laid off 10 union members including 3 union officers."' On October 25 Olds, accompanied by the union officers, went to the respondent's plant where they spoke to Charles Kettron, Jr., son of the president, and requested him to rein- state the laid-off employees. Kettron, Jr., replied that he had no authority in the matter and that his father was out of the city. On October 28, Fred Olds and Don Kroider went to the plant and spoke to Henry Kettron, vice president of the respondent. They de- manded the reinstatement of the employees who had been laid 'off and asked that the Union he recognized as exclusive bargaining agent of the employees. Henry Kettron stated that a meeting of the Board of Directors of the respondent would be necessary to discuss the recogni- tion demand and such a meeting was tentatively scheduled for November 8. On the same day, October 28, Tom Ebey, Adolphus Hare and two other employees approached E. D. Grigsby, attorney for the re- spondent, and requested him to prepare a set of bylaws and a constitu- tion for an unaffiliated union.20 Grigsby declined to represent them, explaining that he was counsel for the respondent. These employees testified that they were unaware of this fact when they approached ' These lay-offs are discussed more fully in Section III C, below 10 At the hearing there was a conflict of testimony as to whether or not Hare was a fore- man. He had admittedly been with the Company some 25 years and had been a friend of Charles W. Kettron , Sr., the respondent's president , for a longer period , 20 Although Ebey testified that he had thought of forming an organization at an earlier date and had discussed it with several employees , this ,was the first affirmative constructive act towards the formation of the Association, ILLINOIS ELECTRIC PORCELAIN COMPANY 119 Grigsby. However, he recommended several other attorneys, one of whom, Roswell O'Harra, was retained as attorney for the Association that day. - The Association immediately conducted an intensive campaign to enlist members. From October 28 to November 9, the day the respond- ent granted exclusive recognition to the Association, and thereafter, supervisors and employees actively solicited members for the Associa- tion during working hours in the plant. Hare testified that he alone signed up 50 or more employees, and although he stated that he had not asked for or received permission to do so, he admitted that he had never been reprimanded by the management or warned to cease such activities. The extent of the Association's activities is shown by the fact that 59 employees were enrolled as members on October 28 and 29 alone. Nearly all of this solicitation occurred in the plant during working hours. While Adolphus Hare, Tom Ebey, and Clifford Edwards were among the most active employees working on behalf of the Association, mem- bers of the respondent's supervisory staff also engaged in solicitation. Meredith Huston, an employee, testified that Johnson asked him if he had joined the Association and said, "Well, either you join or else." Johnson testified that he did not recall this incident. In view of Johnson's other activities, set forth in Section III A, above, we credit Huston's testimony, as did the Trial Examiner. We have alluded above to Christ Aemmer's testimony that Johnson requested him to withdraw from the Union and "sign up with the company." Ivan Hughban'ks, an employee, testified that Walter Lemmer, who occasion- ally acted as assistant foreman in the kiln department, asked Hugh- banks to withdraw from the A. F. of L. Garnett Rigg, son of the superintendent, admitted that he had asked other employees to resign from the Union. Charles Croxton, an employee, testified that Fore- man Hollenback said that if the Union succeeded in organizing the plant it would probably shut down and that the Association was being formed for the sole purpose of keeping out the Union. Hollenback admitted that he had talked to Croxton about the Union. We find that Hollenback made the statements attributed to him by Croxton. Harold Taylor, an employee, testified that Dyson Lovell left his work for periods of a half-hour or an hour and solicited throughout the plant. These activities on the part of Lovell occurred but 3 or 4 days after he had 'been relieved of his position as foreman in the glaze department. The respondent argues that both the Union and the Association solicited members on company time and property. The record shows, however, that the instances of solicitation by the Union were insig- nificant in number when compared with similar activities of the Asso- 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciation. The record further shows that the employees, whom the re- spondent observed soliciting for the Union were warned to cease such activities while employees who solicited for the Association received no such warnings until after-the Association was ,granted recogni- tion by the respondent. In this connection, it is significant to note that the respondent did not post notices prohibiting solicitation in the plant until November 9, the day exclusive recognition was granted to the Association. The notices, bearing the signatures of the respondent's president, vice president, and superintendent, read as follows : TO ALL EMPLOYEES PLEASE TAKE NOTICE THAT THE ELECTRIC PORCELAIN WORKERS OF MACOMB, ILLINOIS HAS BEEN RECOG- NIZED AS THE EXCLUSIVE BARGAINING AGENT FOR ALL OF THE EMPLOYEES OF THIS COMPANY. ALL GRIEVANCES MUST BE SUBMITTED TO THE GRIEV- ANCE COMMITTEE OF THIS ASSOCIATION. UNION ACTIVITIES OF ANY ORGANIZATION MUST NOT BE CARRIED ON IN THE PLANT DURING WORKING HOURS. INTIMIDATION AND COERCION OF EMPLOYEES WILL NOT I BE TOLERATED. WE ASK FOR THE COOPERATION OF ALL EMPLOYEES IN ORDER'THAT THE BUSINESS OF THE COMPANY MAY BE HANDLED IN THE BEST POSSIBLE WAY AND IN THAT WAY INCREASE EMPLOYMENT. The-restriction in these notices requiring submission of all griev- ances to the Association in itself contravened the express terms of Section 9 (a) of the Act, and also constituted support to the Associa- tion contrary to the prohibitions of Section 8 (2), as well as inter- ference with and restraint upon the rights of the employees in viola- tion of Section 8 (1).21 The Association held its first meeting on the night of November 1. A notice of this meeting appeared on the bulletin board in the respondent's plant that day. Tom Ebey, Roy Snyder, and Adolphus Hare were elected to serve temporary terms as president, vice presi- dent, and secretary-treasurer, respectively, of the Association.22 A General Committee was also elected, composed of Garnett- Rigg, son of the'superintendent, as chairman, and Hartly Arnett, Dyson Lovell, 21 Cf. Elkland Leather Company v. National Labor Relations 'Board, 114 F. (2d) 221 (C. C. A. 3), cert. denied 61 S. Ct. 170 , enf'g Matter of Elkland Leather Company, Inc. and National Leather Workers Association, Local No 37, 8 N. L. R. B. 519. 21 At a later meeting, the same officers were again elected for regular terms. ILLINOIS ELECTRIC PORCELAIN COMPANY 121 Walter Lemmer, Clifford' Edwards, George Arnold, Francis Snyder, and James Eddington, as members. Lemmer occasionally acted as an assistant foreman, and Lovell had been a foreman until October 25, 1938; Clifford Edwards had also been a foreman from 1935 to March 1937. O'Harra addressed the group, and 'bylaws and a con- stitution were adopted. Among other things, the bylaws provided that only employees could be officers of the Association, that collec- tive bargaining was to be conducted only for and on behalf of its members'23 that the Association should not be affiliated with any other group or organization, and that the General Committee was empow- ered, in its discretion, to enter into a contract with the employer without securing approval of its terms from the membership at large. The bylaws contained no provision barring foremen, or other superivsory employees from joining the Association, although Hare testified that foremen would not be eligible for membership. Several witnesses, including the officers of the Association, testi- fied that the Association was formed because "the employees were satisfied with their jobs"; "if A. F. of L. got in, plant, would shut down"; "if it got recognition Union could not"; and because "they were trying to keep the A. F. of L. out." This testimony was uncontradicted and we accept it as true. On November 1 the respondent wrote to Olds stating that Novem- ber 8 was Election Day in Macomb and that the tentatively sched- uled meeting of the Board of Directors would be held on November 3 in the offices of the respondent. On November 2, O'Harra called Mr. E. D. Grigsby, attorney for the respondent, and notified him that the Association had been formed the previous evening and that he was sending a letter to that effect, as well as a demand for exclusive recognition signed by Tom Ebey, to the respondent. The respondent received these communica- tions on November 3. On November 2, before the respondent had received any official notice of the existence of the Association or of its demands, the respondent's president wrote to O'Harra as follows : We understand that you are the attorney for a group of our employees for forming an organization which will be presented to our Company for approval as bargaining agent for our employees. This is to advise that a meeting of our Directors will be held at the office of this Company on Wednesday, November 9, 1938, at 4 o'clock p. in. for the purpose of deciding on recognition of an organization as the bargaining agent for our employees. Hare testified that the Association would be expected to bargain for its own members and not for anyone else. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD You will be permitted to represent your organization and have two of our employee members in attendance. . You will be requested at this Director's meeting to submit cards bearing signatures of our employees who have joined this organization also bearing the date of their signature; or a, sub- scription list bearing signatures and, dates of signing of our employees; also, a statement by two officials of your,organiza- tion certified before a notary public stating that this list is a true list of our employees who have joined your organization and that the dates of their signing as given are correct. On November 3 the respondent sent Olds a letter identical with that, set out above with the exception of the first paragraph.24 On November 9 a meeting of the Board of Directors was held as scheduled. Fred Olds, Don Kroider, and Dalton Purdy appeared as representatives of the Union. Kettron, Sr., in accordance with the condition imposed in his letter of November 2, objected to the presence of Kroider because he was not an employee of the respondent. Kroider accordingly retired and John Gates, an em- ployee, took his place. Kettron, Sr., called the meeting to order and' announced that it had,-been called for the purpose of deciding on recognition of an organization to be known as "The Bargaining Agent" for the respondent's employees. The Association tendered its membership cards according to the request of the respondent, dated November 2. Although Olds claimed that the Union repre- sented a majority he refused to submit the union membership appli- cation cards on the ground that the respondent had already laid off or discharged all but one of the union officers and that the Union feared further reprisals. Olds requested that a consent election under the auspices of the Board be held to determine the exclusive bargaining representative. The Association and the respondent ob- jected to this procedure, whereupon Olds offered to submit the union membership application cards to a representative of the Board for the purpose of checking them against the respondent's pay roll. After several requests by the respondent for the union membership application cards and Olds' insistence upon an election or a check by a representative of the Board, the respondent stated that it would accept the cards proffered by the Association and check them against the pay roll. The union representatives thereupon -withdrew from the meeting and after d check of the Association's cards against the respondent's pay roll, the Board of Directors unanimously voted to recognize the Association as the sole bargaining agent for the employees of the respondent. 84 Olds denied having received this letter. The letter was sent to his address in East St. Louis, Illinois. At the time, Olds was in Macomb. ILLINOIS ELECTRIC PORCELAIN COMPANY 123 On November 12 a committee from the Association, including Garnett Rigg, son of the superintendent, met with Kettron, Sr., and requested that members of the Association be given preference in the distribution of work in the plant. Garnett Rigg testified that when the Association's committee retired ,from this meeting, it was its understanding that the Association's members were to have such preference. Shortly after this meeting Garnett Rigg mentioned this concession to his father, Frank Rigg, who told him that the com- mittee must have misunderstood Kettron, Sr. On November 19 the committee again met with the respondent and Henry Kettron, who was present at this meeting, stated that it was impossible to grant the preference "as it was against the law." Shortly after the meeting of November 12, Frank Rigg, at the instruction of Kettron, Sr.," distributed departmental seniority lists to the various foremen in the plant. - John Broshear,, a foreman, testified that Dyson Lovell, an employee, checked all the members of the Associa- tion on the list given to him by Frank Rigg and informed Broshear that if he did not follow the list he would probably be discharged. Albert Pendell, then a foreman, testified that he asked Paul Wil- liams, Pendell's co-foreman in the department, about the seniority list and that Williams stated it was his understanding that the men who belonged to the "shop union" were to be given preference according to their seniority and if any work remained it was to be. divided among the other employees. Williams did not deny Pendell's testimony in this respect. Pendell further testified that James Eddington, an employee, asked Pendell why an employee who was not a member of the Association was working when mem- bers of the Association were not, and stated "that was not the ar- rangement that was made at the office, they were supposed to try to discourage the men in some way and beat them out if they wanted to beat them out." Eddington denied this testimony. While the testimony of Pendell and Eddington is in direct conflict, the exist- ence of the above evidence in regard to the meeting of November 12 and the undenied testimony of Pendell with respect to the statement of Williams leads us to the conclusion that Eddington made the statements attributed to him 'by Pendell. We find that on November 12 the respondent agreed to give preference to mem- bers of the Association in the distribution of work and that on, November 19 the respondent revoked the agreement. We have referred above to Kettron, Sr.'s speech to the employees on November 14 in which the respondent made clear to the em- ployees the kind of organization which it desired. The respondent, it will be recalled, stated that the employees would accomplish nothing "except to raise hell" by their membership in the Union, 124 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD proceeded to discuss individually the claims made in the literature distributed to the employees by the Union, and attempted to dis- credit these claims. It is to be noted that this speech did not express or imply any hostility toward the Association. On December 5 the Association requested the respondent to enter into a closed-shop contract with it. Apparently no action was ever taken on this demand. On December 28, the Association presented a contract which provided that the Association was recognized as the exclusive bargaining agency of the employees; that the same schedule of wages and hours then existing should be maintained ; that changes in working conditions might be made from time to time with the consent of the president of the Association; that the Company should have the right to fix rates of pay for new types of work for an experimental period, subject to modification after' conference with representatives of the Association ; that the Com- pany agreed to obey all Federal and State minimum wage, and maximum hour laws; that the Association agreed "not to do any- thing to interfere with the orderly working of the plant and that it will in no event interfere with the duties of watchman, [sic] maintenance men or firemen but shall have the privilege of con- tracting as to rates of pay and working conditions for such employ- ees." The contract was to remain in effect until December 31, 1939. No provision was made for its renewal. This contract was immedi- ately signed by C. W. Kettron, Sr., president of the respondent. Although it was the first and only contract presented by the Associ- ation, no negotiations of any kind preceeded its execution. On January 20, 1939, a meeting of the Board of Directors of the respondent was held in the plant. The Association and the Union were represented at this meeting. The Union reiterated its offer to prove that it had a "clear cut majority" and stated that it wished to present a contract. The respondent took the position that the Association represented a majority on November 9, 1938, and that its contract with the Association precluded any further discussion of the matter. _ On . February 17, 1939, a meeting was held in the respondent's plant. This meeting was called by Kettron, Sr., who stated that he wanted to "get the t'rouble' settled." The Union, the respondent, the Association, and the Brotherhood 25 were represented at this meeting. Olds 26 testified that Kettron, Sr., stated at this meeting 15 It will be recalled that the Brotherhood, also affiliated with the A F. of L, had unsuc- cessfully attempted to organize the employees of the respondent in March 1937. See Sec- tion III A, supra. . 20 The respondent has excepted to the ruling of the Trial Examiner striking from the record an offer of proof which counsel for the respondent attempted to make with respect to Olds. It is not necessary for us to pass upon this ruling of the Trial Examiner, how- ever, since we have not relied upon the testimony of Olds in making any of our findings ILLINOIS ELECTRIC PORCELAIN COMPANY 125 that he was willing to sign an agreement with the Brotherhood if the union officers would resign and that the respondent would have the Association's officers resign, and that Tom Ebey, president of the Association, assented to this proposal. Olds stated that he had no authority to ask the officers of the union to resign. Olds further testified that Kettron, Sr., stated that when the respondent recognized the Brotherhood an election of officers would then be held and added, "Of course, they would have to be acceptable to me." Tom Ebey first testified that Kettron, Sr., had stated that the new officers would have to be acceptable to him, but later changed his testimony and declared that Kettron, Sr., did not say that 'but did say that "they would have to recognize the new organization;" Kettron, Sr. admitted that he had made such a proposal but denied that he had said that the officers would have to be acceptable to him and testified that he stated that "they would have to be .men I could do business with." Accepting Kettron, Sr.'s testimony as the true version of his statement, it is clear that his proposal and the state- ment which he testified he made constituted interference with self 'organization of the employees in violation of - the Act. From the foregoing facts, and upon the basis of the entire record, it is clear that the respondent interfered with the formation and administration of the Association and contributed support to it in a manner and to an extent prohibited by the Act. We have noted in Section III A, above, that at the time the Union instituted its organizational campaign in October 1938, Superintend- ent Rigg and Foremen Johnson and Hollenback variously questioned and warned employees about their union affiliation and activities. The respondent, through these supervisory employees, thus mani- fested its desire to discourage the formation 6f an outside labor or- ganization. In the words of Frank Rigg, the employees were given to understand that efforts to organize freely and independently "wouldn't do you any good." These expressions of the respondent's hostility toward the Union were given added emphasis by the dis- charge of nearly all of the Union's officers and a number, of its members. That the respondent's attitude was not misunderstood by the employees is shown by the explanations they offered for initiating the Association. In substance, these explanations found uniform expression in the statement that "they were trying to, keep the A. F. of L. out;" and the reason these employees had for keeping the Union "out" was that, if it succeeded in its efforts to organize, the "plant would shut down." No overt action was, taken by the group active in the formation of the Association until after the respondent had attempted to defeat with respect to the unfair labor practices alleged in the coniplaint , 'and the respondent could not therefore be prejudiced by such ruling in any event. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the efforts of the Union to organize, had laid off a number of union members and officers, and had received the Union's demands. It is worthy of note that the employees did not hesitate to initiate the Association, and that their fears of a shut-down or other retribu- tory action on the part of the respondent extended only to the suc- cessful appearance of the Union as an outside labor organization. 27 This attitude exactly coincided with that of the respondent, as Ket- tron's speech on November 14, revealed. Throughout that speech, Kettron attacked the purposes and claims of the Union. In sub- stance, he drove home his point that the achievement of the Union would be to "come in here and raise hell." At no point during the course of this speech, however, did Kettron, Sr., express or imply disappro- bation of the Association. Indeed, it will be recalled, he signified his approval of having a committee of employees who could "come in the office and talk things over." But the respondent's efforts to defeat' and discourage membership in the Union and to direct the desire of the employees for some form of organization into channels more to the respondent's liking did not stop with the foregoing activities, which resulted in the initiation of the Association. Supervisory employees both aided and permitted active solicitation on behalf of the Association during working hours, and not until the day the Association was granted recognition was any notice posted prohibiting such activities.28 But even after such notices were posted, representatives of the management continued to solicit members for the Association and continued to disparage the Union and its leaders and discourage union membership. As we have found in Section III A, above,,in the middle of November 1938 2'' See National Labor Relations Board v. Lank-Belt Company, et al , 311 U . S 584, enf'g Hatter of Link-Belt Company and- Lodge 1604 of Amalgamated Association of Iron, Steel and Tin Workers of North America, through the Steel Workers Organizing Committee, affil- sated with the Committee for Industrial organization, 12 N. L R. B. 854 , and rev'g Link- Belt Company, et al. v. National Labor Relations Board, 110 F. ( 2d) 506 (C. C. A. 7), where the Supreme Court of the United States, in upholding a finding of the Board that an employer- had dominated a labor organization in violation of the Act, said : The employer 's attitude towards an "outside" union coupled with the discharge of Salmons and Novak for activities on behalf of the Amalgamated would tend to have as potent effect as direct statements to the employees that they could not afford to risk selection of the Amalgamated. See also Matter of Crawford Manufacturing Company and Textile Workers Organizing Committee, 8 N. L R. B. 1237 ; Matter of Texas Mining & Smelting Company and Inter- national Union of Mine, Mill and Smelter Workers, Local No . 412, 13 N. L. R. B. 1163, enf'd as modified in other respects , January 4 , 1941 (C. C. A. 5) ; Matter of Gutmann & Company and National Leather Workers Association, Local 43, 18 N L R B 64 28 See National Labor Relations Board v. Belt-Link Company, et al., 311 U. S. 584, enf'g Matter of Link-Belt Company and Lodge 1604 of Amalgamated Association of Iron, Steel and Tin Workers of North America, through the Steel Workers Organizing Committee, affil- iated with the Committee for Industrial Organization , 12 N. L. R B 854, and rev'g Link- Belt Company, at at. v. National Labor Relations Board, 110 F. (2d) 506 ( C. C. A. 7) ; ' Matter of McGoldrick Lumber Company, a corporation ; Industrial Employees' Union, Inc., a corporation ; and Industrial Employees' Union, Inc., Local No. 76, District 9, et al. and Lumber and sawmill Workers Union, Local No., 2552, et al., 19, N. L. R. B. 887. ILLINOIS ELECTRIC PORCELAIN COMPANY 127 Foreman Johnson solicited Christ Aemmer to withdraw from the Union and join the Association; in the latter part of the same month, Kettron, Sr., told Gaillard Pendell that unions did not amount to any- thing and that the "Union would not be quite the right thing to bring into the plant;" on December 6, during the course of a conversation between Kettron, Sr., and Albert Pendell, Kettron, Sr., stated that "this union business was nothing but a bunch of rats out of East St. Louis"; on December 3, Superintendent Rigg instructed Albert Pendell to reassign an employee to work the employee did not want to do and accompanied this instruction with the statement, "and if he don't do it, we will show that A. F. of L. bastard if we can't can him"; and on January 17, 1939, Superintendent Rigg engaged in surveillance of a meeting of the Union. The respondent's position with respect to the Association is further indicated by the circumstances of the meeting of November 9. Kett- ron's letter of November 2 informing the Union and the Association of this meeting limited the union representatives who would be per- mitted to attend to Olds and two employees. When Olds-and Kroider, neither of whom were employees, appeared, Kroider. was requested to leave.2" Notwithstanding the claim of the Union that it represented a majority, and despite its request that an election be held under the Board's supervision, the respondent, over the protest of the Union, conducted a check of the membership application cards of the Associa- tion and promptly granted it exclusive recognition. Further, the respondent, though it later reconsidered its decision, granted preference in work to members of the Association, a potent and effective means of support. And although llie respondent ap parently refused to accede to the Association's demand for a closed- shop contract, it did not hesitate to sign immediately the first written contract, without such a clause, which the association presented. The signing of this contract was neither preceded by any negotiations between the respondent and the Association nor accompanied by any discussion of its terms. The impotence and subservience of the Association as a representa- tive,of the employees is strikingly illustrated by the role it played 20 Placing a limitation upon representatives of the employees with whom the employer gull confer by requiring that such representatives must themselves be employees in itself constitutes interference with the rights of employees guaranteed in the Act. See,Matter of Iansteel Metallurgical Corporation and Amalgamated Association of Iron, Steel and Tin Tl'oikers of North America, Local 66, 5 N. L R B 930 , enf'd as modified in other respects, National Laboi Relations Board v. Fansteel Metallurgical Corporation, 306 U S 240, rei'g in part and aff'g as modified Fansteel Metallurgical Corporation v National Labor Relations L'oaid, 98 F (2d) 375 (C. C. A 7) ; Matter of National New York Pacl, ing'if Shipping Company, Inc and Ladies Apparel Shipping Clerks Union, Local No. 19953, 1 N L R. B. 1009, enf'd National Labor Relations Board v National New Yovh Packing and Shipping Company, Inc , 86 F (2d) 98 (C C. A 2) ; Matter of Crossett Lumber Company and United Brotherhood of Caipenters and Joiners of America , Lumber and Sawmill TPoikers Union, Local 2590, 8 N. L. R B. 440. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the meeting of February 17. , When Kettron, Sr., at that meet- ing, proposed that the officers of the Union and the Association resign for the purpose of being superseded by the Brotherhood upon an election of officers who would be "acceptable" to Kettron, Sr., Tom Ebey, president of the Association, assented to the proposal without protest, although the apparent effect of such an arrangement would be a dismemberment and dissolution of the Association. We find that the respondent dominated and interfered with the formation and administration of the Association and contributed support thereto and that by such acts, by the contract with the Asso- ciation, and by the other statements and activities set forth above, in- terfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. C. Discrimination with respect to hire and tenure of employment The amended complaint alleged that the respondent discrimina- torily laid off or discharged 12 employees because of their member- ship in and activity on behalf of the Union and 1 employee for the ;.ame reason and for the additional reason that he gave. testimony under the Act. Eleven employees were laid off between October 17 and November ', 1938,30 which coincided with the time the Union had first commenced its organizational activities and the recogni- tion of the Association by the respondent. It is to be noted, as pointed out below, that practically all of these employees were rein- stated shortly after the respondent had recognized the Association .31. Subsequently, three employees, one of whom had previously been laid-off and reinstated,32 were discharged.33 The respondent admit- ted that it had laid off or discharged these employees, but contended that it had done so for cause.34 . 30 Dalton Purdy, Wayne Morris, John Gates, Nell Olson, Herschel Jones, Reiman Kepler, Mary Harding, Nida Purdy , Benny Bartlett, Sarah Aemmer, and Max Olson 31 Of the 11 employees laid off between October 17 and November 7, 1938 , 10 were rein- stated on various dates from November 18, 1938 , to December 13, 1938 Herschel Jones was the only employee in this group who was not reinstated. 32 John Gates. 33 The amended complaint alleged that John Gates , Fred Teel , and Gaillard Pendell were discriminatorily discharged and refused reinstatement on January 4, 1939, March 8, 1939, and March 20, 1939 , respectively. The amended complaint further alleged that Gaillard Pendell had been discharged for the additional reason that he had testified at the hearing. The record shows that Pendell was subsequently offered reinstatement on March 23, and reinstated on March 24 , 1939. 34 The respondent contends that it is merely a coincidence that the employees were laid off shortly after the Union held its first meetings , that other employees in addition to the eteven as to whom complaint has been made in this case were laid off, and that all of the lay-offs were necessitated by a decline in business The respondent points to the fact that from October 1 to November 14, 1938, the employment of 22 persons, including the 11 em- ployees alleged to have been discriminated against, was terminated for various reasons. The employment of 5 of the 11 persons as to whom no complaint has been made, however, was terminated either because they had died , had resigned , or were ill , 3 of the- 6 persons remaining were laid off on or,before October 7 , the date of the first meeting of the Union; ILLINOIS ELECTRIC PORCELAIN COMPANY 129 (1) The lay-offs of October and November 1938 Dalton Purdy, John Gates, Kerman Kepler, and Wayne Morris were employed by the respondent in September 1925, in June 1935, in May 1935, and in July 1935, respectively. Purdy and Gates were president and financial secretary, respectively, of the Union and the first and second meetings of the Union were held at the homes of Kepler and Morris. All four employees were members of the Union, were active in soliciting members in its behalf, and were laid off by the respondent on October 17, 1938. Purdy, Gates, and Morris were among the employees who applied for the Union's charter on October 13: Dalton Purdy and his brother-in-law, Wayne Morris, were both employed in the bushing and insulator department under Foreman Albert Pendell. On October 12, 1938, Pendell was succeeded by Paul Williams as foreman over the men in the department.3i Purdy had and the last 3 persons in this group were laid off at various times from October 17 to Octo- ber 29 . Thus, while only 3 non -union employees were laid off in the period following the effort of the Union to organize , 11 employees who were members of the Union were laid off during the same period In further support of its contention that the lay-offs complained of were occasioned by a 'decline in business , the respondent points to the fact that the employees not only were laid off at different tines but were also, reinstated at valymg dates from November 18 to De- comber 13, 1938 From this the respondent argues that if it were laying off these employees for union activities , varying dates of lay-off might occur , as the respondent learned from time to time of the union affiliation of each employee, but that no such hypothesis can serve to explain the fact that the employees were recalled at different tunes, and that in actuality they were reinstated as business increased This aigument fails to convince us for several reasons Fiist, the mere fact that the respondent had suffered a decline in business would not in itself tend to disprove the allegation that 11 employees had been discriminatorily laid off since the question would still remain whether these employees , rather than others, had been selected because of their union affiliation and activities Secoiid, no necessary correlation exists between the reasons the employees were laid off and the reasons they were reinstated , the fact that they were reinstated pursuant to a legitimate business policy does not necessarily show that the same policy was the operative factor which induced the iespondent to lay them off. Third, the respondent admits in its brief that, although busi- ness did not strictly warrant their recall at that time, some of the employees were rein- stated on December 13, in an effort to settle the dispute with the Union Six of the ten employees reinstated were recalled on December 13 This was after charges had been filed with the Board and various attempts at settlement had been made In National Labor Relations Board v: Vincennes Steel Corporation, January 3, 1941 (C C A 7), enf'g as mod Matter of Vincennes Steel Corporation and International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 585, affiliated with A F. of L, 17 N L. R B 825, the court, on a similar state of facts, said All of these men were reinstated to their positions within from two or three weeks, and the respondent argues that the rehiring of them, with knowledge of their union affiliation, is inconsistent with the idea that they were laid off for such season At first blush there appears to be merit in this contention , but it must be remembered that in the meantime, charges had been filed with the Board against respondent, and some of the men were not reinstated until after a conference between the respondent and a representative of the Board. It is not unieasonable to conclude , therefore , that re- spondent, after charges had been preferred, realized its mistake in laying off the men, and ieuistated then for that reason. Pendell remained foreman over the women, in the department until he was finally dis- charged in December 1938. His discharge is not alleged as an unfair labor practice in this case 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been assistant foreman from January 1937 to August 1938, but was relieved from that position at his own request. As noted above,36 on October 15 Frank Rigg told Purdy that he had heard that Purdy and Morris were the instigators of the Union and warned them that they would merely lose their dues and gain no benefit from their efforts to organize.3' Five days after he became foreman, Williams laid off both Purdy and Morris on the ground that there was a lack of work .311 Not- withstanding this fact, Purdy's testimony that he was working on a 500-piece order at the time he was laid off, and that James Edding- ton, an employee who had been working in another department, was transferred to the bushing and insulator department on the follow- ing day, was not denied. Purely and Morris were the only employees laid off in Williams' department at 'this time. Williams declared that he, and not Rigg, had made the selection. On October 18 Purdy and Morris returned to the plant and spoke to Williams'. Purdy testified that when he asked Williams why he was being laid off when men with less seniority were being retained, Williams replied, "It is above my head; you know I wouldn't do you that way.'' Morris testified that when he asked Williams if there waa going to be any work, Williams answered -that he didn't know, that it was all "over his head." Williams denied that he had made these statements. In view of Rigg's statements to Purdy on October 15, and the' substantial similarity of the testimony of Purdy and Morris, we are of the opinion that Williams' denial is not entitled to credence. John Gates worked in the tube and casting department under Foreman Hollenback at the time Gates was laid off on October 17, 1938. It will be recalled that on October 13 or 14 Hollenback ques- tioned Charles Croxton about the Union and the reasons for its inception.3a Prior to this occasion, Gates had attended the meeting 30 See Section III A, supra. It is worth noting in this respect that Kettron , Sr , expressed the belief that the "trouble" all began in Pendell 's department , and that Pendell was subsequently rehe^ed of his duties as foreman The respondent sought to show that the "trouble" referred to com- plaints of the employees that Pendell was giving preference in employment to men from a town nearby , rather than taking applicants who lived in Macomb However, on cioss- examination by counsel for the Board , Kettron , Sr , admitted that the " trouble" of which he had spoken was "the staiting of the dissatisfaction that led up to it [the Union] " At the hearing, Williams testified that an additional reason for laying off Purdy and Morris was because they were not as cooperative as the other ,employees retained Williams laded to assign any specific examples of uncooperativeness on the part of either Morris or Purdy, other than the fact that lie found it occasionally necessary to argue "to a certain extent" with,Purdy about prices and the further fact that Purdy did not always remain at his work In view of this circumstance , and the `further facts that this reason was not assigned as a cause for the lay-offs at the time they occurred , and that Williams had been m active charge of the department for so short a time , we are not convinced that a lack of cooperation acted - as a motivating cause of the lay-offs of either Purdy or Morris. 39 See Section III A, supra. ILLINOIS ELECTRIC PORCELAIN COMPANY 131 of the Brotherhood in March 1937 at which Foreman Johnson was also present. On the following day, Superintendent Rigg• questioned Gates about what had occurred at this meeting, and during the course of the conversation Rigg declared that organizing a union would only result in the payment of a lot of clues, and that any time Gates was not satisfied he should come to Rigg and present his case to him. - - Gates testified that on the day of his lay. off Hollenback, his fore- man, stated "Well, I'm going to have to lay you off for a few days" and that when lie protested this action because 10 or 12 people in the department with less seniority were being retained, Hollenback re- plied that it was the only thing he could do because if he di'd not lay him off "it would be my neck." Gates further testified that on the following day' when he inquired as to the availability of work, Hollenback stated "at least not until the trouble gets straightened out:" Hollenback's version of this incident was. that when Gates protested his lay-off on the following day Hollenback told him it would be "Iny neck or yours," meaning that he had already reported the lay-off to the office. Hollenback failed to explain why a re- versal of his order would be regarded so seriously; nor did.he deny the statement attributed to him by Gates, to the effect that no further work would be available "until the trouble gets straightened out." We find, as did the Trial Examiner, that Hollenback made these statements as John Gates testified. Kerman Kepler worked in the dry-press department under Dean' McKee as foreman. As previously noted,40 Kepler's interest in union affairs was known to Foreman Johnson at least as early as August 1938 when Johnson saw Kepler reading a newspaper published by the Brotherhood and warned Kepler that it would be "too bad" for him if Kettron, Sr., were to learn of it. Kepler was the only em- ployee in his department to be laid off on October 17, 1938. The reason assigned by the respondent for the lay-off of Kepler was lack of work. Glen. Lowderman, an employee with less seniority than Kepler who had previously been laid off, was recalled to work in McKee's department between the time Kepler was laid off and'the time he was ultimately reinstated. The respondent contended throughout the hearing that it did not follow an established sen- iority policy in the lay-off of employees, and that practice from de- partment to department varied according to the inclinations. of the ,individual foremen. McKee testified that he followed seniority only to the extent that he had to select between two people of equal ability, and that he also considered the economic and marital status of the employees. While employees with less seniority than Kepler were 40 See Section III A, supra 44 134 3-4 2-vol •31--10 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retained in McKee's, department, no showing was made that any of the general considerations testified to by McKee moved him to select Kepler rather than some other employee, nor was any showing made why, according to McKee's standards, Lowderman should have been recalled prion to Kepler. Indeed, when explaining the subse- quent lay-off of Sarah Aemmer, as noted below, McKee stated that he chose her because she had the least seniority in his department. Christ Aemmer testified that on October 18, the day after the above lay-offs, Johnson stated to him, "There will be some more of them get laid off mysteriously." Johnson denied this testimony. In light of Johnson's testimony set out in Section III A, above, we find that he made the statement attributed to him by Christ Aemmer. Gates 41 and Kepler were recalled on December 13; Purdy on December 15; and Morris on November 28. All of-them were work- ing at the time of the hearing. The respondent contended that the four above-named employees were laid off because of lack of work in their respective departments. They all testified that at the time of their lay-offs they were work- ing on orders that were only partially completed. All had high seniority ratings in,their respective departments. In the light of the foregoing, we believe that the respondent's true motive in laying off Dalton Purdy, John Gates, Kerman Kepler, and Wayne Morris was their union affiliation rather than the alleged lack of work. We find, as did the Trial Examiner, that the respondent has discriminated in regard to the hire and tenure of employment of Dalton Purdy, John Gates, Kerman Kepler, and Wayne Morris, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Nida Purdy, wife of Dalton Purdy and sister of Wayne Morris, v^ as employed by the respondent in February 1935. She joined the Lnion on October 12, 1938. On October 24, 1938, she was laid off by Albert Pendell, her foreman, who told her at the time that "work was scarce." She was recalled by Pendell, in compliance with in- structions from Frank Rigg, on December 2, 1938, and resumed her former work. Pendell testified that he laid off Nida Purdy on specific orders of Frank Rigg who told Pendell that the respondent was" "short of business" but that it was not necessary to tell Purdy why she was being laid off. , Rigg admitted that he so instructed Pendell, although i it Gates was subsequently discharged on January 4, 1939 The facts relating to that inci- Oent ai e discussed below ' ° "" ILLINOIS ELECTRIC PORCELAIN COMPANY 133 he had stated several times during his testimony. that the foremen themselves selected the employees to be laid off in their departments. Pendell declared that he had no complaint about Nida Purdy's work '42 that she was the only woman in the department to be laid off at that time, and that women with less seniority were retained. He further testified that he had laid off Nida Purdy on a prior occasion when work was slack; that in December 1938 Rigg asked him the reason for that prior lay-off; that Pendell told Rigg that the reason was because she was married and had a husband in the plant; that Rigg asked, "Are you ,right sure that it was on account of that and it wasn't on account of she was unsatisfactory"; that Pendell an- swered it was not because she was unsatisfactory; and that Rigg thereupon stated that he was going to report it as "unsatisfactory labor.", Pendell stated that shortly after Dalton Purdy had been laid off Rigg told Pendell, "We'll just let these guys stay off and starve them out." Rigg denied having made this statement. In view of the many instances shown in the record in which Rigg expressed and displayed his animosity toward the efforts of the ,employees at self-organization, we find, as did the Trial Examiner, that Rigg made the statement attributed to him by Pendell. The respondent contends, and we find, that the job Nida Purdy was working on was finished at the time she was laid off. In view of the foregoing facts, however, we are of the opinion that the re- spondent's true motive in laying her off washer union affiliation and her close relationship to two active and known members of the union. The respondent failed to explain why Rigg departed from the usual procedure of permitting the foreman of the department to select the employee to be laid off, and in this instance specifically named the individual employee to be affected. Throughout the hearing, and in its briefs, the respondent contended that in the lay-off of employees seniority was qualified by other considerations, among them being the ability of the employee and marital status. Yet no showing was made that the women who were retained and had less seniority than Nida Purdy at the time she was laid off were so retained because they were more capable workers; on the contrary, Pendell testified that he had no complaint about her work, and Rigg himself made no mention of her ability as the reason for his selection. Further, with respect to marital status, it has been noted above that Dalton Purdy, Nida Purdy's husband, was laid off on October 17. Thus, according 43 The respondent introduced evidence that at the time Pendell was instructed to recall Nida Purdy he stated that he "hated to work her' and that "she was the biggest crab among all the women he had " The respondent failed to show, however, that Pendell had communicated his feelings in this respect to Frank Rigg either before or at the time of the lay-off. It is clear that Rigg, and not Pendell, ordered the lay-off and that the order was neither occasioned nor influenced by Pendell's subsequently expressed opinions 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the respondent's own standards , Nida Purdy would not normally have been the employee whom it would choose to lay off. We believe it is not without significance that Nida Purdy was employed in the department where, according to Kettron , Sr., the "trouble started." We find, as did the Trial Examiner, that the respondent has dis- criminated in regard to the hire and tenure of employment of Nida Purdy, thereby discouraging membership in the Union and inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Sarah Ammer was first employed by the respondent in 1918. She had worked in several departments in the plant , as well as in the office, and had assisted in the instruction of other employees. In July 1938 she was transferred from the glaze department to the dry-press department to work on a rush order . On October 25, 1938, she was laid off by Dean McKee , foreman of the dry-press department , and was re- called to work in the glaze department on December 13. She testified that the order she was working on was completed on October 25. She further testified that on the day she was laid off John Broshear,, foreman of the glaze department , approached her and said, " Sally; I want you to work for me"; that she asked, "In the morning?"; and that Broshear replied, "Yes." Broshear in his testimony ex- plained that on October 25 he had been promoted to the position of foreman, as successor to Dyson Lovell; that at noon on that day he jokingly said to Sarah Aemmer, "Well , Sarah, you will have to ,come to work for me now ," meaning thereby that he had been made foreman in 'the department in which she regularly worked. The next morning, Sarah Aemmer reported to Broshear who told her that he could not use her. ' While we are not altogether free of doubt , we are of the opinion that the record , as the Trial Examiner found, does not sustain the allegation that Sarah Aemmer was discriminatorily laid off or dis- charged on October 25. Although Sarah Aemmer joined the Union on October 15, according to her own statement she never solicited other employees to join the Union, or talked to other persons about it. Her husband, Christ Aemmer, was also a member of the Union but was not laid off during this period despite the fact, as above related, that Foreman Johnson knew of his interest in union matters when he spoke to him about the Brotherhood meeting in March 1937, and knew of his membership in the Union when he solicited Aemmer to rescind his membership in November 1938. We find that Sarah Aemmer was not laid off on October 15, 1938, because of her membership in or activities on behalf of the Union. ILLINOIS ELECTRIC PORCELAIN COMPANY 135 Benny Bartlett was employed by the respondent in January 1937 and at the time of his lay-off on October 25, 1938, was employed in the glaze department. Bartlett was vice president of the Union and active in soliciting members for it. Bartlett testified that on October 15 Frank Rigg stated to him, "What is it I hear about this Union? I understand you boys are into it up to your necks . . . Well, as far as I am concerned, I don't care, but I don't think it will ever do you a lot of good." Harold Taylor, treasurer of the Union, was present on this occasion, and substantiated Bartlett's testimony. Although Frank Rigg testified that he had had a conversation with Bartlett and Taylor in October 1938, he did not deny the above testimony, which we accept as true. Bartlett further testified that at approximately 11: 30 a. in. on October 25, Broshear, his foreman, approached him and stated, "I am put on the spot. Rigg told me to lay off Bartlett for a few days." Rigg and Broshear did not allude to this testimony, although they were called as witnesses by the respondent. We find that Broshear made the statements attributed to him by Bartlett. Bartlett was_ recalled to his former position on December 13, 1938. On the following day, Glen Newell, who was a brother-in-law of the superintendent and who had formerly been employed by the respondent, was given employment in Foreman Broshear's department. Newell was assigned to work which paid more than the work which Bartlett himself was doing and to which he felt he was entitled by reason of his longer employment. Upon Bartlett's protest, he also was permitted to perform the type of work which Newell was doing. Only two other employees, Dyson Lovell and 'Harold Taylor, were employed in the department at the time Bartlett was laid off. Of the three, Bartlett was the only unmarried man and while Bartlett testified that there was work to be done at the time he was laid off, he admitted that the employees in the department were working only 4 or 5 hours at that time and that he had no knowledge of the business of the company or the number of orders it then had. We find, as did the Trial Examiner, that there was a lack of work in Broshear's department at the time Bartlett was laid off. Broshear testified that prior to the time he became foreman, he had worked with Lovell and Taylor,, and that he considered Lovell to be a satisfactory worker but that Taylor did not always do his share of work. Broshear made not comment as to Bartlett. While this would seem to indicate that Broshear would have chosen Taylor rather than Bartlett as the employee to be laid off, the choice, as we have indicated above, was made by Rigg and not by Broshear. That the selection was made by Rigg on this occasion is understand- able in view of the fact that Broshear did not become a foreman until 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the very day that Bartlett was laid off. Further, Rigg's statement about the Union which was made on October 15 was directed not only to Bartlett but to Taylor as well, yet Taylor was not laid- off. From the foregoing facts, and upon the basis of the entire record, we find, as did the Trial Examiner, that Benny Bartlett was not laid off on October 25, 1938, because of his membership in or activi- ties on behalf of the Union. Nell Olson, Mary Harding, Max Olson-, and Herschel Jones were employed by the respondent in July 1936, in May 1936, in July 1935, and in January 1937, respectively. Each of. these employees had worked intermittently prior to the dates upon which they were laid off. Although they were members of the Union they were not active on its behalf. Herschel Jones was laid off on October 17, 1938, Nell Olson and Mary Harding on October 18, 1938, and Max Olson on November 7, 1938. Each of them was employed in the tube depart- ment during this period. The respondent contends that they were the last employees hired to help out on a special order late in the summer of 1938 and that they were laid off when the work was, near completion or completed. - Nell Olson and Mary Harding testi- fied that at the time they were laid off the job they were working on was completed. Harding was recalled on November 19, 1938, Max Olson on November 27, 1938, and Nell Olson on December 13, 1938, and they were all working at the time of the hearing. Herschel Jones applied for reinstatement on December 15, but was told by the foreman of his department that instructions had been given to use men from other departments and that there were no openings. Jones was not reinstated up to the time of the hearing. We find, as did the Trial Examiner, that there is insufficient evi- dence to sustain the allegations of the complaint that Nell Olson, Mary Harding, Max Olson, and Herschel Jones were laid off or discharged in violation of Section 8 (3) of the Act. (2) The discharges of John Gates and Fred Teel John Gates -was employed by the respondent in June 1935. As we have found above, he Was discriminatorily laid off on October 17, 1938, and recalled to his former position on December 13, 1938. On January 4, 1939, he was discharged. Shortly after Gates had been recalled on December 13, Bert Badger, his foreman, told him that lie would have to quit talking to other employees. That the "talking" referred to discussion of the Union is apparent since Badger referred to a notice prohibiting such discus- 3 sion, which had been posted in the plant.' 41 See Section III B, sups a ILLINOIS ELECTRIC PORCELAIN COMPANY 137 On January 2, 1939, Gates was transferred to the night shift. He became suddenly ill and left the plant after requesting Ben Rigg, the plant watchman, to notify Gates'_ foreman. No foreman or other su- pervisory employee was in charge of the night shift. Although Badger Was foreman of the department, he regularly left the plant at the end of the 'day shift. The following day, Gates returned to the plant and requested Fred Teel and Rile Harding, employees in the plant, to inform Badger that Gates was ill and would return the following evening if he felt better. Gates testified that on January 4, he reported for work and was told by Badger that he could not use Gates until work "picked up." Badger testified that he told Gates at this time that he had put someone in Gates' place "because there was a rush orde"r." Ben Rigg admitted that Gates had said he was sick when he came to work'and that he looked ill, but Rigg'denied that Gates had asked him to- report his illness; Rigg testified that he did not report to Badger, and Badger stated that he received no report. Rile Harding testified that about noon on January 4, in the presence of Fred Teel, he delivered Gates' message to Badger. Teel corroborated this testi- mony. Badger -testified that he asked Harding about Gates, that Harding said he "guessed Gates just had a bellyache," but that Harding did not say that Gates was sick and would return to work that night if he felt better. Badger could not recall whether Teel was present 'during this conversation. In view of the testimony of Gates, Harding, and Teel and the fact that Badger admitted he had spoken to Harding about Gates, it would not seem reasonable to believe that Harding had not communicated Gates' message to Badger. We credit, in this respect, as did the Trial Examiner, the testimony of Gates, Harding, and Teel. Frank Rigg testified that he spoke to Badger about Gates, absence on January 4; that Badger said he did not know why Gates had failed to appear for work; and that Rigg told Badger to put someone in Gates' place. This conversation occurred during the morning, prior to the time Badger was informed by Harding that Gates had been ill. Although the respondent apparently required some form of notifi- cation from employees who failed to appear for work because of ill- ness, no established method of procedure in such cases was shown. Gates testified that he had not personally notified- Badger because he did not know where Badger might be reached, and Badger admitted that he had never -notified the employees where he lived. Badger fur- ther admitted, on cross-examination by counsel for the Board, that there:was no rule requiring that -lie be notified in case an employee on the night shift became ill. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the respondent contends that Gates was discharged for leaving his job without notifying his superior, it is apparent from the foregoing that Gates was not so informed at the time his services were terminated, non was he informed that the severance was to be regarded as a discharge. The testimony of both 'Gates ,and Badger indicates that his severance at the time was considered merely as a lay-off. Further, the failure to inform Gates of the reason assigned by the respondent for the termination of his employment deprived Gates of an opportunity to explain that he had sought to inform the respondent of his illness. Notwithstanding the fact that Badger had been instructed by Frank Rigg to replace Gates on the morning of January 4, Badger learned shortly afterwards, even if his own testimony were accepted as true, that Gates had been ill; yet Badger made no effort to investigate the truth of this subsequent information or to learn whether Gates had attempted to communicate with the respondent, but instead proceeded to carry out an order which was manifestly unfair in its effect upon Gates if Badger's assumptions were, as we have found them to be, unjustified. Even assuming that Harding did not notify the respondent of Gates' illness, there was no testimony that an infraction of that rule was ever followed by so serious a penalty as discharge. At a conference between the Union and the respondent on January 20, 1930, and at the' hearing, the respondent contended that Gates was discharged, not only for his failure to notify the respondent of his absence from work, but for an "accumulation of things." The re- spondent stated that he had threatened a fellow employee and had been seen by another employee at some distance from the plant during an evening in June 1938 at a time when Gates was supposed to be working. Gates denied that he was employed on the night shift dur- ing June 1938 and the respondent did not produce any evidence to substantiate its contention. Gates also denied that he had ever threatened a fellow employee, and the employee allegedly threatened was inclined to make little of it. We find that, even if Gates did engage in the conduct alleged, his action in so doing was not the operative cause of his discharge but was utilized by the respondent as an afterthought. In light of the discriminatory lay off of Gates on October 17, 1938, the statement of his foreman on January 4, 1939, indicating that he was being laid off rather than-discharged, the failure of his foreman at that time to notify him of the reason, later assigned, for his dis- charge, the subsequent assignment of other reasons by the respondent, the ' failure to give him an opportunity to explain the alleged infraction of the rule, and the seriousness of the penalty in- ILLINOIS ELECTRIC PORCELAIN COMPANY 139 flitted, Nye believe that the `respondent's true motive in discharging John Gates on January 4, 1940, was his union affiliation rather than the alleged infraction of the rule., We find, as did the Trial Examiner, that the respondent has dis- criminated in regard to the hire and tenure of employment of John Gates, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Fred Teel was first'employed by the respondent in May 1936. He was one of the original organizers of the Union which he joined on October 13, 1938. On November 1, 1938, both Clifford Edwards and Dolph Hare solicited Teel to join the Association. Teel refused. On March 7, 1939, Teel was working in the tube department on the noon to 8 p. m. shift. He was heading special over-size tubes. Two other men on the same shift, Harding and Brake, were also heading tubes, but of a different size. One Miller was working an earlier shift and Olson a later shift on the same special tubes which Teel was heading. On March 8, 1939, Teel was discharged by Bert Badger, his,fore- man,,who had been in,tructed by Frank Rigg to have Teel's check ready when he reported for work that day. Teel asked why he was being discharged, and Badger replied. "Well, they found too many tubes 'you threw away." Teel denied that he had discarded useable tubes. He further stated, and Badger admitted at the hearing, that if any such tubes were found it would not be possible to tell w_iose they were. Badger also admitted that he did not try to learn which of 'the three men on the different shifts who were working on these special tubes were responsible for the waste. Frank Rigg testified that on the morning of March 8, Fred Fur- man, foreman of the clay department, notified Rigg that there had been an undue amount of material discarded on the previous day, and that he and Purman examined the material at that time. Later in the, morning, Foreman Badger also examined the discarded tubes. Although Teel had been dischaiged at noon, it was not until 3 o'clock in the afternoon that Rigg conducted a thorough examina- tion by having the wagon in which the waste tubes had been placed unloaded and the tubes tried on the die. - At that- time, Rigg de- termined that approximately one-third of the tubes could have been saved. Rigg called in several employees, all of whom were members of the Association, to assist him in checking the load at that time. As noted above, Badger admitted that it was impossible to deter- mnirte whether Teel or one of the other of the two employees heading these L,ubes on different shifts had been responsible for the waste; 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Rigg admitted that Teel was neither asked for an explanation nor given an opportunity to explain prior to the time he was dis- charged. The respondent contended that there was a great deal of material spoiled in the first part of 1939, that it was attempting to discover the cause, and that when a large quantity of useable tubes was discovered in the wagon used by Teel to discard defective tubes, it immediately discharged him as an example to the other employees. The respondent failed to show, however, that any employee had ever been warned or told of such spoilage. The respondent maintained that Teel was deliberately discarding good tubes. No evidence was introduced to show any motive for such action on T eel's part. On the contrary, it was shown that Teel was a piece-worker and that if he discarded good tubes it would result in a smaller salary for himself. Teel was never apprised of any dissatisfaction with his work and on a prior occasion had been given a letter of recom- mendation by the respondent. We find that the respondent discharged Fred Teel on March 8,, 1939, because of his union affiliation rather than because he had deliberately wasted useable material, as alleged by the respondent. We find, as did the Trial Examiner, that the respondent has dis- criminated in regard to the hire and tenure of employment of Fred Teel, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. (3) The lay-off of Gaillard Pendell Gaillard Pendell was employed by the respondent in 1927 and was working in the glaze department at the time of the hearing. He was one of the original organizers, as well as one of the earliest members, of the Union, which he joined on October 10, 1938. There- after, he solicited other employees to join, and on November 9, 1938, was elected to serve as a trustee of the Union. During the hearing, Pendell was laid off after having testified as a witness for the Board. On March 20. 1939, Pendell started to work at 6: 30 a. m. and worked until 7: 30 a. m. when Broshear, his foreman, laid him off, for an indefinite period of time. On March 21, 1939, Pendell requested a letter, of recommendation from Maurice Roark, production manager of the respondent,' who referred him to Henry Kettron, respondent's vice president. Henry Kettron testi- fied that he refused Pendells' request because "of the character of his testimony." The respondent contended that Pendell was laid off because of lack of work. He was recalled to his former position ILLINOIS ELECTRIC PORCELAIN COMPANY 141 on March 23, 1939, but was unable to return on that day and reported for'work on March 24. It will be recalled, as set out above in Section III A , that Pendell testified at the hearing as to certain statements made to hirer when he called on Kettron, Sr., at the suggestion of the chief of police to "square" himself. In view of the respondent's hostility to the Union and the reasons given to Pendell by Henry Kettron for refusing the letter of recom- mendation , we are convinced that the respondent laid off Pendell because of its desire to punish him for his loyalty to the Union which he had demonstrated by his testimony against the respondent. We find, as did the Trial Examiner , that the respondent , by lay- ing off Gaillard Pendell discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union, and that the respondent laid off Gaillard Pendell because he gave testimony under the Act. We further find that.by the lay-off of Gaillard Pendell, the respondent 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 re- spondent described in Section I above,, have a close , intimate, and substantial relation of trade, traffic , and commerce among the sev- eral States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. The respondent by varying methods has interfered with , restrained,- and coerced its employees in the exercise of the rights guaranteed in Section 7. This course of conduct discloses a purpose to defeat self-organization and its objectives . Because of the respondent's unlawful conduct and its underlying purpose, we are convinced that the unfair labor practices found are persuasively related to the othei unfair labor practices proscribed and that danger of their commis- sion in the future is to be anticipated from the course of the re-' 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's conduct in the past.44 The preventive purpose of the Act will be thwarted unless our order is coextensive with the threat. In order therefore to make effective the interdependent guarantees of Section 7, to prevent a recurrence, of unfair labor practices, and thereby to minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, we will order the respondent to cease and desist from in any manner infringing the rights guaranteed in Section 7 of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the Association, and has contributed support, to it. In order to effectuate the policies of the Act and free the employees of the respondent from such domination and interference, and the effects thereof, which constitute a continu- ing obstacle to the exercise by, the employees, of rights guaranteed them by the Act, we shall order the 'respondent not only to cease and desist from such domination and interference, but also to cease from giving effect, to its contract with the Association and to with- draw all recognition from the Association and completely disestab- lish it as the representative of any of the respondent's employees for the purposes of collective bargaining. We have found that the respondent has engaged in unfair labor practices Eby laying off or discharging Dalton Purdy, John Gates, Kerman Kepler, Fred Teel, Wayne Morris, Nida Purdy, and Gaillard Pendell. Subsequently all of these employees, with the exception of John Gates and Fred Teel were reinstated. We shall order the respondent to make whole Dalton Purdy, Kerman Kepler, Wayne Morris, Nida Purdy, and Gaillard Pendell for any losses of earnings they may have suffered by reason of the discrimination in regard to their hire or tenure of employment,. by payment to each of them of a sum of money equal to the amount which each would have earned as wages during the period from the date of such discrimination to the date of reinstatement, less the net earnings 45 of each, respectively during said period. We have found that the respondent laid off John Gates on October 17, 1938, reinstated him on December 13, 1938, and subsequently dis- n See National Labor Relatwdns Board v -Eapiess Publishing Company, 312 U S 426 45 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R B 440 Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. National Labor Rela- tions Board, 311 U S, 7. ILLINOIS ELECTRIC PORCELAIN COMPANY 143 charged him on'January 4, 1939; we have also found that both the lay-off of John Gates on October 17, 1938, and his discharge on January 4, 1939, were discriminatory . Accordingly, we shall order the respondent to offer John Gates immediate and full reinstatement to his former position without prejudice to his seniority and other rights and privileges and make him whole for any loss of earnings he may have suffered by reason of the respondent 's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the periods: (1) from the date he was laid off on October 17, 1938, to the date he was reinstated on December 13, 1938; and (2) from the date he was discharged on January 4, 1939, to the date of offer of reinstatement, less his net earnings 's during each of such periods. We have found that the respondent by discharging Fred Teel has discriminated in regard to his hire and tenure of employment. We shall therefore order the respondent to offer Fred Teel immediate and full reinstatement to his former position without prejudice to his seniority and other rights and privileges , and to make him whole for any loss of earnings he may have suffered by reason of his discharge by payment to him of a sum of money equal to the amount he nor- mally would have earned as wages from the date of his discharge to the date of the offer of reinstatement less his net earnings " during such period. We have further found that there is insufficient evidence to sustain the allegations - of the complaint that Sarah Aemmer, Nell Olson, Mary Harding, Max Olson , Herschel Jones, and Benny Bartlett were discriminatorily laid off or discharged . Accordingly, we shall dis- miss the complaint in so far as it alleges that these employees were laid off or discharged in violation of the Act. VI. THE QUESTION CONCERNING REPRESENTATION On November 9, 1938, the Union, claiming to represent a majority of the employees, requested the respondent to recognize it as the exclusive representative of the employees. However, on that date, over the protest- of the Union, which- was seeking an election, the respondent recognized the Association. In January 1939 the Union again requested the respondent to recognize it. The respondent re- plied that it had entered into a contract with the Association ' and that it assumed that its employees wished to continue, without change, the contract entered into with the respondent. ae See footnote 45, supra. 44 See footnote 45, supra. I 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have found, in Section III B, above, that the Association is a company-dominated organization. We have further found, in Section IT, above, that in order to effectuate the purposes and policies of the Act it is necessary that the respondent disestablish and with- draw recognition from the Association and cease giving effect to its contract with it. Consequently, the reasons assigned by the respond- ent for declining to meet with the Union do not preclude the existence ,of a question concerning representation. We find that a question has arisen concerning the representation of employees of the respondent. VII. 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 relationship 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 APPROPRIATE UNIT The Union urged that all employees of the respondent, excluding officers, office employees, clerical employees, superintendents, foremen, assistant foremen, watchmen, and salesmen, constitute a unit appro- priate for the purposes of collective bargaining. The respondent stated that it had no objection to this unit. We see no reason for departing from the unit urged and upon which the parties have agreed. We find that all the employees of the respondent, excluding officers, office employees, clerical employees, superintendents, foremen, as- sistant foremen, watchmen, and salesmen, constitute a unit appropri- ate 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. IX. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by means of an election by secret ballot. We shall direct that the employees of the respondent eligible to vote in the election shall be those employees within the appropriate ILLINOIS ELECTRIC PORCELAIN COMPANY 145 unit on the respondent's pay roll next preceding the date of an elec- tion which we shall in the future direct, including those who did not work during such pay-roll period because they were ill or on vaca- tion or because they were temporarily laid off or absent because called for/military service, 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 in '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 per- mit a free choice of representatives unaffected by the respondent's unlawful acts. Upon the basis of the foregoing findings of fact and upon the entire .record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Illinois Electric Porcelain Workers of Macomb, Federal Labor Union No. 21787, and Electric Porcelain Workers' Association of Macomb, Illionis, are labor organizations, within the meaning of Sec- tion 2 (5) of the Act. 2. By dominating and interfering with the administration of Elec- tric Porcelain 'Workers' Association of Macomb, Illinois, and by contributing support to said Association, 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 Dalton Purdy, John Gates, Kerman Kepler, Wayne Morris, Fred Teel, Nida Purdy, and Gaillard Pendell, thereby discouraging membership in the Union, 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 discriminating against Gaillard Pendell because he gave tes- timony under the Act, the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (4) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. The respondent has not discriminated in regard to the hire or tenure of employment-of Sarah Aemmer, Max Olson, Nell Olson, Mary Harding, Herschel Jones, and Benny Bartlett within the mean- ing of Section 8'(3) of the Act. 8. 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. 9. All employees of the respondent, excluding officers, office em- ployees, clerical employees, superintendents, foremen, assistant fore- men, watchmen, and salesmen, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Illinois Electric Porcelain Company, Macomb, Illinois, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Illinois Electric Porcelain Work- ers of Macomb, Federal Labor Union No. 21787, or any other labor organization of its employees, by laying off, discharging, or refusing to reinstate'any of its employees, or by in any other manner discriminat- ing in regard to their hire-or tenure ' of employment or any term or condition of their employment; (b) Dominating or interfering with the administration of Electric Porcelain Workers' Association of Macomb, Illinois, or with the for- mation or administration of any other labor organization of its em- ployees and from contributing support to Electric Porcelain Workers' Association of Macomb, Illinois, or any other labor organization of its employees; (c) Recognizing Electric Porcelain Workers' Association of Ma- comb, Illinois, 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 condi- tions of work; (d) Giving effect to any agreement which it may have with said Electric Porcelain Workers' Association of Macomb, Illinois; (e) In any 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 concerted ILLINOIS ELECTRIC PORCELAIN COMPANY 147 activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Electric Porcelain Workers' As- sociation of Macomb, Illinois, as the representative 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, and completely disestablish said Electric Porcelain Workers' Association of Macomb, Illinois, as such representative; (b) Offer Fred Teel and John Gates immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (c) Make whole Dalton Purdy, Nida Purdy, Wayne Morris, Gaillard Pendell, and Kerman Kepler, for any loss of earnings they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to that which each would normally have earned as wages from the date of the lay-off of each to the date of reinstatement, less the net earnings 48 of each during said period : (d) Make whole John Gates for any loss of earnings he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to that which he nor- mally would have earned as wages during the periods (1) from the date he was laid off on October 17, 1938, to the date he was reinstated on December 13, 1938, and (2) from the date he was dis- charged on January 4, 1939, to the date of offer of reinstatement, less his net earnings 49 during each of such periods ; (e) Make whole Fred Teel for any loss of earnings he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to that which he nor- mally would have earned as wages from the date he was discharged on March 8, 1939, to the date of offer of reinstatement less his net earnings 5° during said period; (f) Immediately post notices in conspicuous places throughout its plant, and maintain such notices for a period of at least sixty (60) consecutive days, stating:' (1) that the respondent "will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), (d), and (e) of this Order; (2) that the respondent will take the affirmative action set forth in para- graphs 2 (a), (b), (c), (d), and (e) of this Order; and (3) that 4E See footnote 45, supra. F9 Idem. so Idem. k 441543-42-vo1..31-11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent's employees are free to become or to remain members of Illinois Electric -Porcelain Workers of- Macomb, Federal Labor Union No. 21787, affiliated with the American Federation of Labor and that the respondent will not discriminate against any employee because of membership or activity in that organization; (g) Notify the Regional Director for the Thirteenth 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 allegations of the amended complaint, 'charging the respondent with engaging in' unfair labor practices, within the meaning of Section 8 ' (3) of the in'-unfair by laying off or discharging Sarah''Aemnier, Nell Olson, Mary Harding, Max Olson, Herschel 'Jones, and Benny Bartlett be, and` they hereby are, dismissed: CHAIRMAN HARRY A. MILLIS took no part in the consideration of the above Decision and Order.