Gerity Whitaker Co.

In the Matter of GERITY WHITAKER COMPANY and GERITY ADRIAN MANUFACTURING CORPORATION and METAL POLISHERS, BUFFERS, PLATERS AND HELPERS INTERNATIONAL UNION, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR and INDEPENDENT FINISHERS AND PLATERS UNION, PARTY TO THE CONTRACT and NATIONAL ASSOCIATION OF DIE CASTING WORKERS, LOCAL No. 26, AFFILIATED WITH THE CON- GRESS OF INDUSTRIAL ORGANIZATIONS, PARTY TO THE CONTRACT. Case No. C-1683.-Decided July 14, 1941 Jurisdiction : metal finishing industry. Unfair Labor Practices Interference, Restraint, and Coercion: removal of bulk of operations to new locations to evade obligations under contract with union ; unlawfully rendering assistance to affiliated organization formed after dissolution of dominated inde- pendent union ; executing closed-shop contracts with dominated and assisted organizations. Company-Dominated Union: employers promoted and assisted the formation of, as an integral part of their scheme to prevent organization activities by charging umoil at plant of original operations-solicitation of membership assisted by supervisory employees-support : immediate entering into an agreement providing for exclusive recognition, closed-shop and check-off, with- out proof of majority ; posting of notice signed by president of, notifying employees that membership in, had become a condition of employment. Discrimination: lay-offs and refusal to reemploy employees who were victims of employer's unlawful removal of operations ; refusal to reinstate laid-off employee because of illegal closed-shop contract with dominated organization ; discharge of an employee because of his membership in and activity on behalf of charging union. Collective Bargaining: (Blissfield plant-plant of original operations) union's majority admitted by employer - refusal to bargain collectively = (Adrian plant-plant of renewed operations) charges of refusal to bargain collectively dismissed since record fails to show that union represented a majority of employees at this plant. Employer by relocation of its business without notice to the union in order to thwart the union and evade its obligation under its contract and the Act, settled unilaterally a fundamental question concerning terms and conditions of employment in which its employees were vitally interested, forestalled collective bargaining, and thereby refused to bargain collectively within the meaning of Section 8 (5) of the Act. Remedial Orders : order to bargain collectively; cease and desist from recogniz- ing assisted affiliated organization as exclusive representative of employees until it is certified by the Board ; closed-shop contract with assisted organiza- tion abrogated ; amount of dues checked off for dissolved dominated organiza- tion ordered reimbursed. Employers who unlawfully removed the bulk of its business to another location ordered at their election to reinstate at either place of operations 33 N. L. R. B., No. 78. 393 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees who were laid off and refused reemployment ; in the event it chooses to employ at the new location to pay to such employees entitled to reinstatement the reasonable expenses entailed in the transportation and moving of such employees and their families. Unit Appropriate for Collective Bargaining : all employees at employer's Toledo plant except those whose duties were of an executive, managerial, technical, or clerical nature ; no controversy as to. Mr. Earl R. Cross, for the Board. Messrs. W. B. Alexander and Clarke W. Baldwin, of Adrian, Mich., for Gerity Adrian. Hall & Devlin, by Mr. William R. Devlin, of Toledo, Ohio, for Gerity Whitaker. Mr. Ray Kelsay, of Cincinnati, Ohio, and Mr. Henry Kaiser, of Washington, D. C., for the Metal Polishers. Messrs. Edward Lamb and Edward T. Chey fitz, of Toledo, Ohio, for the D. C. W. Mr. Harold Weston, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Metal Polishers, Buffers, Platers and Helpers International Union, affiliated with the American Federation of Labor and herein called the Metal Polishers, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint, dated December 29, 1939, against the respond- ents, Gerity Whitaker Company, Toledo, Ohio, herein called Gerity Whitaker, and Gerity Adrian Manufacturing Corporation, Adrian, Michigan, herein called Gerity Adrian, alleging that the respondents had engaged in and were engaging in unfair labor practices affect- ing commerce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing were duly served upon the respondents, the Metal Polishers, Independent Finishers and Platers Union, herein called the Independent, and National Association of Die Casting Workers Local No. 26, herein called the D. C. W. The complaint alleged in substance (1) that in about March 1936, Gerity Whitaker established a branch plant at Blissfield, Michigan, and violated Section 8 (1) of the Act by seeking and obtaining an agreement from the Metal Polishers to refrain from conducting GERITY WHITAKER COMPANY 395 organizational activities at the Blissfield plant; (2) that in about January 1937, Gerity Whitaker formed Gerity Adrian as its agent and alter ego to avoid its obligations under the Act; (3 ) that the respondents dominated and interfered with the formation and ad- ministration of the Independent and contributed financial and other support to it; (4) that on about October 30, 1939, Gerity Adrian caused the Independent to be dissolved , and began to sponsor, foster, and-encourage membership in the D. C. W.; (5 ) that Gerity Adrian thereafter entered into a closed-shop agreement with the D. C. W. and the respondents treated and dealt with the D. C. W. as the ex- clusive representative of the employees of the Gerity Adrian plant, although it did not, at any time, represent a majority of such em- ployees; (6) that Gerity Whitaker discriminated in regard to the hire and tenure of employment of the employees listed in Appendix A because of their membership in the Metal Polishers ; (7) that the respondents discharged or laid off eight employees 1 because of their efforts, as members of the Independent, to free the Independent from the domination of the respondents , and laid off a ninth employee 2 because of his membership in and activities in behalf of the Metal Polishers ; (8) that although the Metal Polishers represented a ma- jority of the employees of Gerity Whitaker in an appropriate unit, Gerity Whitaker refused to bargain collectively with the Metal Polishers ; (9) that although the Metal Polishers also represented a majority of the employees of Gerity Adrian in an appropriate unit, Gerity Adrian refused to bargain collectively with the Metal Polishers ; and (10 ) that the respondents by these and other acts interfered with, restrained, and coerced their employees in the exer- cise of the rights guaranteed in Section 7 of the Act. In their answers, the respondents admitted the essential allegations as to the nature of their businesses, but denied that they had engaged in any unfair labor practices , and interposed several affirmative defenses. Pursuant to notice , a hearing was held in Adrian , Michigan, from February 8 to 17 , 1940, before Thomas S. Wilson, a Trial Examiner duly designated by the Board . The Board , the respondents, the Metal Polishers, and the D. C. W. were represented by counsel and were afforded full opportunity to be heard , to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues. During the hearing the Trial Examiner dismissed the allegation of the complaint that Gerity Adrian had discriminated in regard to the hire and tenure of Joseph Haydo. At the close of the Board's case, counsel for the Board moved to conform the complaint, as to 1 Frank Britt, Arthur Clark , Leo Clark, Joseph Haydo, Alfred Rich , Fred Rich, Cecil Webert, and Donald Webert. 2 Roy heeling 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formal matters, to the proof. No objection was made to this motion and it was granted by the Trial Examiner. At the close of the Board's case, and again at the close of the hearing, the respondents moved to dismiss the complaint. The Trial Examiner reserved rul- ing on the motions to dismiss and denied them in his Intermediate Report. During the course of the hearing the Trial Examiner made rulings on other motions and on objections to the admission of evi- clence. We have reviewed the rulings of the Trial Examiner and, find that no prejudicial errors were committed. The rulings are hereby • affirmed. Thereafter Gerity Whitaker filed a memorandum and Gerity Adrian a brief with the Trial Examiner. On September 20, 1940, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon' the respondents, the Metal Polishers, and the D. C. W. The Trial Examiner found that the respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act, and recommended that they cease and desist from the unfair labor practices and take certain appropriate affirmative action. He recommended further that alle- gations that Gerity Adrian had discriminated against Frank Britt, Leo Clark, Joseph Haydo, Alfred Rich, Fred Rich, Cecil Webert, and Donald Webert be dismissed. On October 17, 1940, the respondents filed their respective excep- tions to the Intermediate Report. On October 21, 1940, the D. C. W. filed its exceptions and supporting memorandum. On November 12, 1940, Gerity Adrian filed a brief in support of its exceptions. On November 2, 1940, Gerity Whitaker filed a motion to reopen the record and receive further evidence. By an order of the Board dated November 28, 1940, this motion was denied. Pursuant to notice duly served upon all parties, a hearing was held before the Board in Washington, D. C., on November 14, 1940, for the purpose of oral argument. The 'respondents, the Metal Polishers, and the D. C. W. were represented by counsel and par- ticipated in the argument. On November 26, 1940, Gerity Whitaker filed a motion for an extension of time in which to file a brief in support of its exceptions. By the aforesaid order of November 28, 1940, this motion was denied. The Board has considered the exceptions of the respondents and the D. C. W. to the Intermediate Report, as well as the briefs and memoranda filed, and except in so far as the exceptions are consistent with the findings, conclusions, and order set forth below, finds no merit in them. GEIRTTY WHITAKERR COMPANY 397 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS Gerity Whitaker Company, an Ohio corporation with its prin- cipal office and place of business at Toledo, Ohio, is engaged in the business of electroplating and metal finishing. In 1936 it purchased raw materials valued at $183,844.22, approximately 90 per cent of which were shipped to it from points outside the State of Ohio. During the same year Gerity Whitaker's sales amounted to almost $290,000, 70 per cent of which represented shipments to States other than Ohio. Gerity Adrian Manufacturing Corporation, a Michigan corpora- tion with its principal office and place of business at Adrian, Mich- igan, is also engaged in the business of electroplating and metal finishing. In 1937 Gerity Adrian purchased raw materials valued at almost $430,000, all of which were transported to it from points outside the State of Michigan. In the same year its finished products were valued at more than $1,000,000, about 30 per cent of which were shipped to States other than Michigan. In their answers the respondents admitted that they were engaged in interstate commerce. Normally, Gerity Whitaker employs about 40 or 50 employees.' Gerity Adrian's staff of employees has increased steadily from 44 in January 1937 to 323 in January 1940. H. THE ORGANIZATIONS INVOLVED Metal Polishers, Buffers, Platers and Helpers International Union is a labor organization affiliated with the American Federation of Labor, herein called the A. F. of L., admitting to membership em- ployees of the respondents. National Association of Die Casting Workers Local No. 26 is a labor organization affiliated with the Congress of Industrial Organ- izations, herein called the C. I. 0., admitting to membership employees of Gerity Adrian. Independent Finishers and Platers Union was an unaffiliated Labor organization admitting to membership employees of Gerity Adrian. 3 As will appear below, the average number of Gerity Whitaker employees dwindled to approximately 17 in 1938, and 7 or 8 in 1939. As many as 130 employees had been employed by Gerity Whitaker in the latter part of 1936 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The opening of the Bliss field plant and the creation of Gerity Adrian; interference, restraint, coercion, and discrimination in regard to hire and tenure of employment In 1922 James Gerity, Sr., who had, over a period of 24 years, operated a small plating shop in Toledo, Ohio, organized, together with two business associates, the Gerity, Whitaker and Nagel Com- pany, an Ohio corporation engaged in metal polishing and electro- plating. During the following 6 years, according to Gerity, he had frequent quarrels with his associates, and finally bought out their interest in the enterprise. By 1928 the company name had been changed to Gerity Whitaker Company, and Gerity, Sr., had become its sole owner, except for four qualifying shares held by his son, James Gerity, Jr., and other members of the Gerity family. In the same year, Gerity, Jr., who had entered his father's employ in about 1924 as a clerk, began to supervise and promote sales of Gerity Whitaker and to handle its labor relations. Gerity, Jr., secured several large accounts and developed the practice of purchasing great quantities of raw castings which Gerity Whitaker plated, finished, and sold, thus modifying substantially its previous custom of plating and finishing on a piece-work basis a relatively small number of castings. When Gerity, Jr., was promoted in 1928, his father and he agreed to divide the profits of the business equally. They continued this practice over the ensuing years. Gerity, Sr., however, still held all the stock in the" company, except for the qualifying shares, and re- fused to comply with his son's request for a redistribution of the stock. The Geritys testified that they had frequent disputes over that matter as well as over purchases of equipment, expenses, and general policy. In 1934 the Metal Polishers began its organizational campaign. On October 21, 1935, Gerity Whitaker entered into a contract with the Metal Polishers covering employment relations and recognizing it as "the organization of its employees." During that same year, according to Gerity, Sr., there was "a big dispute with- the polishers" in the plant. In, March 1936 4 Gerity Whitaker and the Metal Polishers signed another collective bargaining agreement providing, among other things, for exclusive recognition of the Metal Polishers and a wage increase. One month later, in April 1936, a small plating and finishing shop opened in Blissfield, Michigan, with a staff of about eight employees. * George Englert, president of the Metal Polishers, testified , without contradiction, that in 1936 practically all employees of Gerity Whitaker were members of the Metal Polishers. GERITY WHITAKER COMPANY 399 The shop was managed by Gerity, Jr. The complaint alleges and the record clearly reveals that this was but a branch plant of Gerity Whitaker. Machinery was transferred from the Gerity Whitaker plant at Toledo to the Blissfield plant. Records of the Blissfield plant were kept in Gerity Whitaker books at Toledo. Castings ordered by Gerity, Jr., from other companies, were delivered at both the Blissfield and Toledo plants, and were billed to Gerity Whitaker. Quotations of prices for products of the Blissfield plant were made by Gerity, Jr., in the name of Gerity Whitaker and on the latter's stationery. Gerity Whitaker received customers' orders for work performed at the Blissfield plant, and products sold by Gerity, Jr., were manufactured at both Toledo and Blissfield. Checks from customers of the Blissfield plant were made out to the order of Gerity Whitaker. Both plants used Gerity Whitaker sta- tionery and Blissfield employees were paid by check drawn by "Gerity Whitaker Company, Blissfield, Michigan." To operate machinery transferred to Blissfield from the Gerity Whitaker plant at Toledo, non-union employees were hired at rates of pay lower than those prevailing at the Toledo plant. Considering such a move as a distinct threat to the tenure and conditions of em- ployment of its members at Toledo, the Metal. Polishers voted to strike. Representatives of the Metal Polishers informed Gerity, Jr., of the vote, and accused him of hiring non-union employees at rates of pay contrary to the terms and conditions of the existing contract, which contract, they argued, covered employees at Blissfield as well as at Toledo. Gerity, Jr., replied that the Blissfield plant had been opened solely as a threat to a Michigan competitor and in an effort to secure more business. He assured the representatives that under no circumstances would the Blissfield plant be enlarged, and that if the Metal Polishers would not "bother" him at Blissfield, that plant would be no threat to the Toledo plant or to the Metal Polishers. Gerity, Jr.'s, promise allayed the fears of the Metal Polishers and no strike was called. During the ensuing months, however, Gerity Jr., violated his promise not to expand the Blissfield plant, and the records of Gerity Whitaker show that the monthly wages at Blissfield grew steadily from $216.07 in April to $2,336.22 in December 1936. Gerity, Jr., in the beginning of January 1937, moved the Blissfield equipment into larger quarters at Adrian, Mich- igan, and closed the Blissfield plant. Shortly thereafter, on January 15, 1937, about 80 employees were laid off at the Toledo plant, which for the preceding 10 weeks had been employing about three times its normal complement of 30 to 40 employees. With three or four exceptions, employees laid off at Toledo were not offered employment at Adrian, although the 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD latter's staff had grown to 44 by the end of January 1937. Roy Eldridge, an employee who had just been laid off at the Toledo plant, spoke to Gerity, Jr., about a position soon after the Adrian plant had begun operations. During the conversation that followed, Gerity, Jr., stated that he had "started up his own plant," that "it seemed as though it was hard to get along with the Union, and .. . he was going to get away from the Union's interference." Thereafter, Gerity Whitaker machinery was transferred from Toledo directly to the Adrian plant. Gerity, Jr., continued to nego- tiate and sign contracts -in behalf of and in the name of Gerity Whitaker, on Gerity Whitaker stationery. He ordered castings from the Schultz Die Casting Company in Toledo,' which billed Gerity Whitaker for the castings delivered to "Gerity Whitaker Company, Plant B, Adrian, Michigan," as well as for the castings delivered at Toledo, on orders of Gerity, Jr. Both the Adrian and Toledo plants continued to fill orders on the same contracts executed- by Gerity, Jr., on behalf of Gerity Whitaker. These orders were billed by Gerity Whitaker and payment received at either the Toledo or Adrian plants. All records were kept in the Gerity Whitaker books at Toledo. Gerity Whitaker stationery was used at both plants. Adrian employees were paid by checks drawn by "Gerity Whitaker Company, Adrian, Michigan."' Business was conducted in the Adrian plant in the manner recited above until March 5, 1937, when it was incorporated under the laws of- the State of Michigan as Gerity Adrian Manufacturing Corpora- tion. Gerity, Jr., was elected president, Gerity, Sr., vice president, and Attorney Alexander, secretary of the new corporation. Gerity Adrian began using its own stationery the letterheads of which were worded almost identically with those of Gerity Whitaker and in- cluded the same motto, " `Finish'-The Silent Salesman." Gerity, Jr., continued to handle labor relations with employees of the Toledo plant, meeting with their representatives during 1937 and 1938 to consider their grievances. On June 21, 1937, he negotiated and signed on behalf of Gerity Whitaker a new contract with the Metal Polishers, providing for exclusive recognition and a wage increase at the Toledo plant. Until March 8, 1937, the machinery, equipment, and supplies de- livered to Adrian from Gerity Whitaker's Toledo plant were on in- voices which described the addressee as "Gerity Whitaker, Adrian, Michigan." Gerity Adrian opened its own books and the same auditor who audited the Gerity Whitaker books set up the books 5 Both Geritys testified that they were instrumental in the organization of the Schultz Die Casting Company , which is an Ohio corporation Gerity, Sr , had, some financial interest in the firm and became its vice president , while Gerity, Jr., became secretary, which positions they still retain GERITY WHITAKER COMPANY 401 for Gerity Adrian. An inter-company account was set up in the Gerity Whitaker books. As of March 31, 1937, the auditor trans- ferred from the Gerity Whitaker books of account to those of Gerity Adrian the accounts receivable from Buick Motor Company under its contract with Gerity Whitaker and the accounts receivable from Standard Sanitary, amounting in all to $17,743.46; the sales and revenue for January, February, and March, 1937, amounting to $32,461.46; ownership of tools, dies, raw materials, machinery, and equipment, valued at $5,667.73; and the account of Schultz Die Cast- ing Company against Gerity Whitaker in the sum of $34,443.28. As of April 1, 1937, the auditor, treating the cash on hand, cash in bank, accounts receivable, inventories, tools and dies, machinery, equipment, and deferred charges of the Adrian plant as the personal property of Gerity, Jr., and treating the plant's liabilities in like fashion, found the net assets to amount to $10,000. Gerity, Jr., received all 10,000 shares of fully paid Gerity Adrian common stock for the transfer of these assets and liabilities to the new corporation. The Geritys testified that these matters were left entirely to Mul- holland, the auditor. The auditor was not called to explain any of the matters here related.° In the main, only inexperienced men were employed at the Adrian plant, where wages were substantially less than those paid employees at the Toledo plant under the contract in force with the Metal Polishers. Gerity Adrian admittedly knew that practically all ex- perienced polishers and buffers were members of the Metal Polishers. When, on February 26, 1937, representatives of the Metal Polishers accused Gerity, Sr., of operating "a runaway shop" at Adrian and raised the question of reemploying men laid off at Toledo, he assured them that "things would be straightened out." By March 1937, 2 months after the Adrian plant had .begun operations, it had doubled its original force of 44 employees. Nevertheless, none of the many employees who had been laid off at Toledo 2 months before were included in the personnel increases at Adrian. On about March 1, 1937, and again on October 12, 1937, the Metal Polishers voted to strike because of the lay-off of their members at Toledo and what they termed "the threat of the Adrian plant." Gerity, Sr., disposed of the first threat by meeting in the Toledo plant with the Metal Polishers' representatives and assuring them that their constituents would be employed at Adrian before he would "see them unem- ployed." When in October 1937 Gerity, Sr., was notified that an- 9 Although Gerity Whitaker subsequently claimed that Mulholland had not been available during the hearing, no reason was given for Mulholland 's alleged unavailability and when, at the oral argument , counsel for Gerity Whitaker was questioned in that regard, he merely observed that he was told Mulholland had not been available. 402 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD other strike vote had been taken, he requested officers of the Metal Polishers to arrange a conference at the Toledo plant and "to get hold of Ed Ruffin, who is a director or secretary of the Toledo Peace Board," and have him attend. On October .16, the proposed con- ference was held and attended by Ruffin, the two Geritys, and repre- sentatives of the Metal Polishers. An agreement was reached pro- viding for the employment of 13 men at the Toledo plant for 102 working days. Although these men were reinstated, they were not retained for more than 2 months. Englert testified that strikes by the employees. of the Toledo plant were averted only because he con- tinually assured the employees that Gerity, Jr., would be fair and keep his word. Two months later, towards the end of December 1937, wholesale lay-offs began at Toledo. On December 31, 1937, the staff was re- duced from 38 to 8 employees, and never again assumed normal pro- portions, averaging 12 in 1938, 7 in the first 6 months of 1939, and 5 during the remainder of that year. During 1938 Gerity, Jr., con- tinued to meet at the Toledo plant with representatives of the Metal Polishers and to assure them that he would either increase the Toledo staff or employ at Adrian the unemployed workmen of the Toledo plant. Finally on August 14, 1938, when only five employees re- mained at Toledo, Gerity Jr., according to George Englert, the Metal Polishers' president, agreed to employ four of the Toledo employees at Adrian that month and two more men "by the first of September and then as fast as I can use them I will put the rest of them on before I put new employees on." Although he did employ four 7 in August, Gerity, Jr., failed to fulfill the remainder of his alleged promise. Gerity, Jr., admitted that he had agreed to employ four men in August 1938, but denied that he had made any other promises to employ laid-off Toledo workers. On the basis of the entire record, however, and particularly in view of Gerity, Jr.'s, failure to keep his promise not to expand the Blissfield plant, we find, as did the Trial Examiner who had an opportunity to observe the demeanor of the witnesses, that Eliglert's testimony is credible and that Gerity, Jr.'s, denials thereof are not. Aside from these 4 men employed in August 1938, over 18 months after the Adrian plant had been opened, it does not appear that more than 3 or 4 employees laid off at the Toledo plant were employed at the Adrian plant which had increased its staff of employees to 383 by January 1940. We note below that in and after March 1937 Gerity Adrian inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, by anti-union state- ' Hazel and Roy Keeling, Bill Manders , and Arthur Pi ice. GERITY WHITAXER COMPANY 403 ments, by discriminatory lay-offs, by organizing, supporting, and dominating an unaffiliated labor organization, and by assisting the D. C. W. • The complaint alleges and the Trial Examiner found that the re- spondents opened the Blissfield and Adrian plants to eliminate the Metal Polishers and to evade their obligations under the Act. The • respondents maintain that Gerity, Jr., opened them to start his own business. In support of their position, the respondents contend that the Blissfield period and the first 2 months at Adrian were periods of transition during which Gerity, Jr., was permitted the use of his father's facilities purely as a paternal favor. They urge that Gerity, Sr., had been unable to "get along" with business associates in the past, that his relations with his son followed the same pattern, and that the friction that developed between father and son was instrumental in causing the latter to begin his own business. The respondents point to testimony that once before, in 1926, Gerity, Jr., had left his father's plant and conducted his own business for several months. They claim that Gerity, Sr., was intere3ted in run- ning a small business, while the son favored a policy of expansion and that, in line with his policy, Gerity, Jr., developed new accounts and obtained important customers. After the new plants were opened, Gerity, Jr., secured for them more than 400 new customers who had never been served by Gerity Whitaker in Toledo. The record also reveals that only about one-tenth of the machinery used by Gerity Adrian was obtained from the Toledo plant. The -respondents contend further, and the Geritys testified, that the machinery, equipment, and supplies sent to the Blissfield and Adrian plants from Toledo were in payment to Gerity, Jr., for accrued "back salary" owing to him by Gerity Whitaker. Except for their testimony that under Gerity, Jr.'s agreement with his father, he was to receive half the profits of the Gerity Whitaker business in lieu of salary, neither of the Geritys attempted to explain how or when this back salary accrued, nor did they estimate the amount of this alleged indebtedness. Both testified that as with the other financial affairs of the respondents, they relied absolutely on the auditor. Other than these oral statements of the Geritys, the proof of this alleged indebtedness is lacking. The auditor who might have explained these matters, was as already noted, not called as a witness. In view of all the circumstances of the case, including Gerity, Jr.'s, statement in January 1937 that "it seemed as though it was hard to get along with the Union, and ... he was going to get away from the Union's interference," the suspicious circumstances inhering in 450122-42-vol 33-27 404 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD the respondents' treatment of accounts transferred from Gerity Whitaker to Gerity Adrian as property of 'Gerity, Jr.,' the employ- ment at Adrian of new and inexperienced workers at lower pay- instead of the skilled employees laid off at Toledo, the Geritys' manipulation of bargaining relationships to prevent organized action by the employees at Toledo, the intermingling of the business of the Toledo plant with that of the Blissfield plant and, until Gerity Adrian's organization, with that of the Adrian plant, Gerity Jr.'s transaction of business in the name of Gerity Whitaker after the Blissfield and Adrian plants had been opened, Gerity, Jr.'s acquies- cence in negotiations and agreements between the Metal Polishers and Gerity Whitaker concerning the employment of the latter's em- ployees at Adrian, and the unfair labor practices at Adrian, we are satisfied and find that apart from business considerations a sub- stantial cause of the transfer to Blissfield and then to Adrian was the Geritys' plan to thwart the Metal Polishers and to evade Gerity Whitaker's obligations under the contract with the Metal Polishers. and the Act." We find that Gerity Adrian is the alter ego of Gerity Whitaker and that Gerity Whitaker, by the Geritys' opening the Blissfield and Adrian plants and founding and establishing Gerity Adrian, inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. As we have already noted, all but five of the employees at Toledo were terminated, and although operations were transferred to and expanded at Adrian, the Metal Polishers was unsuccessful in its efforts to have the respondents employ many of the persons laid off from the Toledo plant at either Toledo or Adrian. Among the em- ployees thus laid off at Toledo and not reinstated at either Toledo or Adrian are the employees named in the complaint and Appendix A. From the facts already set forth above, it is clear that the em- ployees named in Appendix A were victims of Gerity Whitaker's unlawful campaign to circumvent its contract with the Metal Polish- ers and the Act by transferring its business and equipment from its well-unionized Toledo plant to Adrian. .a Although Gerity Whitaker moved to reopen the record for the purpose of adducing Mulholland's testimony in this connection , it did not advance an adequate explanation for not ha%ing presented this evidence during the hearing or for having failed to file Its motion to reopen sooner, and the Board denied the motion. But even apart from the suspicious circumstances attending the property transfers , we are satisfied , in view of the other circumstances disclosed , that operations were conducted at Blissfield, then at Adrian, in an effort to thwart the Metal Polishers and evade Gerity Whitaker 's obligations under its contract and the Act 9 On the general problem of industry relocation to evade collective labor agreements see . Matter of Isaac Schieber, etc. and United Hatters, Cap and Millinery Workers' Int't Union, etc, 26 N L It B 037 ; Matter of Jacob H. Klotz, et at and Joint Board of Suitcase, Bag & Portfolio Makers' Union, A. F. of L, 13 N. L. R. B 746, 50 Harvard Law Review 700, and 36 Columbia Law Review 776 GERITY WHITAKER COMPANY 405• At the hearing and in its exceptions Gerity Whitaker contended that the complaint should be dismissed as to 16 10 of the 29 employees listed in Appendix A, on the ground that they, were temporary em- ployees and- were not employed until after "the alleged runaway shop was claimed to have been established" at Blissfield. While these 16 employees were not employed until 4 ,or 5 months •after'the Bliss- field shop had been opened, they were all in its employ before and after the Adrian plant had been founded. Obviously, Gerity Whitaker's course of illegal conduct did not cease with the opening of the Blissfield shop but continued to manifest itself in various ways, including the lay-off of the employees named in Appendix A, after the Adrian plant had' begun operations. We find that by terminating the employment of all the employees listed in Appendix A, and by refusing to reemploy them, the re- spondents discriminated in regard to their hire and tenure of em- ployment, thereby discouraging membership in the Metal Polishers and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. `B. Gerity Whitaker's refusal to bargai,& collectively 1. The appropriate unit The complaint alleged, the answers admitted, and we find that all the employees of Gerity Whitaker's Toledo plant, except those whose duties were of an executive, managerial, technical, or clerical nature, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining and that said unit insures to the employees the full benefit of their right to self-organization and to collective bargaining and otherwise effec- tuates the policies of the Act. 2. Representation by the Metal Polishers of a majority in the appropriate unit The complaint alleged and the answers admitted that during all times in question a majority of the employees of Gerity Whitaker within the appropriate unit had designated the Metal Polishers as their representative for the purposes of collective bargaining with Gerity Whitaker. We find that on October 21, 1935, and at all times thereafter, the Metal Polishers was and is the duly designated bargaining repre- sentative of a majority of the employees in the appropriate unit, and that pursuant to Section 9 (a) of the Act, the Metal Polishers 10 These persons are Frank Bykowski, Lucille Clark, Glenn Grable, William Gilbert, Mike Gzik, Harold Hartley, Woodrow Hoover, Gale Jaquillard, Edward Johnson, Harry Johnson, George Kauffman, Joseph Kress, John Martin, -Eldean Morgan, Walter Stable, and Stanley Wesolowski. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was at all such times and now is the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, hours of employment, and other conditions of employment. 3. The refusal to bargain The complaint alleged that on or about January 30, 1937, and thereafter, Gerity Whitaker refused to bargain collectively with the Metal Polishers within the meaning of Section 8 (5) of the Act. We have noted above the circumstances surrounding Gerity Whit- aker's transfer of machinery and operations first to Blissfield and then to Adrian and the other circumstances in respect to the allega- tion that Gerity Whitaker did not fulfill its obligation within Section 8 (5). These circumstances reveal that during the negotiations be- tween representatives of the Metal Polishers and Gerity Whitaker concerning the relocation of its business, the latter concealed its intention to remove the bulk of its operations from Toledo. When, shortly after the Blissfield plant had been opened, representatives of the Metal Polishers advised Gerity, Jr., that the Toledo employees had voted to strike because they considered the transfer; to Bliss- field a threat to their tenure and conditions of employment, Gerity Jr., assured them that under no circumstances would the Blissfield plant be enlarged. During the following months, as we have found, Gerity Jr., proceeded to expand substantially Blissfield's staff and operations. By January 1937, Gerity Whitaker moved the Bliss- field equipment into larger quarters at Adrian where operations were thereafter further expanded. - As set forth above, on October 16, 1937, and again in August 1938, Gerity, Jr.,. agreed to employ certain of the. men laid off at Toledo, but thereafter failed to fulfill his promises. Although the Metal Polishers had made known to Gerity Whitaker its concern with the removal from Toledo and although the removal of business from Toledo plainly went to the very root of the Toledo employees' tenure'and conditions of employment, no notice was given by Gerity Whitaker of the proposed transfer to Adrian and, as we have found above, apart from business reasons, a substantial cause of the transfer was the Gerity's plan to thwart the Metal Polishers and evade Gerity Whitaker's obligations under its contract and the Act. Thus Gerity Whitaker, as part of the unlawful plan, settled unilaterally a fundamental question concerning terms and conditions of employment in which its employees were vitally interested, fore- stalled collective bargaining, and thereby refused to bargain collec- tively within the meaning of Section 8 (5) of the Act" 11 Cf. N. L. R B. v Whittier Mills Company, Salver Lake Company, and Scottdale Mills, Corporatnons,'111 F. ( 2d) 474 C C. A 5; N. L R. B. V Louisville Relining Co., 102 F. (2d) GERITY WHITAKER COMPANY 407 It is true that Gerity Whitaker had a contract with the Metal Polishers at the time of the transfer to Adrian. Its obligation to bargain with the Metal Polishers was, however, a continuing -one, by "virtue of the terms of the contract and the policy and provisions of the Act.12 That obligation was all the more important where the unilateral determination would cut off the tenure of employment of the employees and thereby undermine the contract and the exclusive representative. The removal to Adrian was such a drastic and cru- cial change in Gerity Whitaker's employment conditions that the refusal to bargain inherent in such removal, when presented as an accomplished fact, could not be cured by the bargaining that sub- sequently occurred in regard to the employment at Adrian of some employees laid off at Toledo especially since the Geritys failed to carry out in full the understanding reached in connection with this negotiation. We find that the respondent,'Gerity Whitaker, refused to bargain collectively with the Metal Polishers as the exclusive representative of its employees in an appropriate unit in respect to rates of pay, wages, hours of employment, and other conditions of employment, and that by such refusal interfered with, restrained, and coerced its employees in the exercise of their right to bargain collectively through representatives of their own choosing. C. Interference, restraint, and coercion at the Adrian plant; interfer- ence with, domination of, and support given to the Independent At Adrian, the Metal, Polishers confined their activities to visits to the employees' homes during the early part of 1937 and to two attempts in March of that year to distribute literature outside the plant. Upon the latter two occasions, Gerity, Jr., and Foreman Williamson stood near the organizers and many employees did not accept the circulars. During this period, the respondents began a counter-campaign to control the choice of its employees' representa- tives and to frustrate the Metal Polishers' organizational activities at Adrian. As already noted, members of the Metal Polishers laid off at Toledo, were, with possibly three or four exceptions, not offered employment at Adrian where a large staff was being employed. Roy 678 C . C. A. 6, cert denied 308 U. S. 568; Matter of Dallas Cartage Company and Int'l Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers of America, Local 745, 14 N L. R. B 411. Matter of Isaac Schieber, etc and United Hatters, Cap and Millinery Workers' Intel national Union, etc,, 26 N L It. B 937 ; Matter of Claire Knitting Mills, etc. and Knitgoods Workers International Union, 2 ( old) N L. It. B. 469 . Also see Matter of Edward F. Reichelt, Robert J. Hillard, Russel J. Jensen, doing business as a co- partnership under the name and style of Paul A. Reichelt Co and Chicago Fur Workers Union, Local No. 45, 21 N . L. R. B 262. "See N. L. R B. v. Sands Mfg. Co., 306 U S 332; N L R. B v. Newark Morning Ledger Company, decided April 17, 1941 (C. C A. 3) ; N. L. R. B v Highland Shoe, Inc., decided April 15, 1941 (C. C A. 1) ; Matter of Isaac Schieber, etc. and United Hatters, Cap and Millinery Workers' International Union, 26 N. L It. B. 937. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'Eldridge, one of the Metal Polishers' members laid off at Toledo applied unsuccessfully for work at Adrian in January 1937, and was told by Gerity, Jr., that all positions at Adrian were filled. On April 12, 1937, when Arthur Clark, whose lay-off is hereinbelow discussed was first employed, one Kelly, Gerity Adrian's personnel clerk, asked him if he belonged to any union, and when Clark replied in the negative, Kelly warned him not to do so if he wished to keep his job. About a month later, in May 1937 James McComb, an employee -transferred from the Blissfield plant, summoned the employees to a meeting which took place in the back room of the plant about one- half hour before the end of the working day. Gerity, Jr., Harry Hammond, at that time superintendent of the Adrian plant, and Foreman Williamson attended this meeting. In a brief speech, -Gerity, Jr., told the assembled employees that they would have to organize a union in order to prevent the diversion of orders to some other company. During the meeting, Superintendent Hammond .warned Clark,,who had been a member of the Metal Polishers, to "watch your step, what you say or do, because they [the respondents] don't want any C. I. O. or A. F. of L. in this shop." A few weeks later another meeting was held in the back room of the plant again about one-half hour before the end of the working day. Williamson and Howard Schwab, who had replaced Ham- mond 13 as superintendent, attended this meeting. Schwab intro- duced Frank Poirer, an employee of the Schultz Die Casting Com- pany and an organizer for the Die Casters League, then an un- affiliated labor organization. Poirer told the employees that he had been invited to speak by the management and that it had become necessary for the employees to join the Die Casters League in order to keep work in the shop. At this meeting Poirer succeeded in sign- ing about 80 applicants for membership in the Die Casters League. After the meeting Poirer received a Gerity Adrian check for $160 which, according to Gerity, Jr., represented employees' application fees. Gerity, Jr., also testified that these applicants had signed an assignment of wages for this purpose.'' The money was returned to the Adrian plant when the Die Casters League refused to issue a charter because no die casters were employed at Gerity Adrian. Gerity Adrian also paid Poirer the sum of $40 on May 4, and the sum of $25 on May 28, 1937. Gerity, Jr., testified that those two checks were in the nature of a personal loan to Poirer. There is no evidence that any part of its was ever repaid. '$ Hammond, who did not leave Gerity Adrian 's employ until several months later on October 1, 1937, apparently became "engineer on the installations of new machinery" at about this time i4 This assignment was not produced at the hearing. GERITY WHITAKER COMPANY 409 Sometime later, during the summer of 1937, another meeting was held in the same back room in the plant. McComb, who had been chairman of the Die Casters League, presided. Schwab and Wil- liamson were again in attendance. Superintendent Schwab intro- duced one Hammond,15 the assistant prosecuting attorney of the town of Adrian, who proceeded to inform the employees that he proposed to organize them into an incorporated organization to be called the Independent Polishers and Finishers Union which, he said, could ,make its own bylaws, bargain with Gerity, Jr., and handle its own grievances through shop stewards and grievance committees. The effect of Schwab's introduction of Hammond was to associate him with the management, in the eyes of the employees and we so find. Under the circumstances, therefore, we find the respondents respon- sible for Hammond's statement. At this meeting a motion was made and passed to hold a secret vote to see what organization the em- ployees wished to join. This ballot resulted in approximately 50 votes for the A. F. of L., 16 for the C. I. 0., and 10 for the Independent. The group also voted favorably upon a motion by Clark to invite ,representatives from the A. F. of L. and C. I. 0., as well as Attorney Hammond, to a future meeting to explain the benefits which the various organizations would give the employees before making a definite decision as to which organization to join. A committee was selected to secure representatives from the various organizations to speak. Early the following morning, the invitation committee was called together and informed that the Independent was signing up the employees in the shop. The proposed meeting for the representa- tives of the three groups was never held. McComb and another individual went through the shop calling employees. from their work and signing them to membership in the Independent. This solicita- tion was carried on openly in the presence of both Williamson and Harry Hammond 16 who not only made no objection to this inter- ruption of the work, but went so far as to assist in securing members for the Independent. Williamson counselled Frank Britt, an em- ployee, to join the Independent, while Harry Hammond told Clark, upon the latter's inquiry, that he could either join the Independent or not, but that it would be necessary for him to become a member if he wanted to keep his job as a whael setter. Harry Hammond also, told Clark during this period that "if he were in [his] place, he would forget all about the A. F. of L." Also at about this time, Superin- tendent Schwab advised Fred Rich, an employee, that it would be best to join the Independent as they could "get along,better," that 'b Not to be confused with Harry Hammond, formerly superintendent of Gerity Adrian. 16 See supra, footnote 13 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gerity, Jr., would give more wages, and that the men would "co- operate" with Gerity, Jr.; during the "hard times." On several different occasions during 1937, Williamson asked Rich if he knew "any A. F. of L. or C. I. O. men working in the shop," and upon at least one such occasion, added "We don't want them in here." A few days after the Independent began to solicit membership, a statement written on Gerity Adrian stationery was posted near the time clock in the plant. This notice, signed by McComb who later became president of the Independent, stated that all employees who had not joined the Independent must do so immediately or "the man- agement will be notified to dispense with their services." Thereafter, several men who had not joined bec%me members of the Independent. The Independent was incorporated under the laws of the State of Michigan. Thereafter, on July 26, 1937, Gerity, Jr., executed a contract with the Independent giving the Independent a closed shop, seniority rights, and the check-off. There is no proof in the record that the Independent actually represented a majority of the employees at this time. The wages specified in this contract varied from 45 cents to 70 cents an hour, about 30 per cent lower than provided for in the con- tract of June 21, 1937, entered into by the Metal Polishers and Gerity Whitaker. Similar contracts were executed between the same parties on June 2, 1938, and May 28, 1939. The rates of pay have remained stationary ever since the first Independent contract was executed. In all three contracts Gerity Adrian agreed that lay-offs and rein- statements would be governed by strict seniority and that it would recognize the shop-steward system "to be set up" in the plant. The stewards received many grievances from employees that they failed to receive the guaranteed rate of pay or that men were not being reinstated or laid off in accordance with their seniority, as provided for by the contract. On several occasions, these disputes were settled apparently largely through the action of Steward Fred Rich. Wil- liamson refused to abide by the adjustments, however, and in meet- ings with the shop stewards frequently stated that' he was running the shop and that no union was going to run it, and that he would lay off or reinstate according to ability despite the seniority clause in the contracts. The above-recited facts established that the respondents, as an integral part of their scheme to prevent organizational activities at Adrian by the Metal Polishers, promoted and assisted the formation of the Independent. In view of the respondents' expressed hostility to the Metal Polishers, it is plain that the genesis of the Independent is to be found in Gerity, Jr.'s warning to employees at this same May meeting, that they must organize into a union. Later, through the town assistant prosecuting attorney's remarks to a meeting of GERITY WHITAKER COMPANY, 411 employees,'the respondents reemphasized their interest in the estab- lishment of an unaffiliated organization. When immediately, there- after, the employees had nevertheless voted for representation by the American Federation of Labor, the respondents, through prompt solicitation of membership in the Independent assisted by super- visory employees on the respondents' time and property, dealt sum- marily with this final effort of their employees to select representa- tives of their own choosing. The above-described notice in sub- stance notified the employees that membership in the Independent had become a condition of employment. The circumstances sur- rounding this notice compel the conclusion that it constituted further potent support of the Independent. By these meetings and solicita- tion on the respondents' time and property, by Gerity, Jr.'s and Attorney Hammond's remarks, and by Harry Hammond's and Wil- liamson's statements discouraging membership in_the Metal Polishers,' the respondents interfered with and aided the formation of the Inde- pendent. By immediately entering into an agreement with the Inde- pendent providing for exclusive recognition, closed shop, and check- off, without proof of majority representation, the' respondents lent further support to the Independent. The events leading up to and including the dissolution oT the Independent described below, as well as other facts hereinafter set forth, also demonstrate the unlawful relationship which obtained between this organization and the respondents. We find that the respondents dominated and interfered with the formation and administration of the Independent, and contributed support to it; and that thereby, and by the statements of Harry Hammond and Kelly to Clark, by Williamson's statements to Britt and Rich, and by Superintendent Schwab's statement to Rich, the respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act.17 We further find that the closed-shop agreements between the company-dominated Independent and Gerity Adrian did not fall within the proviso of Section 8 (3) 18 and- constituted unfair labor practices within Section 8 (1) of the Act.19 34 On October 28, 1939, the Independent was dissolved by a vote of its members ; see below, p. 25. is The proviso states : . . . nothing in this Act . . . shall preclude an employer from making an agree- ment in a labor organization (not established, maintained , or assisted or any action defined in this Act as an unfair labor practice) to require as a condition of employ- ment membership therein, if such labor organization is a representative of the employees as provided in section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made i9 International Association of Machinists v. N. L. If. B., 311 U. S. 72; Warehousemen's Union, Local in, International Brotherhood of,Teamsters , Chauffeurs, Stablemen d Helpers of America, aflUiated with the American Fiederdtion of Labor V. N. L If. B., 121 F. (2d) 84, decided May 5, 1941 (App, D. C ) 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Discrimination by the respondents in regard to hire and tenure of employment at the Adrian plant The complaint alleged that the respondents discharged or laid off Frank Britt, Arthur Clark, Leo Clark, Joseph Haydo, Roy Keeling, Alfred Rich, Fred Rich, Cecil Webert, and Donald Webert because of their efforts to exercise the rights guaranteed employees under the Act. The Trial Examiner found that Frank Britt, Leo Clark, Joseph Haydo, Fred Rich, Cecil Webert, and Donald Webert had not been discharged because of union membership or activities and recommended the dismissal of the complaint as to them and as to Alfred Rich, since no evidence was adduced at the hearing to sup- port the allegation with respect to him. Upon an examination of the record, we agree with the Trial Examiner in these respects. Since no exceptions to these findings or recommendations have been filed, we need not discuss them in further detail. The allegations in the complaint charging the respondent with having discriminated against Frank ,Britt, Leo Clark, Joseph Haydo, Alfred Rich, Fred Rich, Cecil Webert, and Donald Webert in violation of Section 8 (3) of the Act will be dismissed. The Trial Examiner sustained the allegations of the complaint with respect to Arthur Clark and Roy Keeling, and the respondent takes exception. We are of the opinion that these findings of the Trial Examiner are correct. Arthur Clark was first employed by Gerity Adrian on April 5, 1937, as a polisher and buffer and as an instructor. He had gained nearly 22 years of experience in this type of work. After Clark had worked at the Adrian plant for about 5-weeks, he was assigned to a newly created wheel department, where he set up, reset, and resized the wheels. Clark had been a member of the Metal Polishers, but had been suspended in about 1933 for non-payment of dues. As already noted, when Clark applied for work at Gerity Adrian, Kelly warned him not to belong to a.union. In May 1937, at the first of the meetings already discussed, he was cautioned by Superintendent Hammond to "Watch your step, what you say and do, because they don't want any C. I. 0. or A. F. of L. in the shop." Several weeks later, at about the time the second of the above-discussed meetings was held and Poirer sought to organize the employees into the un- affiliated Die Casters' Union, Foreman Williamson told Clark that the respondent had previously released him, Williamson, because of his union activities, but after he had "tore up his book and went back to" Gerity, Jr., he was restored to his position, and "worked himself up to where he became a foreman." Williamson then added,. GERITY WHITAKER COMPANY 413 "A fellow of your ability as a polisher would be wise to get out of the A. F. of L. and push ahead in that capacity." Clark was the employee who made the motions at the third of the meetings-con- sidered above to determine by means of an election which organiza- tion most employees favored and to invite the representatives of the various unions to explain the respective benefits of their organi- zations to the employees. He was appointed to the committee which was to issue the invitations to those representatives but was told the following morning that the Independent was signing up the em- ployees in the plant. During the summer of 1937, after the Independent began to organize the employees, Harry Hammond told Clark, in reply to it question by Clark, that the latter would have to join the Inde- pendent in order to retain his job as a wheel setter. At about the same time, Harry Hammond also told him that "if he was in [his] place, he would forget all about the A. F. of L." ,Several days later, as noted above, there was posted in the plant a notice warn- ing employees that "the management" would be notified to dispense with the services of those who failed to join the Independent im- mediately. About 10 days later, Clark joined the Independent. Sometime in March 1938 the wheel department was abolished. Clark was transferred to polishing and buffing work. He ranked first in seniority in the wheel department and 22nd in the polishing and buffing department. He had worked as a polisher only 2 or 3 days when on March 18, 1938, Williamson and Ennis, the comptroller and personnel director of Gerity Adrian, informed the whole depart- ment that they were being laid off because there was no work. Williamson had previously told Clark that, unless the Adrian plant increased the rate of production, the work would have to be sent to the Toledo plant. At the time of the lay-off, Williamson told Clark that he had no idea when Clark would be recalled but that he could "drop around" and see if there was any work. By June 1938, Clark discovered that men of less seniority who had been laid off with him in March had since been reinstated and were working at the plant. He returned to the Adrian plant in August and asked Williamson for a job. Williamson answered that he did not have any work for 'Clark. Clark then went to Earl Gust, who had formerly been Gerity Adrian's night foreman and was then the secretary of the Independent. Gust informed him that he had been voted out of the Independent and that "I would go and see Mr. Ennis, [the personnel director] in regard to it." Clark saw Ennis, who also told him that he had been dropped from the Independent and therefore could work for Gerity Adrian no longer. Clark then requested the right to see Gerity, Jr., but Ennis refused to allow 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him to do so. In September 1938, Clark again called upon Gust and Williamson. On that occasion, he was told that they would take it up with the Independent committee and that he should return in a few days to learn the result. When he returned a few days later, he was told that he was "all through." At the same time, Williamson accused him of lying about not paying dues 'to the Metal Polishers. Clark has never since worked for Gerity Adrian. Gerity Adrian contended in its answer that Clark's lay-off was prompted by his inability, because of deficient eyesight, to perform the work assigned to him. There was no evidence regarding Clark's eyesight adduced at the hearing. Sutter, formerly the general fore- man, and at the time of the hearing the master inspector, testified generally that Clark's work was not "up to our standards," although admitting that he had never spoken to Clark about poor work. In addition to the vagueness of this testimony, it is contradicted by the fact that Clark received two increases in wages during his em- ployment, one of which was received as recently as 4 months prior to his lay-off. Personnel Director Ennis testified that Clark was not recalled because Williamson had stated that his work was un- satisfactory. It is noteworthy that Williamson, who was responsible for a large part of the anti-union activities carried on at the plant and whose word was responsible for the failure to recall Clark, was not called as a witness by the respondents. Nor did any witness refute Clark's testimony that he had received no complaint against his work. Moreover, Clark was not recalled to work when the wheel department was reestablished about a year after his lay-off, although, according to Ennis, his work in the wheel room was "not unsatisfactory," and although he ranked first on the seniority list in that department and the agreement then in force between Gerity Adrian and the Independent required the former "to recognize seniority rights." Since it appears that all employees in the two departments in which Clark had worked had been laid off with him, we are satis- fied that Clark's lay-off was not discriminatory.20 As already noted, however, employees were thereafter reinstated to both departments. The record is clear, and we find, that in August 1938, when Clark first applied for reinstatement, and thereafter, the respondents re- fused to reinstate him because of their illegal closed-shop contract with the Independent and because of their opposition to the Metal 20 Upon the entire record, it is clear that after his lay-off, Clark continued to remain an employee. Cf. North Whittier Heights Citrus Association v. N. L. R. B., 109 F. (2d) 76 (C. C. A. 9), cert. denied, 310 U. S. 632. Whether or not he was an employee, Clark, of course, was still protected against the unfair labor practices condemned by Section 8 (1) and (3 ) of the Act. Phelps Dodge Corporation v. N. L. R B. 313 U. S. 177 GERITY WHITAKER COMPANY 415 Polishers. We find that the respondents, by refusing to reemploy Clark, in August 1938 and thereafter, discriminated in regard to his, hire and tenure of employment, thereby encouraging, membership in the Independent and discouraging membership in the Metal Polishers, and interfering with, restraining, and coercing their em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. Roy Keeling was employed by Gerity Whitaker as a polisher and buffer from July 1938 until August 1938, when he was laid off at Gerity Whitaker because there was no more work in the shop. He had been an active member of the Metal Polishers and had served on the Metal Polishers' shop committee. As set forth above, early in August 1938, at a conference with officials of the Metal -Polishers, Gerity, Jr., agreed to employ at Adrian four of the Metal Polishers' members laid off at the Toledo plant.21 Keeling was one of the men so employed and told by Gerity, Jr., that they would be employed as foremen and instructors. in order to avoid the seniority list which had been agreed upon with the Independent. These four men began work at Adrian about August 15, and were paid a monthly salary. In addition to instruc- ting the less experienced employees in the polishing and buffing de- partment, they performed some of the work of that department themselves. They were known as foremen and were under the direc- tion of Williamson, who in turn was responsible to the general foreman, Norbert Sutter. Keeling remained interested in the Metal Polishers after his trans- fer to Adrian. He visited employees at their homes in Blissfield and other towns, attempting to interest them in the Metal Polishers. At other times, he told employees that they were receiving insufficient wages. On one occasion Williamson informed Keeling that he had just told an employee that if the employee "thought anything of his wife and children, he would let the A. F. of L. alone." Keeling testified that in October 1938 Ennis called him to the office and stated that he heard that Keeling had gone "down to Blissfield" and that if Keeling had been there talking to the men, "Hell was going to be popping." Ennis did not specifically contradict this testimony, but testified that he had, heard that Keeling had told some of the em- ployees that the wages paid them were I not high enough and that he asked Keeling who he "thought he was working for." We are satisfied and find that Ennis' remarks were made in connection with, and in order to discourage, Keeling's union activities. " See supra, p 10, footnote 7. 416, DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 11, Sutter, the general foreman, told Keeling that his services would not be needed any longer and that he was not satisfactory. As Keeling was leaving the plant, Sutter told him that Gerity, Jr., wished to see him. When Keeling demanded the right to have his brother go with him to interview Gerity, Jr., Sutter answered, "To hell with that." Keeling thereupon refused to see Gerity, Jr., and left the plant. Several hours later, Keeling was ,informed by, his brother that Gerity, Jr., wanted Keeling to go to work at the Gerity Whitaker plant in Toledo. Keeling returned to the Toledo plant the following day. Nine days later he was laid off for lack of work. Since that time he has not been employed at either the Adrian or Toledo plants. Sutter testified that Williamson had shown him four trays of work which Keeling had just spoiled beyond repair and that he discharged Keeling because' of this. He testified that he had also heard that Keeling was unable to handle the men under him. In view of Wil- liamson's failure to testify and Sutter's admission on cross-examina- tion that it was unusual to discharge a man for one batch of poor work and that, so far as he knew, these four trays were the only bad work charged to Keeling, we do not find Sutter's explanation for Keeling's discharge persuasive. On the contrary, we are con- =vinced that Keeling's discharge from the Adrian plant was not occasioned by faulty work, as alleged by the respondents, but rather was prompted by his activities in behalf of the Metal Polishers at the Adrian plant. His subsequent employment at Toledo does• not detract from this conclusion because such employment was• only for a short period and the Metal Polishers was the only union at that plant. _ " We find that the respondents discharged Keeling on October 11, 1938, and refused to reinstate him because of his membership in, and activities in behalf of, the Metal Polishers, thereby discouraging membership in the Metal Polishers and interfering with, restrain- ing, and coercing employees in the exercise of the rights guaranteed in Section 7 ^ of the Act. E. The closed-shop agreement with the D. C. W. About mid-October 1939 a group of Independent members called upon Lavon B. Kuney, prosecuting attorney of, the town of Adrian, and discussed with him the formation of a new union. About 2 weeks later-, on October 26 or 27, 1939, a telegram was posted on the Adrian plant bulletin board which read in effect that the respondents' products must thereafter be "made by the C.I. 0." or they would not be accepted. This telegram was signed by "Reuther" who was identified by Carl Potts, an employee, as "Mr. GERIT_Y WHITAKER COMPANY 417 Reuther of the Buick Plant" at Detroit. It appears that Buick was one of Gerity Adrian's main customers. A day or two later on October 28, a meeting of the Independent was held at the County Court House, which had become the Independent's meeting place after about four meetings had been held in the plant. McComb, president of the Independent, opened the meeting 22 and read and commented upon Reuther's telegram. He declared that the Inde- pendent would be discontinued'23 and that the employees were free to vote for whatever organization they desired to join. McComb then relinquished the chair to Roland Watring, another employee. Upon the advice of Kuney, who was representing the Independent for dissolution purposes, the Independent was thereafter dissolved by formal vote. Discussion then followed as to "whether to form a new independent union or. to join the C. I. O. or A. F. L." Sometime during the course of the meeting Gerity, Jr., arrived. He testified that he was invited to attend and address the meeting, and that, when he made his appearance, he found a great "commotion" and spoke to Kuney, who informed him that the employees would not make a move until he talked to them. Gerity, Jr., then told the employees that he was not speaking in his official capacity but only as an individual, that he did not care what union, if any, they joined, but that he wanted his plant open for work on Monday morning. He testified that he made this last statement because he had heard rumors that his plant might be closed on the following Monday. An election was held as to, whether to join the D. C. W., affiliated with the C. I. 0., or the A. F. of L., and resulted in a practically unanimous vote in favor of forming the D. C. W.24 Kuney was not certain whether or not Gerity's remarks to the employees at this meeting preceded the balloting on the question of affiliation with the D. C. W. or the American Federation of Labor, although he was certain that they followed the decision to dissolve the Independent. Had the employees already voted for affiliation, however, there would have been no occasion for Kuney to inform Gerity, Jr., that the employees would not make a move until he talked to them or for Gerity, Jr., to tell the employees that he did not care what union, if any, they joined. Moreover, Gerity, Jr., testified that he attended the meeting in the morning, while Carl ^ There was some difference of opinion as to the number of employees at the meeting. Carl Potts, an employee, testified that about 116 persons attended the meeting, while Attorney Kuney testified that there were approximately 128 persons present and that he "understood" that they constituted more than half of the employees of Gerity Adrian Henry Stange , an employee , claimed that there were as many as 300 people at the meeting. 13 According to Potts, the language used by McComb was that the Independent had been "outlawed." u Henry Stange, the employee referred to in footnote 22, supra, testified that approxi- mately 98 percent of the voters chose affiliation with the C. I. 0. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Potts, an employee, testified that the employees voted for affiliation with the D. C. W. in the afternoon.25 Under the circumstances, we agree with the Trial Examiner that the election took place after Gerity, Jr., had addressed the meeting. It may fairly be inferred that when Gerity, Jr., addressed the employees on this occasion, a day or two after the telegram had been posted on the plant bulletin board, he was well aware of the content of the Reuther telegram. It does not appear that at the meeting of October 28 any further steps were taken to form a union. There is no evidence that at that meet- ing officers were elected, or that any committees-grievance, negotiat- ing, or otherwise-were formed. Nor does the record reveal that any cards were signed at that time authorizing the D. C. W. to represent the employees. On the following Monday, October 30, 1939, Gerity, Jr., and Ennis met with representatives of the D. C. W., including Kuney, five or six employees 2(l and Cheyfitz and Lamb, national secretary and attorney, respectively, of the National Association of Die Casting Workers. During the conference, Gerity, Jr., was in- formed that the D. C. W. represented a majority of the employees in the plant. To verify this statement, Gerity, Jr., asked the five or six employees present whether Cheyfitz and Lamb represented them.27 When they all agreed, Gerity, Jr., stated that there was only one thing to do then and that was to negotiate a contract. During the negotiations Gerity, Jr., kept the existing Independent contract be- fore him in order to know what changes were being written in this new contract. These changes consisted in the change of the name of the union party to the contract, the absence of a check-off provi- sion, the addition of one - holiday, the additional right of Gerity Adrian to consider a man no longer an employee if be failed, to report within 72 hours after Gerity Adrian had sent him a registered letter notifying him to return to work, and the omission of the provisions for advancing wages which had been contained in the Independent contracts. In all other respects this contract, which included a closed-shop provision, was substantially the same as the contracts Gerity Adrian had entered into with the Independent. The contract was executed on October 30, 1939, by Gerity, Jr., for Gerity Adrian, by Cheyfitz for the National Association of Die Casting Workers, and by Roland Watririg, as president, for the D.C.W. 25 The meeting was held in two parts, as it became necessary to adjourn over the lunch hour. Kuney testified, and we deem it clear, that despite the adjournment this was but -a single meeting. 26 Apparently, these employees were Roland Watring, Thomas Kelly, Rollie Roebeck, Earl Gust, Norman Wilt, and Howard Kilchman, who comprised the negotiating com- mittee of the D. C. W. The record does not reveal when this committee was chosen. 27 Gerity, Jr, testified that he was also shown "a bunch of" membership or application cards which he "checked." GERITY WIIITAKER'COMPANY 419 About 2 weeks after the execution of,, the contract, the officers of -the Independent signed the formal papers dissolving it. About a month after the execution of the contract, the D. C. W. held its first election of officers and Roland Watring was elected president. Under all the circumstances disclosed, we find that Gerity, Jr.'s statement at the meeting of October 28, 1939, that he wanted his plant open for work on Monday morning was made with reference to, and incorporated, the threat contained in the Reuther telegram that the Adrian products would either be "made by the C. I. 0." or not be accepted, and was therefore tantamount to an instruction that the men vote for the D. C. W.; and that the vote for the D. C. W. at that meeting was the result of the respondents' continued unfair labor practices in interfering with labor organizations. We find, accordingly, that the respondents unlawfully assisted the D. C. W. We find further that since the contract of October 30, 1939, was , entered into with a labor organization which had been assisted by the respondents' unfair labor practices, it is not within the proviso of Section 8 (3) of the Act and is invalid .211 We find that the respondents, by assisting the D. C. W. and by, the closed-shop contract with the D. C. W., interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. F. The alleged refusal of Gerity Adrian to bargain collectively The complaint alleged that on March 5, 1937, and on numerous occasions thereafter, Gerity Adrian refused to bargain collectively with the Metal Polishers. The record fails to show that the Metal Polishers represented a majority of Gerity Adrian's employees. We shall therefore dismiss the complaint in so far as it alleges that Gerity Adrian refused to bargain collectively with the Metal Polishers. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE The activities of the respondents set forth in Section III above, occurring in connection with the operations of the respondents, de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. at See footnote 18, supra. 450122-42-vol 33-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY , ,We have found- that the respondents have by various acts engaged in unfair labor practices within the meaning of Section 8 (1), (2), (3), and (5). We shall order them to cease and desist therefrom. It is further necessary in order to effectuate the purposes of the Act to order the respondents to take certain affirmative action, more particularly described below. Gerity Whitaker's removal of the bulk of its business from Toledo to Adrian and the creation of Gerity Adrian formed the basis of a plan to eliminate the Metal Polishers and to circumvent the Act. The subsequent lay-off of the Toledo employees and the refusal to reemploy them at Adrian were further steps in the unlawful scheme. As an appropriate means of removing the consequences of the unfair labor practices and of restoring the status quo as nearly as possible, we shall order the respondents, at their election expressed in writing to the Regional Director, to reinstate the employees listed in Appendix A either at Toledo or at Adrian.29 We shall order the respondents to offer the employees listed in Appendix A immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, discharging such persons, hired by the respondents after the lay-off of the employees named in Appendix A, as may be necessary to provide said employment for those to be offered reinstatement. We shall further order the respondents, and each of them, to make whole employees listed in Appendix A for any loss of pay they may have suffered by reason 'of the aforesaid discrimination by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of said discrimination to the date of the offer of reinstatement, less his net earnings 30 during said period. If the respondents- choose to employ at Adrian the men entitled to reinstatement, we shall, in .,order to make such employees whole, order the respondents to pay for the reasonable expenses entailed in the transportation and moving of such employees and their families from Toledo to Adrian.31 29 See Matter of Isaac Schieber et al. and United Hatters, Cap and Millinery Workers International Union, affiliated with the American Federation of Labor, 26 N. L. R. B. 937, and cases therein cited. 30 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 respondents , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects shall , be considered, as earnings . •See Republic Steel Corporation V7.' N. L. R B., 311 U. S 7. 81 See Matter of Isaac Schieber et al. and United Hatters, Cap and Millinery Workers International Union, affi liated with the American Federation of Labor, supra, footnote 28. GERITY WHITAKER COMPANY 421 We have found that Gerity Whitaker refused to bargain collec- tively with the Metal Polishers as exclusive representative of its emplo,yjes at Tgledo. Accordingly, we shall order Gerity Whitaker to bargain collectively upon request with the Metal Polishers as such representative. ' The respondents have dominated and interfered with the formation and administration of the Independent and contributed support to it. Since the Independent has been dissolved, we shall not order its disestablishment. In order to effectuate the policies of the Act, however, and to free the employees from the effects of such domina- tion and interference, we shall order the respondents to withhold recognition from the Independent as representative 'of any of the employees for the purposes of dealing with the respondents concern- ing grievances, labor disputes, wages, rates of pay, hours of em- ployment, or other conditions of.employment. We have found, too, that the respondents unlawfully rendered assistance to the D. C. W. In order to restore the status quo and to permit the employees full freedom in self-organization without hin- drance by reason of the respondents' unfair labor practices, we shall order the respondents to withdraw recognition from the D. C. W. as the exclusive representative of the employees for the purposes of collective bargaining and to withhold such recognition unless and until the D. C. W. shall have been certified as such by the Board.32 Since the contracts between Gerity Adrian and the Independent have terminated and the Independent has been dissolved, we need enter, no specific' order with respect to such contracts. Since the contract between Gerity Adrian and the D. C. W. embodies recog- nition of the D. C. W. as the exclusive representative, and makes membership in the D. C. W. a condition of employment, since further the agreement represents the fruit of the respondents' unfair labor practices, a device to perpetuate their effects and a cover under which the respondents may continue to commit unfair labor prac- tices, we will order the respondents to, cease, and desist from giving effect to this or any other agreement which it may have entered into with the D. C. W. with respect to .rates of pay, wages, hours of employment, or other conditions of work and to cease and desist from recognizing the D. C. W. as the exclusive representative of their employees unless and until it is certified as such by the Board.33 Nothing in the Order, however, shall be taken to require the respond- ents to vary those wage, hour, and other substantive features of their relations with the employees themselves, which the respondents may as Cf.- N. L. R. B. v. National Motor Bearing Company, 105 F. (2d) 652 (C. C A. 9) ; Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local Uniod No. $, International Woodworkers of America, 20 N. L. It B 1 33 Ibid. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have established in performance of their contracts with the 'Inde- pendent and the D. C. W. as extended, renewed, modified, supple- mented, or superseded. Of course, this proviso does not privilege the respondents to impose as a condition of employment membership in the Independent or the D. C. W. The check-off of dues from members' wages was accorded to the Independent for the purposes of stabilizing and facilitating the se- curing of membership in that organization and as an integral part of the respondents' campaign to discourage membership in the Metal Polishers. It is apparent that an authorization for the check-off of dues owed to the company-dominated Independent, was not a volun- tary act of the employee signing such authorization but represented a further aspect of the employee's compulsion to abandon his rights under the Act and to join and support the organization which the respondents had fostered for a purpose proscribed by the Act. Under these circumstances, in order to restore the status quo and effectuate the policies of the Act, we will order the' respondents to reimburse their employees for amounts deducted from their wages. as dues for the Independent.84 We have also found that the respondents discriminated in regard to the hire and tenure of employment of Arthur Clark and Roy Keeling. The respondents will be directed to offer these employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their former rights and privileges. We shall also order the respondents to make Arthur Clark and Roy Keeling whole for any loss of pay they may have suffered by reason of the aforesaid discrimination, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of said -discrimination to the date of the respondents' offer of reinstatement, less net earn- ings 85 during such period. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAw 1. Metal Polishers, Buffers, Platers and Helpers Union, affiliated with the American Federation of Labor, National Association of Die Casting Workers, Local No. 26, affiliated with the Congress of Industrial Organizations, and Independent Finishers and Platers Union, are labor organizations within the meaning of Section 2 (5) of the Act. 34 Matter of Heller Brothers Company of Newcomerstown and International Brotherhood of Blacksmiths, Drop Forgers and Helpers, 7_N. L. R. B. 646.. 15See, supra, footnote 29. 0 GERITY WHITAKER COMPANY 423 2. By dominating and interfering with the formation and admin- istration of Independent Finishers and Platers and by contributing support thereto, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (2)' of the Act. 3. The Respondents, by discriminating in regard to the hire and tenure of employment of Arthur Clark and Roy Keeling and those employees listed in Appendix A, thereby discouraging membership in Metal Polishers, Buffers, Platers and Helpers Union, have engaged in and are engaging in unfair labor practices, within the meaning of :Section 8 (3) of the Act. 4. All the employees of Gerity Whitaker Company's Toledo plant, except those whose duties are of an executive, managerial, technical, or clerical nature, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (b) of the Act. 5. Metal Polishers, Buffers, Platers and Helpers International Union, affiliated with the American Federation of Labor, has been at all times material herein the exclusive representative of all em- ployees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 6. Gerity Whitaker Company, by refusing to, bargain collectively with the Metal Polishers, Buffers, Platers and Helpers International Union, affiliated with the American Federation of Labor, as the ex- clusive representative of all its employees in such unit, has engaged in and is engaging in unfair labor practices within the meaning of :Section 8 (5) of the Act. 7. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in unfair labor practices within the mean- ing of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within, the meaning of Section 2 (6) and (7) of the Act. 9. By discharging and refusing to reinstate Frank Britt, Leo Clark, Joseph Haydo, Alfred Rich, Fred Rich, Cecil Webert, and Donald Webert, the respondents did not engage in unfair labor practices, within the meaning of Section 8 (3) of the Act. 10. By refusing to bargain collectively with Metal Polishers, Buff- ers, Platers and Helpers International Union, affiliated with the American Federation of Labor, as the representative of the employees of Gerity Adrian Manufacturing Corporation, the respondents did not engage in unfair labor practices within the meaning of Section 8 (5) of the Act 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the basis of the above findings of fact grid 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 Gerity Whitaker Company and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Metal Polishers, Buffers, Platers and Helpers International Union, affiliated with the Amer- ican Federation of Labor, as the exclusive bargaining representative of the employees of the Toledo plant, excepting those whose duties are of an executive, managerial, technical, or clerical nature. 2. Take the following affirmative action which the Board finds will effectuate the policies of the'Act : (a) Upon request bargain collectively with Metal Polishers, Buff- ers, Platers and Helpers International Union, affiliated with the American Federation of Labor, as the exclusive representative of the employees of the Toledo plant, excluding those whose duties are of an executive, managerial, technical, or clerical nature, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Post notices immediately in conspicuous places in its plant located at Toledo, Ohio, and maintain such notices for a period of at least sixty (60) consecutive days, stating that it will cease and desist in the manner set forth in paragraph 1 of this Order and that it will take the affirmative action required in paragraph 2 (a) of this Order. The respondents, Gerity Whitaker Company and Gerity Adrian Manufacturing Corporation, and each of them, and their officers,. agents, successors, and assigns, shall: 3. Cease and desist from : (a) Dominating or interfering with the administration of Inde- pendent Finishers and Platers Union or with the formation or admin- istration of any other labor organization of their employees and from contributing financial or other support to said Independent Finishers and Platers Union or to any other labor organization of their employees ; (b) Recognizing National Association of Die Casting Workers, Local No. 26, affiliated with the Congress of Industrial Organizations, as the exclusive representative of their employees for the purposes of collective bargaining, unless and until that labor organization shall have been certified as such by the National Labor Relations Board; GERITY WHITAKER COMPANY 425 (c) Giving effect to the contract of October 30, 1939, between Gerity Adrian Manufacturing Corporation and National Association of Die Casting Workers, Local No. 26, affiliated with the Congress of Industrial Organizations, or to any extension, renewal, modification, or supplement thereof or to any superseding contract : (d) Discouraging membership in Metal Polishers, Buffers, Platers and Helpers International Union, affiliated with the American Feder- ation of Labor, or discouraging or encouraging membership in any labor organization of their employees, by discriminating in regard to hire or tenure of employment or any term or condition of employ- ment ; (e) In any manner interfering with, restraining, or coercing their 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, or to engage in concerted activi- ties for the purpose of collective bargaining and other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 4. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withhold all recognition from Independent' Finishers and Platers Union as representative of any of the employees for the pur- poses of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of employment;, (b) Withhold all recognition from National Association of Die Casting Workers, Local No. 26, affiliated with the Congress of Indus- trial Organizations, as the exclusive representative of their employees for the purposes of dealing with them concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of employment, unless and until that organization shall have been certified as such by the National Labor Relations Board : (c) Reimburse each of their employees whose dues to the Inde= pendent Finishers and Platers were checked off for the amounts deducted from their wages; (d) Offer to the men listed in Appendix A immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privi- leges, at either the Gerity Whitaker plant at Toledo, Ohio, or at the Gerity Adrian Manufacturing Corporation plant at Adrian, Michigan ; 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Offer to Arthur Clark and Roy Keeling immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (f) Make whole the men listed in Appendix A and Arthur Clark and Roy Keeling for any loss of pay they may have suffered by rea- son of the respondents' discrimination against them, by payment to each of them of a sum of money equal to the amount which he nor- mally would have earned as, wages from the date of the discrimina- tion to the date of the respondents' offer of reinstatement, less his net earnings during said period, and offer to the employees listed in Appendix A payment for the reasonable expenses entailed in the transportation and moving of said employees and their families from Toledo to Adrian if the respondents elect to employ said em- ployees at Adrian, Michigan. (g) Post notices immediately in conspicuous places in their plants located at Toledo, Ohio, and Adrian, Michigan, and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondents will not engage in the conduct from which they are'ordered to cease and desist in the manner set forth in para- graph 3 (a), (b), (c), (d), and (e) of this Order; that they will take the affirmative action required in paragraph 4 (a), (b), (c), (d), (e), and (f) of this Order; that the respondents' employees are free to become and remain members of Metal Polishers, Buffers, Platers and Helpers International Union, affiliated with the American Fed- eration of Labor; and that the respondents will not. discriminate° against any employee because of membership or activity in that organization. 5. Notify the Regional Director for the Seventh Region in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply herewith, and state which of the two alternative methods of reinstating the employees listed in Ap- pendix A, as set forth in 2 (a) of this Order, will be followed. IT IS FURTHER ORDERED that the complaint b®I, and it hereby ,is, dismissed in so far as it alleges that the respondents engaged in unfair labor practices within the meaning of Section 8 (3) of the Act by discharging and refusing to reinstate Frank Britt, Leo Clark, Joseph Haydo, Fred Rich, Cecil Webert, Donald Webert, and Alfred Rich, except that with respect to Alfred Rich such dismissal shall be without prejudice. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed in so far as it alleges that Gerity Adrian has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. GERITY WHITAKER COMPANY APPENDIX A 6 William C. Boldridge Frank Bykowski Lucille Clark Blenn Crable Leonard Dixon John Eldridge Frank Flores John Gahagan Wm. Gilbert Mike Gzik Albert Hallers Harold Hartley Woodrow Hoover Gail Jaquillard Edward Johnson Geo. Kauffman Earl Keeling Roscoe Keeling Leo Kime Wm. Knaggs Harry Johnson Joseph Krzes John Martin Elden Morgan Chester Pacer Carl Paul Walter Stabb H. L. Wardlaw Stanley Wesolowski 427 MR. EDWIN S. SMITE, dissenting in part: I concur in the Decision and Order, except in so far as it permits the respondents to elect between reinstatement at Toledo or Adrian. It would appear that an order to return to Toledo would most nearly restore the status quo and therefore best effectuate the policies of the Act 88 M See my separate opinion in the Bchieber case, supra, footnote 28.