Eclipse Moulded Products Co.

In the Matter of ECLIPSE MOULDED PRODUCTS COMPANY and STEEL WORKERS ORGANIZING COMMITTEE (CIO) Case No. C-1865.-Decided August 23, 1941 Jurisdiction : Thermo-setting and thermo-plastic castings manufacturing indus- try. Company's contention that complaint should be dismissed because of prior jurisdiction exercised by Wisconsin Employment Relations Board held to be without merit. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements; threats of dis- charge; threat of cessation of operations; ordering suspended employee and and union representative to leave respondent's property. Company-Dominated Union: initiation of, by discouraging membership in out- side union-participation of representatives of management in initiation and formation of: solicitation of members ; attendance at meetings-support : per- mitting employees to solicit members and to circulate petitions on company time. Discrimination: suspension and subsequent discharge of union president and discharges of four other union members because of their union membership and activities and refusal to join dominated organization ; contention of employer that suspension of union president pending physical examination was because of illness held to be without merit. - Remedial Orders : disestablishment of company-dominated organization; rein- statement of discharged employees ; back pay from date of discharge to date of reinstatement, omitting period from date of Intermediate Report to date of Decision in cases dismissed by the Trial Examiner ; reinstatement of strikers upon application or placement on preferential list; back pay for strikers refused reinstatement or placement on preferential list; back pay for-strikers refused reinstatement or placement on preferential list to be based 'on period from five days after application for reinstatement to date of reinstatement, whether such application is made before or after date of Order. Mr. Frederick P. Mett, for the Board. Dunn, Aarons c Roemer, by Mr. Michael J. Dunn and Mr. L. C. Aaron, of Milwaukee, Wis., for the respondent Mr. W. O. Sonmemann, of Milwaukee, Wis., for the Union. Miss Grace McEldowney, of counsel to the Board. 34 N. ,L. R. B., No. 99. 785 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Steel Workers Organizing Committee (CIO), herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Twelfth Region (Milwaukee, Wisconsin), issued its complaint 'dated December 19, 1940, against Eclipse Moulded Prod- ucts Company, Milwaukee, Wisconsin, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing thereon, were duly served on the respondent, the Union, and the Independent Associa- tion of Eclipse Workers, herein called the Association, a labor or- ganization alleged in the complaint to be dominated by the respondent. With respect to the unfair labor practices, the complaint alleged in substance (1) that the respondent (a) discriminated with regard to the hire and tenure of employment of five named employees 1 because of their membership in and activities on behalf of the Union and in order to discourage membership in the Union; (b) on or about September' 26, 1940, and thereafter, dominated and interfered with the formation and administration of the Association, and contributed support to, the Association; and (c) on or about September 26, 1940, and thereafter, interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, by threatening that it would close down its plant or move away from Milwaukee before it would recognize or negotiate with the Union, by questioning its employees about their membership in and activities on behalf of the Union, and by other acts; and (2) that on or about October 9, 1940, as a result of the unfair labor practices of the respondent, the Union called a strike which was still in prog- ress when the complaint was issued. On or about December 31, 1940, the respondent filed with the Regional Director a motion to dismiss the complaint on the ground that jurisdiction of the proceedings had been vested in the Wiscon- 'Arthur Neuschaefer, suspended September 26, 1940, and discharged October 11, 1940; Carl H. Navel, discharged October 3 , 1940; Roland A. Gehrig, discharged October 7, 1940: Leonard Erickson, discharged October 8 , 1940 ; and Floyd Gainer, discharged October 8, 1940. ECLIPSE MOULDED PRODUCTS COMPANY 787 sin Employment Relations Board.2 On the same date, the respondent filed its answer, in which it denied the unfair labor practices alleged in the complaint with the exception' of certain paragraphs as to which it requested a bill of particulars. The Regional Director there- after referred the respondent's motion to dismiss to the Trial Examiner. Pursuant to notice, a hearing was held in Milwaukee, Wis- consin, from January 16 through February 1, 1941, inclusive, before James C. Batten, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union were represented by counsel and participated. in the hearing. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. The Association did not participate in the hearing., At the opening of the hearing the respondent renewed its motion to dismiss the complaint on the ground that the Wisconsin Employ- ment Relations Board had exercised prior jurisdiction over the matters covered thereby. The motion was denied a The respondent renewed its request, originally made in #ls answer, for a bill of particulars with regard to certain paragraphs of the complaint. The Trial Examiner advised the Board's attorney that, unless a bill of particu- lars was furnished with respect to the allegations of the complaint that the respondent "by other acts and conduct" had engaged in unfair labor practices, those allegations would be stricken. No bill of particulars was furnished by the Board's attorney, and the alle- gations in question were stricken from the complaint. At the close of the Board's case, the respondent moved to strike certain testimony from the record and to direct counsel for the Board to turn over to the Trial Examiner any notes or memoranda containing a list of the respondent's stockholders, and renewed its motion to dismiss the complaint on jurisdictional grounds. The Trial Examiner reserved his rulings on these motions, and subsequently denied them in his Intermediate Report. The respondent also moved to dismiss the complaint on the ground that the Board had failed to establish a prima facie case. This motion was denied. Subsequently the Trial Examiner granted the respondent's motion to dismiss the complaint 2 On December 9, 1940, the present respondent had filed with the Wisconsin Employment Relations Board, herein called the State Board, a complaint against the Union and certain of its members, among whom were included the five individuals claiming discrimination in the present proceeding. In its answer and cross complaint the Union made the same alle- gations of unfair labor practices on the part of the present respondent as are contained in the complaint now before the Board . Pursuant to a notice of hearing issued on December 13, 1940, a hearing was held before the State Board from January 3 to 9 and on January 15, 1941. No decision had been issued by the time of the hearing before the Trial Examiner. 8 Under the Act the Board is granted exclusive power to prevent any person from engaging in specified unfair labor practices affecting commerce. See 49 Stat. 449, Sec. 10 (a). 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in so far as paragraph 19c 4 was concerned. At the close of the testimony the respondent's counsel renewed his motion for dismissal of the complaint. The trial Examiner reserved decision on this motion and later denied it in his Intermediate Report. Also at the close of the testimony, counsel for the Board moved that the pleadings be conformed to the proof. The motion was allowed in so far as minor particulars were concerned. During the course of the hearing the Trial Examiner made rulings on other motions and on'objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. At the close of the hear- ing the respondent filed an amended answer raising no new issues but setting forth the respondent's defense in greater detail. The Trial Examiner afforded all parties an opportunity for oral argument. Counsel for the Board and the respondent argued orally and later filed briefs, which were duly considered by the Trial Examiner. Thereafter the-Trial Examiner filed his Intermediate Report, dated April 18, 1941, copies of which were duly served upon all the parties. He found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act.5 Exceptions to the Intermediate Report and a brief were filed by the respondent. Upon the request of the respondent and pursuant to notice to all parties a hearing was duly held before the Board in Washington, D. C., on June 19, 1941, for the purpose of oral argument. The re- spondent was represented by counsel; the Union and the Association did, not appear. The Board has considered the exceptions and brief filed by the respondent, and, save in so far as the exceptions are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a Wisconsin corporation engaged in the produc- tion and sale of thermo-setting and thermo-plastic castings. Its 4 It was alleged in this paragraph of the complaint that, during the strike called by the Union, the respondent invited "its striking employees to return to work but with loss of their previously accumulated seniority," arid advised them "that they would never be taken back to work if they did not return to work soon." 5 Since the transcript of the hearing did not recite the admission into evidence of Board Exhibits 9-A and 9-B, the Trial Examiner in the Intermediate Report directed their receipt into evidence and their incorporation as part of the record. ECLIPSE MOULDED PRODUCTS COMPANY 789 principal office and plant are located at Milwaukee, Wisconsin. The respondent purchases raw materials to the value of between $75,000 and $100,000 a year, 90 per cent of which are shipped to the respond- ent from points outside the State of Wisconsin. ' Sales of manufac- tured products amount in value to approximately $300,000 'a year. Between 5 and 15 per cent of these products are shipped to points outside the State of Wisconsin. In addition the respondent fur- nishes parts to many manufacturing concerns in the vicinity of Milwaukee, which, in turn, ship at least a part of their products out of the State of Wisconsin. The respondent employs approximately 65 production employees working in three shifts. II. THE ORGANIZATIONS INVOLVED Steel Workers Organizing Committee is a national labor organi- zation affiliated with the Congress of Industrial Organizations. It admits to membership employees of the respondent. The Independent Association of Eclipse Workers is an unaffiliated labor organization. It admits to membership employees of the re- spondent. III. THE UNFAIR LABOR PRACTICES A. Background In the spring of 1937 a number of employees of the respondent attended a meeting called by International Association of Machinists, herein called the I. A. M. At this meeting, several of the respond- ent's employees joined the I. A. M. One of them, Armas Karjala, on the next work day was requested to go to the main office. Present in the office were several officials of the respondent : Eugene G. Eng- man, president; Heaton, secretary-treasurer; and Charles Engman. vice president. Eugene Engman told Karjala, according to Karj ala's testimony: Well, there is a slack season coming up, and we are going to have to let some of the employees go. What we wanted you in here for is to find out whether you are loyal to the company .. . The men that are loyal to the company are going to get the good jobs when they come along. The company is going to enlarge and expand, and we are going to keep the men that are loyal to the company on with us. Karjala testified that because he "wanted to keep [his] job," he assured Engman that he was going to be loyal to the company. Although Engman denied that he had ever discussed unions with Karjala, the Trial Examiner credited Karjala's testimony as being a substantially correct and true version of the meeting, and we so find. 451269-42-vol. 34-51 0 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All the other employees who had attended the meeting called by the I. A. M. were called into the office on the same day. Later there was some discussion among these men. Karjala testified that, "as the result of that, we came to a more or less conclusion that we wouldn't go down to the Machinists' Union for another meeting, we would forget about our efforts to organize." For some time thereafter the I. A. M. sent notices of meetings to the employees, but none of the persons notified appeared at the meeting hall. It is thus evident that the efforts of the respondent to discourage self-organization by its employees in the I. A. M. were successful. Shortly after this attempt by the I. A. M. to organize the respond- ent's employees, Milton W. Hoge, an employee in the respondent's molding department, called together a group of employees in the plant office on Saturday afternoon and advised them that "it would be a good idea if we formed, an organization, a club, we could talk over our grievances with the management, we could throw a party once in a while." Charles Engman, the respondent's vice president, attended the meeting. The Eclipse Recreation Club was thereupon organized, and subsequently held a number of meetings which were attended by various officials of the respondent as well as by employees. After approximately 6 months this organization was disbanded, and the dues were returned to its members. Gilbert W. Greve," the respond- ent's shipping clerk, was treasurer of the club. Hoge and Greve subse- quently assisted in the organization of the Association, discussed below, and Greve became its secretary-treasurer. The evidence is not clear that the Eclipse Recreation Club was organized as a labor organ- ization or that it ever functioned as such, but coming into existence at or about the time of the campaign of the I. A. M., it had its effect in discouraging the organizational efforts of the respondent's employees. The respondent's employees again attempted to organize in the fall of 1939. At this time a number of them joined International Molders' Union of North America and wore union buttons in the plant. On one occasion Eugene Engman, when passing Karjala's machine, noticed that he was wearing a button, and asked whether he was "one of the brothers." Shortly after this incident Enginan, according to Karj ala's testimony, advised a group of the employees as follows : "Well, if you boys want union wages, you are going to work, you are going to give me union production." Engman also said, according to Karjala, that, ... if we liked working in a union shop, he could get us a job in a union shop, that he had quite a bit of influence down. at 6 Greve's supervisory status is discussed in Section III C, infra ECLIPSE MOULDED PRODUCTS COMPANY 791 Cutler-Hammer, and he could place any of us that wanted to work in a union shop down there. , Although, as stated above, Engman denied that he had ever talked with Karjala about unions, we credit the testimony of Karjala, as did the Trial Examiner. In October 1939 two employees, Clarence Wilke and Vincent J. Bertzyk, both of whom had joined International Molders' Union of North America, were discharged for an infraction of the rules. After their discharge, they requested a recommendation from Eugene Eng- man. According to the testimony of Bertzyk, Engman replied : "I'll tell you, if you go to a place where there is a union, that's all right ; but if you go to a place that's non-union . . ." Engman shrugged his shoulders and lifted his hands in the air, a gesture apparently signifying, as the Trial Examiner found, that Engman would not i ecommend them if they sought employment in a non-union shop. Although Engman denied generally that he ever talked with Bertzyk on union matters; we credit Bertyzk's account of the incident, as did the Trial Examiner. It is clear from the above facts that prior to the events covered by the complaint the respondent opposed the exercise by its employees of their right to form labor organizations of their own choice by discouraging membership in the I. A. M. and International Molders' Union of North America, by the organization of a recreational club, and by warning its employees that if they liked working in a union shop they should secure jobs in a union shop. Although the acts of the respondent referred to` in this section were not alleged in the complaint to constitute unfair labor practices, they are, nevertheless, pertinent as background in determining the issues, raised by the complaint.? B. The organization of the S. W. O. C. and the suspension of Newwhae f er In September 1940 organization of the respondent's employees was again undertaken when Arthur Neuschaefer, a molder in the respond- ent's plant, talked to several of the other molders about the Union and arranged for a meeting. At this meeting, held on September 26, 17 employees joined the Union, and a temporary organization was formed. Neuschaefer was elected temporary president. On September 25, Neuschaefer approached Floyd Gainer, also em- ployed as a molder, and invited him to attend the organizational 7 See N. L. R. B. v. Pennsylvania Greyhound Lines, Inc, 303 U. S . 261; N. L. R. B. v. Pacific Greyhound Lines, Inc., 91 F. (2d) 458 (C. C. A. 9), aff'd 303 U. S. 272. Matter of Highway Trailer Company and United Automobile Workers of America, Local No . 135, et al., 3 N. L. R . B. 591. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting. Neuschaefer gave Gainer a card which indicated the place where the meeting was to be held. Gainer testified that when he left his shift on the morning of September 26, Charles Engman walked up to him and said: "What's the trouble around here? There seems to be something brewing, as though something is going to happen"; and that Gainer replied : "I don't know. The fellows are talking about some sort of meeting they are holding, and they gave me a card, telling me to come down," and took the card out of his pocket and gave it to Engman. Engman, in his testimony, contended that Gainer offered to act as a "stool pigeon" and report what was being done toward the organization of the Union, but that he rejected the offer. Whether the testimony of Gainer or Engman is accepted there is no doubt, and we find, that on September 26 the respondent had notice of the fact that the Union was, being organized. The meeting on September 26 was held at 10 a. m., and Neuschaefer reported for work on the afternoon shift. Before starting work he spoke to Ralph Engman, foreman of the tool and die department, through whose friendship he had obtained employment with the respondent. He told Engman that he "wanted a little congratula- tions" because he had been elected president of the Union that morn- ing. At this, according to Neuschaefer, Engman "flared up" and said : We will not recognize any outside union in this plant, and before we do, we will close it up, we will board it up, we will move out of town, which we intended to in the first place ... Any farmer can run this kind of job. After further discussion Engman added, according to Neuschaefer : "I go, as a friend, to get you a job, and everything else, and that is the way you turn on me ... I thought you were a friend of mine, and I found out you are not, . . . that is the last time any friends will ever get a job in this plant." Ralph Engman did not testify. We credit Neuschaefer's testimony regarding this incident, as did the Trial Examiner. After this conversation Neuschaefer went to work. In about three quarters of an hour Eugene Engman, the president, and Charles Eng- man, the vice president, entered the plant, walked past Neuschaefer's machine, stopped for a moment, and then went into the office. Eugene Engman soon left the office, again walked past Neuschaefer's machine, and went out of the door of the plant. Charles Engman remained in the office. Immediately thereafter Eugene Engman reentered the building, retraced his steps to Neuschaefer's machine,. and inquired of him, "What's the matter with you?" Neuschaefer replied, "Nothing. Why?" Engman said : "I understand you get the fits ... I think I am going to send you to the doctor." Neuschaefer then asked : ECLIPSE MOULDED PRODUCTS COMPANY 793 "What is this all about? Because I told Ralph I was president of the C. 1. 0. today, now, all of a sudden, I get the fits?" Engman asked Neuschaefer why he had gone home on a previous night and whether he had not told Van Diemen, the shift foreman, that he was not feeling well and "had the fits." Neuschaefer denied that he had made such a statement to Van Diemen. Upon instruction from Eugene Engman, Neuschaefer shut down his machine and reported to the office. There Eugene Engman again asked him whether he had not advised Van Diemen, several days prior to September 26, that he felt a fit coming on and that he wanted to stop work and go home. Neuschaefer again denied that he had made such a statement. Nevertheless Engman told Neuschaefer that it would be necessary to send him to a doctor for an examination, and that he should return to the plant the following day for a slip to take to the doctor's office. The incident referred to by Engman in his conversation with Neu- schaefer had occurred about a week previously, on September 18. On that evening Neuschaefer had felt sick at his stomach, reported this to his foreman, Van Diemen, and requested permission to go home. Neuschaefer, in his testimony, denied that he told Van Diemen that he suffered from fits or dizzy spells. Harold Procknow, an employee in the tool and die department, testified that on the evening in question Neuschaefer told him that he suffered from dizzy spells, and that he (Procknow) reported the matter to Van Diemen and Ralph Engman. Neither Van Diemen nor Ralph Engman testified. Neuschaefer denied that he had made the statement ascribed to him by Procknow. We credit Neuschaefer's testimony, as did the Trial Examiner, and find that on September 18 Neuschaefer was taken ill, but that there was nothing serious about that illness, and that he did not state to anyone that he suffered -from fits or dizzy spells. We further agree with the Trial Examiner that the testimony of Eugene Engman that it had been reported to him that Neuschaefer suffered from fits and dizzy spells cannot be credited. After being told that he was to go to a doctor, Neuschaefer left the plant and got in touch with Waldemar 0. Sonnemann, a representa- tive of the Union. Sometime later Sonnemann and Neuschaefer went to the respondent's plant, arriving around 7: 30 or 8 o'clock in the evening. Sonnemann told Richard Gruenewald, the plant superin- tendent, that they wished to speak to Eugene Engman, who was not present when they arrived. Within a few minutes, Gruenewald appeared with Engman. As described by Neuschaefer, the following took place: ... Gene Engman comes walking into the plant with his hands up in the air, he says, "Get the hell out of here. This is private 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD property. You have no business trespassing." He wouldn't even give Mr. Sonnemann a chance to talk to him, he started raving. And along with him was a big dog, that stood waist high, .. . [Engman further said,] "If you don't get the hell out of here, this is private property, I will call the law." Engman then walked into the office and made a telephone call, and returning from the office said : "Get the hell out of here. If you don't, I will sic this dog on you." Sonnemann and Neuschaefer walked out of the plant and waited in front of the building until a police squad car arrived. After one of the officers had taken the names of the parties, Sonnemann and Neuschaefer left the vicinity of the plant. Although Neuschaefer had been told to return to the plant on September 27 for the slip for the doctor, he did not report until the 28th. At that time he explained to Eugene Engman that be- cause of the trouble occurring on the night of the 26th he thought it would be better to wait a day or two. To Neuschaefer's accusation that he was being sent to the doctor because he had been elected president of the Union, Engman replied, according to Neuschaefer's testimony, which we credit, as did the Trial Examiner : "I don't care what union you belong to, or anything else . . . You can belong to any organization you want." Engman further advised Neu- schaefer : "Now if we consider this examination okay, and you are all 'right, you can go back to work. But, if not, and until that time, you are not to enter the plant, or to touch any part of the property whatsoever, not put a foot on it. If you have got any clothes, or anything in there, that you want, you talk to the foreman, he will get it out for you, but you are not to enter the plant at any time." Neuschaefer was then given a slip to report to Dr. G. F. Fitzgerald for examination. As Neuschaefer was leaving, Engman advised him that after Dr. Fitzgerald had sent in his report, it would be considered, and that Neuschaefer would be paid for all of his time until the final decision was made. Neuschaefer left the plant and called Dr. Fitzgerald's office for an appointment. Neuschaefer's sub- sequent discharge, which occurred on October 11, 1940, is discussed below. It is obvious' from the foregoing and from the entire record in the case that Engman suspended Neuschaefer because of his election to the presidency of the Union, and that the suspension and Eng- man's instructions that Neuschaefer was not to set foot in the plant were for the purpose of discouraging Neuschaefer's activities and influence as president of the Union. Neuschaefer's illness, which the respondent contends was the cause of the suspension, had occurred a week earlier. Clearly, if it had been as serious as the respondent claims, the respondent would not have waited a week before taking ECLIPSE MOULDED PRODUCTS COMPANY 795 action. Further, Neuschaefer's suspension, although it came about a week after his illness, immediately followed his statement to Ralph Engman that he had been elected president of the Union and Eng- man's expression of opposition to the Union and anger because of Neuschaefer's activity on its behalf. We are convinced and find, as did the Trial Examiner, that the respondent on September 26, 1940, suspended Neuschaefer because of his membership in and activity on behalf of the Union, and by such action discriminated in regard to Neuschaefer's hire and tenure of employment and the terms and con- ditions of his employment, thereby discouraging membership in the Union ; and that it thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. Further interference, restraint, and coercion; The organization of the Association During the night of September 27, Eugene Engman clearly indi- cated to the employees on the night shift his hostility toward the Union. W. Van Diemen, the shift foreman, instructed the men to shut down their machines and to congregate at one end of the plant. Engman then spoke to the men, reading at least in part from a sheet of paper in his hand. We find, as did the Trial Examiner, that the following undenied testimony of Laurence Peterson, an employee on Van Diemen's shift, is a substantially correct account of what Engman said: He [Engman] says : "I have this here paper because I want to be sure that I say it right, what I am going to talk about .. . This is an American place and . . . it is run by Americans." He says, "I hope you guys is all Americans . . . We can all do what we want in this here country, and . . . you guys got the right to join any organization there is that you want to join, but . . . I hope you do join an American one." He says, "This building here is mine," or "I'm a shareholder in it .:. and I can do what I want with it. I can take it down brick by brick, tear it down, or burn it up if I want to." These remarks clearly conveyed the disparaging intimation that the Union was an un-American organization, as well as a thinly veiled threat that the respondent might cease operations should the Union gain a foothold in the plant. After completing the talk, Engman instructed. the employees to go back to work, and told them they would be given credit for the time lost in listening to the speech. This speech of Engman on the 27th, following upon the suspension of Neuschaefer on the 26th and Ralph Engman's remarks to him 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior thereto, very definitely demonstrated the respondent's hostility toward the organization of its employees in the Union. We believe, from a consideration of the record in its entirety, that Neuschaefer's suspension and Engman's talk to the employees were parts of a gen- eral program followed by the respondent to eliminate the Union from the plant and to lay the foundation for the establishment of a new labor organization, the Association, which is discussed below. We find, as did the Trial Examiner, that by Ralph Engman's state- ments to Neuschaefer, Eugene Engman's dealings with Neuschaefer and Sonnemarin on the night of September 26, and his talk to the employees on the night of September 27, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On Saturday, September 28, 1940, Hoge, who had been the or- ganizer of the Eclipse Recreation Association, hereinbefore described, drew up in the office of Gruenewald, the plant superintendent, two petitions on paper which he secured in that office. The petitions were' worded s follows : We, the following employees of the Eclipse Moulded Products Company, 5151 N. 32nd Street, are interested in forming an Independent Union. It is not disputed that Hoge left his machine and drew up the petitions during working hours. Some of the signatures to the petitions were also secured during working hours at the plant. Among the signers were several persons employed in a supervisory capacity, including two shift foremen in the molding department, Van Diemen and William L. Culbert," as well as Scholz and Greve, the respondent's die setter and shipping clerk," both of whom had some supervisory duties. Scholz and Greve were very active in securing signatures on the petitions, and Culbert asked at least one employee to join the Association. George Perlick, the inspector and time-study man of 8 After a number of signatures had been secured , Hoge, Scholz, and Harry O'Neil, another molding department employee, consulted George A. Burns , an attorney of Milwaukee, and upon his advice, the names of Van Diemen and Culbert were stricken from the petitions e Van biemen was shift foreman from 3 to 11 p m and Culbert from 11 p. in. to 7 a. in. The respondent contended that Scholz , who was on duty from 7 a. in to 3 p. in., was not a shift foreman , basing its contention chiefly on the fact that Gruenewald , the superintendent, was present in the plant during most of Scholz 's hours. The record shows, however, that in addition to setting up the presses when the dies were changed , Scholz performed duties similar to those of Van Diemen and Culbert. He checked the men in and out of the plant, instructed them in their work, assigned work to them , and relayed other instructions Gruenewald did not come to work until 8 a. in. and in the interval between 7 and 8 a. m, Scholz was, in sole charge of the molding department . Gilbert Greve, the only regular employee in the shipping and finishing department , at times had two helpers who assisted him and to whom he gave instructions . At other times these helpers worked in the finish- ing department. As appears more fully below, his authority to act for the respondent arose not only from his own position but from the fact that Scholz requested him to secure signatures to the petition for the Association. ECLIPSE MOULDED -PRODUCTS COMPANY 797 the plant, did not sign a petition, but joined the Association and was an active member. Perlick's position in the plant was one of responsibility and would certainly lead the employees to believe that his action in supporting and joining the Association represented the desires of the respondent.1° Since the petitions were openly passed around in the plant during working hours, it is reasonable to infer that Gruenewald was also familiar with them. There is no evidence that he or any other supervisor objected to their circulation. Greve testified that Scholz gave him one of the petitions in the plant on the morning of September 20, and that he took it over to the buffing and finishing department, telling the employees there "that some of the guys got together and felt like organizing an Independent Association, because they felt they didn't want the C. I. O. in there." According to his testimony all the employees in the finishing department, including his two helpers, and one man from the buffing department signed this petition,. and no one whom he approached refused to sign. He then returned the petition to Scholz. Previously Greve had secured the signatures of three em- ployees in the buffing department to a similar petition. On most occasions when Scholz attempted to secure the signatures of employees he was accompanied by Hoge. They not only assisted in the formation of the Association in the plant during working hours, but took time off to promote the interests of the Association and to make preparations for the organization meeting. The arrange- ments which Hoge made for securing time off for this purpose were rather unusual. According to his testimony, on Saturday morning, September 28, he- shut his machine down without authority from Gruenewald and went to Eugene Engman's office to apply for leave on September 29 and 30, and was gone about 30 minutes. Hoge was unable to recall any other occasion when he took time off and went to see Eugene Engman for such a purpose, since ordinarily arrange- ments for leave were made with Gruenewald or Charles Engman. His only explanation for going to Eugene Engman was that he was going to take off several days. Hoge testified that he wanted the time off to assist in organizational work for the Association, but that when he requested it, he merely stated that he wished to be off for several days the following week, and that Engman replied that it was immaterial to him. On October 1, Hoge decided that he would return to work at least for part of the day. He did not report this fact to anyone, but just went back to his machine and started working. He further testified that when he left again about noon the same day, 10 Perlick inspected the pieces or castings before they were shipped , and also timed new jobs to establish the piece rates to be paid for them. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he advised Gruenewald that he was leaving, and that Gruenewald said that that would be all right, without asking for an explanation. The organization meeting of the Association was held on Octobei 1, 1940. Present, among others, were Scholz, Perlick, and Greve. At the meeting Articles of Association were adopted, containing a con- stitution and bylaws. The constitution and bylaws provide for a supreme council to "act as the governing and judicial body of the said Union in all matters respecting the welfare of the Union and its members," including the approval of any contracts. Meetings of the membership, it is provided, are to be held at the call of the president of the Association. The supreme council is given authority to demand recognition when a majority of the employees have joined the Association, and to enter into a formal recognition contract with the management. The Association met with the respondent on October 4. The com- mittee representing the Association presented to Eugene Engman, Charles Engman, and Michael J. Dunn, the attorney for the respond- ent, a "recognition agreement." Greve, who was present at the meet- ing, testified, "Well, we just presented them a recognition agreement, if that is what you wish to call it, and asked them to read it over and sign it if they wanted to." The application cards of the Association's members were given to Eugene Engman, who glanced at them and returned them to the Association's representatives; and the agree- ment, as submitted, was then signed by the respondent and a copy posted on the bulletin board. The agreement stated that the Associ- ation had been designated as bargaining representative by a majority of the respondent's employees, and that therefore the respondent recognized it as the exclusive bargaining representative of its employees. At or about the time of this meeting on October 4, the respondent posted on the bulletin board the following notice : TO THE EMPLOYEES OF ECLIPSE MOULDED PRODUCTS CO.- STATEMENT OF POLICY Membership or non-membership in any labor organization is not required to secure or retain employment with Eclipse Moulded Products Company. Neither will discrimination of any kind be shown any employee because of membership or non-membership in any such organization. Employees leaving their respective places of work during work- ing hours and found to be discussing with other employees mat- ters outside the scope of their particular job will be subject to immediate dismissal without further notice. ECLIPSE MOULDED PRODUCTS COMPANY 799 It is apparent from the foregoing facts and from the record as a whole that the Association cannot be regarded as a labor organization selected by the free choice of the respondent's employees, but that it is rather a labor organization established by the respondent for its employees. The impetus for the organization arose from Eugene Engman's speech, in which he expressed the respondent's opposition to organization by the employees in the Union. The circumstances under which Hoge was given time off to form the Association make it evident, and we find, as did the Trial Examiner, that the respond- ent assented to and approved of Hoge's purpose. Supervisory em- ployees Scholz and Greve actively participated in soliciting members for the Association. Others, Van Diemen, Culbert, and Perlick, lent their approval and support. The sponsors of the Association were given free rein to organize in the plant during working hours. There- after the respondent, after a cursory examination of application cards, granted the Association recognition as the exclusive bargaining agency of its employees, thereby attempting to preserve for it the gains that it had made with the assistance and support of the re- spondent. The simultaneous posting by the respondent of the notice prohibiting discussion of union matters in the plant during working hours can only be viewed as a measure taken by the respondent to deny to any other labor organization the advantages which it had af- forded to the Association and which the Association had employed so successfully. This support to the Association is in sharp contrast to the respondent's hostility to the Union as evidenced by the elimina- tion from the plant on September 26 of the president of that organi- zation, a move designed to, and having the necessary effect of, dis- couraging membership in the Union and encouraging membership in the Association, which started its organizational activities 2 days later. We find, as did the Trial Examiner, that the respondent by the acts described in this section dominated and interfered with the forma- tion and administration of the Association, and contributed support to it, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that the Association is incapable of serving the respond- ent's employees as their genuine representative for the purpose of col- lective bargaining. D. Discrimination in regard to hire and tenure of employment and the terms and conditions of employment 1. Kavel, Gehrig, Erickson, and Gainer The complaint, as amended, alleges that the respondent discrimi- natorily discharged Carl H. Kavel on October 4, 1940. and Roland A. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gehrig, Leonard Erickson, and Floyd Gainer on October 8, 1940, and thereafter refused to reinstate them because of their membership in and activity on behalf of the Union. In its answer the respondent denied that it discharged or refused to reinstate the employees for the alleged reason, claiming affirmatively that it discharged them for cause. These cases must be considered against the background and the unfair labor practices of the respondent, described above. Carl H. Kavel started work for the respondent on September 20, 1940, and was discharged on October 4, 1940. The respondent paid its employees a minimum hourly rate. If an employee produced more than a; stated number of pieces per hour, he was paid at the piece rate for his job. The respondent's officials testified that the respond- ent found it unprofitable to retain employees who consistently failed to earn the minimum rate. During Kavel's period of employment he failed to earn the minimum rate at any time. However, he was never criticized on this account by his foreman or any other repre- sentative of the respondent, nor was he ever told that his failure to attain this standard would cause his discharge. Kavel joined the Union on September 27. When he was asked to sign the petition for the formation of the Association, he replied that he "would think it over." On October 3, Hoge and Scholz ap- proached him about 4: 15 in the afternoon and asked him to join the Association. Kavel told them that he was in a hurry, and as he started to leave, Hoge said, "You belong to the other then?" Kavel replied that he did. The next day at 4 o'clock Gruenewald, the plant superintendent, called Kavel into his office and discharged him with the statement, ac- cording to Kavel, that, "They tell me in the office that you ain't mak- ing production, and too many rejects." Kavel was then handed his check and left the office. Roland A. Gehrig started work on September 22, and was discharged on October 8, 1940. After he had worked for about 3 days, he was laid off by Gruenewald, the plant superintendent, but was returned to work on September 26, being advised by Gruenewald, according to Gehrig's testimony, that he had "picked on the wrong man." Gehrig earned more than the minimum rate on several occasions. Gehrig joined the Union on September 26. On October 2 he was asked by Scholz to join the Association, and on October 6, by Hoge. On both of these occasions, Gehrig replied that he was "on the fence." Hoge told him on the 6th: "You might as well come clean. We know what you are." Gehrig then informed Hoge that he had joined the Union. On the morning of October 8, Culbert, Gehrig's shift foreman, told him to report to Gruenewald, the superintendent. After Gehrig fin- ECLIPSE MOULDED PRODUCTS COMPANY 801 ished his work; he did so, and Gruenewald advised him that he was discharged. According to the testimony of Gehrig, which we credit, as did the Trial Examiner, Gruenewald said : "You are discharged. You are getting what more of them are going to get." Gehrig said : "What is the reason ? There must be some reason for me being dis- charged." "Yes," Gruenewald said, "the company complained about you having too many counts in." Gehrig replied, "Well, they never complained about my work before this, before this morning." Gruene- wald said that he could do nothing about it. The testimony of the respondent's officials as to the basis for Gehrig's discharge i,s vague, confusing, and inconsistent. Gruenewald testified that he discharged Gehrig because Gehrig had poor pro- duction, too many rejects, and failed to count accurately the number of pieces he produced. He further testified that he recommended to Charles Engman that Gehrig be discharged and that Engman agreed with him, but that he did not discuss Gehrig with Eugene Engman. Charles Engman' did not testify at all with regard to Gehrig. Charles Preston, secretary of the respondent, testified that he brought to Eugene Engman's attention Gehrig's inaccurate count, and that Eugene Engman then ordered Gruenewald to discharge Gehrig. We find all of this testimony unconvincing, as did the Ti ial Examiner. It is clear from the record that employees are paid on the basis of a count made by Perlick, the inspector, rather than on the basis of their own count; and there is no showing that an inaccurate count by an employee constitutes a serious error. The Trial Examiner did not credit the respondent's contention that Gehrig was discharged because of faulty work or because of his failure to report accurately the number of pieces molded, and we agree. Leona'r'd Erickson started work on September 19 and was discharged on October 8, 1940. He joined the Union on September 26. On September 30 Erickson was asked by Hoge and Scholz to sign the petition for the formation of the Association. At that time he advised them that he wished to think it over before he signed. Hc,ge invited him to attend the organizational meeting of the Association. Erickson attended the meeting and filled out an application for mem- bership, but did not pay any initiation fee. On about October 3 he was approached in the plant by Greve and asked to pay the initiation fee and dues. Erickson replied, "I might as well tell you that I joined up with the C. I. 0., I might as well tell you, to keep you from bother- ing me any more." Greve left, but later in the day, when Erickson was changing his clothes, again approached him and inquired whether he preferred the Union to the Association. Erickson replied : "Yes, I think it will do me the most good. That's the reason I joined up with them." He also said that he thought the Independent was "too much like a company union" 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Erickson finished working on October 5, he felt a little fever- ish and overheated and did, not go to work on October 6 or 7. How- ever, on October 7 he called up Gruenewald and advised him that he was not feeling well; and Gruenewald replied that it would be all right for him to report in the morning , that is, on October 8 . Erickson returned to the plant on October 8 at about 8 o'clock in the morning and went directly to the main office for his check. Preston, secretary of the respondent, approached him and asked how he felt. Erickson replied that he was not feeling very well. When asked by Preston as to his age Erickson replied , "Thirty-nine," and Preston said : "Well, this is kind of a hard job for a man about your age . . . It is pretty hot work." Erickson agreed that it had been pretty hard the first day or two on account of the heat, but said that he was getting more used to it and that it no longer affected him. Preston said : "I don't think you would be suited for this job . . . It is more for a young man, that would stand the heat," and concluded, "Well, we will have to let you go." Erickson received his check and left the office. Preston testified that he discharged Erickson and gave him his check, but denied having talked to him about the reason for his discharge. We agree with the Trial Examiner, who refused to credit this denial. As in the case of Gehrig, the respondent's testimony with regard to the discharge of Erickson is vague, confusing , and inconsistent. Charles Engman testified that Erickson was discharged because he broke a die, and because he was "off work" on October 6 and 7. He testified further that Gruenewald showed him the broken die, and that without inquiring further or asking who had done it, he instructed Gruenewald to discharge whoever was responsible . Gruenewald tes- tified that the incident of the broken die occurred 4 or 5 days before October 5, and that he sent Erickson home on that occasion, but that Erickson returned and continued to work for 4 or 5 days. He testi- fied further that he reported the incident of the broken die to Charles Eugman on the day of the incident, and that he (Gruenewald) did not discharge Erickson, but that the discharge was "handled" by someone else. Preston, who testified that he advised Erickson of the discharge, did not testify at whose instruction the action was taken. Finally Eugene Engman, who testified that he ordered Erickson to be discharged, could not recall whether his instructions were given to Charles Engman or to Gruenewald. Because of the confusion and contradiction in the respondent's testimony with regard to the discharge, of Erickson, we agree with the Trial Examiner that the testimony of the respondent's officials cannot be credited, and we find that Erickson was not discharged either because he broke a die or because the respondent believed that he did. ECLIPSE MOULDED PRODUCTS COMPANY 803 Floyd Gainer 11 started work for the respondent on September 12, 1940, and was discharged on October 8, 1940. He joined the Union on September 29.' As found above, he had a conversation with Charles Engman on September 26 about the organizing activity on behalf of the Union. On September 30 Culbert, a shift foreman, asked Gainer to join the Association, but Gainer replied that he "would like to think this all over." On October 7 Scholz asked Gainer to join, but Gainer refused. On October 7 he attended a conference at the Labor Board office as a member of the Union. The record shows, and we find, as did the Trial Examiner, that the respondent had knowledge of the persons present at this conference. The respondent contends that Gainer was discharged because -he broke dies on two successive days. However, there is no clear evidence in the record that substantial damage was done on either occasion. Certain repairs were made to the dies, after which they were, again used, and neither of them had been replaced by the time of the hearing. The cases of Kavel, Gehrig, Erickson, and Gainer must be considered together and can only be determined in the light of the general situation in the plant after September 26, 1940. During this period, as appears above, the respondent opposed the organization of the Union, while at the same time it fostered and supported the organization and growth of the Association. All four of the employees who were discharged between September 26, the date of the organization of the Union, and October 9, when the Union went on strike, were members of the Union and were discharged shortly after they had expressed their refusal to join the Association. No members of the Association were discharged during the same period.12 A review of the situation would not be complete without considering other actions of the respondent during this period directed against members of the Union. , Armas Karj ala, an employee in the molding department, first en- tered the respondent's employ in December 1936 and worked steadily for it from July 1939 until October 9, 1940, the date of the strike. On October 7, 1940, he attended a conference at the Regional Office of the Board as a member of a union committee. When he reported for work on the afternoon of the same day, Charles Engman transferred him from a job that he had not yet completed to a type of work with u Also known as Florian Gainer and Florian Zyscowski. 11 Before the discharges took place there were approximately 29 employees in the molding department, of whom 12 had signed the petition for the Association . The other 17, includ- ing the 5 employees named in the complaint, were either shown by the record to be mem- bers of the Union or can be presumed to be members from the fact that they went on strike on October 9. 804 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD - which he was not familiar. Shortly thereafter, Eugene Engman approached him and said: Well, this job is going into production right now. You are to make 72 latch strips. You get 5 cents apiece for them. They have got to be perfectly straight, they can't show any granulation, they have got to be filled out, they have to be perfect. You make 72 latch strips, or you are all done. Engman later inquired how he was getting along. Karjala said that the, pieces were not being properly molded and displayed them to Engman. Engman then told Karjala that he was "all through." Before Karjala left the plant, he was called into Gruenewald's office, where, according to Karjala, the following conversation took place between himself and Eugene Engman : He [Engman] started out by saying, "Now you can go out in the world and see how things really are." I said, "Okay, Gene." He said, "Do you expect me to pay you money for work like this?" I says, "Wait a minute, Gene," I says, "you know very well I was only shown a few minutes how to run this job, and, further- more, I had never run this type of material before." He said, "What do you expect me to do? Import a specialist every time we have a certain job?" I said, "at least I should be properly shown how to run the job. I would have had a reasonable chance of making produc- tion on any one of the thermo plastic jobs, on any one of the eight machines, but, to make sure, you put me on this thermo plastic machine." He said, "Well, there is one thing I don't like, is a sneak." I said, "Wait a minute, Gene." I said, "In other words, you are referring to me being down at the Labor Board this morning?" He says, "Well, yes. I know everything as soon as it happens." He said, "I happen to know you were the first one that got up down there this morning." I said, "All right, Gene, so what?" I said, "Did I misrepresent anything'down there this morning?" He said, "No, I didn't say you did." He said, "There is one thing I appreciate much more, is if a man comes out and tells me his convictions or his beliefs, instead of sneaking about it." I said, "I can go down and join any club, or anything, and I don't have to come running up to you. The same goes for the C. I. 0., that I can go down and join it, and I don't have to tell you about it." ECLIPSE MOULDED PRODUCTS COMPANY 805 He said, "That is true, you can belong to any organization you want to, but," he said, "I can also run my business any way I want." I said, "You are going to have to take my two and a half year record, and put it up against this one hour record. Do you still think you can make it stick?" He said, "Well, you have been with me some time. Maybe I was a little hasty." He said, "I will give you another chance," he says, "I will let you come in tomorrow." Engman testified that he never said to Karjala, "I don't like a sneak," but did not deny any of the remainder of this conversation. We find, as did the Trial Examiner, that the conversation occurred substantially as testified to by Karjala, and that by the statements .made to him by Engman, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Lawrence Pagel entered the employ of the respondent in 1937, and worked continuously for it from September 1939 until the time of the strike. He joined the Union on September 26, 1940, and refused Hoge's request to join the Association on October 1, and Scholz's request to join on October 5. Pagel told Hoge that he belonged to the Union. According to Pagel's testimony, on the morning of October 8 his fore- man, Culbert, "came over with some pieces I had not filed from the week before, and he said they had to be filed with the others, and make production, or else I was all through." Pagel replied that it would be impossible to do that, to which Culbert answered, "Then you are through." As Pagel was about to leave, Culbert came up to him and said : "You had better stick around, you had better go back to work, and see what the big shot has got to say in the morning about it. I don't want to get mixed up in this mess." We find, as did the Trial Exam- iner, that by the threatened discharge of Pagel, the respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. In addition to these incidents with regard to Karjala and Pagel, on-or about October 7 and 8 the respondent shifted the employees in the molding department around and changed their work assign- ments. The respondent contended, and the evidence indicates, that it has been the customary practice over a period of years frequently to transfer employees from one press to another. However, the record is equally clear that the custom is to transfer when a job is completed. On October 7 and 8 many shifts were made among the employees and particularly among those who were members of the Union, ' before they had completed the job upon which they were 451269-42-vol. 34-52 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working. As a result of these changes and shifts, the employees felt, and we find, as did the Trial Examiner, that a definite program of elimination of members of the Union was in progress. It is evident from the incidents with regard to Karjala and Pagel, recited above, and from the shifting of employees from job to job, that the respondent was searching for pretexts to discharge members of the Union. We are convinced that the discharges of Kavel, Gehrig, Erickson, and Gainer were part of the respondent's program of anti-union hostility and of its attempt to eliminate all members of the Union from the plant. This is confirmed by the remark made to Gehrig by Gruenewald at the time of Gehrig's discharge that Gehrig was "getting what more of them are going to get." It has been found above that the testimony introduced by the respondent is entirely inadequate to explain the discharges of Gehrig and Erick- son. It is true that the record contains evidence which might, under. other circumstances, satisfactorily explain the discharge of Kavel and Gainer. However, as we have heretofore held : "While proof of the presence of proper causes at the time of discharge may have relevancy and circumstantial bearing in explaining what otherwise might appear as a discriminatory discharge, such proof is not con- clusive. The issue is whether such cause in fact induced the dis- charge." 13 We are convinced that Kavel and Gainer were in fact discharged, as were Erickson and Gehrig, because of their member- ship and activity in behalf of the Union, and because of their refusal to join the Association. We therefore find, as did the Trial Exam- iner, that by the discharge of Kavel, Gehrig, Erickson, and Gainer, the respondent discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union and en- couraging membership in the Association; and that it thereby inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Arthur Neuschaefer We have found above that the respondent suspended Neuschaefer because of his leadership in the organization of the Union. After Neuschaefer's suspension and prior to his reporting for an examina- tion by Dr. Fitzgerald, the doctor to whom he was sent by the re- spondent and who was a stockholder of the respondent, Neuschaefer was examined by two other doctors, a general practitioner and a neurologist, to whom he was sent by the Union. The reports of these doctors, which were introduced into the record, are admittedly is See Matter of The Kelly-Springfield Tire Company and United Rubber Workers of America, Local No. 26, et al., 6 N. L. R. B. 325. ECLIPSE MOULDED PRODUCTS COMPANY 807 incomplete and inconclusive. Neuschaefer was given a fairly thor- ough examination by Fitzgerald, and at the conclusion of the exam- ination, according to Neuschaefer's testimony, Fitzgerald said : "What the hell are they trying to do? Make a well man sick?" Fitzgerald did not testify. Dr. Fitzgerald's report of his examination was submitted on or about October 9,14 but before receiving it, the respondent insisted that, since Neuschaefer had been examined by two doctors selected by the Union, he be examined by another specialist to be selected by the respondent. Sonnemann, as the representative for the Union, in conferences with counsel for the respondent at first agreed to this proposal, but a day or two later withdrew from the agreement; and on his advice Neuschaefer refused to consent to a further examination. Since it is evident from the record, and was evident to both the Union and Neuschaefer, that the respondent's request that he be examined by another doctor was not made in good faith, but was merely an effort of the respondent to find some pretext to discharge him, Neu- schaefer and the Union were justified in rejecting the proposal. On October 11, the respondent withdrew its request that Neu- schaefer submit to another examination, and at the same time indi- cated that even if a second examination was favorable, the respondent would not reinstate Neuschaefer. The alleged basis for this action was the discovery by the respondent that Neuschaefer had at one time requested from the Wisconsin Workmen's Compensation Bu- reau additional compensation for an injury, after having agreed to a final settlement. This factor, alleged the respondent, indicated that Neuschaefer was not the type of individual it cared to have working in the plant. On the same day Neuschaefer was handed a discharge slip. This action was taken according to the respondent because of his refusal to submit to the second examination. We are convinced, as was the Trial Examiner, that none of the reasons advanced by the respondent in justification of the discharge of Neuschaefer in fact motivated his discharge. It is evident from the entire record, and we find, that as soon as the respondent learned of Neuschaefer's leadership in the organization of the Union, it determined to discharge him for that reason, and thereafter searched for some pretext which might serve to explain the discharge. We find, as did the Trial Examiner, that the respondent by the discharge of Neuschaefer discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and ,encouraging membership in the Association; and that it thereby in- 2+ On the basis of the respondent's report that Neuschaefer had suffered an attack of vertigo, which, as found above, was contrary to the fact, Fitzgerald concluded that it might be related to a skull fracture suffered by Neuschaefer years before . Ile accordingly suggested that Neuschaefer be examined by a neurologist. 808 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD terfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. E. Strike of October 9 The discharge of some members of the Union, the shifting of others from job to job, and the threatened discharge of still others, led the Union to believe that the respondent intended to discharge all of its members. Accordingly, a special meeting of the Union was held on October 7 at which a strike vote was taken and carried. The mem- bers of the Union went out on strike on October 9 and were still on strike at the time of the hearing. Neuschaefer testified as follows with regard to the causes of the strike : The purpose of the strike, they started dismissing some of my members, three or four of the members were discharged, and they threatened to discharge more if they didn't produce. There was some of my members on the night of the 6th, I think it was, that came to me and told me if they don't produce tonight, they are out of a job, and give them another chance, and I says, "Well if this keeps on, we had better hold a special meeting," which we did, and a meeting was held down at the S. W. O. C. office. * * * * * * s Q. What were the unfair labor practices, by reason of which you went out on strike? A. They started shifting the men from one machine to the other, and claiming, if they didn't produce, they was through, and these men were more or less jeopardized through them statements, and felt we should do something about it, which I did, and I called this special meeting, and what happened was, we voted on a strike, and, on the 9th, we called the men out, at 6: 00 o'clock in the evening I went out there and called the men all out, they walked out. We credit the testimony of Neuschaefer, as did the Trial Examiner, and find that the strike of October 9, 1940, was caused by the unfair labor practices of the respondent. We therefore further find that the strikers remained employees within the meaning of Section 2 (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, ECLIPSE MOULDED PRODUCTS COMPANY 809 and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY In order to effectuate the purposes and policies of the Act, we shall order the respondent to cease and desist from the unfair labor prac- tices in which we have found' it to be engaged, and in aid of such 'order and' as a means of removing and avoiding the consequences of such practices, we shall further order it to take certain affirmative action more particularly described below. We have found that the respondent has dominated and interfered with the formation and administration of the Association and has contributed support to it. We further find that the effects and con- sequences of the respondent's domination, interference with, and sup- port of the Association, as well as the recognition by the respondent of the Association as the bargaining representative for its employees, constitute a continuing obstacle to the free exercise by the employees of their right to self-organization and to bargain collectively through representatives of their own choosing. Accordingly, we shall order the respondent to withdraw recognition from and disestablish the Association as the representative of any of its employees for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment.15 We have found that the respondent discriminated in regard to the hire and tenure of employment of Carl H. Kavel, Roland A. Gehrig, and Leonard Erickson. We shall therefore order the respondent to offer to each of these employees immediate and full reinstatement to his former position or to a substantially equivalent position without prejudice to his seniority or other rights and privileges. We shall further order the respondent to make these employees whole for any loss of pay they may have suffered by reason of the respondent's discriminatory conduct, by payment to each of them of a sum of money equal to the amount which he would normally have earned as wages from the date of the discrimination against him to' the date of the offer of reinstatement, less his net earning s,111 during such period. 'b See N. L. R. B. v. Newport News Shipbuilding and Dry Dock Company, 308 U S. 241 ; N. L. R. B. v. The Falk Corporation, 308 U. S 453; N. L. R. B. v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261. "By "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local $590, 8 N. L. It. B. 440 Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U, S. 7. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have also found that the respondent discriminated in regard to the hire and tenure of employment of Floyd Gainer 17 and Arthur Neuschaefer.18 Accordingly we shall order the respondent to offer to each of these employees immediate and full reinstatement to his former position or to a substantially equivalent position without prejudice to his seniority or other rights and privileges. Further to effectuate the policies of the Act we should normally order back pay from the time of the discrimination against them to the time of the respondent's offer of reinstatement. In view of the Trial Examiner's recommendations, however, the respondent could not have been expected to reinstate them after receiving the Intermediate Report.19 It should not, therefore, be required to pay them back pay from that time until the issuance of this Decision. Accordingly, we shall order the respondent to make whole these two employees for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he would normally have earned as wages from the date of such discrimination to the date of the Intermediate Report, and from the date of this Decision and Order until the offer of reinstatement, less net earnings 20 during these periods. We have further found that the strike of October 9, 1940, was caused by the respondent's unfair labor practices. In order to restore the status quo as it existed prior to the time of the strike, we shall order the respondent to offer reinstatement, upon application, to the - employees who went on strike on October 9, 1940, and who have not since been fully reinstated to their former or substantially equivalent 14 In the case of Gainer the Trial Examiner did not recommend reinstatement , basing his refusal to do so on the ground that the record showed that Gainer had made false state- ments in his application for employment with the respondent and that at the hearing be had given testimony at variance with his testimony before the Wisconsin Employment Relations Board After reviewing the record, we are of the opinion that the untruthful- ness of Gainer, which was not alleged by the respondent as the reason for his discharge, is not material to the issue before us , nor does it warrant a refusal to extend to Gainer the benefits of our usual order, designed to effectuate the policy of the Act Full consideration has been given to the evidence of Gainer's lack of veracity in determining his credibility as a witness. 13 The Trial Examiner recommended reinstatement for Neuschaefer provided he should pass a physical examination conducted by an impartial doctor, to be selected in the manner we have previously ordered In Matter of Phelps Dodge Corporation, Copper Queen Branch, Smelter Division and Southern Arizona Smeltermen's Union, Local No. 420, International Union of Mine, Mill and Smelter Workers, C. I. 0, 28 N. L. R. B. 442. In the Phetv5l Dodge case, however, there was a genuine conflict of testimony regarding the physical con- dition of the employee concerned, whereas in the present case it Is apparent that the re- spondent's insistence on a physical examination was a mere pretext to conceal the real reason for the discrimination against him . We shall not, therefore, require Neuschaefer to 'pass a physical examination and present to the respondent a doctor's certification of the fitness for employment as a prerequisite to his reinstatement. 19Matter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760. 20 See footnote 16, supra. The record shows that Neuschaefer was paid by the respond- ent from the date of his lay-off to the date of his discharge. ECLIPSE MOULDED PRODUCTS COMPANY 811 positions, in the manner set forth below without prejudice to their seniority and other rights and privileges : All or such number neces- sary of the persons hired by the respondent after October 9, 1940, the date of the strike, and not in the employ of the respondent on said date, shall be dismissed to provide employment for those to be offered reinstatement. If, thereupon, despite such reduction in force, there is not sufficient employment available for the employees to be offered reinstatement, all available positions shall be distributed among such employees without discrimination against any employee because of his union affiliation or activities, following such a system of seniority or other procedure to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such distribution for whom no employment is immediately avail- able, shall be placed upon a preferential list with priority determined among them by such system of seniority or other procedure as has heretofore been followed by the respondent, and shall thereafter, in accordance with such list, be offered employment in their former or substantially equivalent positions as such employment becomes avail- able and before other persons are hired for such work. We shall also order the respondent to make whole the employees to be offered reinstatement for any loss of pay they may have suf- fered by ieason of the respondent's refusal, upon application, to rein- state them or to place them upon a preferential list as provided above, whether such application for reinstatement has been, or is, made be- fore or after the date of this Decision and Order, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from five (5) days after such appli- cation for reinstatement to the date of the offer of reinstatement or placement upon a preferential list, less his net earnings'21 if any, during said 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. Steel Workers Organizing Committee, affiliated with the Con- gress of Industrial Organizations, and Independent Association' of Eclipse Workers are labor organizations within the meaning of Sec- tion 2 (5) of the Act. . 2. By dominating and interfering with the formation and adminis- tration of Independent Association of Eclipse Workers, and con- tributing support to it, the respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 21 See footnote 16, supra. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By discriminating in regard to the hire and tenure of employ- ment and the terms and conditions of employment of Arthur Neu- schaefer, Carl H. Kavel, Roland A. Gehrig, Leonard Erickson, and Floyd Gainer, thereby discouraging membership in Steel Workers Organizing Committee (CIO) and encouraging membership in In- dependent Association, of Eclipse Workers, the respondent has en- gaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Eclipse Moulded Products Company, Milwaukee, Wisconsin, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of Inde- pendent Association of Eclipse Workers; or the formation or adminis- tration of any other labor organization of its employees, or contribut- ing support to Independent Association of Eclipse Workers or to any other labor organization of its employees ; (b) Discouraging membership in the Steel Workers Organization Committee (CIO) or any other labor organization of its employees, or encouraging membership in Independent Association of Eclipse Workers or any other labor organization of its employees, by dis- criminating in regard to the hire and tenure of employment or any terms or conditions of employment of its employees; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which we find will effec- tuate the policies of the Act : (a) Withdraw all recognition from and completely disestablish Independent Association of Eclipse Workers as the representative ECLIPSE MOULDED PRODUCTS COMPANY 813 of any of its employees for the purpose of dealing with the respond- ent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (b) Offer to Carl H. Kavel, Roland A. Gehrig, Leonard Erickson, Floyd Gainer, and Arthur -Neuschaefer, immediate and full rein- statement to their former or substantially equivalent positions with- out prejudice to their seniority and other rights and privileges; (c) Make who e ®a-'l H. Kavel, Roland A. Gehrig, and Leonard Erickson for any loss of pay they may have suffered as a result of the respondent's discrimination in regard to their hire and tenure of employment, by payment to each of them of a sum of money equal to the amount which each normally would have earned as wages during the period from the date of such discrimination to the date of the offer of reinstatement, less _his net earnings during said period ; (d) Make whole Floyd Gainer and Arthur Neuschaefer for any loss of pay that they may have suffered as a result of the respond- ent's discrimination in regard to their hire and tenure of employ- ment, by payment to each of them of a sum of money equal to the amount which he would have earned as wages from the date of such discrimination to the date of the Intermediate Report, and from the date of this Order to the date of the respondent's offer of reinstate- ment, less his net earnings during such, periods; (e) Upon application offer to those employees who went on strike on October 9, 1940, and who have not since been fully reinstated, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner provided in the section entitled "The remedy" above; and place those employees for whom employ- ment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (f) Make whole the employees specified in subsection (e) above, for any loss of pay they may have suffered by reason of the respond- ent's refusal, on application, to reinstate them or to place them upon a preferential list pursuant to subsection (e) above, whether such application has been, or is, made before or after the date of this Order, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from five (5) days after his application for reinstatement to the date of his reinstatement or placement upon a preferential list, less his net earnings during said period, as provided in the section entitled "The remedy" above; 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (g) Post immediately in conspicuous places throughout its plant in Milwaukee, Wisconsin, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), (e), and (f) of this Order; and (3) that the respondent's employees are free to become or remain members of Steel Workers Organizing Committee (CIO), and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization; (h) Notify the Regional Director of the Twelfth Region in writing on or before ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.