Leyse Aluminum Co.

In the Matter of LEYSE ALUMINUM COTNIPANY and ALUMINUM WORKERS FEDERAL LABOR UNION No. 22403 (AFL) Case No. C-1941.-December 23, 1941 Jurisdiction : cooking utensils manufacturing industry. Unfair Labor Practices Into Terence, Restraint, and Coercion: anti-union statements; paying employees for holidays in order to discourage union activities; inducing an employee to resien from the union. Company-Dominated Union: formation of, instigated by employer by : sending an employee and its attorney to consult with the president of an "independent" union so as to encourage the formation of an "inside" union ; by offering to share profits and increase overtime work if employees would join an "inside" union ; by entering into a contract with the "inside" union without discussion concerning its terms and requesting or receiving proof of union's assertion that it represented a majority of the employees. Discrimnination: lay-offs and refusal to grant to "outside" union employees an opportunity to share equally with other employees extra maintenance sweeping work and over-time pay. Collective Bargaining: union's majority established by signed applications ; defec- tions arising as a result of employer's unfair labor practices held not to affect majority-refusal to bargain collectively by refusing to recognize or negotiate with the union because of exclusive recognition contract with dominated organization. Remedial Orders : dominated organization disestablished; contract with domi- nated organization abrogated ; employer ordered to bargain collectively with the union; back pay awarded laid-off employees ; employees discriminatorily denied extra maintenance sweeping work to be paid for such losses by sharing a proportionate amount for total paid out by employer for this work between date of discrimination to date of compliance with order. Unit Appropriate for Collective Bargaining : all employees except officials, super- visors and clerical employees; no controversy as to. Mr. Frederick P. Mett, for the Board. Minahan & Bassett, by Mr. Robert C. Bassett, of Green Bay, Wis., for the respondent. Mr. Rudolph Faupl, of Milwaukee, Wis., for the Union. Miss Marcia Hertzonark, of counsel to the Board. 37 N. L. R. B., No. 139. 839 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION' AND ORDER STATEMENT OF THE CASE { Upon charges and amended charges duly filed by Aluminum Work- ers Federal Labor Union No. 22403, affiliated with American Federa- tion of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twelfth Region (Milwaukee, Wisconsin), issued its complaint dated March 13, 1941, against Leyse Aluminum Company, Kewaunee, Wis- consin, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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, accompanied by notice of hearing, were duly served upon the respondent, the Union, and Leyse Aluminum Workers Association, herein called the Association. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance (1) that the respondent since July 19, 1940, has engaged in various acts of interference, restraint, and coercion in that it had (a) on July 19, 1940, at a meeting of employees made anti-union and pro-Association statements; (h) on July 26, 1940. made similar statements to an employee who was president of the Union; (c) on August 16,1940, urged an employee to rejoin the Associ- ation; (d) on August 22 questioned an employee as to why he joined the Union, made statements favoring the Association, urged the em- ployee to bargain individually and induced him to resign from the Union by making certain promises; (e) since August 2, 1940, imposed discriminatory restrictions upon employee Darel Seeman, recording secretary of the Union; (2) that the respondent dominated and inter- fered with the formation and administration of the Association, and contributed financial and other support thereto, by various specified acts occurring on and after July 19, 1940, and that on August 14 it made an agreement with the Association recognizing the latter as the exclusive bargaining agent of its employees; (3) that the respondent discriminatorily laid off, between specified dates, seven named em- ployees; 1 and since August 1, 1940, discriminatorily refused to employ 1 II Douglas Rudie, Clarence Karl, Edmund Leannah , ,Marvin Znnmeiman, Nellie Urban, Ella Leischow , and Darel Seeman Rudie s lay-off was alleged to have been from August 2 to 8, 1940, inclusive, the lay-offs of Karl, Leannah, and Zimmerman , from August 5 to 12, Ui ban's and Leischow's from August 5 to 13 , and Seeman 's from Februar y 27 to March 10, 1941 LEYSE ALUMINUM COMPANY 841 seven employees on maintenance work on Saturdays at overtime pay, although they customarily performed such work before that date; 2 and (4) that on August 15, 1940, and thereafter, the respondent refused to bargain with the Union -although it represented -a majority of the employees in a unit appropriate for collective bargaining. On March 24, 1941, the respondent filed its answer which, as amended at the hearing, admitted the interstate character of the respondent's business, denied the commission of any unfair- labor practices, and alleged affirmatively that the Board was without jurisdiction because of technical defects in the charges filed. At the same time, the re- spondent filed a motion'for extension of the hearing to June 1, 1941, 'upon the asserted ground that its president, Albert B. Leyse, was ill and unable to testify. On March 26, 1941, the Regional Director issued a notice postponing the hearing from March 27 to April 3, 1941. Pursuant to notice and amended notice, a hearing was held at Kewaunee, Wisconsin, on April 3, 4, 5, 7, 8, 9, and 14, 1941, before Peter F. Ward, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by a representative. The Association did not appear or participate. All parties were accorded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the outset of the hearing, the respondent renewed its motion for extension. After evidence was received thereon, the Trial Examiner denied the motion, subject to renewal thereof at the close of the Board's case. The respondent then moved that the complaint be dismissed be- cause of the denial of the motion for extension, and for asserted defects in the pleadings and moved that the second amended charge be made more specific. The motions were denied.- The respondent then moved that all allegations in the complaint not contained in the charge be stricken. This motion was denied. At the conclusion of the Board's case, the respondent renewed its motions for dismissal and extension. Both motions were denied.' During the hearing, a third amended charge was filed to include the allegation of alleged discrimination in connection with the refusal to employ certain men on maintenance work on Saturdays as more fully described above; the complaint was 2 The employees involved in this latter allegation are Harold voeks, Darel Seeman, Harold Lutien, wencil Pribyl (reteired to in the complaint as Tim Pribyl), Tom Kelliher, Gerald Tegan , and Elmer Griese IIn connection with the respondent's motion for an extension due to the state of A B. Leyso's health, the respondent adduced medical testimony to the effect that, although Leyse was able to appear as a witness , there was a possibility that such appearance would result in it relapse, but that Leyse would probably be in no better physical condition in 60 or 90 day s The respondent did not request that Leyse s testimony be taken by deposition we think the Trial Examiner properly denied the motion See N L. R B v Algoma Plywood and Veneer Company, 121 F ( 2d) 602 (C C A 7), setting aside on other grounds , Matter of Algoma Plywood if Fences Company and Local 1521 , United Brothel hood o ,f Carpenters and Joiners of America (A F L ), 26 N L R B, No 102. 842 DECISIONS OF NATIONAL LABOR REILATIONS BOARD amended in accordance therewith; and leave was given to file an amended answer to include a denial of such additional allegation, which answer was received by the Trial Examiner after the hearing. At the conclusion of the hearing ,' the respondent's motion to dismiss the complaint was denied, and the motion of the Board's counsel to conform the pleadings to the proof was granted. There was no objec- tion to the latter motion. During the course of the hearing the Trial Examiner made a number of rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter, the Trial Examiner issued his Intermediate Report; dated July 30,1941, copies of which were duly served upon all the par- ties, finding that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 ( 1), (2), (3), and (5 ) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from engaging in such practices, that it make whole the persons found to have been discriminated against for any loss they sustained by reason of the discrimination, that it withdraw all recognition from the Association and cease giving effect to a contract with that organization, and that, upon request, it bargain collectively with the Union. The respondent filed exceptions to the Intermediate Report. None of the parties filed briefs or re- quested oral argument. The Board has considered the exceptions and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FA0'r I. THE BUSINESS OF THE RESPONDENT The respondent is a Wisconsin corporation having its principal office and place of business in Kewaunee , Wisconsin . It is engaged in the manufacture, sale, and distribution of cooking- utensils, and other aluminum products such as signs and clock dials. During 1939, the respondent purchased approximately $115,000 worth of aluminum, all of which was obtained from points outside the State of Wisconsin. During the same period , it purchased $3,700 worth of steel, half of which came from points outside the State of Wisconsin . Its sales for 1939 approximated $480,000; over 90 per cent of such products sold were shipped to points outside the State of Wisconsin . Purchases and sales in 1940 were approximately the same as those for 1939. LEYSE'ALUMINUM COMPANY H. THE ORGANIZATIONS INVOLVED 843 Aluminum Workers Federal Labor Union No. 22403 is a labor or- ganization affiliated with the American Federation of Labor, ad- mitting to membership employees of the respondent. Leyse Aluminum Workers Association is an unaffiliated labor organ- ization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; the Association There was no labor organization at the respondent's plant before 1940. Shortly prior to July 9, 1940, Darel Seeman, an employee in the respondent's press department, arranged to have an A. F. of L. organizer come to Kewaunee. In consequence, an organizational meeting was held on July 9, 1940, attended by several employees, at which time a temporary organization was set up and arrangements were made to hold a further meeting on the evening of July 19. The proposed July 19 meeting came to the attention of the respond- ent. On the afternoon of that day, the respondent called a meeting of all its plant employees during working 'hours, and addresses were made to the employees by Albert B. Leyse,4 president of the respond- ent, and his brother, Norman Leyse, secretary-treasurer. Both offi- cials read prepared statements. That of Albert B. Leyse was in part as follows : Maybe the law says I can't do this, but we've gotten along with our employees pretty well during the last thirty seven years, and regardless of what some fellow down in Washington says, I am going to do what I can to keep this family together .. . h saw in the Enterprise [a local newspaper] last Friday that an organizer for the American Federation of Labor had called a meeting of the employees of this company and that initial steps had been taken to form a Union .. . I want to say right here and now that we are against an outside Union. This man, who is going to organize this Union, is going to make you all kinds of promises. The difference between hill) and us is that when we make a promise, we have to keep it. There is only one thing the labor organizer is interested in-and that is getting you into the Union. He will make a commission on every one of you, and then there are the monthly dues that go toward the payment of the agitators' and organizers' salaries .. . 4 Albert B. Leyse did not testify at the hearing All statements hereinafter attributed to him were undenied and were based upon testimony of witnesses whom the Trial Exam- iner credited , as do we 844 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD Now where is it going; to get you if you join an outside Union? .. . Why can't we get together and settle our differences in our own way? We camtellyou.our-troubles and you can tell us yours, and between the two of us, we should be able to iron out these matters . . . We have tried to run our business in our own way. If we are going to be forced to listen to outside interference we will have to take methods to protect ourselves. If you want to have an American Federation of Labor Union or, an Independent Union, that's your business . We are opposed to an outside Union. Why can't we get together and have an or- ganization distinctly cur own . . . I don't see why we can't form an 'organization among ourselves to settle any differences among ourselves .. . Why can't you appoint a committee and talk the matter over with Norman and me, and see if we cannot come to some adjustment of our differences . I don't want to be in a continual argument with you folk , and that's what an out- side Union means . . '. I hope you will decide to stand with us. You and I don't need any outside advice to get along peaceably, Employee Thomas Kelliher testified without contradiction, and we find, that Leyse also told the employees to "get together and talk the thing over, then form a committee and come into the office to see him; that we could stay in the office and talk it over as long as we wanted to, and punch out after we had finished discussing . . . the problem with ourselves and with him." The address made by Norman Leyse was in part as follows: After being in business 37 years, I believe you will understand how disappointed we were a week ago when we learned what was going on . . . [After giving a history of certain aspects of the respondent's business , Norman Leyse concluded as follows:] We have gotten along with you people for many years without any difficulty coming up between us , and we don't see why we can't continue that way. If anyone is dissatisfied about anything, we wish you'd come to us and talk'things over . . . Let's keep our feet on the ground and be fair all around ... On the pay day occuring July 19, the day on which the speeches were made, the respondent's employees received pay for July 4 and 5, holidays . They had never before, and have not since, received pay for holidays . The explanation for this unprecedented generosity was supplied by Kelliher who testified that a week later A. B. Leyse told hint that , in spite of giving the employees two days' pay which had cost the respondent about $500, "still union activities kept going on." At the July 19 meeting of the Union , 45 of the respondent's approxi- mately 69 production and maintenance employees signed application cards for membership. LEYSE ALUMINUM COMPANY 845 On July 20, Albert B. Leyse inquired of employee Clyde Karnopp what Karnopp planned to do the following day, which was Sunday. Karnopp replied that he had planned to visit his parents at Sheboygan, Wisconsin. Leyse requested that Karnopp postpone the trip, saying that he would pay for a long-distance telephone call to Karnopp's parents. This was done. Leyse informed Karnopp that he had made arrangements for him and employee Fred Pfuehler to meet the presi- dent of an "independent union" at Algoma, Wisconsin, on Sunday; he added that the respondent's attorney, Robert C. Bassett, would be there, and that Karnopp and Pfuehler could then find out how to go about starting an independent union. Pursuant to the arrangements, Karnopp and Pfuehler went to Algoma on July 21, where they met William H. Poehls and Andy Cmejla, president and secretary-treasurer, respectively, of Algoma Plywood Workers Association (hereinafter referred to as the Algoma Association), an unaffiliated labor organization, at the Algoma Ply- wood and Veneer Company (hereinafter referred to as the Algoma Company). The meeting was held at Poehls' home. Attorney Bas- sett, who was also present, said, according to Karnopp's testimony, that the respondent was not in a position to afford an A. F. of L. union, and that it would probably go out of business if the employees insisted upon joining such a union. Poehls did not recall whether Bassett had made this statement. We find that he made it. There was then some discussion concerning methods of forming an independent or inside union. It was agreed that a meeting would be held on July 23 at the Karsten Hotel at Kewaunee, which representatives of the Algoma Association and members of other "independent" unions would attend. It was further agreed that the occurrences of July 21 should be secret. Karnopp and Pfuehler then returned to Kewaunee where they re- ported to the Leyses what had happened at Algoma. It was arranged that notice of the proposed meeting at the Karsten Hotel on July 23 should be posted on the respondent's bulletin board. Such notice was posted on July 22 and the July 23 meeting was duly-held. Poehls and Cmejla, together with other members of the Algoma Association, and a few members of another inside union, were also present. However, the only Leyse employees who appeared were Karnopp and Pfuehler, and the meeting shortly disbanded. After this attempt at forming an inside union had failed, Albert B. Leyse spoke to Kelliher, president of the Union, on July 26, and arranged to meet him at 8 o'clock that evening near Kelliher's home. Between 8-and 11 o'clock that night,.Leyse and Kelliher were together in the former's automobile. Leyse told Kelliher that no one had attended the meeting at the Karsten Hotel, that he could not under- stand why the men wanted to belong'to a union, and suggested the formation of an inside union. During the conversation, Leyse made 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements similar to those he had made in his July 19 speech. He suggested to Kelliher that since Kelliher was an officer of the Union, he could persuade the union members to join an inside union. Kelli- her replied that the organization of the Union had progressed too far, as a majority of the members had paid their initiation fees and their first month's dues. To this, Leyse replied by offering to reimburse the union members on condition that they abandon the Union. He offered, further, to share all-profits over 6 per cent with the'employees if they dropped the Union and joined an inside union, and in addi- tion, to give them more overtime work. Leyse suggested that Kelliher pass the offer on to the union members and Kelliher said that he would do so. The next day, July 27, Kelliher informed employees Darel Seeman, Harold Lutien, and Elmer Griese, all union members, of what Leyse had told him. Kelliher said that he thought Leyse's offer a good one. After some discussion among them, it was decided to submit the proposition to the membership on the following Tuesday, July 30. On Sunday, July 28, Kelliher met several other members of the Union and told them of Leyse's offer. When Kelliher arrived at-the plant on Monday he found groups' of employees standing outside, discussing Kelliher's ride with Leyse and the latter's offer. Later that day Leyse told Kelliher to forget the conversation of July 26. Kelliher testified, however, that by that time "practically everybody in the shop knew about it." We find that the substance of Leyse's conversation with Kelliher was common knowledge in the plant. It is clear that the steps which finally led to a successful organiza= tion of the Association were inspired by the above occurrences and that the respondent's employees entertained no doubt concerning the desires of the respondent in the matter. Charles Seeman, Jr., a brother of Darel Seeman, testified that on August 5 he discussed the formation of an inside union with employees Clarence Bargman and Jack Seiler outside the plant, after which they went to see the Leyses. Seeman, Jr., testified that he asked the Leyses what they had to offer an Independent Union and that they replied they had nothing to- offer. After a conversation lasting about half an hour the three employees left, but Norma Leyse, according to the uncon- tradicted testimony of Seiler, which we believe, called Seeman, Jr., back, handed him, $4, and said "Have a drink." Norman Leyse testified that it was the policy of the respondent to buy drinks for employees, and Seeman, Jr., admitted that Norman Leyse gave him the money' but could not remember' when. We find that the- incident occurred as stated by Seiler. Seeman, Jr., testified that he decided to organize an independent union when he was told by members of the Union that he would lose his job if he did not join the Union. It is plain, however, and we LEYSE ALUMINUM COMPANY 847 find, that the action of the respondent in sending Karnopp and Pfuehler to Algoma and the offer of A. B. Leyse to Kelliher came to the attention of Seeman, Jr., and furnished the impetus to his interest in forming an unaffiliated union. That his visit with the Leyses added to his determination is shown by the fact that, when Seeman, Jr., left the office he took with him a piece of paper on which he wrote "We want an independent union" and on which he, Bargman, and Seiler secured a number of signatures of employees on the same evening. Seeman, Jr., also posted in the plant a notice of a meeting to be held on the evening of August 6. The meeting was held in accordance with the posted notice, and was presided over by William Poehls, president of the Algoma As- sociation; Andy Cmejla, secretary-treasurer of the Algoma Associa- tion, acted as secretary for the meeting. Cmejla prepared a paper by which the signatories agreed to abide by the constitution and bylaws of the Association. Twenty-one employees were present at this meeting, some of whom signed the paper drafted by Cmejla; others signed later; a total of 40, a majority of the production and maintenance employees, signed. Thereafter, the Association prepared, for submission to the re- spondent, a proposed contract which was copied practically verbatim from the contract between the Algona Association and the Algoma Company. Leo Vanderbloemen, president of the Association, testi- fied that a copy of the Algoma contract was typed the night of August 13 with slight changes, and presented by him to Albert B. Leyse at the latter's office the next day. Vanderbloemen told Leyse that the Association represented a majority of the employees but Leyse neither requested nor received any proof of this assertion. Leyse returned the contract to Vanderbloemen on August 15 signed in duplicate, and without change. Vanderbloemen affixed his signa- ture thereto, went to the home of the Association's secretary, John Urban, and obtained the latter's signature. Vanderbloemen then returned one copy of the signed contract to Albert B. Leyse on August 16. It was dated August 14. It is significant that prior to the execution of the contract, there had been no discussion concern- ing its terms between the respondent and, the Association, nor was the general membership of the Association informed of the contract until several days after its execution. About the middle of August, Albert B. Leyse had a conversation with Karnopp during which Leyse asked Karnopp why he had joined the Union and not the Association. Leyse said that Karnopp could get what he wanted through the Association. Karnopp re- plied that he saw no point in belonging to the Association, that'it appeared to be company-dominated, and that if he had any bargain- 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to do he would do it himself. Leyse then suggested that Karnopp bargain for himself, whereupon Karnopp immediately requested an increase in pay of 10 cents an hour and a week's vacation with pay. Leyse agreed to Karnopp's request provided that the latter resigned from the Union. This Karnopp did on August 22. He accordingly receitied a raise of 4 cents an hour. However, he did not receive any vacation with pay during the year 1940 or the full 10 cents an hour he had been promised. Karnopp later reinstated his membership in the Union. That the respondent's hostility toward the Union and preference for the Association continued at the time of the hearing is evident from Norman Leyse's testimony. On direct examination by the re- spondent's counsel he testified in part as follows : Q. What is the policy of the Leyse Aluminum Company in re- gard to inside or outside unions, the point of view of the company, and what has it-been all the time? A. Like all manufacturers we don't run up with open arms to embrace a union, but if we must have a union we would much prefer an inside union, that is, a union that is run and governed by the employees, people who know us and we know them. These people know what our business is and they have some idea of what our problems are so we can work together. We are definitely op- posed to having an outside union that is run or absolutely domi- nated by men from out of town, by a lean whose only interest in the union is what he can get out of it. Q. Is that the same policy which was read to the employees by A. B. Leyse and yourself last July? A. I would say so. Q. And that still is the policy of the company? A. Yes sir. On cross-examination, Norman Leyse testified further as follows: Q: You don't care.about an A. F. of L. organization in your plant? A. No. Q. And you are going to see that none get in there? A. I will try my best. I will have to admit that. By the speeches of A. B. Leyse and Norman Leyse on July 19, 1940,5 by paying employees for holidays in order to discourage union activi- S,Charles Seeman, Jr , testified that, following these speeches, employees were offered an opportunity to speak but that "about half the employees put their tails between their legs and away they went . , they all pussy-footed out" vanderbloemen testified he had not joined the 'Union because. "I listened to this speech , and he certainly offered the working people at the Leyse Aluminum Company a fair proposition He offered them a chance to come in there and ask for whatever they wanted to and he would grant it to them . . ." LEYSE ALUMINUM COMPANY 849 ties, by the statements of A. B. Leyse to Kelliher and Karnopp, and by the action of A. B. Leyse in inducing the resignation of Karnopp from the Union, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. By its action on July 19, 1940, in instigating the formation of the Association, by sending Karnopp and Pfuehler to Algoma to encourage the formation of the Essociation, by the offer of A. B. Leyse to share profits and increase overtime work if employees would join an inside union, by entering into a contract with the As- sociation, and by other acts found above, the respondent has domi- nated and interfered with the formation and administration of the Association and has contributed support thereto, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discriminatory lay-offs and refusals to employ on maintenance work 1. The lay-offs The complaint alleges that the respondent discriminated in regard to the hire and tenure or the terms and conditions of employment of seven named employees by causing them to be laid off for specified pe- riods because of their union membership and activity and in order to discourage membership in the Union. Six of the lay-offs may be dis- cussed together. H. Douglas Rudie was laid off from August 2 to 8, 1940, Clarence Karl, Edmund Leannah, and Marvin Zimmerman from August 5 to 12, 1940, and Ella Leischow and Nellie Urban from August 5 to 13, 1940. The lay-offs occurred during the period when union activity was at its height and the Association was in the process of formation, and were made by selecting one person from each of the cooking- utensil departments of the plant. All the laid-off employees were members of the Union at the time they were laid off, and no others were laid off but these. Darel Seeman testified that about August 7, 1940, Albert B. Leyse came into the press department where Darel Seeman worked and had a. conversation with Charles Seeman, Sr., (father of Darel and Charles, Jr.), foreman of the department. After this conversation, Seeman, Sr., told Darel that Leyse had just said that he was sorry he ever gave Darel a job; that he thought that he was doing Darel a favor by giving him one, but that he found out that Darel was "Labor Leader No. 1"; and that it was his (Leyse's) intention to lay off a union man from each department. Charles Seeman, Sr., testi- 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fled as a witness for the respondent. His version of the incident dif- fers from Darel's only in that he denied having told Darel that it was Leyse who had informed him of the intention referred to. See- man, Sr., testified that he had received information as to such inten- tion "a couple of days" earlier from his son, Charles Seeman, Jr., and that he had told Darel of such intention without, however, indicating from whom he had received the information. It is unnecessary to resolve the conflict in the testimony between Darel Seeman and his father, for even on the latter's version it is clear, and we find, as did the Trial Examiner, that Charles Seeman, Jr., knew, before the employees affected thereby, of the contemplated lay-offs, that he secured such information from the respondent, and that the plan to lay off a union member from each cooking-utensil; department was motivated by the respondent's purpose to discourage the Union. The respondent contended that at the time of the lay-offs it had no knowledge of the union affiliation of these six persons. This conten- tion is without merit. Charles Seeman, Jr., and others who were active in promoting the Association, had attended one or more union meetings in July and were familiar with the union member- ships. We find, as did the Trial Examiner, that the respondent had such knowledge as a result of its close affiliation with Charles See- man, Jr., and others active in the efforts to form and promote the Association. We have found above that the-respondent made manifest its inten- tion to lay off one union member from each cooking-utensil depart- ment and that it in fact did so. We are of the opinion that, in view of these facts, and the respondent's demonstrated hostility to the Union, it was incumbent upon the respondent to explain the lay-offs. The respondent contended that the lay-offs of the six persons were necessary because business had not improved as much as the respond- ent had expected, because the stock of aluminum on hand was un- balanced, and because there was insufficient storage space for finished products. The respondent introduced in evidence, for the purpose of support- ing its contentions, exhibits showing the orders for cooking utensils and other merchandise received from May to November 1940, the total shipments of all goods for those months, its inventory of cooking uten- 0 See Montgomery Ward f Co., Inc v N. L R B, 107 F (2d) 555 (C. C A. 7 ), wherein the Court stated : "This inference of discriminatory discharge leaves it up to the employer to give an adequate 'explanation of the discharge' even though the burden of proof remains on the Board , since it is obvious that the reasons of the discharge 'lay exclusively within Its knowledge.' " LEYSE ALUMINUM COMPANY 851 sils for July and August 1939 and from May to November 1940, and the production orders issued for cooking utensils during August 1940. None of these exhibits supplies sufficient data to furnish the basis for a comparison between previous years and 1940. However, certain facts are revealed by an inspection of the figures therein. For instance, it should be noted in connection with the respondent's claim that busi- ness was slow, that its July 1940 orders for cooking utensils were about $2500 more than those in June of the same year although, according to the respondent's witness Mutchow, business is ordinarily slow in June and July and begins to improve in August. Since the respondent failed to indicate the extent of its expectations, and since we are un- able to compare the July rise with that of the same month in any other year, we cannot credit the respondent's contention that its business conditions required the lay-off of the six complainants. Moreover, the respondent introduced no evidence to substantiate its claim that a large part of the July orders contemplated future delivery, nor why such fact would affect the situation since Mutchow testified that cooking utensils are manufactured for stock rather than upon order. It did not explain how it could have known on August 2, when the.first lay-off occurred, that business was not going to improve according to its ex- pectations although orders ordinarily did not increase until some time thereafter. That there was in fact no unusual decline in the respond- ent's cooking-utensil sales during the summer of 1940 is shown by a letter dated September 5, 1940, in which employees were informed of certain pay increases, which contains the statement, "While our cook- ing utensil sales have held up quite satisfactorily, the orders for every- thing else have dropped off considerably." In connection with its contention that its stock of aluminum was unbalanced, the .respondent's evidence shows that certain sizes and types of aluminum were received on August 6 and 13 and that produc- tion orders to manufacture utensils from this metal were issued there- after. The order for this metal was placed on July 10 and since the normal delivery period is 5 or 6 weeks it arrived approximately on schedule. As stated above, Mutchow testified that cooking utensils are manufactured for stock rather than upon order, and that the respondent keeps a running inventory of aluminum. We are not sat- isfied that this evidence establishes that the respondent's stock of cer- tain types of aluminum had become so depleted as to require lay-offs. With respect to the storage problem, Norman Leyse testified that the respondent first discovered the shortage of space for storing finished utensils in the latter part of May 1940. Nevertheless, the respondent continued to operate on a 42-hour per week basis, although during the summer of 1939 it had operated on a 32-hour per week basis, and al- though on other occasions it had for various reasons closed down for 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one day each week. We do not imply that the respondent should have chosen one type of curtailment of operations over another, but its de- fense that it lacked space for storage does not bear close scrutiny when viewed in the light of the above facts. We find, as did the Trial Examiner, that the evidence adduced by the respondent does not sustain its contention that lay-offs were required by business conditions. On the contrary, we believe, as did the Trial Examiner, that the lay-off s, pursuant to the respondent's expressed intention as found above, were made for discriminatory reasons. We find that by laying off H. Douglas Rudie, Clarence Karl, Edmund Leannah, Marvin Zimmerman, Nellie Urban, and Ella Leischow the respondent discriminated in regard-to the hire and tenure of their em- ployment, thereby discouraging'membership in the Union and encour- aging membership in the Association, and interfering with, restrain- ing, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act.7 Darel Seeman was employed in the press department and was laid off from February 27, 1941, to March 10, 1941. Seeman was known to the respondent as the leading spirit in the organization of the Union. He was a good worker and had never been criticized prior to August 2, 1940. On that date, at a time when both the Union and the Associa- tion were active, he was told by Plant Superintendent Jule Neumann that he was doing too much talking in the plant, and that he should see to it that he stayed in his own department. Part of Seeman's job re- quired him to obtain material from other parts of the plant, and at the time of this criticism he was in the print shop getting such mate- rial. Within 15 minutes after this criticism he received a written notice from the respondent, stating that he was spending altogether too much time in different departments of the plant, and notifying him to stay in his own department until his foreman sent him to some other. On the other hand Leo Vanderbloemen, president of the Association, testified that he ordinarily went from one department to another with- out permission and that no objection was made by the respondent to such action. He also testified that he engaged in daily conversations concerning matters unrelated to business. Charles Seeman, Jr., also testified that employees move around the plant on personal or union business without asking permission. Seeman continued as an active member of the Union and as recording secretary, to which office he was elected on August 6, 1940. As we have stated above, about August 7, 1940, according to the testimony of 'r Since the lay-offs were made pursuant to a discriminatory policy and in order to dis- courage interest and membership in the Union , it becomes immaterial to consider the basis for the selection of each of the complainants The fact that individual choices might have been proper, on the basis of seniority or other criteria (if a general lay-off had been dic- tated by business reasons ), cannot affect our conclusions. LEYSE ALUMINUM COMPANY 853 ,Darel' Seeman and Charles Seeman , Sr., which we credit, Albert, B. Leyse, in a conversation with Darel Seeman's father, a foreman at the plant, referred to Darel in derogatory terms, and stated that he con-, sidered Darel "Labor Leader No. 1." During this conversation, ac- cording to Darel's testimony, Leyse indicated that Darel would have -been laid off but that "someone" had interceded for him. Charles Seeman, Sr., testified that it was Charles, Jr., who had told him that he (Charles, Jr.) was responsible for Darel's retention. In any event, as we have found above, the intimacy between the respondent and Charles Seeman, Jr., indicates that the latter's statements were made upon good authority. On December 16, 1940, Darel received a second notice, signed by Norman Leyse, to the effect that it had been brought to L'eyse's atten- tion that Seeman was again spending time in departments where he had no business, and warning him that if he continued to disregard the in- structions his dismissal would follow. This written warning was a re- sult of a visit by Seeman to the print shop on company business. The testimony of Darel Seeman that on this, as well as upon the earlier occasion, he had been on company business, was undenied. Neumann, the superintendent who saw him in the print shop on both occasions, did not testify. We find that Darel Seeman was engaged in company business upon the occasions which resulted in the notices above men- tioned. We find further that the respondent was in both instances requiring of Seeman conduct which it did not require of other employees. On the evening of February 26, 1941, officials of the Union including Dare], held a meeting at the Karsten Hotel, after the adjournment of which they repaired to the hotel bar where Norman Leyse, who was passing through, saw them. Seeman did not report for work the fol- lowing morning, February 27, as he was not in a condition to do so. At 9: 30 that morning, Norman Leyse addressed a letter to him stating that in view of his unexplained absence from work "and in line with previous notices served on,you," there would be no work available for Seeman until further notice. Seeman testified that he had been absent on previous occasions with- out explanation, as had other employees, and that no disciplinary action had been taken in connection therewith. Norman Leyse testi- fied that ,he "never knew of any". other case, which had been reported to the office, of an employee's failure to come to work without giving advance notice. We credit Seeman's testimony , as did the Trial Examiner, and find that.Seeman and other employees had been absent -without giving notice on previous occasions. - It is undisputed that ,one employee, an Association member, who "reported for work while drunk, was sent home to sober up, returned to work at noon on the same day, and received no "disciplinary" lay-off. The Trial Examiner 433257-42-voL 37-55 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found, and we concur in his findings, that the reasons given by the respondent for the lay-off of Darel Seeman were merely pretexts. The real reasons were Seeman's union membership and activities in union affairs.8 We find, as did the Trial Examiner, that by laying off Darel See- man from February 27, 1941, to March 10, 1941, the respondent dis- criminated in regard to the hire and tenure of his employment, thereby discouraging membership in the Union and encouraging membership in the Association, and by such conduct interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. The refusals to employ on maintenance work The complaint alleged that the respondent discriminated against seven named employees,9 by discriminatorily refusing, since August 1, 1940, to employ them on maintenance work on Saturdays at overtime pay, although they regularly performed such work before that date. No production work took place in the plant on Saturdays. Up to. 1938 or 1939, Karnopp and a high-school boy spent several hours each Saturday sweeping the plant. Thereafter, the respondent discon- tinued the use of high-school boys, and a group of nine employees was, selected from among whom three or four individuals were used each Saturday to sweep the plant. These nine persons consisted of the seven here involved, all of whom -,were members of the Union, and Charles Seeman, Jr., and Clarence Bargman, Association members. Karnopp testified that early in August 1940 Plant Superintendent Neumann told him that thereafter Karnopp would be handed a list each week with the names of those who would be permitted to sNveej), that-week and "that the Independents, [members of the Association] would be shown preference in sweeping." Since employees were paid on an hourly basis, this extra sweeping work enabled them to increase their total earnings, in many instances by the, receipt of time and one- half for the sweeping work when they had already put in a full week's working time at their regular jobs. Karnopp's testimony as to what Neumann said was uncontradicted; Neumann was not called as a wit- ness. We agree with the Trial Examiner and find that Neumann made the statements attributed to him. - The respondent contended that because of complaints from em- ployees, it inaugurated, on Saturday, July 13, 1940, a policy of dis- • In connection with Seeman's inability to come to work on February 27 because of his drinking the previous evening, it will be recalled that Norman Leyse testified in substance that it was the policy of the Leyses to buy drinks for the -employees. - *Harold Voeks , Darel Seeman, Harold Lutien , Wencil Pribyl , Tom Kelliher, Gerald Tegan , and Elmer Griese. LEYSE ALUMINUM COMPANY 855 tributing the sweeping work among ,a larger group than previously, and that it attempted to choose employees who were paid a lower hourly wage rate and those who had not worked their full hours of regular work in a week. The record shows that on July 13, 1940, two employees who had not theretofore done sweeping work were thus employed. Members of the original crew swept on July 20, a new person swept on July 27, and three of the original nine persons swept on August 3. About 26 per- sons, who had not swept before, did some sweeping' work between July 13, 1940, and April 5, 1941. Some of these 26 were, as the respondent claimed, lower-paid employees, while others were not. Many of them w ere paid at overtime rates for sweeping work. The respondent's wage scale ranged from 30 cents an hour to 50 cents an hour before September 2, 1940, and to 52.5 cents an hour after that date. If per- sons earning 45 cents an hour or more are considered to come within the higher salaried group, the 10 union members-in this category were employed, after August 3, at sweeping on 9 Saturdays, while the 7 Association members in that wage group were employed on 26 Satur- days. Only 2 of the original 7 union men performed any sweeping work after August 3, 1940; one swept on two Saturdays and the other swept on one Saturday. However, Charles Seeman and Clarence Bargman, Association members, swept on 6 and 3 Saturdays respec- tively after August 3, although both were in the higher wage group. Although we believe and find that the respondent changed its sweep- ing policy for non-discriminatory reasons on July 13, 1940, it is clear, and we find, that after about August 1, 1940, this changed policy was utilized in such a manner as practically to eliminate members of the Union from the sweeping crews. The respondent thus carried out the policy, announced by Superintendent Neumann, "that the Independ- ents would be shown preference in sweeping." We find that by refusing to grant Darel Seeman, Harold Voeks, Harold Lutien, Wencil Pribyl, Gerald Tegan, Elmer Griese, and Tom Kelliher an opportunity to share equally with other employees the maintenance work on Saturdays 10 since August 1, 1940, the respond- ent discriminated in regard to the hire and tenure and the terms and conditions of their employment, thereby discouraging membership in the Union and encouraging membership in the Association, and by such conduct interfered with, restrained, and coerced its employees in the rights guaranteed in Section 7 of the Act. 10 The complaint alleged that the respondent refused to'employ these persons on mainte- nance work at overtime pay. However, the evidence indicates that overtime rates were paid only when the employee hdd already worked his full weekly quota and that some of the sweeping work was not done at overtime rates. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -C. The refusal to bargain, 1. The appropriate unit The complaint alleges, the respondent's answer admits, and we find that all the respondent's employees except officials, supervisors, and clerical employees, on August 14, 1940; and at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment. We further find that .said unit insures to the employees of the respondent the full benefit of their right to self-organization and to collective bargaining, and other- wise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit It was undisputed that between July 19 and August 6, 1940, 49 of the respondent's' employees within the appropriate unit had signed ap- plications for membership in the Union. Forty-four of them were initiated into the Union on August 6. During the period from August 4 to August 15, the respondent had in its employ 69 production and maintenance employees, constituting all the employees in the appro- priate unit. Prior to August 14,1940, on which date the Association submitted its contract to the respondent, a number of the employees who had joined the Union became members of the Association, without resigning their membership in the Union. -Since we have found that the re- spondent dominated and interfered with the formation of the Associa- tion, and engaged in other conduct designed to discourage member- ship in the'Union, such defections cannot affect the Union's majority. We find them to be the result of the respondent's unfair practices." We find that on August 6, 1940, and at all times thereafter, the Union was, and now is, the duly designated representative of a ma- jority of the employees of the respondent in the appropriate unit and, by virtue of Section 9 (a) of the Act, the exclusive representative of all the employees in said unit for the purposes of collective bargain- ing with respect to rates of pay, wages, hours of employment, and other conditions of employment. ' That such defections are to be disregarded in determining the majority see N. L. R. B. V. Bradford Dyeing Ass'n, 310 U. S 318, rev'g 106 Fed. (2d) 119 (C. C. A: 1), and enf'g Matter of Bradford Dyeing Association ( U. S. A.) (a corporation ) and Textile Workers Organizing Committee of the C. 1. 0., 4 N L R. B 604; Int'l. Ass'n. of Machinists v N. L. R. B., 311 U . S. 72 aff'g 110 Fed. ( 2d) 29 (App. D. C. ), enf'g Matter of The Serrsck Corporation and Int'l Union, United Automobile Workers of America, Local No 459, 8 N. L. R. B. 621; Matter of National Seal Corporation and Int'l. Ass'n. of Machinists Long Island City Lodge 295 A F. of L., 30 N. L. It. B, No. 27; Matter of Norristown Box Company and International Brotherhood of Pulp, Sulph ite and Paper Mill Workers, Local '422, 32 N L. It. B , No. 148 LEYSE ALUMINUM COMPANY 857, 3. The refusal to bargain A few days prior to August 16,1940, the Union prepared a proposed contract for submission to the respondent for the purpose of collec- tive bargaining. During the meeting at which the proposal was pre- pared the members voted to present it to the respondent on August 16 and instructed the committee to do so. On August 16, the respondent posted a notice on its bulletin board to the effect that the Association had assured the management that it represented a majority of the production employees, and that the respondent had signed an agree- ment with the Association recognizing it as the sole bargaining agent for all production employees in, the plant. That afternoon Kelliher, president of the Union, and other union members called upon Albert B. Leyse. They remonstrated with Leyse concerning the posted'no- tice, asserting that the Union represented a majority of the employees and hence should be recognized as the exclusive bargaining agent. Leyse replied that the Association claimed a majority. Kelliher then indicated that the Union had prepared a 'proposed contract but did not intend to hand it to Leyse until the notice -'regarding the Associa- tion was removed, and a notice posted recognizing the Union. Leyse replied that he could not bargain with two organizations. Kelliher answered that Leyse should bargain with the one which had a major- ity. Leyse suggested that both unions be broken up, and that the employees come in and "talk about things like we always did." He asked what the demands of the Union were. Kelliher replied that they included increases in pay and vacations with pay. Leyse asked whether the Union demanded a closed shop, to which Kelliher replied "not necessarily." To this last observation, Leyse answered "You'll get a closed shop O. K. I'll close it for you." The inference is clear that the speed with which the Association presented its contract and the respondent accepted it was due, at least in part, to the knowledge that the Union had prepared a proposal and intended to present it on August 16. The respondent made no pre- tense of recognizing the Union or negotiating with it on August 16 and, in fact, Leyse's suggestion that both unions be broken up and his threat to close the plant indicated that he had no intention of bargain- ing with the Union. Moreover, the actions of Leyse on August 16 are inconsistent with a genuine doubt concerning the Union's majority. On February 3, 1941, and again on February 12, 1941, at which time representatives of the Union and the respondent met, the respondent refused to recognize the Union and to bargain with it.12 13 At the conference on February 3, 1941, the respondent offered to recognize the Union if certain pending charges were dropped. A few days thereafter the union representative informed the respondent that its members had agreed to such a settlement but the respond- ent's attorney thereupon stated that he did not think the respondent would agree to the 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, as did the Trial Examiner; that the respondent, on August 16, 1940, and at all times thereafter , refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and thereby interefered with , restrained,, and coerced its employees in the exercise of the rights guaranteed in' Section 7 of the Act. IT. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent , set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close , intimate, and substantial relation to trade, traffic , and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the* respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom , and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent dominated and interfered with the formation and administration of the Association and contrib- uted support to it., In order to effectuate the policies of the Act and to free the respondent 's employees from the effect of such unfair labor practices, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed them in the Act, we shall order the respondent to withdraw recognition from and completely disestablish the Association as a representative of the respondent's employees for the purposes of collective bargaining. The contract granted to the Association was the culmination and perpetuation of the respondent 's unfair labor practices of encour- aging membership in and rendering assistance to the Association while discouraging membership in the Union . We shall order the respondent to cease and desist from giving effect to the contract dated August 14, 1940, as well as to any extension , renewal, modification, or supplement thereof, and to any superseding contract which may now be in force . Nothing herein shall be taken to require the re- spondent to vary those wages, hours , seniority , and other such sub- stantive features of its relation with the employees themselves, which Union's proposal At the February 12 conference the Union again requested recognition and there was some discussion concerning the possibility of a consent election However, when the Union refused to agree that if it lost such an election it would nevertheless withdraw its charges , the respondent refused to bargain . The Union clearly was under no obligation to withdraw its charge of unfair labor practices against the respondent as a condition tQ recognition and bargaining. LEYSE ALUMINUM COMPANY 859 the respondent established in performance of the contract as extended, renewed, modified, supplemented, or superseded. ' I - We have also found that the respondent discriminated in regard to the hire and tenure of employment of H. Douglas Rudie, Clarence Karl, Edmund Leannah, Marvin Zimmerman,' Nellie Urban, Ella Leischow, and Darel Seeman. We shall require the respondent to make them whole for such loss as they may have sustained during the 'Period of their lay-offs, 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 of his lay-off, less his net earnings 13 dur- ing said period. Rudie was laid off from August 2 to 8, 1940; and Karl, Leannah, and Zimmerman from August 5 to 12, 1940. Urban and Leischow were laid off on August 5 and returned to work on August 14. How- ever, the respondent had called both of them on August 12 and had been unable to reach them. The respondent will not be charged with their failure to work on August 12 and 13. Darel Seeman was laid off on February 27, 1941, and was recalled to work on March 10, 1941. We have further found that since August 1, 1940, the respondent discriminated against Harold Voeks, Darel Seeman, Harold Lutien, Wencil Pribyl, Tom Kelliher, Gerald Tegan, and Elmer Griese by refusing to employ them on maintenan e work on Saturdays although they had customarily done such world before that date. We shall not order the respondent to restore to these employees the main- tenance work referred to, to the extent and in the manner they had done such work prior to the discrimination against them. However, we shall order the respondent to give them, in the future, sweeping work without discrimination because of their union membership. The respondent contended during the hearing that, when raises in pay were given to various employees following the making of the contract with the Association, increases were given to certain of the -employees alleged to have been discriminated against in- connection with the sweeping work, and that in the giving of such raises the fact was taken into account that these men were no longer receiving such sweeping work. It was further contended that these men earned more money in the aggregate after the alleged discrimina- tion than they had before, despite the fact that they no longer "By net earnings" is meant earnings less expenses , such as for transportation, room, and boaid , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere " See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 2590 , 8 N. L R B. 440. Monies received for work performed upon Federal , State , county , municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v N. L R. B , 311 U. S 7. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in sweeping. But the evidence iiidicates, and we find, as did the Trial Examiner, that such increased earnings were due main- ly to the fact that business had picked" up and there was more pro- duction work to be performed. The matter of providing a formula for the computation of such loss as was caused by the discrimination in the sweeping, work, pre- sents certain difficulties. It is impossible to estimate the exact amount of wages each of the persons so discriminated against lost as the result thereof. The formula herein applied is found to constitute the nearest approximation thereto, and to be fair to the parties. involved.14 The original sweeping crew consisted of nine persons. We have found that seven of them were discriminated against. However, since 26 persons were added to the sweeping list after July 13, 1940, the proportion of work which each of the seven would have. received after that date would necessarily have been less than that received before that date. We shall, therefore, order that each of the seven persons discriminated against shall receive 1/35 of the total paid out, by the respondent for sweeping work between August 1, 1940, and the date,of compliance with this Order less such amount as any of the seven may have earned by sweeping between those dates.ly No deductions shall be made from such sums to be so divided except as indicated below.' We have found that the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit. We shall order that the respondent, upon. request, bargain collectively with the Union. . 14 Cf Mattei of Eagle-Picher Mining and Smelting Company, a co) poiattioa, etc. and Inter- national Union of Mine, Still & Smelter Workers, Locals Nos 15, 17, 107, 108 and 111, 16 N L R B 727, enf'd as mod , Eagle-Picher Mining and Smelting Cons pany v N L R B , 119 F (2d) 903 (C C A 8) , and Matter of Ford Motor Company and International' Union United Automobile Workers of America, Local Union No 449, 31 N L R B , No 170, wheiein we formulated a rule similar to that which we shall apply in this case li Although some of them had done more sweeping work than others, the difference was small However, Kelliher was offered sweeping woik on February 15, 1941, which he re- fused until members of the Union were treated on a par with Association members with respect to* sweeping work.. Theretore, Kellihei's shaie shall be reduced by deducting theie- from an amount based upon the proportion which the time from February 15, 1941, to the date of the offer of reinstatement bears to the entire period from August 1, 1940, to the data reinstatement is offered 16 It is impossible to ascertain which Satuidavs the individual persons discriminated against -would have woiked following August 1. 1940, had the discrimination against them not occurred Theoretically, if such Saturdays were known , it would be possible to deduct any outside earnings made by such persons during the hours they would have worked on such Saturdays Under the circumstances disclosed by this recoi d, there is extremely little likelihood that there were such earnings , nor was there evidence of any It is not unfair to eliminate possible deductions of outside earnings under the circumstances here disclosed, in view especially of the fact that a division based upon the earnings of the men who did sweeping work after August 1, 1940, probably causes some loss to the persons discriminated against, in view of the fact that they received in many instances a higher rate of pay per hour than the persons who thereafter did such work. LEYSE ALUMINUM COMPANY 861 Upon the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. • Aluminum Workers Federal Labor Union No. 22403, affiliated with the American Federation of Labor, and Leyse Aluminum Workers Association are labor organizations within the meaning, of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of Leyse Aluminum Workers Association and contributing support thereto the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of einploy- Inent of H. Douglas Rudie, Clarence Karl, Edmund Leannah, Mar- vin Zimmerman, Nellie Urban, Ella Leischow, Darel Seeman, Harold Voeks, Harold Lutien, Wencil Pribyl, Tom Kelliher, Gerald Tegan, and Elmer Griese, thereby discouraging membership in the Union and encouraging membership in the Association, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. All the employees of the respondent at its Kewaunee, Wiscon- sin, plant exclusive of officials, supervisory, and clerical employees, now constitute, and at all times material herein constituted, a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 5. Aluminum Workers Federal Labor Union No. 22403, affiliated with American Federation of Labor, was on August 6, 1940, and at all times thereafter has been, 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. By refusing on August 16, 1940, and at all times thereafter, to bargain collectively with Aluminum Workers Federal Labor Union No. 22403, affiliated with American Federation of Labor, as the exclusive representative of the employees in the above unit, the respondent 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 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. - 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c), of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Leyse Aluminum Company, Kewaunee, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : - (a) Dominating or interfering with the formation and administra- tion of, and contributing support to, Leyse Aluminum Workers Asso- ciation or any other labor organization of its employees; (b) Recognizing Leyse Aluminum Workers Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work; (c) Giving effect to the contract dated August 14, 1940, between the respondent and the Leyse Aluminum Workers Association, as well as to any extension, renewal, modification, or supplement thereof, and to any superseding contract with the said Association which may now be in force; (d) Discouraging membership in Aluminum Workers Federal Labor Union No. 22403, affiliated with American Federation of Labor, or in any other labor organization of its employees by dis- criminating in regard to their hire or tenure of employment, or any terms or conditions 'of their employment; (e) Refusing to bargain collectively with Aluminum Workers Federal Labor Union No. 22403, affiliated with American Federation of Labor, as the exclusive representative of all its employees at its Kewaunee, Wisconsin, plant, exclusive of officials, supervisory, and clerical employees, in respect to rates of pay, wages, hours of employment and other conditions of employment; (f) In any other manner interfering with, restraining, _*or coercing it's 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 con- certed activity for the purposes • of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the 'Board finds will effectuate the policies of the Act: (a) 'Withdraw all recognition from, and completely disestablish, Leyse Aluminum Workers Association as the representative of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hour of employ- ment, or other conditions of employment; LEYSE ALUMINUM COMPANY 863 (b) Make whole H. Douglas Rudie, Clarence Karl, Edmund Lean-, nah, Marvin Zimmerman, Nellie Urban, Ella Leischow, and Darel Seeman,for any loss of pay they have suffered during the period of their lay-offs as found above,17 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 of his lay-off, less his net earnings during such period; (c) Offer,to Harold Voeks, Darel Seeman, Harold Lutien, Wencil Pribyl, Tom Kelliher, Gerald Tegan, and Elmer Griese immediate restoration to extra maintenance sweeping work without discrimina- tion because of their membership in the Union; (d) Make whole Harold Voeks, Darel Seeman, Harold Lutien; Wencil Pribyl, Tom Kelliher, Gerald Tegan, and Elmer Griese for any loss of pay they may have suffered by reason of the discrimina- tion against them from August 1, 1940, until they' are 'restored to their former status, in accordance with the provisions in the section entitled "The remedy"; (e) Upon request, bargain collectively with Aluminum Workers Federal Labor Union No. 22403, affiliated with American Federation of Labor as the exclusive representative of all the respondent's em- ployees at its Kewaunee, Wisconsin, plant, exclusive of officials, super- visory, and clerical employees in respect to rates of pay, wages, hours of employment, and other conditions of employment; (f) Post immediately in conspicuous places in its plant at Ke- waunee, Wisconsin, and maintain for a period"of not less than sixty (60) consecutive days from the date of posting, notices to its employ- ees stating''(1). that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b)', (c), (d), (e), and (f) of this Order; (2) that the respondent will take the affirmative,action set forth in paragraphs (2) (a), (b), (c), (d),-and (e) of this Order; and (3) that 'the respondent's employees are free to become or remain members of Aluminum Workers Federal Labor Union No. 22403, affiliated with the American Federation of Labbl', and that the-respondent will' not discriminate against any of ,its employees because of membership or activity in that organization (g) Notify the Regional Director for 'the Twelfth Region in writ- ing within' ten (10) days from the date of this Order what steps it has taken to comply herewith. 11 Rddie's lay-off was from 'August 2 'to August 8, 1940; Seeman's from February 27 to March 10, 1941 ; and the others from August 5 to August 12, 1940.