Edward G. Budd Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 10, 1942

41 N.L.R.B. 872 (N.L.R.B. 1942)

In the Matter of EDWARD Cr. BUDD MANUFACTURING COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. C-0109.-Decided June 10, 1942 Jurisdiction : steel automobile and railroad car manufacturing industry. Unfair Labor Practices Company-Dominated Union: suggesting form for inside organization : drawing up proposed plan, bearing expense of printing proposed plan, ballots, and announcement-statemnents to employees showing disapproval of outside unions-assistance : by bearing expense of annual elections on employer's property ; permitting meetings on employer's property and time ; and by per- mitting arrangement with Employees' Exchange by which inside union was financed-perpetuation of, by employer through considering all employees or those who voted in annual elections as members-no disavowal or cleavage following passage of Act. Discrimination: discharge of one employee and failure to reinstate another; charges of as to three employees dismissed. Remedial Orders : dominated organization disestablished; contracts with dominated organization abrogated; reinstatement and back pay awarded. Mr. Geoffrey CZtnniff, for the Board. Drinker, Biddle cC Reath, of Philadelphia, Pa., by Mr. Henry Drinker and Mr. L. H. Van Dusen, for the respondent. Mr. L. Halpern Miller, of Philadelphia, Pa., for the Association. Mr. Louis F. McCabe, of Philadelphia, Pa., for the Union. Miss Marcia Hertzmark, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Or- ganizations,' herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its complaint 1 The original and first amended charges were filed by United Automobile Workers of America (C I 0.). The change in the name of the labor organization occurred in August 1941. 41 N. L It. B., No 156 872 - EDWARD G. BUDD MANUFACTURING COMPANY - 873 dated November 26, 1941, against Edward G. Budd Manufacturing Company, Philadelphia, Pennsylvania, 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, were duly served upon the respondent, the Union, and Employees Representation As- sociation,2 herein called the Association, a labor organization alleged to-have been initiated and dominated by the respondent. With respect to the unfair labor practices the complaint, amended as hereinafter described, alleged in substance that the respondent -(1) -in September 1933 prepared, formulated, initiated. and foisted upon its employees, the Association, and thereafter contributed financial and ,other support thereto,, and dominated and interfered with its ad- ministration; (2) on February 21 and July 25, 1941, respectively, terminated the employment of Patrick J. Nelligani and Walter Weigand; on August 15, 1941,'refused to reinstate to their former positions Ray Weigand and John F. Brown; and on October 25; 1941, refused -to reinstate to his -former position Milton Davis, be- - cause of their union activity and in order to discourage membership in the Union' and encourage membership in the :Association; and 1(3) through certain, supervisory employees interrogated employees concerning their membership' in the Union, informed them that the Union would never be permitted to organize-"the- re'spondent's em- ployees, = and , assigned certaini , of its `employees -to 'engage in acts of, espionage, with relation-to the activities' of members of the'Uhiol . - _The respondent, by its answer, dated_December 5, 1941, denied that it, had engaged in thq unfair labor practices alleged. On December 5, 1941,, the Regional Director- granted a Petition- and, Motion- for Leave, to Intervene, filed by the Association.',-Thereafter the Ag,- sociation-filed its answer, dated December 18, 1941, in which it denied the allegations in-the complaint with respect to its formation and administration. - On December 12, 1941, C: W. Whittemore, the Trial Examiner duly designated by- the Chief Trial Examiner, issued an order granting, in part, a Motion for More Specific Complaint filed by the respondent. On December 18, 1941, the Regional Director issued, in compliance with the afore-mentioned order, an Amendment to Complaint which was duly served upon the above-named parties. On December 26 and 31, 1941, respectively, the respondent and the Association filed answers to the Amendment to Complaint and each denied that the respondent had engaged in the unfair labor practices therein alleged. 2 Also known as the Plan of Employee Representation. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing was held at Philadelphia, Pennsyl- vania, between January 5 and 20, 1942, before the above-named Trial Examiner. The Board, the respondent, the Union, and the Association were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine'and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the hearing, the Trial Examiner granted without objection a motion by counsel for the Board to strike certain allegations in the complaint concerning alleged violations of Section 8 (1) of the Act. At the conclusion of the Board's case, the Trial Examiner denied motions by the respondent and the Association to dismiss certain allegations of the complaint. At the close of the hearing the Trial Examiner granted a joint motion of counsel for the Board, counsel for the respondent, and counsel for the Associa- tion, to conform the pleadings to the proof. He reserved decision on a motion by counsel for the Association to dismiss the allegations of the complaint respecting domination of the Association, and on a motion by counsel for the respondent to dismiss the complaint in its entirety. Both motions were denied in the Intermediate Report. 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 the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the conclusion of the hearing, counsel for the Board, counsel for the respondent, and counsel for the Association argued orally before the Trial Examiner. Briefs were thereafter filed with the Trial Examiner by the respondent and the Association. On February 20, 1942, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties, finding that the respondent had engaged in and was engaging in unfair labor prac- tices within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. He found that the respondent had dominated and interfered with the Association and recommended that the re- spondent disestablish and cease recognizing it. He also found that the respondent had discriminatorily discharged or refused to reinstate five persons and recommended that they be reinstated with back pay. The respondent and the Association thereafter filed exceptions to the Intermediate Report and briefs in support thereof, and requested permission to argue orally before the Board. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board on April 23, 1942, in Washington, D. C. The respondent, the Association, and the Union were represented and par- ticipated in the argument. The Board has considered the exceptions and briefs of the respondent and the Association and, insofar as the EDWARD G. BUDD MANUFACTURING COMPANY 875 exceptions 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 FACT 1. THE BUSINESS OF THE RESPONDENT Edward G. Budd Manufacturing Company is a Pennsylvania cor- poration with its principal place of business in Philadelphia, Penn- sylvania. The respondent is engaged in the manufacture of steel automobile bodies and parts, stainless steel rolling stock for-railroads, stainless steel parts for naval vessels, and various other steel products. For use at its Philadelphia plant the respondent purchased, during 1940, about 240,525 tons of steel, its principal raw material, valued at $14,619,289.31, and of this amount approximately 75 percent was shipped to its Philadelphia plant from other States of the United States. During the same year the respondent manufactured approxi- mately 260,000 tons of products with an approximate value of $40,000,000; of this amount about 95 percent was shipped to States other than the Commonwealth of Pennsylvania. The respondent concedes that it is engaged in commerce within the -meaning of the Act. II. THE ORGANIZATIONS INVOLVED International Union, United Automobile Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Indus- trial Organizations, and Employees' Representation Association, un- affiliated, are labor organizations admitting to membership employees of the respondent. - - III. THE UNFAIR LABOR PRACTICES A. The Association Until the passage, in June 1933, of the National Industrial Recovery Act, there had been no labor organizational activity or collective bar- gaining in the respondent's Philadelphia plant. In July or August of that year a local of the United Automobile Workers, then affiliated with -the American Federation of Labor, conducted a membership drive among the respondent's employees. During this period numerous discussions concerning unions were held by employees throughout the plant, particularly in the shipping division and machine shop. Thomas Alminde, then a packer in the shipping department, and others who had joined the American Fed- 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eration of Labor, attempted unsuccessfully to secure a charter from that organization for the shippers or for the entire plant and therefore decided to "form an organization of their own." 3 Some of the ship- ping employees delegated Alminde to inform Assistant Works Mana- ger Sullivan of their decision and to request that Sullivan arrange a meeting for them with Works Manager Harder. On August 24 Sulli- van, Harder, Personnel Manager Mcllvain, and Mahan, then assistant works manager and now works manager, met with a group of about 50 to 80 shippers. Alminde informed the management representatives of the desires of the shippers, various employees stated their ideas concerning a bargaining representative, and Alminde Tasked Sullivan how the management could cooperate with the employees in establish- ing such bargaining agency. Sullivan replied that he had a draft of a plan of employee representation which existed in another plant and offered to read it to the shippers. The draft was read and discussed by those present, after which the management representatives left the room. Upon their return, the men requested that the management combine the draft with certain ideas expressed by the shippers, present it to the employees, and hold an election to select representatives from the entire plant to consider the suggested plan of employee representation. Thereafter Mcllvain, Mahan, and Sullivan, with frequent discus- sions with Alminde, drew up a proposed plan. An September 1, 1933, Works Manager Harder caused to be posted in the plant the following notice to all employees : A number of our organization have expressed a wish to have a shop organization to use as a means of indicating their problems to the company. At the present time there are a number of these organizations throughout the country which are operating suc- cessfully for employees and employers. Plans will be made so that all the employees in the different unitt will have a chance to elect by ballot someone to represent them. Starting immediately something will be worked out along these lines and layed (sic) before you for consideration the early part of next week. On September 5 the management placed in the time-card rack of each employee a pamphlet entitled "Proposed Plan of Employee Repre- sentation," a folder entitled "Preliminary Announcement of the Es- tablishment of a Budd Employee Representation Association," signed by Edward G. Budd, president of the respondent, and a ballot upon which employees were to make nominations for representatives and 3Except as otheiwise deseiibed, the findings in this section are based unon documentary evidence and uncontioverted testimony of witnesses for the Board and the respondent. EDWARD -G. BUDD MANUFACTURING- COMPANY 877 election tellers. Nomination elections were held that day throughout the plant, by the respondent's timekeeping department, and all ex- penses of the election were borne by the respondent. Excerpts from the "Preliminary Announcement" are as follows: At the request of some of your number we are proposing that you elect representatives exclusively of your own group who will, upon election, organize themselves, elect from among their own numbei, officers, and adopt a plan to regulate their operation. In order to permit the employees to properly exercise this voting privilege fifteen minutes will be allowed for which the company will pay the hiring rate. This is your Association , and your opportunity . Be sure you are represented by exercising your vote. [Italics supplied.] Excerpts from the "Proposed Plan" are as follows : In order to provide more effective communication and means of contact between the Management and the Employees of Edward G. Budd Manufacturing Company on matters pertaining to in- dustrial relations , the following plan of Employee Representation has been adopted . [Italics supplied.] 'The Company shall - appoint five (5) Representatives . . . who shall keep the management in touch with the Employee Repre- sentatives . . . Said Management Representatives shall sit with Employee Representatives at meetings , but in an advisory capacity only, having no right to vote. Any method of procedure hereunder may be amended at any time by _the concurrent action of' a majority of the Employee Representatives and of a majority of the Management Repre- sentatives . . . The "Proposed Plan " prescribed , in detail, the manner in which em- ployee representatives should be elected and should function. On September 7, 19 representatives were elected , the cost of the election being defrayed by the respondent . On September 11 the employee representatives met with a committee of management officials for the purpose of accomplishing mutual introductions. After the manage- ment officials had left the room , Alminde, upon his own request, was elected chairman of the employee representatives, and other officers were elected. Frequent meetings of the employee representatives were thereafter held as a group and together with management officials. Until Febru ary 1934 each representative , pursuant to a provision in the Proposed 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plan, was paid $2 for each meeting, all of which were held on company property. Thereafter, the respondent paid them full salary for all time spent on Association business, whether in or out of the plant. At one of the early meetings some of the representatives protested against 'a provision in the Plan which required that any amendment must be sanctioned by management. According to the testimony of Killeen, then an employee representative, Mcllvain responded that the respondent felt it should have a "guiding hand" in the Association, otherwise it might "do something foolish" or detrimental to the re- spondent. Mcllvain denied having_ made any such statement. How- ever, the minutes of the Employee Representatives' meeting on Sep- tember 28, 1933, substantially corroborate Killeen's testimony, and we credit it. The minutes contain the following : Chairman asked the Management Representatives to express their thoughts on several changes in the Proposed Plan . . . Dr. Mcll- vain and Mr. Sullivan, Management Representatives, explained that changes at the present time might do more harm than good, and further stated that until the time arrived when it was neces- sary to make some change in the Proposed Plan, same should be left as it is now . . . In the minutes for October 12, 1923, there appears the following : The Chairman asked the Management Representatives for an answer on the question of certain changes in the proposed plan, this matter being held over from the previous meeting, and Which question more particularly pertained to the Amendment clause, . . . After much discussion on this matter it was decided to again pass over this question for further discussions at another meeting. There also appears in the minutes for October 12, 1933, a statement which was read to the representatives by Paul Zens, the respondent's treasurer, and from which the following excerpts are pertinent: We are aware that there are certain men within our ranks who are doing their utmost to stir up strife within the company, and bring down, upon us and our employees the disorder and loss which has prevailed in so many Philadelphia industries. It is our wish that our employees may protect themselves against this mischievous attack . . . As you know, an office has been secured across the street from our Employment Department, and certain of our employees have been selected and made officers of this outside association. They are very apt to influence and mislead the less thoughtful mem- bers of our organization. EDWARD G. BUDD MANUFACTURING COMPANY 879 I,have a leaflet that has been distributed by these people in the factory of a neighbor. We all know that the same statements have been made in our factory, and are now being made by certain of our own employees who prefer to work against the company from which they are drawing their wages. It is the earnest wish of the company that peace be maintained in our ranks, that our employees may be able to work and earn their living without being subjected to violence and without any interruption in their employment. Our employees need have no fear that the control of manage- ment will pass into the hands of an outside organization. Neither will it be necessary for them to become members of any trade union in order to retain their jobs. On November 9 President Budd addressed the representatives, in response to certain questions propounded by them, and his remarks were printed in % booklet distributed to all employees. Excerpts bearing upon the Association follow : The first interpretation of this Act [N. R. A.] on the part of the company was that our employees have always had entire and free access to the company for the discussion of all the prob- lems concerning the relations of the company and the employee. However, in view of the size of the plant and the uncertainty whether the heads of every division, would always respect the letter of the law, we made up our minds that a more formal organization was necessary. This was laid before the employees and you are aware of the action they took on this subject. [Un- derlining supplied.] This company has always acted in the spirit of this new law but we feel that the association will be helpful in assuring that our inten- tions towards our employees be effectively carried out by the entire organization. Some outsiders have questioned whether this asso- ciation has met the requirements of the law. This we submitted to our counsel who had advised with the heads of the government in Washington, and it has been reported to us that our association does fully cover the requirement of the law. You may recall deeds of violence that were being done by em- ployer to employee and employee to employer in various parfs of the country. That condition does not exist -here, and the only reason it does not exist is because you and we have prevented outside interference in our affairs and we have maintained the 880 DECLSIONS OF- NATIONAL LABOR RELATIONS '-BOARD relationship of faith and' good will towards oiie another . [Italics supplied.] In-November 1933 the A. F. of L. called a strike among , employees at the resp'ondent's plant . Alminde was summoned to the office of President Budd, and asked to sign certain advertising copy, in effect absolving the respondent from responsibility in the strike, and to obtain the signatures of other representatives to such copy . Alminde com- plied with both requests , reporting to the representatives that Budd had requested their signatures . The text signed by the representatives ,included a statement that the "company has so far as we have been able 'to see , responded promptly to all reasonable requests on the part of the representatives ," and was prominently displayed as part of a full page advertisement in which the respondent denounced the A . F. of L., and in - which Budd stated , "... They (the A. F. of L. have organized a labor union within the plant, selected three employees as President, Vice President and Secretary -Treasurer . We have continued to pay wages to these men in the belief that they would see thheir error and- become loyal employees ..." [Italics supplied.] Thereafter the A. F. of L . filed a complaint with the Compliance, Board of the N. R. A., charging the respondent with domination of the Plan. At the request of -Drinker , counsel for the respondent , Alminde and other representatives event to Washington with company officials to attend the hearing before the Compliance Board. The respondent defrayed expenses of the trip. --Following the visit to Washington , the representatives decided, as a result of advice of Chairman Davis of the N. R. A. Compliance Board, who had come to Philadelphia at the request of the representatives, that certain changes in the Plan should be made . Many of its provisions were repeated verbatim in the 1934 edition, but all references to man- agement participation were eliminated . except the provision that "Man- agement Representatives shall sit- with Employee Representatives at meetings , upon request ." Davis also suggested that the revised plan be submitted by -ballot to all employees and stated that the A. F. of L must be included on the ballot . Preparations were made for an election to be conducted by the Compliance Board on March 1, 1934 , but the election watts postponed to March 9 . On the evening of March 8, how- ever, General Johnson of the N . R. A. announced that the election was again to be postponed , because the A. F. of L., with some 500 members still on-strike , protested eligibility rules.. - - The representatives met the following morning and decided that they would not postpone the election . The election was held as scheduled, on company property , by public accountants whose fees were paid by the respondent. The ballot provided for the following , choices : (1) the Association , ( 2) the A. F. of L., (3) any other union, or (4) no EDWARD G. BUDD MANUFACTURING COMPANY 881' union. The Association polled approximately 3,100 votes and the A. F. of L. about 1,900, although about 500 of its membership were still on strike and did not vote. Thereafter, General Johnson scheduled another election to be held outside the plant on March 20 for the pur- pose of allowing the strikers to vote. The A. F. of L. picketed, the election and only a few persons voted. During the period following March 1934 the Association's repre- sentatives met frequently in the plant, considered and acted upon griev- ances of employees, conducted annual elections for representatives, and bargained with the respondent for wage increases and other con- cessions. In July 1935 certain minor changes in the bylaws were made concerning filling of vacancies among representatives, eligibility of leaders to vote and hold office, election procedure, and committees. In April 1937 the Association again made a number of minor changes in its bylaws, the printed copy thereof bearing for the first time the name of the Association. The 1937 bylaws also provided that all employees not identified with management "shall be members in this- organiza- tion." None of the changes made in 1935 and 1937, nor those made in 1939, which were also minor, were submitted to the membership at large, although the bylaws provide for such submission when the repre- sentatives deem a proposed alteration to be substantial. Several repre- sentatives testified that none of the changes were so considered. In' May 1937 the Association entered into an agreement with the Employees Exchange, it non-profit organization incorporated in 1931 by certain of the respondent's officials for the purpose of making-loans to employees from the proceeds of the sale of candy, tobacco, and ,-imilar articles in the plant. Under the terms of the contract the Asso- ciation was to receive one-half the net profits of the Exchange up to X3,000 a year and 60 percent of any excess, in return for stimulating the business of the Exchange. The arrangement proved, exceedingly profitable, since the receipts of the Exchange increased from about X64,000 for the 2-year period prior to May 1937, to approximately $133,000 for the last 11 months of 1941. The respondent was not a party to this contract,.but gave its consent to the arrangement, and in October 1938 became party to a contract in which it agreed to permit the Ex- change and the, Association to operate the concession for 1 year. • Both contracts have remained in effect since their execution. Pursuant to a request by the representatives in September 1933, the respondent had provided the Association with free space for its com- mittee meetings until the spring of 1937. In May of that year, the respondent leased a conference room to the Association -at a- rental of $21 a month, after the representatives had complained of th e noise in the room which they.were using, . - .The Association has kept ho membership records, except for a record of -those who voted, at the annual elections, and all non-supervisory 463892-42-yol 41--56 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees at the respondent's Philadelphia plant are considered to be members. No membership dues are paid. During the history of the organization no "rank-and-file" membership meetings of all employees have been held, although occasionally some of the representatives called together in the plant groups of their constituents. The bylaws have provided for membership meetings only since 1937. Each year, since 1937, the respondent has entered into a form of written agreement with the Association, providing for grievance pro- cedure and other matters affecting working conditions. None of the agreements includes a provision that the Association has been, or is, recognized by the respondent as the exclusive bargaining representative of all its employees. In November 1940 the Union began to organize employees of the respondent. On September 4, '1941, the respondent posted a bulletin, signed by Edward G. Budd, containing the following statement : This Company has recognized the Employees' Representation Association as the' exclusive bargaining agent for its employees for seven years. The Company has been advised by counsel that, as long as the E. R. A. represents a majority of the employees, it is not only legally justified in continuing to deal exclusively with the E. R. A., but is legally required to do so. Therefore, this Company, in order to comply with the law must continue to recognize the E. R. A. and deal with it exclusively as the representative of its employees as long as it represents a majority of them. B. Conclusions as to the respondent's domination of, and interference; with the Association The respondent and the Association take the position that (1) the idea of having an organization for bargaining originated with the employees, (2) until March 1934 no organization existed, but that the plan approved by the.employees at that time was the result of inde- pendent action by the representatives who had been elected to repre- sent the employees in collective bargaining, and (3) since the forma- tion of the Association in March 1934 the respondent has bargained with it at arms' length, and all assistance and benefits granted the Association have been as a result of such bargaining. They deny that the respondent did anything to influence the employees in their selec- tion or retention of the Association as a bargaining agent. We cannot accept the contentions of the respondent and the Asso- ciation. While the desire for a bargaining agent. originated with the employees, the respondent immediately gave direction to that desire by the action of Sullivan in suggesting the form which the organization should take and by the action of Mahan, Mcllvain, and Sullivan in EDWARD G. BUDD MANUFACTURING COMPANY 883- -drawing up the proposed plan, including provisions for the respond- ent's participation in the affairs of the employees, which the respondent was loath to relinquish when thereafter requested to do so by the rep- resentatives. Following the drafting of the proposed plan the re- spondent indicated to the employees its satisfaction therewith by sponsoring it, bearing the expense of printing a description of it and the "Preliminary Announcement" as well as the ballots, conducting an election for representatives on company time and property, and per- mitting the representatives to meet in the plant on company time. The proposed plan-which only a few weeks before had been merely a vague idea-thus took form and developed according to the desires of the respondent. About a month later, on October 12, 1933, when Zens read a statement to the representatives, the employees were in- formed, in effect, that the respondent disapproved of outside unions and wished employees to "protect themselves against this mischievous attack." On November 9, 1933, President Budd emphasized the position of the respondent and its part in the formation of the bargaining agency by stating ". . . we [the respondent] made up our minds that a more formal organization was necessary"; and by impressing upon the em- ployees what'was already evident-that "you and we have prevented outside interference in our affairs." In view of these facts, the record does not support the contention that the Association was formed by the employees in 1934 without assistance or interference by the respondent. As stated by the Court in the Machinists case,4 "Slight suggestions as to the employer's choice between unions may have telling effect among men who know the consequences of incurring that employer's strong displeasure." Our conclusions, therefore, cannot be affected by the respondent's con- tentions that the 1933 Proposed Plan did not reach the status of a formal organization ; that it was never adopted by the employees, and that the representatives themselves, without aid by the respondent, drew the 1934 plan which was adopted. The 1933 Proposed Plan unde- ni ably served as the pattern for all action by the representatives. The, first election of representatives was held according to its provisions; committees and officers were elected and served pursuant to procedures therein outlined; and it served as the basis for-the 1934 plan. When, on March 9, 1934, the Association's name was placed before the em- ployees as one of the choices, it carried with it the prestige of an or- ganization previously sponsored -and aided by the respondent. The Association which emerged from this election was, in substance, that 4lnternattonal Association of Machinists v. N. L R B., 311 U. S. 72, aff'g 110 F. (2d) 29, enf'g 8 N. L. R. B. 621 ; rehearing denied 311 U. S. 729 ,884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same organization. Therefore, whether the 1934 plan be considered as merely an altered continuation of the 1933 proposal or as 'the beginning of a new organization, it is clear that-the respondent had indicated its preference for it, had launched it among the employees, and had operated under it since 1933. Concessions to the Associ- ation, granted allegedly as a result of collective bargaining, were thus granted to the respondent's own creature, and constituted support to^ the Association. Moreover, the respondent assured itself of the perpetuation of the Association by considering as members thereof all employee,-, or at least all employees who voted at the elections conducted by the re- spondent, thereby establishing in advance that the Association would always have a majority. Thus the statement quoted above from,the bulletin posted by Budd on September 4, 1941, that "as long as the E. R. A. represents a majority" the respondent is legally required to deal exclusively with it, presented to the employees a situation in which they had no choice in the matter of selecting a bargaining agent, since they were all counted toward the Association's majority. It is difficult to conceive of a more potent form of support, especially since the names of employees who voted in the elections were checked off .a list as each presented himself to receive a ballot. In addition, the. Association was aided and' assisted by the re- spondcnt's prompt agreement to the use of plant space for meetings and elections; by its assumption of the costs of elections, prior to 1936; and by its later assent to the arrangement between the Associatioii and the Exchange-a clear form of support.', The Association, which was formed prior to tie passage of the Act, continued in existence after July 5, 1935, without substantial chaiige in structure or operation and, admittedly, has never been disavowed or disestablished.6 In view of the status of the Association following the election of March 1934-which, the respondent contends marked the end of all domination by it or the beginning of a new or- ganization-the passage of the Act made it incumbent upon the re- spondent completely to disestablish the Association and to make clear to the employees that they were free to exercise their right to self- Cf Matter of Rmel,c Metal Products Corpoaation and Steel Workers Organizing Com- niettee Local 230), a7liated with C 1 0 40 N L R B 867, Matter of Curtiss-Weight Coapoiatron and International Union, United Automobile, Aircraft cC Agricultural Imple- ment lV,orl^ers of Anur,ca, Local 7a3, 39'N L It B 992; Matter of The Perfection Steel Body Company (A K A The Perfection Burial Vault Company) and Local 1151, International Association of Machinists , affiliated with the A F of L, 36 N L R B 851 The respondent's activities piioi to July 5, 1935. do not of course constitute unfair labor practices. They are unpoitant, however, in deteinunnrg the legal status of the Association and the effects of the respondent's activity to the extent that they continued after passage of the Act See N. L. if. B. v. Pacific Greyhound Lines, Inc., 303 U. S. 272 ; N L R B. v. Pennsylvania Greyhound Lines, Inc; 303 U. S. 261. EDWARD G. BUDD MANUFACTURING COMPANY 885 organization without interference.7 As was stated by the Court in the ZVestern Union case : an unaffiliated union, known for long to be favored by the employer, carries over an advantage which necessarily vitiates its standing as "exclusive bargaining agent. It cannot remain such until measures are taken completely to disabuse the em- ployees of any belief that they will win the employer's approval if they remain in it, or incur his displeasure if they leave. Moreover, as we have found above, the respondent continued, after the-passage of,the Act, to permit meetings and elections on its prop- erty and at its expense; entered into agreements with the Association; and permitted the arrangement between the Association and the Ex- change by which the Association secured funds with which to operate. We conclude and find that the respondent has, since July 5, 1935, dominated and interfered with the administration of the Association and has contributed financial and other support to it, and that the re-' spondent thereby interfered with, restrained, and coerced its employees In the exercise of the rights guaranteed in Section 7 of the Act. - We further find that the agreements entered into between the re- spondent and the Association and the contractual relationship existing thereunder, have been and are, a means of utilizing an employer- iloniinated_ organization to frustrate the exercise by the respondent's employees of the rights guaranteed in Section 7 of the Act. C. Discrimination with, respect'to hire and tenure of employment 1. Patrick J. Nelligan Throughout the period of his employment by the respondent, from January 2, 1936, until February.23, 1941, Patrick J. Nelligan worked ,is an inspector. Until the summer of 1940, he inspected cha"ssis frames; checking holes with gauges. His-work in this respect was considered satisfactory by Chief Inspector Blaine. During that summer, Nelli- gan was granted a 90-day leave of absence. Upoi his return in October he was assigned to, the inspection of metal finish on automobile doors. 7 N L R B v Newport News Shipbuilding and Dry Dock Co , 308 U S 241 , rev'g mod in 101 F ( 2d) 841 (C C A 4), enf'g as mod . 8 N. L. R B . 866; N L. R B v The Falk Corp , 308 U S . 453, rev'g mod in 106 F. (2d) 454 ; mod'g 102 F. ( 2d) 383 (C. C A. 71), enf'g 6 N L R B 654 , and N L R B. v Brown Paper Mill Co, 108 F (2d) 867 (C. C A. 5) enf 'g 12 N L R . B 60, cert denied 310 U. S 651 , in which the Court stated. " . . when once it appears that management has had a hand in organizing, supporting or in any wise interfering or collaborating with an `association ' of employees , such an association may not be recognized as the free and voluntary association of employees called for in the Act If in such cases the employees really intend and want it to be such , their only sure course is to disestablish it as the bargaining agency . " I Western Union Telegraph Company V N L. it. B , 113 F ( 2d) 992 ( C C A 2) enf'g as mod. 17 N L R B 34 - 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Neither Nelligan nor Tumulty, another employee assigned to work with him on the "A" shift, had had previous experience in this type of inspection. Considerable difficulty was experienced by the respondent in meeting the requirements of the customer for whom the doors were being made. As the doors were conveyed from the production department to the inspectors, it was Tumulty's duty to mark imperfect doors for transfer to the repair department. After the doors were repaired, it was Nelligan's duty to inspect them before final shipment to the customer. During the late fall of 1940 and the early months of 1941, an increasing number of complaints as to imperfections in the doors were received by the respondent. On numerous occasions these complaints were brought to the attention of both Nelligan and Tumulty. Finally, on or about February 21, 1941, while at the customer's plant in Detroit, Blaine tele- phoned to the respondent's plant and gave instructions to Moore, assistant chief inspector, to take the inspectors on the, "A" shift "off the job" and replace them with more experienced inspectors. Moore thereupon transmitted these instructions to Inspection-Foreman Haus- man. Hausman transferred Tumulty, who was not a union member, to another job in the inspection, department but gave Nelligan a lay'-off slip and told him to apply to the employment office for a job in an- other department. Nelligan did not apply at the employment office. Nelligan had joined the Union late in January or early in February 1941. He discussed the Union with a number of employees in the plant, visited them at their homes, and spoke at union meetings. The respondent's witnesses testified without contradiction that 70 percent of all doors inspected by the shift on which Nelligan and Tumulty worked were defective; also that Tumulty sent back to the repair 'department, as defective, about 85 percent of the doors which originally came off the conveyor line. The respondent contends that, therefore, Nelligan was responsible for passing all defective work which went out from that shift, except for a possible 15 percent which Tumulty passed without returning them for repairs. Foreman Haus- man testified that at the time he was directed to remove the "A" shift he had only one job available in the inspection department and that, since he "felt that Nelligan wasn't capable of doing that metal finish work" and "didn't feel that Tumulty was responsible for the com- plaints," he gave that job to Tumulty. There is no showing in the record that there was a job available for Nelligan within the 90-day period during which laid-off employees retain their status as employees and after which they are required to apply at the personnel office for employment. Blaine testified that he might have had a job for, Nelligan at about the time of the hearing because of defense work which was coming into the plant, but that no EDWARD G. BUDD MANUFACTURING COMPANY 887 job was available for him as long as 6 months prior to the hearing. Nelligan did not at any time make application at the personnel office for other employment. There is no evidence in the record that the respondent, at any specific time, had a position for which he was quali- fied, although Blaine testified that he could "always use good inspec- tors," and that "if Nelligan passed the employment office right now I would hire him." Since Blaine's instructions to take the inspectors on the "A" shift off the job were clearly justified, and since they were carried out by Hausman, the allegation in the complaint that Nelligan was dis- criminatorily discharged cannot be sustained. Nor, in view of Nelli- gan's inability to do the work required in the inspection of metal finish on automobile doors, and the absence of any other position in the inspec- tion' department in which Hausman could have placed him, do we find that Nelligan was discriminated against in being required, at the time of his lay-off, to apply at the'employment office for other work while Tumulty was transferred. Since he failed to make such application, and since his status as an employee ceased after the 90-day period, we find that the respondent has not discriminated against him in failing to recall him after his lay-off. 2. Walter Weigand Walter Weigand was hired by the respondent in 1936 as a sheet metal worker. Soon after he was elected as an Association represent- ative, early in 1938 , his classification on the pay roll was changed to "rigger." 9 From 1938 until his discharge on July-25, 1941, Weigand served as a representative on many Association committees. In 1940 and 1941 he was financial secretary. In 1939 and 1940, among other groups, he was on the program committee. For several weeks before the pub- lication of the annual dance-and-entertainment program, Weigand and a fellow committee member left the plant nearly every day to solicit advertisements, to obtain copy and cuts, and to perform other tasks relative to printing of the booklet. From early 1938, when first elected as a representative, until his discharge, Weigand seldom engaged in production work but, pursuant to the respondent's agreement with the representatives that they would be paid an hourly rate equal to the average earnings of other em- ployees in their departments, he continued to receive full pay, shared in 9 The testimony of Weigand and Mahan is in agreement that the change was made by mutual consent. As a metal worker, his pay was chargeable to the job being performed by the group to which he had originally been assigned, and his absence from work on representative duties therefore affected the piece-work rates of the other employees in the group; as a rigger , his pay was chargeable to maintenance. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pne general increase , and was granted Your individual raises, the last raise being in February 1941. In March 1941, while still serving- as a representative , Weigand joined the Union. Although it appears that he did not become openly active therein , the fact of his membership became known and other representatives accused him at Association meetings of his union affiliation . Weigand denied the accusation. On July 23 Weigand and two other officers of the Association, Mullen and Rattigan , conferred with a union organizer on a Phila- delphia street corner. It is not disputed that at that meeting Mullen and Rattigan agreed to accompany Weigand, on July 25, to the Board's Regional Office and turn over evidence concerning the Association. On July 24 , at a regular weekly meeting of the representatives, Mullen was not present . Weigand left the room to search for him ,and finally located him hurrying toward his department . In an ex- cited manner , Mullen told him, according to Weigand 's testimony, that he hadjust come from a conference with Mcllvain and Mahan, accused Weigand of getting him "in a jam," and said that they had been seen talking with the union organizer the night before. Weigand de- -manded to know why, since the three had been ' together , neither he nor Rattigan had been summoned to the office . When Mullen failed to explain , Weigand accused him of "ratting ." Mullen testified, with respect to his encounter with Weigand, that when the latter ap- proached him he told Weigand, "hay off ' of me, Weigand, I'don't want -no part of you. You , got me jerked up enough around here." He ,did not deny having told Weigand that they, and ' Rattigan had'been seen talking to the union organizer . We credit Weigand's testimony, 'as did the' Trial Examiner, and find in accordance therewith. _ 'I: ,At-the meeting of Mahan, ' Mcllvain, and Mullen on `the afternoon .of .July ' 24,, Mahan ! announced his ' decision to discharge Weigand. After the meeting, he telephoned to Superintendent Elms and issued 'the-discharge order. ' When Weigand reported at the plant the' next morning, July 25, he was ' given his discharge slip. Mahan and Mullen denied that Mullen had reported the meeting with the union organizer . Mahan testified that'he had previously decided to discharge Weigand and that he had called Mullen in to receive the announcement as chairman of the Association 's personnel relations committee. Whether or not it was Mullen who informed the respondent 's officials of Weigand's union activity , we are convinced, as was the Trial Examiner, that the respondent was aware , on'July 24', of the meeting with the union organizer . Mullen did not deny having told Weigand that they had been seen on the evening of July 23. 'Since Mullen had just come from a meeting with Mahan and Mcllvain; it is reasonable to assume that he had learned from them that the three EDWARD G. BUDD MANUFACTURING COMPANY 889 -employees had been observed, aiid that the matter of Weigand's par- ticipation had been discussed. In any event, we find that on July 24 the respondent was aware of Weigand's activities and of his intention to supply the Board's Regional Office with information concerning the Association. - The respondent contends that Weigand was discharged because he was a thoroughly undesirable employee who had been given every opportunity properly to carry out his duties as-a representative but had abused the privileges so granted. It claims that he was discharged "when the top management had received an accumulation of com- plaints" that he was "loafing in the plant and out of the plant at the -Company's-expense, attending to personal affairs having no relation to representative duties." The record discloses, as stated above, that for more than 3 years Weigand did almost no work in the plant but spent all his time,either on Association business or on his personal affairs. It also appears, as the respondent contends, that, beginning at least as early as the fall of 1940, Weigand was reprimanded by his superiors on numerous occasions for leaving his department, and the plant without permission, and that, because of such absences, he-was constantly being reported by and to Foreman McFarland, Superin- tendent Elms, Head Timekeeper O'Donnell, and Mahan. Elms com- plained to Mahan in March, April, and May 1941, and O'Donnell complained to Mahan throughout the spring and summer of 1941. McFarland testified that he had threatened to discharge Weigand but did not do so because his superior told him, "Walter [Weigand] was a representative of the men; that it wasn't right to discharge him; that if I ever wanted to discharge him I would have to consult with them.'? In March, O'Donnell suspected Weigand of having punched the time card of employee Potter, an offense punishable by discharge, and threatened to have Weigand discharged if he found that Weigand had committed the offense. He i1so reported the occurrence to Mahan and told the head watchman to report to him whenever Weigand left the plant. O'Donnell received several such reports during the latter part of May. On July 19, Potter told O'Donnell that Weigand had in fact punched Potter's time card in March; and on July 21 O'Donnell informed Mahan of this confession. From the above statement as to Weigand's record, based entirely on ;testimony of the respondent's witnesses, it is evident that every super= visor in the respondent's plant who had anything to do with Weigand; including Works Manager Mahan to whom several reports were -made, vvas aware of his shortcomings for several months, at least, before his discharge. It is also apparent that he was permitted to continue the practices he had been warned against because he was an Association representative. But on July 24, 1941, although he was' still a represen 890 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD tative, he was revealed as sympathetic to the Union, and the respond- ent discovered that he planned to submit to the Board's Regional Office evidence against the Association. He was immediately discharged. We conclude, therefore, that it was not the accumulation of complaints against him which was the cause of his discharge-for "top manage- ment" was aware of such complaints long prior to July 24 and con- doned his shortcomings because of his activities in the Association which it supported-but that it was his -union membership and activity which was responsible for the discharge. We find, as did the Trial Examiner, that Walter Weigand was dis- charged because of his membership in and activity on behalf of the Union, and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section,7 of the Act. 3. Raymond Weigand and John F. Brown The complaint alleges that on August 15, 1941, the respondent re- fused to reinstate to their former positions Raymond Weigand and John F. Brown; the answer alleges that the respondent has no work which they can perform as satisfactorily as those now performing such work. Raymond Weigand, brother of Walter Weigand whose discharge is discussed above, was first employed by the respondent in April 1937, John F. Brown in September 1939. Both were employed in the same department, Weigand as a sheet metal worker on the `.`engine cover top," and Brown as a metal finish straightener on the "cab-over-engine job." Weigand joined the Union in June 1941, actively solicited member- ship during lunch periods and after working hours, and obtained about 200 membership applications during June and July. Brown joined the Union in March and, before July 30, signed up a "few" members. On July 30, 1941, the entire department, which then employed 46 men, including Weigand and Brown, ceased work as a result of the completion of orders which it had been engaged. in filling. It reopened on August 14. Although on that date its full complement of em- ployees was not recalled, by August 20 the department was again em- ploying 46. This rate of production continued for only 13 days, after which the department was again shut down. Thereafter, operations were irregular. Weigand, Brown, and two other employees were not recalled on August 14 when the department resumed operations. Weigand and Brown thereafter made numerous efforts to obtain work at the re- spondent's plant, but each time were refused. On one occasion, when EDWARD G. BUDD MANUFACTURING COMPANY 891 Brown had entered the plant to get his clothes, he met Foreman Rickley and inquired why he had not been recalled. Rickley replied that he had received orders not to reemploy Brown, Weigand, and two others. At about this time General Foreman Benson approached them and, in answer to Brown's question as to why he had not been, recalled, replied, "We have to take care of our welders." Weigand testified that on about August 9, while he was distributing union literature at the plant gates, General Foreman Benson came through the gate and, in answer to Weigand's question, replied that the job would probably start up again in a few days. Benson ad- mitted having had this conversation with Weigand on, about August 8 or 9, but denied that Weigand was then distributing union literature. He testified, however, that on August 20 or 21 he again saw Weigand outside the plant', that on this occasion Weigand was so engaged, and that they merely exchanged greetings. We find it unnecessary to resolve the conflict in the above testimony since, as we find below, we do not believe that Weigand's union membership, whether or not Benson was aware of it, was the reason for his selection as one of those who were not to be recalled. This is also true of a similar conflict between the testimony of Brown, that Foreman Rickley ques- tioned him about the progress of the Union during June and July, and Rickley's denial that he discussed unions with Brown. The respondent contends that Weigand and Brown were not re- called because they were less valuable employees than those who were returned to work. Benson and Rickley determined on about August 12 which men were to be recalled. Benson testified that, at the time the department in question began operating, the fender job was shut down, that he had four "key men" on the fender line whom he wished to keep employed, and that he therefore brought these four, rather than Brown, Weigand, and two others, into the department when operations resumed. He also testified that Rickley had previously complained to him that Brown and Weigand were not "on the job," and that Rickley had asked him in June to put Brown to work on the conveyor-line where he could not leave his job, but that Benson was then short a straightener and refused to do so. Rickley testi- fied that he believed Weigand had been the cause of bickering among the men with whom he worked, which had resulted in several com- plaints to Rickley both by Weigand and by-the other employees. Weigand and Brown did not testify with respect to the above, and we credit the testimony of Benson and Rickley. Although no strict seniority policy is observed by the respondent, its employment records show that of the 46 men working on August 20, 13 had less seniority than Brown, and 15 had less seniority than Weigand. These records also show that all except 2 of those with less seniority were capable of doi ig more than one type of work. 892 DECISIONS OF -NATIOATAL LABOR RELATIONS BOARD Of the 2, Burke was a gas welder transferred from the fender line who was assigned to Weigand's job; the other, Griffen, was an opera- tion worker, whom Rickley described only as a "steady worker." As far as the record discloses, neither Weigand nor Brown was able to, 'Perform more than one type of work. It is not disputed that the respondent was justified in retaining in its employ the 4 employees from the fender line, nor that the re- spondent did not require the services of these 4 in addition to the 46 normally employed. We are convinced from the evidence, and find, that the respondent did not discriminate against Raymond Weigand and John F. Brown by refusing to reinstate them on August -20, 1941. - - 4. Milton T. Davis The complaint alleges that on October 25, 1941, the respondent refused- to reinstate Milton T. Davis because of his union activity; the -answer alleges that the respondent has no work which he can perform satisfactorily. Milton T. Davis was 'first employed by the respondent in 1933. Except for the year 1939, he served as an employee representative ,in the Association during the period from 1936 to 1940, inclusive. During the period of his employment, Davis worked as a press.helper and a press operator, and from 1939 until September 1941, operated metal-cutting square shears in the Vim Press Shop. In-February 1938, Robert Bremble, then foreman of Davis' depart- ment, discharged him because, according to the foreman's testimony, he had 'smelled liquor upon the employee's breath and because of un- satisfactory work. After warning Davis a number of times, according to Bremble'-s testimony, the foreman "had enough of it and, there being a general lay-off," discharged him. Other representatives pro- tested against this action and, upon orders of Mcllvain, Davis was reinstated. Davis joined the Union in July 1941, obtained new members, and attended union meetings. On September 9 approximately one-half of the force in his department, including one other square-shear oper- ator, was laid off, due to completion of a job for one of the automobile companies. Davis was included in the-lay-off and was told by Fore- man Wagner, according to the undenied testimony of Davis, that he would be sent for in about 10 days. Following September 9, Davis distributed union leaflets at the-plant gates. Work resumed, in part, in Davis' department, about 10 days after the lay-off. On a number of occasions, thereafter, Davis applied for-reemployment at the respondent's plant, but was repeatedly told that there was no work for him. Although there had been a general lay-off in 'the same department earlier in 1941, Davis had not been EDWARD G. BUDD MANUFACTURING COMPANY 893 laid off. Press Operator Mickle, who had been employed in Davis' department and who had considerably less experience than Davis, was transferred to another department within a few days after the lay-off. Davis testified without contradiction that he could have performed the work to which Mickle was assigned. The respondent claims that Davis was, in effect, discharged at the time of his lay-off because of his poor workmanship; and that his superintendent did not want him in his department and, according to usual procedure, waited until there was a general lay-off to effect" his discharge. Superintendent Coyle testified that other employees were brought back to the Vim Press Shop after the lay-off, but that Davis was not included "because we had better employees than Milton Davis." Coyle also testified that he ordered Davis' discharge, and- had no intention of reemploying him in that department, "because we had that out in 1938. He was the same way and it followed all the way through and when we had a chance we let him go." Coyle did not give any reason for the failure to release Davis during the earlier lay-off in 1941, when he was no longer a representative. We find no merit in the respondent's contention as to the reason for the failure to reinstate Davis. If, as Coyle testified, he had instructed his clerk that Davis was to be discharged, rather than laid off, on September 9, it is inconceivable that Foreman Wagner should not have been similarly informed. The fact that Wagner told Davis that he would be sent for in about 10 days, clearly indicates that he was not told that Davis was to be discharged and that at that time it was the respondent's intention to recall Davis. Thereafter, however, Davis openly distributed union leaflets at the plant gates. We are impressed by the failure of the respondent to explain why, if Davis was an unsatisfactory employee and the respondent was merely waiting for an opportunity to discharge him during a general lay-off, it did not avail itself of the opportunity earlier in 1941 when such lay-off occurred in Davis' department. We conclude and find, as did the Trial Examiner, that Davis was not recalled by the respondent because of his activity on behalf of the Union, and that the respondent thereby interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. - IV. THE EFFECT OFj THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent, set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to .labor disputes burdening and obstructing commerce- and the free flow of commerce. 894 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD V. THE REMEDY Having found that the respondent has engaged in certain 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 has dominated and interfered with the administration of the Association and has contributed sup- port thereto. The effect and consequences of the respondent's domina- tion of, interference with, and support of the Association, as well as the continued recognition of the Association as the bargaining repre- sentative of its employees, constitute a continuing obstacle to the free exercise by its employees of the rights guaranteed to them in the Act. Accordingly, we will order that the. respondent disestablish and with- draw all recognition from 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. We have further found that the agreements entered into between the respondent and the Association have been a means whereby the respondent has utilized an employer-dominated labor organization to frustrate self-organization and defeat genuine collective bargaining by its employees. Under these circumstances any continuation, re- newal, or. modification of the current agreement would perpetuate the conditions which have deprived employees of the rights guaranteed to them by the Act and would render ineffectual other portions of the order. We will therefore order that the respondent cease giving effect to any agreement between it and the Association, or to any modification or extension thereof. Nothing in this order shall be taken, however, to require the respondent to vary those wage, hour, and other sub- stantive features of its relations with the employees themselves, if any, which the respondent established in performance -of the agree- ment as extended, renewed, modified, supplemented,- or superseded 10 We have also found that the respondent discriminated as to the hire and tenure of employment of Walter Weigand and Milton T. Davis because of their membership in and activities on behalf of the Union. In order to effectuate the purposes and policies of the Act, we shall order that the respondent offer Walter-Weigand and Milton T. Davis immediate reinstatement to their former or substantially equivalent positions; without prejudice to their seniority and other rights and privileges, and that the respondent make each of them whole for any loss of pay he has suffered by reason of the respondent's discrimination 10 See National Licorice Co. v. N. L. R. B., 309 U. S. 350 aff'g as mod 104 F. (2d) 655 (C. C A 2 ) enf'g as mod . 7 N. L. R. B. 537; N. L. R. B. V. J. Greenebaum Tanning Co., 110 F. (2d) 984 (C. C. A. 7), enf'g as mod . 11 N. L. R. B. 300 , cert. den 311 U. S. 662 EDWARD G. BUDD MANUFACTURING COMPANY 895, by payment to each of a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less his net earnings" during that period. Although it was not clear from the record exactly when Davis would have been reinstated, absent the discrimination against him, it appears that his foreman told him he would be recalled in about, 10 days and that the department began operating at approximately that time. We shall, therefore, order that Davis' back pay be computed from September 19, 1941. Upon the foregoing findings of fact, and upon the entire record in the case, the,Board makes the following : CoNCLusIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricul- tural Implement Workers of America, affiliated with the C. I. 0., and Employees' Representation Association, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the administration of Em- ployees' Representation Association, and by contributing financial and' other support to it, 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 employment of Walter Weigand and Milton T. Davis, thereby discouraging mem bership in International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America, affiliated with the C. I. 0.,. the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the- Act. 6. The respondent, by discharging Patrick J. Nelligan and by failing to reinstate Raymond Weigand and John F. Brown, has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. '1 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 elsewhere than for the respondent, which would not have been incurred but for his unlawful dis- charge and tht consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and Uncted Brotherhood of Carpenters and Joiners of America,. Lumber and Sawmill Workers Union, Local 2590, 8 N L. R. B. 440. 896 - 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 respondents Edward G. Budd Manufacturing Company, Philadelphia, Pennsyl- vania, its officers , agents , successors, and assigns , shall : 1. Cease and desist from: (a) Discouraging membership in International Union , United Au- tomobile, Aircraft and Agricultural Implement Workers of America; affiliated with the C. I. 0., or any other labor organization of its em- ployees, by discriminating in regard to their hire or_ tenure of employ- ment; (b) Dominating or interfering with the administration of, and contributing financial or other support to, Employees ' Representation Association or any other labor organization of its employees; (c)' Recognizing Employees ' Representation Association as the rep- resentative of any of its employees for the purpose of dealing with the respondent concerning grievances , labor disputes , wages , rates, of pay, hours of employment, or other conditions of employment; (d) Giving effect to any agreements or contracts between - the re- spondent and the Employees' Representation Association which may be in effect, or to any extension , renewal , or modification thereof; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organizations, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing , and to engage in concerted activi- ties 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 Employees' Representation Association as the representative of any, of its employees for the purpose of dealing with the respondent con- cerning grievances , labor disputes , rates of pay, wages , hours of em- ployment, or other conditions of, employment; (b)' Offer to Walter Weigand and Milton T. Davis immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (c) Make whole said Walter Weigand and Milton T. Davis for any - loss of pay they may have suffered by reason of the respondent 's dis- crimination against them by payment to each of them of a sum of money equal to that which he would normally have earned as wages from the ' date of the respondent 's discrimination against him to the EDWARD G. BUDD MANUFACTURING COMPANY 897 date of such offer of reinstatement, less his net earnings during said period; (d) Post immediately, in conspicuous places throughout its plant in Philadelphia, Pennsylvania, 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 con- duct from which it is ordered to cease and desist in paragraphs 1 (a) through (e) of this Order; (2) that it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that its employees are free to become or remain members of International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the C. I. O., and that it will not discriminate against any employee because of membership in or activity on behalf of said labor organization; (e) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of this Order what steps the re- spondent has taken to comply herewith. AND IT is FURTHER ORDERED that the complaint, insofar as it alleges that the respondent engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to Patrick J. Nelligan, Raymond Weigand, and John F. Brown, be, and it hereby is, dismissed. 463892-42-vol. 41-57