Republic Creosoting Company, Reilly Tar and Chemical Corp.

National Labor Relations Board - Board Decisions

Jan 9, 1940

19 N.L.R.B. 267 (N.L.R.B. 1940)

In the Matter of REPUBLIC CREOSOTING COMPANY, REILLY TAR AND CHEMICAL CORPORATION and CREOSOTE WORKERS UNION, LOCAL No. 20483 Case No. C-448.-Decided January 9, 1940 Wood Treating Industry and Creosote Oil, Road Tar, and Chemical Manufac- turing Industry-Employer: two corporations treated as a single integrated enter- prise for purposes of Board proceeding-Procedure : proper to issue one complaint and conduct one hearing to dispose of charges against two corporations which operate as a single integrated enterprise-Interference , Restraint , and Coercion: anti-union talks of plant superintendent to employees-Discrimination : discharges for union membership and activity ; charges of, as to certain employees, dis- missed-Strike: not caused by unfair labor practices of employers; settled by consent election and reinstatement agreement ;, discriminatory refusal to reinstate one employee following strike-Unit Appropriate for Collective Bargaining: all employees of the respondents ' Maywood plant , excluding supervisory employees- Representatives : proof of choice : consent election , result of-Collective Bargain- ing: charges of refusal , not sustained-Reinstatement Ordered: discharged em- ployees and employee discriminatorily refused reinstatement following strike; grounds for refusal of : conduct during strike , as ; physical incapacity , as-Back Pay: awarded ; estate of deceased employee entitled to. Mr. Herbert N. Shenkin, for the Board. Mr. Frank C. Dailey, Mr. P. E. O'Neal, and Mr. Linton A. Cox, of Indianapolis,.Ind., for the respondents. Mr. William H. Faust, Er., Mr. William H. Faust, Jr., and Mrs. Irene Faust, of Indianapolis, Ind., for the Union. Miss Fannie M. Boyls, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Creosote Workers Union, Local No. 20483, herein called the Union, the National Labor Relations Board, herein called .the Board, by Robert H. Cowdrill, Regionaa! Director, for,the•,^Eleeenthi Region - (Indianapolis; Indiana), issued its complaint dated August 9, 1937, against Republic Creosoting Company and Reilly Tar and Chemical Corporation, both of Indian- apolis, Indiana, herein called the respondents, alleging that the re- 19 N. L. R. B., No. 30. 267 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices, the complaint alleged, in substance, that the respondents, during the month of March 1937, had expressed opposition to the organization of their employees into a labor union, and that on March 6, 1937, the day following the first union meeting of their employees, the respondents discharged eight of such employees 1 because of their union activities; that on April 8 and April 20, 1937, respectively, the respondents discharged two other employees 2 because of their union activities; that the respondents on July 30, 1937, and at other times, had refused to bargain with the Union, although the Union at all such times was the duly accredited representative of a majority of the employees of the respondents; that the respondents had, following the termination of a strike at their plant, discriminated against 35 named employees 3 because of their membership in, sympathy for, and activities in behalf of, the Union, by refusing to reinstate them within their respective departments. A copy of the complaint and notice of a hearing to be held on August 19, 1937, were duly served upon each of the respondents and upon the Union. On August 18, 1937, the Regional Director issued and duly served upon said parties a notice of postponement of the. hearing to August 26,1937. The respondents on August 14, 1937, filed an answer to the complaint in which they denied that they had committed any of the unfair labor practices with which they were charged. On August 20, 1937, the respondents filed separate motions to dismiss in which they objected to the issuance of one complaint and the prosecution of one proceeding against both of them and claimed that each of the respondents was a separate corporation and that separate proceedings should be had in the cases against them. On August 25, the respondents filed an amend- ment to their answer in which they alleged that as the result of a com- promise agreement between the respondents and the Regional Director, they had offered reinstatement to six 4 of the eight employees. dis- 1 The names of these employees are : Walter Pierson, Weldon Harvey, L. C. McCoun; Earl Sutherland, William Tingle , James Tucker , Genie Montgomery , and J. B. Ray. 2 The names of these employees are John Taylor and Luther Bewley. S The names of these employees are : Raymond Bryant, Luther Bewley, Clyde Bymaster, Thomas Campbell, Charles Dalby , Harvey Flory , Robert Gilman , James Griggs, James Haag, Ted Hinton , Joe Hauck , Ballard Hall , Tom Kuchenski , John Miesel , William Miesel, Jim• Mills , Albert Miles , Garvin Montgomery , George Norris , Oscar Norris , C. A. Nichols, Grover Oliver , Walter Pierson , Raymond Poling, John Reed, Frank Reynolds , W. E. Renier, Arthur Rybolt, O. F. Richardson , Lucien Stark , Charles Skaggs , Wilbur Snyder, Earl Sutherland , William Thurman , and James Tucker. " The names of these six employers are: Walter Pierson,. Weldon Harvey , L. C. McCoun, Earl' Sutherland , William Tingle , and James Tucker. - REPUBLIC CREOSOTING COMPANY 269 charged on March 6, and contended that the Regional Director should be estopped from filing a complaint in behalf of those eight employees.' . Pursuant to the notice duly served upon the parties, a hearing was held in Indianapolis, Indiana, from August 26, 1937, to and including September 4, 1937, before Charles E. Persons, the Trial Examiner duly designated by the Board. At the commencement of the hearing the respondents filed motions to strike paragraphs 13, 9, and 10 of the complaint. The respondents' motion to strike paragraph 13 of the complaint was based upon their claim that the Board had no jurisdic- tion to interpret and enforce an agreement concerning seniority al- leged to have been made between the respondents and the Union. The respondents' motion to strike paragraphs 9 and 10 of the complaint was based upon their claim that the amended charges attached to the complaint did not support the allegations in the complaint relative to a failure of the respondent to bargain collectively with the Union. The Trial Examiner denied the motions to strike as well as the motion to dismiss which had been filed on August 20. For reasons to be dis= cussed later in this Decision, the rulings of the Trial Examiner in deny- ing the motion to dismiss and the motion to strike paragraph 13 of the complaint are affirmed. With respect to the motion to strike para- graphs 9 and 10 of the complaint; the respondents were advised in the complaint of the charge that they had refused to bargain collectively with the Union, and do not state wherein they are harmed by a failure of the second amended charge to include an allegation to that effect. Since we find below that the respondents have not refused to bargain collectively with the Union, we deem it unnecessary to and do not pass upon the ruling of the Trial Examiner upon the motion to strike. During the course of the hearing, counsel for the Board moved to amend the complaint to conform to the proof adduced at the hearing, especially in regard to James Davis, Henry Clay Sears, and L. Baker; employees who claimed that the respondents had discriminated against them because of their union activities by failing to reinstate them after a strike, and in regard to Leonard Goodwin, all employee who claimed that Reilly Tar and Chemical Corporation had discrimi- nated against him because of his union activities by discharging him. These employees were not named in the original complaint.,, The mo- tion to conform.was granted by the Trial Examiner. During the The evidence adduced at the hearing failed- to sustain the allegations in the amendment that the Regional Director made a compromise agreement with the respondents , and it is, therefore , - unnecessary to' determine the effect of such an agreement. 9 These four names were added to the complaint over the objection of the respondents. The Trial Examiner , upon allowing the amendment to the complaint , did so only on the condition that counsel for the Board would agree to recall the witnesses upon request of the respondents at any time prior to the close of the hearing . The respondents do not appear to have been prejudiced by this ruling , and we find that the amendment was prop- erly allowed . The respondents did not amend their answer to deny charges of unfair labor 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD course of the hearing - the Trial Examiner made other rulings on various motions and on objections to the admission of evidence. The Board has reviewed all the rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On February 3, 1938, the Trial Examiner filed with the Regional Director his Intermediate Report, copies of which were duly served upon all the parties. He found that the respondents had engaged in the unfair labor practices with which they were charged in the com- plaint and recommended that the respondents cease and desist from engaging in such unfair labor practices and that they offer reinstate- ment with back pay to Genie Montgomery, J. B. Ray, Luther Bewley, and Leonard Goodwin, employees found to have been discriminatorily discharged, and 29 other named'employees 7 found to have been denied reinstatement because of their union activities. On February 28, 1938, the respondents filed exceptions to the Trial Examiner's Intermediate Report and to his rulings during the hearing. The Board has duly considered these exceptions, and save as they are consistent with the findings, conclusions, and order get-'forth below, finds them to be without merit, and they are hereby overruled. On February 28, 1938, the respondents filed a separate and several petition to adduce additional evidence and to argue orally their excep- tions to the Trial Examiner's Intermediate Report. Inasmuch as the petition to adduce additional evidence was based upon allegations that many of the employees named in the complaint had been offered rein- statement by the respondents subsequent to the conclusion of the hear- ing and inasmuch as the Board's Decision and Order in this case will be directed only to matters and conditions in existence prior to and at the time of the hearing, the petition was denied. The respondents, on April 23, 1938, filed exceptions to such action of the Board. The ex- ceptions are hereby overruled.' The Board, on April 13, 1938, granted the respondents' application for oral argument and notified the re- spondents and the Union that a hearing would be held on May 3, 1938, for the purpose of oral argument. Prior to May 3 the respondents practices against these employees ; however, under the circumstances, we shall treat the case as if the respondents had denied such charges, and shall consider as alleged all de- fenses to such charges introduced by the respondents at the hearing. Cf. Consolidated Edison Company of New York, Inc., et at . V. National Labor Relations Board, et at., 305 U. S. 197 ;, National Licorice Company v . National Labor Relations Board, 104 F. (2d) 055 (C. C. A. 2) ; Matter o f Williams Coal Company, et at. and United Mine Workers of Amer- ica, District No. 23, 11 N. L. R. B. 579, 589 . For reasons hereinafter discussed ; we do not Snd,the allegations concerning these four employees sustained. ' The names of these employees are : L . ( Dow) Baker , Raymond Bryant, Clyde Bymaster, Thomas Campbell, Charles Dalby, James Davis, Harvey Flory, Robert Gilman, James Griggs, James Haag, Ted Hinton , Joe Hauck , William Miesel , Tames Mills, Garvin Mont- gomery, Oscar ; Norris, . C. A. Nichols ," Grorer ; Oliver,' , Walter ; Pierson , . , Raymond , Polling, John Reed, Frank Reynolds; Arthur Rybolt, O. F . Richardson , Henry C. Sears , Lucien Starks, Wilbur Snyder, Earl Sutherland , and James Tucker. REPUBLIC CREOSIOTIN G COMPANY 271 waived their request for oral argument and neither they nor the Union appeared at the hearing. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE RESPONDENTS AND THEIR BUSINESSES The Republic Creosoting Company, herein referred to as the Re- public Company, was organized under the laws of the State of Indiana in 1905. The Reilly Tar and Chemical Corporation, herein referred to as the Reilly Corporation, also an Indiana corporation, was incor- porated in 1933. Both corporations have their principal office in the same building in Indianapolis, Indiana. They operate 14 or more plants, some jointly and some separately, in 11 different States throughout the United States. The Reilly Corporation is engaged in the processing of coal tar and the distillation, refining, or manufacture of creosote oil and many byproducts of coal tar. It is also engaged in experimental work in producing chemicals from the coal tar and its byproducts. The Republic Company is engaged in the treating and preserving of wood, timber, and wood products with creosote oil. Each of these corporations is among the largest of its kind in the United States. The Republic Company on January 1, 1937, employed a total of 533 employees, and the Reilly Corporation a total of 442 em- ployees. The largest plant operated by the Republic Company and the Reilly Corporation is the Maywood plant located near the City of Indianapolis, Indiana, the plant with which we are concerned in this case. At this plant, the Republic Company on January 1, 1937, em- ployed 146 employees, and the Reilly Corporation employed 80. The chief raw material used by the Reilly ,Corporation is coal tar. From 5 to .7 million gallons are.purchased annually. From 30'to 40 per cent of such product is obtained outside the State of Indiana. Al- most the only other raw material used by such corporation is coal pur- chased by it for heating purposes. Practically all of the coal is ob- tained in the State of Indiana. The principal product manufactured by the Reilly Corporation is creosote oil. Approximately 75 per cent of such oil is sold to the Republic Company and used in its creosoting operations at the Maywood plant. A substantial amount of road tar is produced by the Reilly Corporation; about 60 per cent of this prod- uct is sold outside the State of Indiana. Approximately 150 or 200 other products are manufactured, distilled, or refined by the Reilly Corporation. About 50 per cent of these products are sold outside the State of Indiana. . The principal raw material used by the Republic Company is wood, approximately 85 per cent of which is obtained from outside the State 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Indiana. In treating the wood, it purchases large amounts of creo- sote oil, all of which comes from the Reilly Corporation. The Re- 'public Company in 1936 treated a total of more than 21/2 million cubic feet of wood. About 65 per cent of this wood was shipped outside the State of Indiana. The total sales of the Republic Company at its May- wood plant for that year were more than $1,187,000. The Maywood plant of the Republic Company and the Reilly Cor- poration is situated upon an 80-acre tract of land near the City of Indianapolis. The legal and beneficial ownership of their capital stock is nearly identical 8 and the employment policies and manage- ment of the two corporations are closely connected. Both corporations have the same president and the same secretary. One superintendent is in charge of the operations of both corporations at the Maywood plant, although most of the operations of the two corporations are carried on within separate buildings. In dealing with the Union, the corporations selected common representatives for both corporations. They presented a single list of employees for the purposes of a con- sent election which was conducted at the plant. Employees of one corporation are frequently transferred from the employ of one cor- poration to the other, either temporarily or on a permanent basis. Upon the basis of such facts, we find that the Republic Company and the Reilly Corporation operate as a single integrated enterprise and that it was proper to issue one complaint and to conduct one hearing in this case to dispose of the charges against both respondents.9 H. THE LABOR ORGANIZATION INVOLVED Creosote Workers Union, Local No. 20483, is a labor organization affiliated with the American Federation of Labor. It admits to mem- 8 At the date of the last annual meeting of stockholders of the Republic Creosoting Company on December 6, 1937, as well as on May 2, 1938, the capital stock of that com- pany was owned by the persons listed below in the amounts set opposite their names : Shares P. C. Reilly--- ---------------------- 9, 998 R. J. Wechsler---------------------------------------- 1 J. A. Lawler------------------------------------------ 1 At the date of the last annual meeting of stockholders of the Reilly Tar and Chemical Cor- poration on January 19, 1938, an well as on May 2, 1938 , the capital stock of that corpo- ration was owned by the persons listed below in the amounts set opposite their names: Shares Republic Creosoting Company------------ --------------- 4,900 P. C. Reilly------------------------------------------- 70 Howard Kroehl---------------------------------------- 10 Robert Wechsler--------------------------------------- 10 John Lawler- ----------------------------------------- 10 9Matter of William Randolph Hearst at ai. and American Newspaper Guild, Seattle Chapter, 2 N. L. R. B. 530, enf'd, N . L. R. B. v. William Randolph Hearst et al., 102 F. (2d) 658 (C. C. A. 9) ; Matter of C. A. Lund Company and Novelty Workers Union, Local 1866 (A. F. of L.) successor, 6 N. L. R. B. 423 , relevant part enf'd ., N. L. R. B. v. Christian A. Lund Company, doing business as C. A . Lund Company and Northland Ski Manufactur- ing Company, 103 F . ( 2d) 815 (C. C. A. 8). REPUBLIC CREOSOTING COMPANY 273 bership all employees of the respondents at their Maywood plant, ex- elusive of supervisory employees. III. THE UNFAIR LABOR PRACTICES A. The discharges During the early part of 1937 discontent among some of the em- ployees of the respondents with their wages and hours of work caused them to commence discussing the formation of a labor organization. Among the leaders in advocating the formation of a union were J. B. Ray and Genie Montgomery, two employees of the sawmill department of the Republic Company who had unsuccessfully attempted to obtain wage increases, and John Taylor, also an employee of the sawmill department. Taylor interviewed an American Federation of Labor organizer and succeeded in having a meeting of all employees interested in forming a union called for the evening of March 5, 1937. Seventy- six employees attended the meeting and 54 of them signed applications for membership in a union to be called Creosote Workers Union, Local No. 20483. On the following morning, March 6, Ray, Montgomery, and six other employees were discharged. The six other employees, Weldon Harvey, L. C. McCoun, William Tingle, Walter Pierson, Earl Suther- land, and James Tucker, worked as a tank platform crew in the refinery department of the Reilly Corporation. All of thein had attended the union meeting on the preceding evening and had signed applications for membership in the Union. On the morning of March 6, the six men were summoned into the office of Lawrence E. Hess, superintend- ent of the Maywood plant of both the Republic Company and the Reilly Corporation, shortly after they commenced working. Hess informed them that he had heard rumors that a union was being organized and questioned them about the union meeting which took place on the night before. None of the men were willing to divulge much information about the meeting and Hess accused them of being dissatisfied, related to them instances in which the respondents had treated the employees well, and indicated to them his belief that the men, by joining a union, could not work in cooperation with the respondents. He asked them whether they intended to "stick" with the Union or with him. The men informed Hess that they intended to do whatever the majority of the employees did, that is, they desired to act with the other employees in forming a union if other employees desired to organize. Thereupon Hess sent the men from his office to reconsider their responses to his inquiries. Upon reporting back to him a short while later, they informed him that they intended to "stick" together. Thereupon Hess became angry and informed the 274 DECISIONS OF NAT]ONAL LABOR RELATIONS BOARD men that if they wanted to quit, the bookkeeper would give them their pay. They informed him that they were not dissatisfied and did not intend to quit. Hess thereupon informed them that he would not have any union in' the plant, that he had operated the plant for more than 20 years and did not intend to relinquish the management to any labor organization. He then permitted the men to return to their work. Just before closing time Al Schmid, foreman in charge of the Reilly Corporation operations, asked each of the six employees individually whether- they intended to "stick", with the Union- or with the respond- ents and, upon being informed by each that he intended to do whatever the other men did, discharged each of the six men. Hess did not controvert the facts above related. Hess denied, however, that the six employees had been discharged because of their union membership or activities. He explained that on March 5 because of ill health he was instructed by P. C. Reilly, president of the respondent companies, to take an extended vacation, leaving the management of the plant in charge of Al Schmid and Dan O'Connor, foremen of the Reilly Corporation and Republic Company operations, respectively; that because of Hess' intended absence, Schmid, on the morning of March 6, requested Hess to interview the six employees above mentioned in order to put them in a proper frame of mind; that Schmid reported that these men had been doing an unusual amount of talking, had failed to.turn out the usual amount of work, and that upon being told by their gang foreman, Morris Haw- kins, that they must increase their production, they had not taken the "right attitude"; and that upon interviewing the men, Hess told them of the complaints which had been made about their work. Hess testi- fied, "During the conversation I told them that I did not know what was the cause of this change in their attitude, that I did not know what was the cause of this change in the inattention to their work, and I told them that I had understood for some time that there was some talk of a union being organized in the plant, and that I wondered if they had misunderstood the ideals of a union, and if their work in the, plant at that. time was the result of a misunderstanding of what a union stood for." Hess further testified that at the time he summoned the men to his office he did not know that they had attended the union meeting on the evening before but that before interviewing them he had been informed of their attendance by Al Schmid, who overhead conversa- tions of the men: aboutahe meeting; that he,had not intended to dis- charge the men when he summoned them to his office and that he con- sented that Al Schmid discharge them later that morning only upon Schmid's recommendation. Schmid had reported shortly before noon on March 6 that he did not like their "attitude" and did not want to be responsible for their work. REPUBLIC CREOS'O'TING COMPANY 275 Ray and Montgomery, the other two employees discharged on March 6, were summoned to Hess' office between 9 and 10 o'clock that morning. Ray testified that Hess told them that he was discharging them, be- cause they had been "dictating for the Union"; that he, Hess, "had run that place for 20 odd years and if he couldn't go ahead and run it, he didn't want nobody else" like them to run it. Montgomery's account of the interview was substantially the.same. Hess denied that he had made the statements attributed to him and testified that he did. not "believe the words `labor organization' or `union' or `organization' were used" in his conversation with Montgomery and Ray. Hess' expressed attitude toward the Union, however, when he interviewed the tank platform crew, as well as statements made by him to other employees on the same morning, which we shall describe more fully later, lead us to conclude that Hess made the statements testified to by Ray and Montgomery, and we so find. Hess claimed that the actual reason for Montgomery's discharge was the fact that he talked too much and that Montgomery's foreman, Edward Taylor, had complained to Hess about this fact. Taylor sub- stantiated Hess' testimony in this respect, stating, "He was a good worker as far as his work was concerned, if he had not talked so much." Taylor further testified that Montgomery had been talking excessively throughout the approximately 10 months of his employ- ment at the plant and that throughout this period Taylor had been reprimanding him for such conduct. It is significant that Mont- gomery's talkativeness was not considered an offense serious enough to warrant his discharge prior to the advent of the Union at the plant. Hess assigned as his reason for discharging J. B. Ray the fact that Ray had been talking and leaving his work to visit men in departments other than that in which- Ray worked, the fact that Ray had declined to accept the job of building a garage at the residence of P. C. Reilly when Hess had requested him to do that job, and the further fact that Ray's son had-brought, a $25;000 -damage. suit against the respondents. Edward Taylor, Ray's foreman, testified that he "had no trouble with Ray." Apparently the accusation that Ray talked and left his depart- ment too often was founded upon the fact that Lawrence Apley, main- tenance engineer in charge of the blacksmith shop, had informed Hess that Ray talked to men in the blacksmith shop when Ray came there for the purpose`of having tools _repaired. It appears that Ray had in fact upon one occasion talked about'.the Union to one Harry Connor, an employee who ,worled under Apley, and that Connor, had told Ap- ley of this conversation about the Union. We are convinced that it was not the fact that Ray talked, but the fact that the subject of his conversation was the Union; that was objectionable to Apley and Hess. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is significant that about this time and shortly after March 6 other employees were permitted by the respondents to circulate freely throughout the plant during working hours in order to solicit member- ships for the Republic Company Employees Association, herein called the Association, a labor organization admitting to membership only employees of the respondents. Apley himself participated in the solicitation of Association memberships. Concerning rumors he had heard about the Union prior to March 6, Hess testified, "There was a common report going around the plant that the plant's management would soon be taken out of my hands and that an outside group, a group controlled outside of the plant would begin to dictate who was to be hired and who was to be discharged in the plant." Until plans of this "outside group" crystallized to the extent that an organizational meeting for employees of the plant was actually held, Hess did not apparently deem it advisable to take active steps to oppose this "outside group." We are impressed by, the fact that Hess testified that when he arrived at his office on the morning of March 6 he then had no intention of summoning any employees before him. It was apparently after learning of the Union's meeting on the night of March 5 that he determined to summon Ray and Mont- gomery before him and discharge them and to instruct Schmid to dis- charge the six men from the tank platform crew who attended the union meeting. If any doubt should exist in our minds concerning the true reasons for the discharge of the eight men which we have above discussed, such doubt would be dispelled by our consideration of a talk made by Hess to a group of employees at noon on March 6. At that time, just as the employees were reporting to the timekeeper for their weekly pay, 15 to 20 employees who had been with the respondents for a consider- able length of time were told to report to Hess' office. Hess gave them a talk about the Union, stating that he had heard rumors that the Union would attempt to take over the management of the plant; that he, Hess, had been running it for over 20 years and did not intend to let any outsiders supplant him. He recited a number of benefits which he claimed the respondents had given the employees without the aid of a union. He further stated that he had been requested to take an ex- tended vacation because of ill health but that because of labor trouble which had developed, he was postponing his vacation for several days; that he was not going to have any union in the plant; that he had fired' two men that morning at about 9 o'clock; and that there were six more in the office to get their pay. Hess concluded his talk by request- ing the men to cooperate with the respondents and assist in running the plant peaceably while'he was absent on his vacation. IE.EPIIBLiC ^CREOS'IOTING COMPANY 277 We find that the respondents discharged Weldon Harvey, L. C. McCoun, William Tingle, Walter Pierson, Earl Sutherland, James Tucker, J. B. Ray, and Genie Montgomery because they joined and assisted the Union, thereby discriminating in regard to the hire and tenure of employment of such employees. and discouraging member- ship in the Union; that by said discharges and by the anti-union state- ments of Hess to the employees on March 6 the respondents have inter- fered with, restrained, and coerced their employees in the exercise of the, rights guaranteed by Section 7 of the Act. As a result of a conference held by the respondents with the Board's Regional Director, the respondents agreed to reinstate all of the em- ployees above mentioned, except Ray and:Montgomery, at its Miley Avenue plant. That plant was situated some distance from the May- wood plant at which the men had theretofore been employed. How- ever, none of them objected to being reinstated at that plant and all reported for work on March 13. They were told by Harold R. Horner, superintendent of the Miley Avenue plant, to report again in 3 or 4 days. Two of them, L. C. McCoun and William Tingle, never re- turned. Two of the others, Earl Sutherland and Walter Pierson, returned and commenced working at the Miley Avenue plant on March 17. James Tucker returned and commenced working there on March 18. Another employee, Weldon Harvey, reported back in ac- cordance with instructions and was told that no work was immediately available but that he should. return on March 20. Harvey obtained other employment on March 19 and did not return to work for the respondents. He earned an average of $16.80 to $18.80 weekly while working for the Reilly Corporation. At his new job he' earned between $20 and $25 weekly. A strike was called at the Maywood plant on June 7. Although other employees at the Miley Avenue plant did not strike on that date, Tucker and Pierson walked out in sympathy with strikers at the May- wood plant. Sutherland on June 7 was working temporarily at the Reilly Laboratories, owned by the Reilly Corporation and situated about 700 or 800 feet from the Maywood plant. He continued to work there until June 11. On that date, with the knowledge that he was soon to be returned to the Miley Avenue plant, he walked out of the Reilly Laboratories, asserting that he believed that his family, who lived near the Maywood plant, would be unsafe if he returned to work at the Miley Avenue plant. His work at the Reilly Laboratories was indoors and at the Miley Avenue plant it was outdoors, more exposed to the view of strikers from the Maywood plant. Sutherland and Pierson, after the termination of the strike, applied at the Miley Avenue plant for reinstatement and were informed by the superintendent that there 283030-41-vol. 19-19 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was no work then available for them. The strike was not caused by unfair labor practices on the part of the respondents, and since it does not appear from the record that any new men were employed at the Miley Avenue plant after the termination of the strike, we cannot find, as alleged in the complaint, that Tucker, Pierson, and Sutherland were refused reinstatement because of their union activities.10 Genie Montgomery obtained other employment about June 1, 1937, at which he earned more money than he had been earning with Re- public Company. J. B. Ray obtained other employment about a week after his discharge and testified at the hearing that he did not desire reinstatement with the Republic Company. John Taylor, who has already been mentioned in connection with the organizational activities of the Union, was elected president of the Union at its first meeting on March 5. He continued thereafter to be active in organizing the employees. He did piece work as a lumber unloader in the sawmill department at the time he was discharged, and was earning an average of about $23.60 a week. The nature of his work required that most of his time be spent outdoors. At about 11 o'clock on the morning of April 8, it commenced to rain, and for shelter Taylor went into the tie bucker's shanty, where the colored employees changed their clothes and ate their lunch. The shanty was customarily used as shelter for piece workers in rainy weather. Taylor took this occasion to attempt to,persuade Richard Martin, a colored employee who had likewise sought shelter from the rain, to join the Union, told him that Lincoln had freed the slaves and that he, Taylor, was going to do his part in helping the employees. During the course of his con- versation with Martin, he told Martin that he, Taylor, had been too easy on him; that if Martin did not join soon, he might lose his job. Martin testified that Taylor further told him, "About this coming Wednesday, I tin going to get hard, I am going to get plenty hard with those that don't go in." Martin's testimony was substantiated in material respects by Douglas Olif and Fred Crim, both union mem- bers, who were present at the time this conversation took place, and we accept such testimony as true. When Martin left the shanty, he was accosted by Dan O'Connor, assistant superintendent in charge of the Republic Company opera- tions, and questioned about what Taylor had said to him. O'Connor immediately reported Taylor's conduct to C. B. Edwards, who was in charge of the plant operations for all the Republic Company and Reilly Corporation plants, and addressed a letter to Taylor, discharging him for allegedly intimidating employees. ' Edwards on the same day wrote 10 Counsel for the Board and the Union agreed at the hearing that no claim was being made that Tucker had been refused reinstatement because of his membership in or activi- ties on behalf of the Union. REPUBLIC CREOS'O'TING COMPANY 279 Robert H. Cowdrill, Regional Director, that Taylor had been dis- charged because of threatening remarks made to employees. In this letter Edwards also stated that he had knowledge of the fact that Taylor was an active union member. The record does not show that Taylor or any other employee had ever been forbidden to discuss the Union or any other subject on the premises of the respondent while not working, or that piece workers were ever reprimanded for talking even while working. We must assume, therefore, that Taylor did not violate any rule of the respond- ents in merely talking about the Union. . Taylor had been in the employ of the respondents since 1921 and there is no evidence that during his period of employment he had ever before intimidated anyone. Martin had worked for the respondents and known Taylor for about 10 years and must have known that Tay- for had no power to discharge him. We are impressed with the fact that Martin did not testify that he was in fact intimidated by Taylor's remarks and also with the fact that Martin did not voluntarily seek out and report to the respondents the conversation which he had with Taylor, but that O'Connor sought him out and questioned him about it. We are convinced that Martin was not actually intimidated by the remarks made to him by Taylor. Even if, contrary to our finding, the respondents believed that Tay- lor in fact intimidated Martin, it is reasonable to suppose that they would have warned or admonished him rather than summarily dis- missing him, had they not been seeking an opportunity to rid the plant of its most active union member. Other employees had been warned before being dismissed for their malfeasances. Under the circumstances, we find that the respondents discharged Taylor because he joined and assisted the Union, thereby discriminat- ing in regard to the hire and tenure of employment of Taylor and dis- couraging membership in the Union ; that by said discharge the respondents have interfered with, restrained, and coerced their em- ployees in the exercise of the rights guaranteed by Section 7 of the Act. Taylor had not obtained other employment prior to his death.on July 10, 1937. Luther Ernest Bewley was first employed by the Republic Company in 1926 and was working in the pole yard at the time of his discharge on April 20, 1937. During the years 1931 to 1935 when business at the plant was bad, he was laid off. He was also laid off for 2 months from December 1936 to February 1937, apparently because work was scarce. Bewley had attended the first union meeting on March 5, but did not join the Union until April 4. The record does not disclose +nat he was an active member. He claimed that on April 20, his fore- pan, Frank Gilbert, informed him that he was being laid off but gave 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no reason for such lay -off ; that when Bewley questioned Hess about the reason for his lay-off, Hess told him that he had been loafing on his job; that during the week following his lay-off when he applied to Hess for reinstatement , Hess told him that he might be called, back later, "when the labor trouble was straightened out." Apparently, upon the basis of the latter statement by Hess, Bewley assumed that he was discharged or laid off because of his membership in the Union. Hess testified that Bewley was a poor workman , that he had noticed Bewley loafing on his job upon several occasions , and that Gilbert had reprimanded him for loafing. Bewley denied that he had ever been reprimanded except as one of a group of men working under Gilbert. Hess further testified that he did not know that Bewley belonged to the Union , that his sole reason for laying Bewley off was his loafing during working hours. We find that Bewley was not laid off or dis- charged because of his membership in or activities in behalf of the Union. Leonard Goodwin 11 was employed by the Reilly Corporation in August 1935 and, with the exception of approximately 1 month's ab- sence from the plant, continued his employment with the Reilly Corpo- ration until May 20, 1937 . Goodwin joined the Union on March 25, but the evidence does not disclose that he was active in its affairs . At that time he was working in the refinery , firing stills . About a month after he joined the Union, he was transferred to another type of work in the yard adjoining the building in which he had been working. At this new work he received the same rate of pay but worked.shorter hours, and consequently his total earnings were reduced . A short time be- fore he was discharged, Goodwin had voluntarily laid off for approxi- mately a month and was reinstated only because of the pleas of Goodwin's wife that he be given another chance . On Saturday, May 18, it became necessary for the employees in the department in which Goodwin was employed to work during the afternoon for the pur- pose of filling an emergency order which it was necessary to ship from the plant that afternoon . Goodwin was informed by the foreman over him that he would have to stay and assist with the work . Goodwin claimed that he would miss a ride home if he stayed, and therefore re- fused to stay. On the following Monday morning , May 20, Schmid reported to Hess that Goodwin had refused to work on Saturday after- noon in disobedience to orders given him, and recommended his discharge . Hess thereupon discharged him. The evidence is uncontradicted that the respondents often trans- ferred employees from one department to another , and from one job within a department to another job, as work became slack in one 11 Incorrectly designated in the amendment to the complaint as Leonard Goodman. REPUBLIC CREOSOTING COMPANY 281 department and more pressing in another. We do not find from the evidence before us that the respondents intended to discriminate against Goodwin because of his membership in the Union when they transferred him from the job of firing stills to a job in the yard adjoin- ing the building in which he had been working. We find that Leonard Goodwin was discharged because of his refusal to work on Saturday afternoon as he was ordered to do, and not be- cause of his membership in the Union. B. The strike On April 28, 1937, the Union addressed a letter to P. C. Reilly in his capacity as president of the Republic Company, requesting a meeting with representatives of that company for the purpose of discussing matters set forth in a proposed agreement between members of the Union and the Republic Company. A copy of the proposed agreement was enclosed with the letter. On May 7 Reilly replied to the letter of April 28 by ` stating' that 'he had appointed Carlton B. Edwards and William Higburg to represent the respondents, and that they would arrange to meet the union representatives for the purpose of discussing the points raised in the Union's letter of April 28. Edwards was in charge of the plant operations and Higburg was in charge of sales and development for both respondents in all their plants throughout the country. Necessarily, each was absent from the Maywood plant at times. Edwards spent approximately 5 or 10 per cent of his time away from the Maywood plant, and Higburg spent approximately one-third of his time away. It was not until May 18 that a meeting was finally arranged and held with the Union. At that time Taylor, Wilbur N. Snyder, and William Miesel, union representatives, together with the Union's attorneys, William H. Faust, Sr., and-Irene Faust; met with Edwards and Higburg at the respondents' offices in Indianapolis, In- diana. Faust opened the meeting by presenting a new proposed agree- ment between the Union, as representative of all the employees at the Maywood plant, and both the Republic Company and the Reilly Cor- poration. While the terms of this new agreement were similar to those which had been proposed in the copy which had theretofore been sent to Reilly, a number of additions and changes had been made. Faust, when presenting this new agreement, stated to Edwards and Higburg that the Union represented approximately 146, a majority, of the employees at the Maywood plant, and requested that the respondents recognize the Union as sole representative of their em- ployees for the purposes of collective bargaining. Edwards and Hig- burg stated that they were being presented with a new and different proposed agreement from the one which had theretofore been mailed to Reilly, and that they needed further time in which to consider the 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD new proposal before discussing itwith the Union. They further stated that there was in existence another labor organization at the plant which was claiming to represent a majority of the employees ; that they had an appointment with representatives of that labor organization later in the afternoon and desired to interview such representatives and to further consider the new matters raised by the Union before decid- ing whether the respondents should recognize the Union as the sole collective bargaining agency for employees of the Maywood plant. Some discussion was had concerning , the holding of a consent election to determine the proper representatives . However, no agreement was reached, and the union representatives left, with Faust announcing that they would give the respondents until 10 o 'clock on the following morning to decide whether or not they would bargain with the Union or consent to the holding of an election. No further word was received from the respondents by the designated hour on May 19, and John Taylor and William Miesel thereupon, in behalf of the Union , filed charges with the Regional Office of the National Labor Relations Board, alleging that the respondents had refused to bargain with the Union and had discharged the 10 em- ployees hereinbefore discussed because of their union activities. The Union also filed a petition for investigation and certification of representatives. Thereafter , several conferences between Taylor, Miesel , and William H. Faust, Jr., one of the attorneys for the Union , as representatives of the Union , Buford Plummer and William Utley , as representatives of the Association , and Edwards and Higburg , as representatives of the respondents , were held in the office of the Regional Director for the purpose of negotiating an agreement for an election upon the consent of the two labor organizations and the respondents. By June 4 the parties had agreed upon practically all terms of the proposed consent election agreement and decided to meet again on Monday, June 7, for the purpose of signing it. On the morning of June 7 the respondents were ready and willing to sign the agreement . However Faust, Jr., raised several questions and he and the Board 's Regional Director sug- gested several changes in the agreement . The respondents and the Association consented to the changes being made , and by noon the agreement was ready for execution . It was then agreed by all parties that Faust, Jr., should have the instrument retyped and that they would meet again at 4 o'clock in the afternoon at the respondents' office for the purpose of signing it. On the preceding day, June 6, the Union had met and voted to call a strike if the consent election agreement had not been signed by 10:30 o'clock on the following . morning. Miesel and Taylor had been report- ing at the union meetings "that everything was going along nice; that REPUBLIC CREOS'O'TING COMPANY 283 we were having an agreement signed with them (the respondents) for an election. We did this, due to the fact t hat they were getting uneasy and getting roused up that the Company was putting on so many, stalls, leaving town, sickness, can't meet with you today, and one thing or another. It was just the old stalling game they were playing, that is all you can say. It was plain to see that and we had to take a sub- stantial answer back to the members to hold them in line, and we held them as long as Ave possibly could hold them." Neither the union attorneys, the Regional Director, the Association representatives, no] the respondents were informed of the strike vote. Faust, Jr., although he knew that feeling among the union members had been tense for several days prior to June 7, did not know that a strike way imminent until after the meeting of June 7 had dispersed and Taylor informed him that the men wanted to strike, but that he thought that he could hold them until 6 o'clock that evening. Shortly before 2 o'clock Miesel returned to the plant. He claimed that he informed the employees that the agreement had not yet been signed but that it might be signed at 4 o'clock that afternoon. A num- ber of other employees, however, some of whom were union members, whose testimony appears to us more credible, testified that Miesel said nothing about the possibility of the agreement being signed that after- noon, but that he told them the strike whistle would blow at 2 o'clock. Clevenger, an employee, did blow the strike whistle at 2 o'clock and most of the employees at the plant walked out. The respondents refused to sign the consent election agreement at 4 o'clock that after- noon and claimed as, reason for such refusal that either Taylor and Miesel were unauthorized to represent the Union or else that the Union was acting in bad faith by calling a strike at that time. The strike continued until June 28 at which time most of the em- ployees returned to work under the terms of a consent election agree- ment executed on June 25. C. Alleged discriminatory refusals to reinstate 1. The reinstatement agreement The consent election agreement executed on June 25 was in most respects identical with the agreement which was ready for execution on June 7. Accompanying the agreement and executed simultane- ously therewith was a letter from C. B. Edwards, as representative of the respondents, addressed to the Regional Director in which it was provided, among other things, that "pending the result of such election the companies will reemploy, with due regard for seniority rights within any department, as many of the employees on the pay roll of the companies prior to the strike as can be used by the companies. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These employees are, pending the election, to be returned to their former positions as work is available and prior to the employment or rentention of any new workers hired subsequent to the date of the strike, and this reemployment is to begin on Monday, June 28, 1937.712 In interpreting the consent election agreement and accompanying letter, all parties agreed that those employees who had not gone out on strike should retain the jobs at which they were working, and that the provision for reinstatement with due regard to seniority should apply only to those employees who had struck. Considerable difficulty, how- ever, arose in connection with a proper interpretation of the phrase, "with due regard for seniority rights within any department." The respondents claimed that they had always had a seniority policy to which they gave due regard when it became necessary to lay off em- ployees. They claimed that an employee's seniority was based upon .the length of his service with the respondents, and not upon his length of service within a particular department; that it was customary at the plant to transfer employees from one department to another either temporarily or permanently, and that upon making such transfers no record was kept of the date of the transfers. Under such circum- stances, they claimed that it would be impossible to determine the seniority of all employees based upon the length of their service in the department in which they were employed at the time the strike was called. Furthermore, the respondents contended that any other interpretation of the question of seniority rights than the one an- nounced by the respondents would be palpably unfair and unjust to a majority of the employees, whether union or non-union members. The respondents claimed that each employee who was on strike was entitled to be reinstated under the agreement on the basis of plant seniority only to the position at which he was working at•the timethe strike was called, since the letter adressed to the Regional Director, which was approved by the Union as a part of the consent election agreement, provided that the employees should "be returned to their former positions." While the Union at no time during the hearing clearly stated its interpretation of the letter just referred to, it has im- plied that it contends that an employee's seniority should be figured from the date of his employment in the department in which he was 12 The respondents moved to strike from the complaint that portion which alleged that they had discriminatorily refused to reinstate employees in the order of their seniority as that term was used in the letter accompanying the consent election agreement. The motion was based chiefly upon the contention that the Act does not give the Board juris- diction to enforce a seniority agreement; that whether or not the respondents have com- plied with the agreement is immaterial and irrelevant to any question which the Board is competent to hear or determine. In so far as the respondents may have discriminated against employees because of their union affiliation or activities by failing to reinstate them in accordance with the terms of the seniority agreement , the Board , in examining that issue , must of necessity consider the agreement. REPUBLIC CREOSOTING COMPANY 285 working at the time the strike was called, and that he should be entitled to reinstatement to any position within his department to which his departmental seniority would entitle him. The Union introduced no evidence to show that its own interpreta- tion of the reinstatement agreement would have resulted in a situation more favorable to the Union, and consequently there exists no basis upon which we can conclude that the respondents' interpretation of the agreement discriminates against employees because of their Union membership and activities. For the purposes of this decision, we shall accept the respondents' interpretation of the reinstatement agreement embodied in the letter accompanying the consent election agreement in determining whether or not the respondents have discriminated against individual employees because of their membership in or activi- ties in behalf of the Union. 2. Employees not reinstated allegedly for lack of seniority The complaint as amended alleges that the respondents, in reinstat- ing the strikers, discriminated against 38 named employees because they were either members of or in sympathy with the Union. During the course of the hearing, counsel for the Board and the Union agreed that the cases of Thomas Kuchenske, John Miesel, Tom Campbell, Ballard Hall, Raymond Poling, Charles Skaggs, and Oscar Norris should be dismissed. We find that the first five named employees, regardless of the interpretation placed upon the question of seniority rights, did not have sufficient seniority to entitle them to reinstate- ment at the date of the hearing. The other two were reinstated within 2 weeks after the termination of the strike, and we do not find that the respondents dscriminated against them because of their union activities. The respondents introduced in evidence a list of all employees at the plant on the date when the strike was called, showing the position which each employee held, the department in which he worked, and the length of his service with the respondents. The Union has not questioned the authenticity or accuracy of this list in so far as it relates to length of service and departmental classifications of em- ployees, but claims that the respondents, by subdividing the depart- ments into job classifications which had not been adhered to before the strike occurred, discriminated against union members. We shall treat of this claim in connection with the individual cases hereinafter considered. After carefully considering the employment records of all the respondents' employees whose names appear on the seniority list in evidence, we find that the following employees named in the complaint, in addition to those above named, do not have such plant seniority as 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have entitled them to reinstatement in preference to other em- ployees in their respective departments regardless of their job classi- fications : L. (Dow) Baker, Clyde Bymaster, James Davis, Grover Carl Oliver, Frank Reynolds, Arthur Rybolt, Henry Clay Sears, and Lucien Starks. Jim Mills, who had been employed by the Republic Company on a coke gang for 3 years and 2 months prior to the date the strike was called, was not reinstated to his former position until August 4. He had joined the Union and gone out on strike with other employees. However, it does not apear that he was active in union affairs. The record shows that several other employees junior to Mills, who worked on the coke gang and who had also gone out on strike, were reinstated before him. Whether or not such employees were also members of the Union and whether or not they were active in union affairs does not appear from the record. Hess sent for Jim Mills a few weeks after the strike was called off, but Mills could not at that time be located. When Mills reported for work about a week later, a job was not then available for him. It was 2 days after the time when Mills applied for reinstatement that he was returned to work by the Republic Company. Employees reinstated were, in accordance with an understanding be- tween the respondents and the Union, not required to apply for rein- statement; it was understood that the respondents would notify them to return to work as soon as they could be used. Mills claimed that he left his correct address with the respondents and that he could have been notified by mail. While we believe that Hess was negligent in failing to locate and reinstate Mills sooner than August 4, we find, under the facts before us, that Mills was not discriminated against because of his membership in the Union. John Reed was employed by the Republic Company during the latter part of March 1937 as a laborer in the adzer, frames, and cut-off saw department. He went out on strike and had not been reinstated at the date of the hearing. He claimed, and we find, that two other laborers in his department, F. Kendall and J. Meadows, each junior by 9 days to Reed, were reinstated. All three were members of the Union but none of them was shown to have been active in its affairs. Hess testified that Kendall and Meadows were more valuable em- ployees than Reed, that they were qualified to do work other than the labor at which Reed had been working, and that for such reason alone those two employees were reinstated in preference to Reed. In view of such explanation and of the fact that all three of the employees were members of the Union, we find that the respondents, in failing to reinstate Reed, did not discriminate against him because of his membership in the Union. Orville F. Richardson had been employed by the Republic Company for 3 years, 1 month, and 3 days prior to June 7. For part of the time REPUBLIC CREOSOTING COMPANY 287 during the year preceding June 7, lie was employed in the respondents' office as a clerk and his name appears on the seniority list as a clerk, Several weeks prior to June 7, he had been transferred to his old posi- tion as a checker in the tie yard, and was working as a checker when the strike was called. The seniority list indicates that he is junior to all employees working in the office, but that he has seniority over A. Wright, the only other checker listed for the tie yard. Wright was reinstated. Whether or not Richardson had been transferred back to the tie yard only temporarily before the strike occurred does not appear from the record. Richardson had never joined the Union and did not serve on the picket lines during the strike. He claimed, however, that he was sympathetic with the Union and that O'Connor, a foreman over the Republic Company operations, had on one occasion observed Richardson talking to John Taylor and thereafter questioned him, Richardson, about the Union. The record does not show whether or not Wright ever joined the Union; however, he did go out on strike with other employees. We conclude that the respondents did not dis- criminate against Richardson because of his sympathy with the Union, but that their failure to reinstate him was the result, at the most, of an error in classifying him as an office employee rather than as a checker. James Loyal G-riggs was employed by the Republic Company in its sawmill department in March 1935. In April 1935 he was trans- ferred to the refinery and worked for the Reilly Corporation at different operations in the refinery department until the strike was called. At that time he was working as a still operator. Griggs was a charter member of the Union and was out on strike with other em- ployees. The refinery operations have been divided by the respond- ents into eight classifications. Griggs had seniority over only one employee who had been reinstated in the refinery department. That employee, A. Bennett, was classified as a pipe-enamel laborer. Griggs consoidered himself a still operator and claimed seniority only over M. Bowen, who, although he had worked as a still operator for a shorter time than Griggs, had worked in the plant for a. longer period than Griggs. Two other employees named in the complaint, Charles Dalby, a pipe- fitter helper in the maintenance department, and William E. Renier, a crane operator in the crane department, were each senior to one employee in their respective departments but were junior to all em- ployees within their own job classifications. Neither claimed that he had ever performed the type of work to which the employee junior-to him in the department had been reinstated. Their claim that they were not reinstated with due regard for their seniority rights was based solely upon their mistaken belief that each had seniority over another employee in his own job classification. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondents in failing to reinstate Griggs, Dalby, and Renier did not discriminate against them because of their member- ship in or activities in behalf of the Union. James Haag was employed by the Republic Company on June 28, 1936. He was a member of the Union and went out on strike. He had been shifted from one department to another while working at the plant and claimed that he. was working in the maintenance department as a, blacksmith's helper at the time the strike was called. The list of employees submitted in evidence by the respondents contained no such classification as blacksmith's helper. Haag was classed on the list as a pipe-fitter helper. He was junior to all other employees in that classification. Only one employee in the maintenance department reemployed since the termination of the strike was junior to Haag. That employee, R. Wood, was classed as a yard-cleaning laborer. Haag had not worked as a yard-cleaning laborer since the winter pre- ceding the occurrence of the strike. Furthermore, it does not appear from the record that Wood was not also a member of the Union. We find that the respondents, in failing to reinstate Haag, did not discriminate against him because of his membership in or activities on behalf of the Union.13 3. Refusals to reinstate because of conduct during the strike The respondents refused to reinstate nine employees for reasons in whole or in part connected with their conduct during the strike. In determining whether such refusals by the respondents constituted unfair labor practices within the meaning of the Act, we take into consideration the fact that the strike was not provoked or occasioned by unfair labor practices on the part of the respondents and that the record does not show violent or unlawful acts on the part of the respondents or of nonstriking employees in connection with the strike. We are also mindful of the fact, however, that the emotional tension of a strike almost inevitably gives rise to a certain amount of disorderUand that conduct on the picket line cannot be expected to approach the etiquette of the drawing room or of the conference table. As the Cir- cuit Court of Appeals for the Third Circuit said in Republic Steel Corporation v. National Labor Relations Board: .. . We think it must be conceded, however, that some dis- order is unfortunately quite usual in any extensive or long drawn out strike. A strike is essentially a battle waged with economic weapons. Engaged in it are human beings whose feelings are 13 The respondents, in their exceptions to the Intermediate Report of the Trial Exam- iner, alleged that subsequent to the hearing they had offered reinstatement to their former positions to all employees considered in this subsection, as well as to Earl Sutherland, Ted Hinton, and Joe Hauck. REPUBLIC CREOSOTING COMPANY 289 stirred to the depths. Rising passions call forth hot words. Hot words lead to blows on the picket line. The transformation from economic to physical combat by those engaged in the contest is difficult to prevent even when cool heads direct the fight. Violence of this nature, however much it is to be regretted, must have been in the contemplation of the Congress when it provided in Sec. 13 of the Act that nothing therein should be construed so as to inter- fere with or impede or diminish in any way the right to strike. If this were not so the rights afforded to employees by the Act would be indeed illusory. We accordingly recently held that it was not intended by the Act that minor disorders of this nature should deprive a striker of the possibility of reinstatement. Na- tional Labor Relations Board v. Stackpole Carbon Co., supra. In the light of the above considerations we turn to the individual cases. William Thurman was employed by the Republic Company as a, laborer in the crane department in March 1937. He had seniority over one employee, D. Alexander, who was reinstated at that type of work after the termination of the strike. Thurman had joined the Union and served on the picket lines during the strike. The respondents claim that they would not reinstate Thurman be- cause of his conviction of assault and battery upon H. J. Beers and Lonnie Games, watchmen at the plant, while the strike was in progress, and because of his conviction on a charge of assault and battery with intent to kill upon Hess. It appears that Beers and Games were assaulted by eight men on the night of June 18 and badly beaten. In addition, a purse was stolen from one of them. A hearing was held in the Magistrate's Court in Indianapolis on August 15 upon an assault and battery charge against four men, including Thurman, who were alleged to have participated in the beating. Thurman was found guilty and fined $25 and costs of court. Thurman's second conviction arose out of an attempt by Thurman to grab from Hess a booklet in which Hess was writing the names of employees who were blocking the entry of a car into the plant. Thurman struck Hess in the mouth, knocked one of his teeth out, and inflicted injuries which required several stiches. For this assault Thurman was sentenced to 180 days in jail. Under the circumstances set forth above, we are of the opinion that the respondents did not engage in unfair labor practices in refusing to reinstate Thurman. Garvin Montgomery and Raymond Bryant were employed by the Republic Company in August 1936 and in December 1926, respectively. Montgomery was employed in the crane department and Bryant in the sawmill department. Each would have been reinstated at the termi- 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nation of the strike had seniority been the sole factor considered by the respondents . Each joined the Union on March 5 and went out on strike with other employees. Montgomery and Bryant were refused reemployment by the re- spondents on the ground that they had participated -in the assault upon Beers and Games, above described . While it appears that Mont- gomery and Bryant were discharged after a hearing in the Magis- trate's Court on August 15, Hess had already, upon the termination of the strike on June 28 , determined not to reinstate them and he testified that even though they were discharged by the court he still firmly believed that both of them were guilty. We are of the opinion that the respondents believed , not without reason, that Montgomery and Bryant were guilty of the assault and that the respondents ' refusal to reinstate these men did not constitute an unfair labor practice with- in the meaning of the Act. Harvey W. Flory was employed by the Republic Company in August 1935, and at the time of the strike was working in the power- house as a fireman's helper . Flory had seniority over two other employees who were reinstated as fireman 's helpers when the strike ended. Flory had joined the Union but there is no evidence that he took an active part in it prior to the commencement of the strike. At 2: 00 o'clock on the afternoon of June 7, immediately after the strike whistle blew, Hess met Flory leaving the powerhouse and insist- ed that Flory remain on his shift until relief could be obtained. Flory refused to remain and walked out with George Norris, the other fireman's helper , and other striking employees , leaving Thomas Clevinger , the fireman , alone with the boilers . Hess claimed that it was dangerous to leave the boilers in charge of one man. Lawrence Apley, maintenance engineer , also testified that at times some danger from an explosion might result from inadequate assistance to the fire- man. Hess felt that it was necessary to and did obtain other assistance for Clevinger after Flory and Norris left. While Clevinger contended that a failure to watch the boilers carefully would not result in an explosion , he admitted that he, himself, could not leave the boilers, that he needed assistance , and that he blew the whistle as a signal for help after Flory and Norris left. We find that the respondents might reasonably have believed , and did believe , that serious damage would have been incurred had Clevinger been left without any assistance. In addition , Flory was one of a group of men who had attempted to block a car, operated by one Dongus, an employee , from entering the plant. Suasequently , Flory filed a charge of assault and battery against Dongus, caused his arrest , and then failed to prosecute the charge. Flory did not claim that he was injured , and it is obvious that his pur- pose in having Dongus arrested was merely to retaliate against him because he was working. REPUBLIC CREOSOTING COMPANY 291 Under the circumstances-we find that the respondents' refusal to reinstate Flory does not constitute an unfair labor practice within the meaning of the Act. Wilbur N. Snyder was employed by the Republic Company in May 1934 and had seniority over four other individuals in his department who were reinstated following the termination of the strike. Snyder was one of the most active of the union members, becoming its presi- dent after July 10, 1937, when John Taylor died. The respondents refused to reemploy Snyder on the ground that he had written threats to burn up the plant upon ties in the tie- yard department; that he had, during the strike, caused the arrest of O'Connor, the foreman under whom he had been working, upon a charge of assault and battery with intent to kill, of which charge O'Connor was subsequently acquitted; that Snyder, together with three others, had followed a truck leaving the plant, threatening to beat up the driver when he left town; and that Snyder had taken advantage of his position as checker and timekeeper before the strike was called to receive credit for piece work done while he was being paid by the hour. Although there is some dispute as to whether Snyder had written the threats on the ties, we find that the respondents believed, not unreason- ably, that Snyder was responsible for the writing. The record sup- ports the respondents' position that Snyder was responsible for bring- ing the charge against O'Connor, and that Snyder was involved in the incident of pursuing the truck. Snyder did not deny the charge that he had received credit for piece work while being paid on an hourly basis. Under the circumstances we are of the opinion that the respondents' refusal to reemploy Snyder does not constitute an unfair labor practice within the meaning of the Act. Robert Gilman was employed by the Reilly Corporation in Novem- ber 1934, and was working as a laborer in the crane department when the strike was called. At the date of the hearing, he had seniority over two other laborers who had been reinstated after the termination of the strike. Gilman had joined the Union and gone out on strike, although prior to the strike he was not particularly active in union affairs. The respondents claimed that they refused to reinstate Gilman be- cause during the strike he had driven his motorcycle beside or behind Hess9 car every time Hess entered and left the plant; that he had attempted to prevent an Indiana State highway truck carrying ma- terials from entering and leaving the plant; that he was one of the four employees who followed the truck, threatening to beat up the driver; that during the strike, as Hess was attempting to drive into the plant, Gilman told him that he, Gilman, "would gladly punch him in 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the nose" if Hess would get out of his car; that Gilman had cursed Hess to his face ; and that on July 19, after the strike had terminated, Gil- man filed a charge of assault and battery against Hess and caused his arrest, then withdrew the charge. Gilman did not deny that he had committed most of these acts but offered various reasons for the actions. Under the circumstances, we are of the opinion that the respondents' refusal to reemploy Gilman did not constitute an unfair labor practice within the meaning of the Act. William Miesel was employed by the Republic Company in May 1936. It is undisputed that he had seniority over three other em- ployees who were reinstated after the strike. Miesel was secretary of the Union and, as above set forth, was active in the negotiations be- tween the Union and the respondents prior to the strike. The respondents contend that they refused Miesel reemployment, among other reasons, because during the strike Miesel, attempted to block the entry of Hess' car into the plant; because Miesel was one of the four employees who followed the truck, threatening to beat up the driver; because Miesel after the termination of the strike had filed a charge against Hess of assault and battery with intent to kill, and had caused Hess to be arrested and tried ; 14 and because Miesel was a poor workman and loafed on the job. We are of the opinion that his con- duct during the strike, and shortly after the termination of the strike, particularly in filing charges against Hess and causing him to be arrested and, tried for assault and battery with intent to kill, when Miesel knew that there was no foundation for the charge, justified the respondents in refusing to reinstate Miesel. Carvaeticus Nichols was employed by the Republic Company in March 1936 as a tie carrier in the tie-yard department. Although Nichols was a member of the Union and went out on strike, there is no evidence that he was particularly active in the Union. The record dis- closes that at the time of the hearing he was not entitled to reinstate- ment on the basis of his seniority. The respondents contend that Nichols would not be reinstated in any event because of certain activi- ties which it is not necessary to consider in detail here. None of the reasons for the refusal to reinstate Nichols relate to his union activity, and we therefore find that the respondents' refusal to reemploy him does not constitute an unfair labor practice within the meaning of the Act. Joe Hauck 15 had been employed by the Republic Company for some 11 months prior to the commencement of the strike as a laborer in the crane department. He had seniority over one crane laborer who was 14 Hess was acquitted at the trial and Miesel was reprimanded by the Court for having filed the charges. 16 Incorrectly designated in the complaint as Joe Hawk. REPUBLIC CREOSOTING COMPANY 293 reinstated after the termination of the strike. That employee, D. Alexander, was a member of the Union and served on the picket lines. Hauck did not testify at the hearing and there appears in the record only the testimony of Thomas Shillington, under whom Hauck worked, and of Hess concerning the reason why Hauck was not reinstated prior to Alexander. Shillington testified that about it week before the strike was called, Hauck was transferred with a group of other men from work on a gasoline rig to operating a crane; that Hauck created "hard feelings" among the -men by telling them "that he would not work on the, black stuff because it is too dirty a job and also that he was not going to work there very long; that he had other employment that he could get of cooking"; and that Hauck requested Shillington to transfer him to another part of the yard. Shillington informed Hess of Hauck's com- plaints. Concerning the reason why Alexander was reinstated in preference to Hauck, Hess testified : I consider D. Alexander a better man, a better workman than Elauck. I consider Hauck a disturber, I consider him a dangerous man to have in any group of workmen, because he was constantly finding fault with his assignments. I think you will remember it was testified to by Thomas Shillington that Hauck worked in his gang for a while, and was a disturber and tried to stir up dis- sension among his fellow workmen because of the class of work that they were doing. For that reason I did not reemploy him. Another reason why I did not reemploy him was for the reason that during the strike out in front of the main gate along Tibbs Avenue, Hauck addressed me before a group of men, in which he said : "You have always been on top in the plant." He said : "We are going to put you on the bottom and keep you there, and we will be on top." A man with an attitude of that kind toward his superiors and toward his superintendent, I do not consider a desirable employee. It appears from the foregoing that the refusal to reinstate Hauck was based in part upon his statement during the strike to Hess, "You have always been on top in the plant .. . . We are going to put you on the bottom and keep you there, and we will be on top." Considered in the light of the fact that the Union had been attempting to bargain with the respondents in regard to improved conditions of work, Hauck's statement could only be interpreted by Hess as an expression of intention on the part of Hauck that the Union would, through collec- tive bargaining with the respondents, be put upon a basis of equality or superiority in its relations with the respondents. We are of the opinion that in discharging Hauck, in part at least for making the 283030-41-vol. 19-20 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above statement, the respondents discriminated against him within the meaning of Section 8 (3) of the Act. We are aware that other reasons, having no relation to Hauck's union membership or activity, appar- ently entered into the respondents' decision. We nevertheless con- clude that the anti-union reason was a substantial motive in the respondents' refusal to reinstate Hauck.'° We therefore find that the respondents have discriminated in regard to the hire and tenure of employment of Hauck, thereby discouraging membership in the Union and interfering with, restraining, and coerc- ing their employees in the exercise of the rights guaranteed by Section 7 of the Act. 4. Refusals to reinstate for other reasons Albert Miles and George W. Norris were not reinstated subsequent to the strike. The record clearly discloses, however, that the respond- ents' refusal to reemploy these men was based upon physical inca- pacity for work. We find that the respondents have not engaged in unfair labor practices by reason of their failure to reemploy Miles and Norris. Ted Hinton was employed by the Republic Company in October 1934 and was working in the sawmill department at the time the strike was called. Hinton apparently had seniority over a number of other employees. While Hinton was a charter member of the Union, it was not shown that he had ever served upon any committees or solicited memberships or was in any way more active as a union member than other strikers who were reinstated in the sawmill department. Al- though there is some evidence that the respondents' refusal to reem- ploy Hinton was based upon certain conduct during the strike, we are satisfied from the record that the actual reason for the failure to rein- state Hinton is to be found in conduct of Hinton occurring prior to the strike and not connected with his union activity. We therefore find that the respondents have not engaged in unfair labor practices in refusing to reinstate Hinton. D. The alleged refusal to bargain 1. The appropriate unit In a consent election agreement signed by the Union, the Associa- tion, and the respondents on June 25, 1937, it was provided that "all employees of the Companies in those plants located at Tibbs Avenue 16 Cf. Matter of The Dow Chemical Company and United Mine Workers of America, Dis- trict No. 50, 13 N. L. R. B. 993; Matter of Borden Mills, Inc. and Textile Workers Organizing Committee, 13 N. L . R. B. 459 ; National Labor Relations Board v . Stack- pole Carbon Company , 105 F. ( 2d) 167 ( C. C. A. 3 ) ; National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d ) 862 (C. C. A. 2 ), cert. den. 304 U. S. 576. REPUBLIC CREOSOTING COMPANY 295 and Minnesota Street, who were on the pay roll of May 13-19, 1937, in accordance with the lists submitted and certified to by the Association and Creosote Union, shall be eligible to vote in said election, with the exception of L. E. Hess, superintendent." Although no supervisory employee other than Hess was specifically excluded in the agreement, it was understood by all parties that either labor organization might challenge the vote of any other employee who, it believed, held a super- visory position and that the Board's Regional Director should deter- mine his eligibility to vote. We see no reason to alter the agreed unit. We find that all employees of the respondents' Maywood plant, excluding supervisory employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to em= ployees of the respondents the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate the purposes of the Act. 2. Representation by the Union of the majority in the appropriate unit As a result of the consent election held on June 28, 1937, the Union received 105 votes and the Association 93. We find that pursuant to Section 9 (a) of the Act, the Union was, on June 28, 1937, and at all times thereafter pertinent to this Decision has been, the exclusive rep- resentative of all the employees in such unit for the purposes of collec- tive bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. Attempts at collective bargaining The first attempt by the Union to bargain with the respondents was on May 18. This meeting, as we have hereinbefore stated, terminated when the respondents informed the Union that another labor organi- zation was claiming to represent a majority of their employees. Until it was determined, therefore, which labor organization represented a majority of the employees within the appropriate bargaining unit at the Maywood plant, the respondents were not obligated to bargain with either of such labor organizations. The first meeting held by the respondents with the Union after the determination of the question concerning representation, was on July 21. At the meeting Faust, Jr., Miesel, Snyder, and Phillips repre- sented the Union, and Edwards and Higburg represented the respondents. Hours, wages, and working conditions at the plant were discussed. The respondents stated that because they had granted wage increases during the months of April and May 1937, they could not grant any further wage increase immediately. It was called to the 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attention of the respondents that some of the employees had been work- ing-overtime for unreasonably long hours, some as long as 691/2 or more hours a week. Edwards and Higburg expressed surprise that this. condition existed, and promised that the amount of overtime would be immediately reduced; they also suggested that they would be willing to establish a normal workweek of 441/2 and 491/2 hours for different types, of work. The Union demanded time and one-half pay for all over- time work at the plant. The latter demand was not agreed to by Edwards and Higburg but they suggested that the respondents would be willing to pay time and one-half for work done in excess of 50 hours, a week. The Union also requested that watchmen be given at least 1 day off in every 2 weeks, and Edwards and Higburg agreed that this request would be granted. A few other demands similar to those made in the proposed agreement submitted to the respondents on May 1& were made by the union representatives, but no progress was made in the negotiations on matters other than those just referred to. The meeting ended with the suggestion by Snyder that he would investi- gate the condition of hours and wages at another plant in Terre Haute and that he would again confer with Edwards and Higburg. The next meeting with the Union was on July 30. At that time, in addition to the parties who attended the meeting of July 21, there were present two representatives of the A. F. of L., and the president of the State Federation of Labor. The Union informed Edwards and Hig- burg that it did not wish to discuss further the matters of hours, wages, and working conditions until an agreement had been reached concern- ing the reinstatement of strikers on a seniority basis. The Union con- tended that, with the exception of four employees who were then on trial for the assault upon Beers and Games, all employees were entitled to reinstatement on the basis of seniority alone. Edwards and Hig- burg refused to agree to this proposal and insisted that they intended to give only "due regard" to seniority in reinstating the strikers. On August 20, Faust, Sr., and Snyder met with Higburg and Linton A. Cox, the respondents' attorney, further to discuss seniority rights of employees who had not been reinstated. Fifteen or twenty employees were discussed, and it was agreed that four or five of them were prob- ably entitled to reinstatement under the seniority agreement. At that time, another proposed agreement, embodying terms substantially the same as those contained in the proposed agreement submitted on May 18, was given to Higburg. He refused to make any further conces- sions than those made by him and Edwards in the conference of July 21. Snyder then informed him that he, Snyder, would submit the respondents' proposals to the Union, and let Higburg know whether the Union agreed to accept them. Thereafter, on August 22, Snyder called Higburg over the telephone, informed him that the Union had REP.UBLIC CRFOSOoTING COMPANY 297 rejected the proposals made by Higburg and Edwards, and told Hig- burg that if he desired to discuss matters with the Union further, he should communicate with Snyder or one Gormley, an A. F. 'of L. rep- resentative. It was at this stage of negotiations that the complaint came to a hearing. The evidence indicates that as a result of differences over substantial issues, an impasse had been reached in the negotiations between the Union and the respondents. Under the circumstances, we find that the respondents have not refused to bargain collectively with the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondents hereinbefore set forth in Section III, occurring in connection with the operations of the respondents, described in Section I, have a close, intimate, and sub- stantial 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 thereof. V. THE REMEDY Having found that the respondents have engaged in unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondents have discriminated in regard to the hire and tenure of employment of 10 employees because of their union membership and activities. L. C. McCoun, William Tingle, and Weldon Harvey, three of the employees who were discharged on March 6, and whom the respondents agreed to reinstate, were never actually reinstated. When not given jobs at the Miley Avenue plant on March 13, at which time they reported for work in accordance with instruc- tions from the respondents, it was not incumbent upon them to continue returning from time to time. The respondents, if their offer of rein- statement was made in good faith, should have reinstated the em- ployees at once or notified them when jobs were available. The Reilly Corporation, by whom they had been employed, must now offer them reinstatement to the positions held by them at the time of their dis- charge, or to substantially equivalent positions, without prejudice to their seniority and other rights and privileges and compensate them for wages lost subsequent to their discharge. Since the Trial Ex- aminer, in his Intermediate Report dated February 3, 1938, did not recommend that back pay be granted to these three employees, we shall order that the Reilly Corporation make them whole for any loss of pay they have suffered by reason of the discrimination against them only for the period between the date of their discharge and the date of the Intermediate Report and the period between the date of this Decision 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Order and the date each, respectively, is offered reinstatement,'' by paying to each of them of a sum of money equal to that which he normally would have earned as wages during such periods, less his net earnings 18 during such periods. Walter Pierson, Earl Sutherland, and James Tucker, three other employees of the Reilly Corporation who were discharged on March 6, t937, were reinstated within 2 weeks thereafter, and we shall order that the Reilly Corporation make them whole for any loss of pay they suf- fered by reason of their discharges by payment to each of them of a sum of money equal to that which he normally would have earned as wages between the date of his discharge and the date of his reinstate- ment, less his net earnings 19 during said period. Genie ' Montgomery and J. B. Ray, who were discharged by the Republic Company on March 6, 1937, and Joe Hauck, who was denied reinstatement by the Republic Company subsequent to the strike, had not been offered reinstatement prior to the hearing. J. B. Ray found other regular employment 1 week after his discharge and did not de- sire reinstatement. We shall therefore require the Republic Company to offer reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges, only to Genie Montgomery and Joe Hauck. We shall also require the Republic Company to make whole Montgomery, Ray, and Hauck for any loss of pay they have suffered by reason of the discrimi- nation in regard to their hire and tenure of employment by payment to each of them a sum of money equal to the amount which he normally would have earned as wages during the period, in the case- of Genie Montgomery, from the date of his discharge to the date he is offered reinstatement, less his net earnings 20 during said period, in the case of Ray, from the date of his discharge to the date upon which he obtained other regular employment, less his net earnings 21 during said period, and in the case of Hauck, from the date the Republic Company 17 Matter of E. R. Hafrelfinger Company, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B . 760, 767. Is By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondents, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of 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 are not considered as earnings , but as provided below in the Order , shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal , or other government or governments which supplied the funds for said work -relief projects. In See footnote 18, supra. Ibid. 21 Ibid. REPUBLIC CREOSOTING COMPANY 299 would have reinstated him but for his union activity to the date he is offered reinstatement, less his net earnings 22 during said period. The Republic Company, after discharging John Taylor on April 8, never at any time offered him reinstatement. If he had not died sub- sequent to his discharge and prior to the date of the hearing, it is clear that in order to do equity and place him in status quo, the Republic Company would be required to offer him reinstatement to his former position, with back pay from April 8 to the date of such offer of rein- statement. The respondents contended at the hearing that his death on July 10 took from the Board any authority which it might have had to render relief to either John Taylor or his estate. We do not agree. The remedial power committed to the Board by the Act is un- affected by the employee's death; only the type of remedy is altered. The application of this remedial power is entrusted to the Board in the exercise of a sound discretion. The • achievement of the ends toward which the Act is directed necessarily requires the adjustment of the injury done to the discriminatorily discharged employee in the most feasible manner under all of the circumstances. We find that in order to effectuate fully the policies of the Act, the Republic Company must compensate the estate of John Taylor, deceased, for Taylor's loss because of his discriminatory.discharge,23 by payment to his estate, for distribution in accordance with the laws of the State of Indiana, a sum of money equal to that which he normally would have earned as wages between the date of his discharge and the date of his death, less his net earnings .24 during such period. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. Creosote Workers Union, Local No. 20483, is a labor organization. within the meaning of Section 2 (5) of the Act. 2. The respondent, Republic Creosoting Company, by discriminat- ing in regard to the hire and tenure of employment of Genie Mont- gomery, J. B. Ray, Joe Hauck, and John Taylor, and the respondent, Reilly Tar and Chemical Corporation, by discriminating in regard to the hire and tenure of employment of Earl Sutherland, Walter Pier- son, James Tucker, L. C. McCoun, William Tingle, and Weldon Harvey, and thereby discouraging membership in a labor organization, have each engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. = Ibid. a Matter of El Paso Electric Company , a Corporation and Local Union 585, International' Brotherhood of Electrical Workers ; and N. P . Clay, et al ., 13 N. L . R. B. 213. 24 See footnote 18, supra. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, the respondents have each engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The respondents have not refused to bargain collectively with the representative of their employees, within the meaning of Section 8 (5) of the Act. 6. The respondents, by discharging Luther Ernest Bewley and Leonard Goodwin and by failing, after the termination of the strike, to reinstate Thomas Kuchenske, John Miesel, Tom Campbell, Ballard Hall, Raymond Poling, Charles Skaags, Oscar Norris, L. (Dow) Baker, Clyde Bymaster, James Davis, Grover Carl Oliver, Frank Reynolds, Arthur Rybolt, Henry Clay Sears, Lucien Stark, Jim Mills, John Reed, Orville F. Richardson, James Loyal Griggs, Charles Dalby, William E. Renier, James Haag, Ted Hinton, Harvey W. Flory, Wilbur N. Snyder, Carracticus Nichols, Robert Gilman, Garvin Montgomery, Raymond Bryant, William Thurman, Albert Miles, George W. Norris, and William Miesel, have not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the foregoing 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, Republic Creosoting Company and Reilly Tar and Chemi- cal Corporation, their officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Creosote Workers Union, Local No. 20483, or any other labor organization of their employees, by dis- charging or refusing to reinstate any of their employees or in any other manner discriminating in regard to their hire or tenure of employment or any terms or conditions of their employment; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or, other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action respectively which the Board finds will effectuate the policies of the Act : REPUBLIC CREOSOTING COMPANY 301 (a) The respondent, Republic Creosoting Company, shall offer to Genie Montgomery and Joe Hauck immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (b) The respondent, Republic Creosoting Company, shall make whole Genie Montgomery, J. B. Ray, and Joe Hauck for any loss of pay they have suffered by reason of their discharge or the failure or refusal by said respondent to reinstate them, by payment to each of them a sum of money equal to the amount which he normally would have earned as wages during the period, in the case of Genie Mont- gomery, from the date of his discharge to the date he is offered rein- statement, less his net earnings 25 during said period, in the case of J. B. Ray, from the date of his discharge to the date upon which he obtained other regular employment, less his net earnings 26 during said period, and in the case of Joe Hauck, from the date said respondent would have reinstated him but for his union activity to the date he is offered reinstatement, less his net earnings 27 during said period; deducting, however, from the amount otherwise due to each of said employees, monies received by each employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of,the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) The respondent, Republic Creosoting Company, shall com- pensate the estate of John Taylor, deceased, for John Taylor's loss because of his discharge by payment to his estate, for distribution in accordance with the laws of the State of Indiana, a sum of money equal to that which he normally would have earned-as wages between the date of his discharge and the date of his death, less his net earnings 28 during such period; deducting, however, from the amount otherwise due to said estate, monies received by John Taylor during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) The respondent, Reilly Tar and Chemical Corporation, shall offer to L. C. McCoun, William Tingle, and Weldon Harvey immediate and full reinstatement to their former or substantially equivalent posi- 5 Ibid. 26 Ibid. 27 Ibid. 23 Ibid. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions, without prejudice to their seniority and other rights and' privileges; (e) The respondent, Reilly Tar and Chemical Corporation, shall make whole Earl Sutherland, Walter Pierson, James Tucker, L. C. McCoun, William Tingle, and Weldon Harvey for any loss of pay they have suffered by reason of their discharge by payment to each of them a sum .of money equal to the amount he normally would have earned as wages during the period, in the case of Earl Sutherland, Walter Pierson, and James Tucker, from the date of their discharge to the date each respectively was reinstated, less his net earnings 29 during said period, and in the case of L. C. McCoun, William Tingle, and Weldon Harvey, from the date of their discharge to the date each respectively is offered reinstatement, less his net earnings 30 during said period, such payments to be further calculated in the manner set forth in the section entitled "Remedy" above; deducting, however, from the amount other- wise due to each of said. employees, monies received by each employee during said periods for work performed upon Federal, State, county, .municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, .municipal, or other government or governments which supplied the funds for said work-relief projects; (f) Immediately post notices in conspicuous places throughout their plant stating that the respondents will cease and desist in the manner :set forth in 1 (a) and (b) and that they will take the affirmative action set forth in 2 (a), (b), (c), (d), and (e) of. this Order, that the respondents' employees are free to become or remain members of the Creosote Workers Union, Local No. 20483, and that the respondents will not discriminate against any employee because of membership or activity in that organization; (g) Maintain such notices for a period of at least sixty (60) con- secutive days from the date of posting; (h) Notify the Regional Director for the Eleventh Region in writ- ing within ten (10) days from the date of this Order what steps the :respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed in so far as it alleges that the respondents have refused to bargain with Creosote Workers Union, Local No. 20483, -within the meaning of Section 8 (5) of the Act. IT Is FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed in so far as it alleges that the respondents have -discriminated in regard to the hire and' tenure of employment of Luther Ernest Bewley, Leonard Goodwin, Thomas Kuchenske, John 20 Ibid. 80 Ibid. REPUBLIC CREOS'O'TIN'G COMPANY 303 Miesel, Tom Campbell, Ballard Hall, Raymond Poling, Charles Skaags, Oscar Norris. L. (Dow) Baker, Clyde Bymaster, James Davis, Grover Carl Oliver, Frank Reynolds, Arthur Rybolt, Henry Clay Sears, Lucien Stark, Jim Mills, John Reed, Orville F. Richardson, James Loyal Griggs, Charles Dalby, William E. Renier, James Haag, Ted Hinton, Harvey W. Flory, Wilbur N. Snyder, Carracticus Nichols, Robert Gilman, Garvin Montgomery, Raymond Bryant, William Thurman, Albert Miles, George W. Norris, and William Miesel. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.