Eastern Supply Co.

National Labor Relations Board - Board Decisions

Jan 28, 1943

47 N.L.R.B. 49 (N.L.R.B. 1943)

In the Matter of A. W. SILVER .DOING BUSINESS AS EASTERN SUPPLY
COMPANY and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF
AMERICAS LOCAL #1143, AFFILIATED WITH THE-C. I. 0. and SCRAP
IRON, METAL '& RAG WORKERS UNION, LOCAL 20498, AFFILIATED WITH
THE A. F. OF L.,tPARTY TO THE CONTRACT
Case No'.'CD395.Decided January 08, 1943
Jurisdiction : scrap distributing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: attempts to force employees into pre-
ferred affiliated organization and to discourage their membership in an
organization which *as party to an existing closed-shop contract with em-
ployer by : advising employees that they could earn more money under a
contract - with the preferred organization ; indicating to employees that it
did not intend to deal with the contracting organization ; hiring new em-
ployees without requesting contracting union to supply them and refusing
to ' permit contracting union's organizer to approach them to secure their
membership, in violation of the closed-shop contract ; executing a closed-shop
contract with the preferred, assisted organization at a time when it repre-
sented no employees, and thereafter executing another, closed-shop contract
with that organization which was clearly violative of the Act in that desig-
nations which the organization might have had at that time resulted from
the employer's unfair labor practices-strike caused by employer's unfair
labor practices.
Collective Bazgazning: union's majority established by membership under closed-
shop contract; not affected by alleged loss of majority subsequent to refusal
to, bargain since caused by unfair labor practices-refusal to bargain col-
lectively by : advising members and representatives of majority union that
it would not deal with that union ; entering into closed-shop contract with
union which represented none of the employees and which had been assisted
by employer.
Remedial Orders : respondent ordered to cease and desist'unfair labor prac-
tices ; cease giving effect to contracts with assisted union ; upon request to
bargain collectively ; reinstate with back pay unfair labor practice strikers.
Unit Appropriate for Collective Bargaining : all employees, excluding clerical
and supervisory employees.
Mr. T. Lowry Whittaker, for the Board.
Mr. Sam J. Levy, of Minneapolis, Minn., for the respondent.
Helstein and Hall, of Minneapolis, Minn., by Mr. Ralph L. Hel-
stein and Mr. Douglas Hall, for the United.
Mr. William F. Wright, of St. Paul, Minn., for Local 20498.
Miss Marcia Hertzmark, of counsel to the Board.
47•N. L. R.B , No. 9.
513024--43-,vol. 47-4 , ' 49
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER,
STATEMENT., OF; THE .CASE
Upon charges and amended charges. duly filed by United Electrical,
Radio and Machine Workers of America, Local No. 1143, affiliated
with the Congress of Industrial Organizations, herein called the
United, the National Labor Relations Board, herein called the Board,
by' the Regional Director for the Eighteenth Region (Minneapolis,
Minnesota), issued its complaint on September 5, 1942, against A. W.
Silver, doing business as Eastern Supply Company, Minneapolis,
Minnesota, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices within the
meaning of Section 8'(1) and (5) and Section 2 (6) and (7) of the
National'Labor Relations Act, 49 Stat. 449, herein called. the Act.
Copies of the complaint and notice of hearing thereon were duly
served upon the respondent; the United, and Scrap Iron, Metal & Rag
Workers Union, Local 20498, affiliated with the American Federation
of Labor, party to the contract, herein called Local 20498. ,
With respect to the unfair labor practices the complaint alleged in
substance that the respondent (1) by statements and conversations
with his employees, and by other specified acts, interfered with, re-
strained, and coerced his employees in the exercise of the rights guar-
anteed in Section 7 of the Act; (2) on or about April 15, 1941, and
since that time, refused to bargain collectively with the United, al-
though the United was at all such times the statutory representative
,of'his employees; and (3') on or about May 1, 1941, and May 1, 1942,
entered into collective bargaining, agreements with Local 20498, said
Local 20498 not being at such times the statutory representative of
his employees.
The respondent filed an answer on September 17, 1942, in which
he admitted certain allegations of the complaint, but denied that he
had engaged in any unfair labor practices. He admitted the appro-
priateness of the unit alleged in the complaint, but denied that the
United represented a majority of the employees therein. '
Pursuant to notice, a hearing was held on October'19 and'20, 1942,
at Minneapolis, Minnesota, before Gustaf B. Erickson, the Trial Ex-
aaniner duly designated by the Acting Chief Trial Examiner. The
Board, the United, and the respondent were represented by counsel,
and Local 20498 by a representative.' Full opportunity to be heard,
1 The respondent 's attorney withdrew from the hearing early in the proceeding . Neither
,the respondent nor Local 20498 called any witnesses. `
EASTERN SUPPLY COMPANY 51
to examine and cross -examine witnesses , and to introduce evidence
bearing on the issues was afforded all parties . At the close of the
hearing, counsel for the Board moved to amend the pleadings to
conform 'to the proof with respect to such matters as names, dates, and
clerical errors. The motion vas granted without objection. During
the course of the hearing the'Trial Examiner made a number of other
rulings on motions and on objections to the admission of evidence.
The Board has reviewed the rulings and finds that no prejudicial
errors were committed . The rulings are hereby affirmed. On October
26, 1942, the United and Local 20498 filed briefs with the Trial
Examiner.
Thereafter , the Trial Examiner isued his Intermediate - Report,
dated- October 30, 1942, copies of which were duly served upon all
the parties , finding that the respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section
8 (1) and (5) and Section 2 (6) and (7) of the Act. He recom-
mended that the respondent cease and desist from such practices;
that he cease recognizing Local 20498 and give no effect to his con-,
tracts with 'it; that he bargain` collectively, upon request, with the
United; and that he reinstate; with back pay from the date of appli-
cation for reinstatement, certain employees who had gone on strike
as a result of the respondent 's unfair labor practices . No exceptions
have been filed by any of the parties.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT ,
I. THE BUSINESS OF THE COMPANY
A. W. Silver, an individual, doing business as Eastern Supply
Company, has his principal office and place of business in Minneapo-
lis, Minnesota , and is engaged in the purchasing, collecting, sorting,
selling, and distribution of scrap metal, rags, and rubber. During
the year 1941, the respondent purchased approximately $50,000 worth
of such materials, of which about 5 percent originated from points out-
side the State of Minnesota; during the first 9 months of 1942, the value
of such purchases approximated $25,000, of which about 5 percent
originated from points outside the State of Minnesota. During the
year 1941 the total, value of materials sold by the respondent was
approximately $60,000, of which about 66 percent was sold and trans-
ported to points outside the State of Minnesota ; for the first 9 months
of 1942 the respondent' s sales approximated $20,000, of which about
66 percent was sold and transported to points outside the State of
Minnesota.
52 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
II. THE ORGANIZATIONS INVOLVED
United- Electrical, Radio and Machine Workers of America, Local
,No. 1143, affiliated witli the Congress of Industrial Organizations,'
and Scrap, Iron, Metal & Rag Workers Union, Local 20498, affiliated
with the American Federation of' Labor, are labor organizations,
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The sequence of events
On. April 19, 1937, as the result of a consent election agreement
`between the United, the respondent, and several other employers
engaged in similar business in Minneapolis, the employees of the
respondent and of those other employers designated the United 2 as
their representative for the purposes' of collective bargaining. On
April 29, 1937, the respondent, five other employers who had par-
ticipated in the consent election, and the United entered into a col-
lective bargaining agreement concerning wages, hours, and conditions
of employment. Similar agreements were entered into in 1938 and
1939.
On June `3, 1940, the parties entered into another agreement to be
effective until May 1, 1941, and "thereafter from year to year unless
either party thirty (30) days before the expirations [sic] of any
yearly period, shall by written notice, signify its desire to ,change or
terminate the agreement." In addition to settlement of wages, hours,
and conditions of employment, the 1940 contract contained the fol-
lowing provisions :
Closed Shop The employer agrees to conduct and operate a
closed shop and the employers shall be at liberty to hire workers
in the open market when the Union is unable to furnish such
help. At the end of two work weeks, these workers are to join
the Union. All workers hired shall be paid union wages.
Preferential hirings: The Union shall set up, and maintain'
an unemployed list and in the event the undersigned employers
need more men, they shall call the Union office and it shall be
the duty of the Officer in charge-to furnish such men if they are
available.
Commencing early in 1941, according to the uncontradicted and
:credible testimony of employees Roy Johnson and Fred Otteson,3 the
2 The United was then known as the S. W. O. C. On January 1, 1938, the United changed
its name to United Electrical, Radio and Machine Workers of America, Local No. 1143,
affiliated with the Congress of Industrial Organizations.
3 All findings hereinafter made are based upon the uncontradicted testimony of witnesses
whom we credit, as did the Trial Examiner.
EASTERN SUPPLY COMPANY 53
respondent and his two sons, Meyer and Joe, who assisted their,
father in the operation of his business, approached some of the em-
ployees during lunch hours. On these occasions, the employees were
told by the respondent and his sons that the employees would be
better off'if they did not belong to the United, that the respondent
could give them more hours of work under a contract providing for
a 40-hour week rather than for five 8-hour days as provided in the
United's contract; and that "the A. F. of L. was forty hours a week,-
and if we were there we could probably make up time." Meyer
Silver told the employees on one occasion that the C. I. 0. was a
"racket" and that Jack Young, the business agent of the United, was
a "racketeer." He told employee Roy Johnson that he was "sick and
tired of this union business ..." and that "there has got to be a
change, and he would never sign another contract with the C: I. 0."
On March 29, 1941, the United notified the respondent and the other
signatories to its contract that it' desired to begin negotiations for a
new agreement for the ensuing year.
On April 5, 1941, four of the respondent's employees, among them
Otteson and Johnson, quit their jobs. When Otteson was getting
his pay check Joe Silver told him that"there was going to be a change,
the C. I. 0. was out," and, about the same time, told Johnson that
"one thing is sure, this is going to be an A. F. of L. yard from now on."
That afternoon, Jack -Young, the business agent of the United, called
upon the respondent at his office' to ascertain why the men had quit.
When Young offered to replace the four employees, the respondent
stated that he needed no other employees.
About April 14, 1941, Young passed the respondent's premises and
saw that three or four new men, not members of the United, were
working in the yard. He testified that he did not stop at that time
because he intended to return in 10 days and ask the men to join the
United.
Oh April 20 the United met with Harry Isaacs, Sol Rosen, and
Morgan Cohen, representatives of, the Dealers' Association ,4 who had
negotiated on behalf of the employer signatories to' the contract in
previous years. - Isaacs stated, in response to a question by Young,
that he represented the respondent. No agreement was reached at
the conference.
About April 26 Young went to the respondent's yard to sign up
the new men but was stopped by the respondent who inquired what
Young wanted. When Young told him, the respondent, 'Silver,
replied, "Well you can't sign up none of these men. We have-an
The Dealers' Association apparently was composed of all scrap iron dealers in , Minne-
apolis and St Paul, Minnesota The number of such dealers who were under contract
with the United varied fiom 6 to 10 , but did not include all dealers in the Association.
54, DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
A. F. of L. contract signed up here ... you haven't got any con-
tract here." Silver thereupon ordered Young to leave the premises
and pushed' him toward the gate. Meyer Silver also told Young to
leave and informed him that the respondent "had a contract signed
with the A. F. of L:"
On April 30 the United sent a letter to the respondent and to each
of the employers who was a party to its contract of June 3, 1940,
advising them, in accordance with a requirement of the Minnesota
Labor Relations Act, that their employees would strike after 10 days.
On the following day, May` 1, the respondent entered into a closed-
shop contract with Local 20498. Thereafter, a conciliator and later,
a commission attempted to avert the strike but both failed.
During the latter part of May *the respondent called' into his office
each of his employees separately and advised them that they must
join Local 20498 in order to retain their jobs. When employee Frank
'Marshall objected and told Silver that he could not afford the dues,
and initiation fees, Silver said, "You don't have to pay anything,
just sign it." The respondent paid employee Max Wallach's fees
but later deducted the amount from his-pay, check., Wallach. testified,.,
however, and we find, that only three of the remaining seven employees
were required to repay the amounts advanced by the respondent to
cover their fees.
On June 9, 1941,, the United called a strike, against all parties to
the agreement of June 3, 1940, including the respondent, who had
been represented by Isaacs at the conference with the conciliator and
who had been present in person during the hearings before the
commission.
On June,12, 1941, all except the respondent and two other employer
parties to the contract of June 3, 1940, signed a collective bargaining
agreement with the United. On the following morning, June 13,
Young and a committee of the United went to the plant of the re-
spondent for the purpose of getting his signature to the contract. The
respondent refused to sign the contract, unless the United would "get
back" the ' contract that he had entered into with Local 20498. The
strike was thereafter settled as to all the employers except the respond-
ent. On June 16 picketing of the respondent's yard by the United
was stopped by an injunction secured by the respondent. However,
on October 30 the injunction was dismissed and the United resumed
its picketing for a short time until, as Young testified; .'some truck
drivers came up there`and told them [the pickets], to move on, or else."
Young testified, and we find, that the strike is still in effect as to the
respondent.
'On April 19, 1942, the respondent executed another closed-shop con-
tract with Local 20498. '
EASTERN SUPPLY COMPANY 55
B. Conclusions as to, the unfair labor practices
1. Interference, restraint, and coercion
- The foregoing recital makes it clear that, commencing early in 1941
the respondent discouraged his employees from membership in the
United and sought by various means to force them into Local'20498.
Thus, the employees were on numerous occasions advised that they
could work longer hours and earn more money under a different type
of contract than that with the United and were told that the A. F. of L.
provided such a contract. They were told that the C. 1. 0. was a racket
and that the United's business agent was a racketeer, and were warned
that the respondent no longer intended to deal with the United. The
four employees who quit were also advised that the "C. I. O. was out,"
and that "one thing is sure, this is going to be an A. F. of L. yard from
now on." Thereafter, the respondent hired new employees without
requesting the United to supply them, as he was bound by his contract
to do, and refused to permit Young to approach these men for the
purpose of securing their membership in the United. On May 1, 1941,
the respondent entered into a contract with Local 20498, although, so
far as the evidence discloses, none of his 'employees were members of,
or had designated, that union. Thereafter he required that his em-
ployees become members of Local 20498 in order to keep their jobs; and
paid the initiation fees and dues of at least some of them. 'We find
that by the above course of conduct, the respondent has unlawfully
assisted Local 20498, thereby interfering with the self-organization of
his employees.
The contracts of May 1, 1941, and April 19, 1942, were clearly pro-
scribed by the Act, since Local 20498 was not the freely chosen repre-
sentative of the employees of the respondent, and, on May 1, 1941, did
not even purport to represent a majority of them. Although on April
19, 1942; the employees may have been members of Local 20498 pursu-
ant to the closed-shop provisions of the earlier agreement, there is no
evidence that they had ever designated it voluntarily as their collec-
tive bargaining representative ; and in view of the method by which
they were originally coerced into membership, we,must presume that
their supposed continuation of membership was the result of the re-
spondent's illegal support of Local 20498. We find that the contracts
of May 1, 1941, and April 19,1942, were invalid since they were executed
with an organization which did not represent a majority,of the
employees and which was assisted by the unfair labor practices of the
respondent.
We_ find that by the above acts the respondent has interfered, with,
restrained, and coerced his employees in the exercise of_ the rights
guaranteed in Section 7 of the Act.
56 _ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The refusal to bargain
(a) The appropriate unit
The complaint alleged that all employees of the respondent except
clerical and supervisory employees constitute a unit appropriate for
the purposes of collective bargaining. In his answer the respondent
admitted, and at the hearing the United and Local 20498 stipulated,
that this unit is appropriate.
We find that all employees of the respondent, except clerical and
supervisory employees, at all times material herein constituted and,
now constitute, a unit appropriate for the purposes of collective bar-
gaining, and that said unit will insure to the employees of the re-
spondent the full benefit of their right to self-organization and to
collective bargaining and '.will otherwise effectuate the policies of
the Act.
(b) The majority
On March 29, 1941, when the United notified the respondent of its
desire to begin negotiations for a new contract, the 8 employees of 'the
respondent were members of the United. Neither then nor thereafter,
so, far as the evidence discloses, did the respondent's, employees volun-
tarily indicate any desire to change their collective bargaining repre-
sentative for the following year. On April 5, 1941,' 4, employees
terminated their employment and apparently were not immediately
replaced. This situation continued until an undisclosed date prior to
April 14, upon which date the respondent hired 3 or 4 employees, 1 of
whom was a member of the C. I. 0.5 The record does not disclose
how many persons were employed at all times thereafter, but appar-
ently the number fluctuated between 6 and 10. It appears that, at
the time in May when the. respondent required the employees to, join
Local 20498, there were 8 employees ; and that when they United began
its strike on June 9 there were 10 employees: Of these, 3 were absent,
from work on June 9, and the remaining 7 went out. on strike. One
employee, who had not previously been t member of the United,
joined it at that time. At the time of the hearing there were appar-
ently only 4 employees, none of whom was a' member of the United.
Thus; while there is some doubt as to the precise situation after 'the
new employees were hired in April, it appears that the United actually
represented a,majority of the respondent's employees until the latter
part'of May 1941, when,all the employees were forced to'become mem-;
5 The evidence is inconclusive as to whether or not this employee designated the United
as his collective bargaining representative . Foi the reasons stated below , we find' it
unnecessary to 'determine whether he , should be counted I among the employees who had
so designated it.
EASTERN SUPPLY COMPANY 57
bers of Local 20498.8 However, any apparent loss of majority which
the United suffered subsequent to April 5, 1941, may not be given
effect since , as we find below, the respondent unlawfully refused to
bargain with the United on April 5 and,, both before and after that
date, engaged in unfair labor practices, to which any impairment of
the United's majority must be attributed.7
We find that, on March 29; 1941, the United was, and at all times
thereafter, has been, the duly designated representative of a majority
of the respondent's employees in the appropriate unit, and that by
virtue of Section 9 (a) of the Act it was and is the exclusive repre-
sentative of all the employees in said unit for the purposes of collective
bargaining with the respondent in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
(c) The refusal to bargain
As stated above, the United, on March 29, 1941, notified the re-
spondent that it desired to begin negotiations for a new contract.
At that time no other union was claiming to represent employees
of the respondent, nor had the employees in any wise manifested
a desire to change their representative. However, even prior to March
29 the respondent had unlawfully interfered with his employees',
free choice of representatives by attempting to interest them in trans-
ferring their affiliation to another union, and by indicating to them
his unwillingness to continue dealing with the United. On April 5,
when four employees, all of whom were members, of the United, quit
their jobs, the respondent flatly told them that he would no longer
deal with the United and that he planned to operate an "A. F. of L.
yard."
That the respondent's statements were not merely idle threats was
made clear thereafter, when the respondent violated the terms of his
agreement with the United by hiring employees without first request-
ing the United to supply them and by refusing to allow Young to sign
them up in the United. In addition, the respondent informed Young,
in effect, on about April 26, that he would not bargain with the United
and that he had entered into a contract with the A. F. of L., although
as a matter of fact no such contract then•existed,
e Since all employees then working went out on strike with the United on June 9, it
may also be assumed that , in spite of their change of affiliation, the employees still
desired to be represented by the United at that time.
7 Cf. N. L. R. B. v. Bradford Dyeing Ass'n, 310 U. 'S. 318, rev'g 106 F. (2d) 119
(C. C. A. 1) and enf'g Matter of Bradford Dyeing Association ( U. S. 4A.) (a corporation)'
and Textile Workers Organizing Committee of the C. I. 0, 4 N. L R. B. 604; Int'l Assn
of Machinists v. N. L R B. 61 S. Ct. 83, aff'g 110 F. (2d) 29 (App. D C.) enf'g Matter
of The Seri ick Corporation and Int'l Union, Unitcd Automobile Workers of America, Local'
No 459, 8 N. L. R B 621 ; Matter of National Seal Corporation ' and Int ' l Ass'sv of Machin,
ists, 30 N L R B. 188; Matter of Norristoton Box -Company and International Brother-
hood of Fulp , Sulphite and Paper Mill' Workers, Local 422, 32 N'.• L R. B. 895.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 1, 1941, when the respondent entered into a contract with
Local 20498, his contract with the United had expired, but the United,
as we have found, was still entitled to recognition as the statutory
bargaining representative of,his employees since any actual impair-
ment of its majority at that time was due to the unfair labor practices
of'the respondent. The respondent was not privileged to enter into
a closed-shop contract with Local 20498, which on that date- repre-
sented none of the respondent's employees, as far as the record shows,
and, as we have found, was a labor organization then assisted by
the respondent's unfair labor practices." His conduct in executing
the contract with Local 20498, under these circumstances, was in itself,
it refusal to bargain with the United," as well as an• act of interference
with his employees'--freedom of self-organization.
We find ` that on April 5, 1941,' and at all times thereafter, the
respondent, by the aforesaid conduct, refused to bargain collectively
with the United as the exclusive representative of the employees
within the appropriate unit and that lie has thereby interfered with,
restrained, and coerced'his employees in the exercise of'the rights
guaranteed by Section 7 of the Act.
3. The strike
We find that the United's action in striking on June 9; 1941, and in
continuing its, strike against the respondent on June 13, and October
30, 1941; was caused by the respondent's refusal to bargain and other
,unfair labor practices hereinabove found.
- IV. THE EFFECT OF THE UNFAIR LABOR PRACTIOES UPON COMMERCE
The activities of the respondent set forth in Section III, above, oc-
curring in,connection with the operations of the respondent described
in Section I, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and tend to lead
and have led to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor prac-
tices, we shall order the respondent to cease and desist therefrom and
s The proviso in Section 8 (3) of the Act states, . . nothing in this act ' . . shall
preclude an employer from making an agreement with a labor organization (n,ot estab-
lished, maintained, or assisted by. any action defined in this Act as an unfair labor prac-
tice) to require. as a condition of employment, membership therein, if such labor
organization is the representative of the employees as provided in Section 9 (a), in the
appropriate baigaining unit covered by such, agreement when made" (Italics
supplied )
9 Cf Matter of National Motor Bearing Company and International Union, United
,Automobble Workers of America, Local No. 76, 5 N. L R B 409, enf'd as mod, N. L R. B.
v. National Motor Bearing Company, 105 F. (2d) 652 (C. C A. 9).
EASTERN SUPPLY COMPANY 59
to take certain affirmative action designed to effectuate the policies of
the,Act. -
We have found that the respondent refused to bargain collectively
with the United as the exclusive representative of his employees in an
appropriate unit. We shall order that the respondent on request bar-
gain collectively with the United as such exclusive representative in
respect to rates of pay , hours -of employment , and other conditions of
employment.
We shall also order the respondent to cease and desist from giving
effect to the contracts of May 1, 1941 , and April 19, 1942, with Local
20498 as well as to any extension , renewal , modification or supplement
thereto and to any superseding contract which may now be in force.
Nothing herein shall be taken to require the respondent to vary those
wages, hours , seniority and other such substantive features of his rela-
tions with the employees themselves which the respondent may have
'established in performance , of these contracts as extended , renewed,
modified, supplemented or superseded. - -
We have found that the strike which-commenced on June 9, 1941, was
caused and prolonged by the unfair labor practices, of the respondent.
In order to,iestore the status quo as it existed prior to the time the
respondent engaged in such unfair labor practices , we shall order that
the respondent : ( 1) offer reinstatement to their former or substan-
tially equivalent positions , without prejudice to their seniority - and
other rights and privileges , to those employees who went on strike
on June ' 9, 1941, or thereafter , and who have applied for and have not
been offered reinstatement ;-and (2 ) upon application offer reinstate-
ment to their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges , to those em-
ployees who went on strike on said date, or thereafter , and who have
not previously applied for reinstatement , dismissing if necessary all
persons hired on or after June 9, 1941 , the date -of the commencement of
the strike , and not in the respondent 's employ on said date. If there
is then not sufficient employment available for the employees to be
offered reinstatement , all available positions shall ' be distributed
among such employees without discrimination against any employee
because of his union affiliation or activities , following such a -system of
seniority or other non -discriminatory-practice to such extent as has
heretofore been applied , in the conduct of the respondent 's business.
Those employees , if any, remaining after such distribution , for whom
no, employment is immediately available , shall be placed upon a pref-
erential list and thereafter offered employment in their former or sub-
stantially equivalent positions as such employment becomes available
and before other persons are hired for such work , in the order deter-
mined among them by said system of seniority or other non -discrim-
inatory practice.
60 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
We shall also order the respondent to make' whole those employees
who went on strike on June 9,1941, or thereafter, and who have applied
for and have not been offered reinstatement, for` any loss of pay they
may have suffered by 'reason of the respondent's refusal, if any, to,
reinstate them, as provided above, by payment to each of them of a
sum of money equal to, that which he would normally have earned as
wages during the period from 5 days after the date on which he
applied for reinstatement to the date of the respondent's offer of rein-
statement or placement on a preferential list, less his net earnings,", if
any, during such period. We shall order the respondent to make whole
those employees who went on strike on June 9,1941, or thereafter, who.
have applied for and who have received reinstatement, for any loss
of pay they .may' have suffered ^by reason of the respondent's refusal,
if any, to reinstate them within 5 days-from the date of such applica-
tion, by payment to each of them of a sum of* money equal to that
which he would normally have earned as wages during the period from
5 days after the date upon which he applied for reinstatement to the
date upon which he was reinstated, less his net earnings, if any, during
such-period. 'We shall also order the respondent to make whole'those
employees who went on strike on June 9, 1941, or thereafter, and who,
have not previously, applied for reinstatement, for any loss of pay, they
may suffer by reason of the respondent's refusal, if any, to reinstate
them as provided,above,,by payment to each of them of a sum of money-
which he would normally have earned as wages during the period from
:5 days after the date on which he applies for reinstatement to the date
-of the respondent's offer of reinstatement or placement on a preferen-
'tial,list, less his net earnings during such period.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United 'Electrical, Radio and. Machine Workers of America,
.Local No. 1143, affiliated with the Congress of Industrial Organiza;-
,tions and Scrap Iron; Metal & Rag Workers Union, Local 20498,
affiliated with the American Federal of Labor are labor organizations
within ,the meaning of Section 2 (5) of the Act.' -
2. All employees of the respondent, except clerical and supervisory
10 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for the unlawful
discrimination against him and the consequent necessity of his seeking employment
,elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Car-
penters and Joiners of America, Lumber and Saivmnll Workers' Union, Local 2590, 8 N. L
R. B 440. -Monies received for, work performed upon Federal, State, county, municipal,
or other work-relief projects shall, be considered as earnings. See Republic Steel Corpora-
tion v. N. L. R. B. 311 U. S. 7.
EASTERN SUPPLY COMPANY 61
employees, have at all times material herein constituted, and they now
constitute, a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3. United Electrical, Radio and Machine Workers of America Local
No. 1143, affiliated with the Congress of Industrial Organizations, on
or about March 29, 1941,•was, and at all times thereafter has been, the
exclusive representative of all employees in such unit for the purposes,
of collective bargaining within the meaning of Section 9 (c) of
the Act.
4. By refusing, to bargain collectively on April 5,, 1941, and at all
times thereafter with United Electrical, Radio a.nd Machine Workers
of America, Local No. 1143, affiliated with the Congress of Industrial
Organizations, as the exclusive representative of his employees in the
appropriate unit, the respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing his employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in unfair labor practices within the meaning
of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor 'practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the 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
respondent, A. W. Silver doing business as Eastern Supply Company,
his agents, successors, and assigns, shall:
1. Cease and desist from :
(a). Refusing to bargain collectively with United Electrical, Radio
and Machine Workers of America, Local No. 1143, as the exclusive rep-
resentative of all his employees, excluding clerical and supervisory
employees, in respect to rates of pay; wages, hours of employment and
other conditions of employment;
(b) Recognizing, or in any manner dealing with, Scrap Iron, Metal
Rag Workers Union, Local 20498, as the exclusive representative of
- his employees in regard to, grievances, labor disputes, wages, rates of
pay, hours of employment or other conditions of employment, unless
and until that labor organization'* shall have been certified as such by
the National Labor Relations Board;
(c) Giving effect to the contracts of May 1, 1941, and April 19, 1942,
executed by and between the respondent and Scrap Iron, Metal & Rag
Workers Union, Local 20498, or to -any extension, renewal, modification,
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or supplement thereof, or to any superseding contract with said organ-
ization which may now be in force;
(d) In any other manner interfering with, restraining.' or coercing
his employees in the exercise of their right to self-organization, to form,
join or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities,
for the purpose of collective bargaining or other mutual aid or pro-
tection.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Electrical, Radio
and Machine Workers of America, Local No. 1143, as the exclusive
bargaining representative of all of his employees,'excluding clerical
and suppervisory employees;
(b) Offer to those employees who went on strike on June 9, 1941, or
thereafter, and who have applied for and have not been offered rein-
statement,^ immediate and full reinstatement to their former or, sub-
stantially equivalent positions, without prejudice to their seniority
and other rights and privileges, in the manner provided in the section
entitled "The remedy" above; and place those employees for whom em-
ployment is not immediately available upon a preferential list in the
manner set forth in said section, and thereafter, in said manner, offer
them employment as it becomes available;
(c) Upon application offer to those employees who went on strike
on June 9, 1941, or thereafter, and who have not previously applied
for reinstatement, immediate and 'full reinstatement to their former
or substantially equivalent positions, without prejudice to their sen-
iority and other rights and privileges, in the manner provided in
the section entitled "The remedy" 'above; and place those employees
for whom employment is not immediately available upon a prefer-
ential list in the manner set forth in said section, and thereafter,
in said manner, offer them employment as it becomes available;
(d) Make whole the employees,who went on strike on June 9, 1941,
or thereafter, and who have 'applied for reinstatement, for any loss
of pay they_ may have suffered by reason of the respondent's refusal,
if any, to reinstate them within five (5) days of their respective appli-
cations, as provided in the section entitled "The remedy" above, by
payment to each, of them a sum of money equal to that which he
would normally' liave earned as wages during the period from five
(5) days after the date on which he applied for reinstatement to the
date of, the 'respondent's offer of reinstatement or placement upon a
preferential list, less his net earnings, if any, during said period;
(e) Make whole the employees who went on strike on June 9, 1941,
or thereafter, and who have applied for and received reinstatement,
EASTERN SUPPLY COMPANY 63
for any loss of pay they may have suffered by reason of the respond-
ent's refusal, if any, to reinstate them within five (5) days of their
respective applications, as provided in the section entitled "The rein-
edy" above, by payment to each of them of a sum of money equal to
that which he would normally have earned as wages during the
period from five (5) days after the date on which he applied for
reinstatement to the date of his reinstatement, less his net earn-
ings, if any, during such period ;
(f) Make whole the employees who went on strike on June 9,
1941, or thereafter, and who have not applied for reinstatement, for
any loss of pay they may suffer by reason of the respondent's refusal,
if any, to reinstate them, as provided in the section entitled "The
remedy" above, by payment to each of them,of a' sum of money equal
to that which he. would normally have earned as wages during the
period from five (5) days after the date on which he applies for
reinstatement to; the date of the respondent's offer of reinstatement
or placement upon a preferential list, less his net earnings, if any,
during said period ;
(g) Withdraw and withhold all recognition from Scrap Iron,
Metal & Rag Workers Union, Local 20498,• as the exclusive repre-
sentative of the employees for the purposes of dealing with the re-
spondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment or other conditions of employment, unless and
until that labor organization shall have been certified as such by the
National Labor Relations Board;
(h)_ Post immediately in conspicuous places at his place of busi-
ness in Minneapolis, Minnesota, and maintain for a period of at
least sixty (60) consecutive days from the date of posting, notices
to his employees stating: (1) that the respondent will not engage
in the conduct from which it is ordered to cease and desist in
paragraphs 10(a), (b), (c), and (d) of this Order; and (2) that the
respondent will take the affirmative action set forth in paragraphs
2 (a), (b), (c), (d), (e), (f), and (g) of this Order;
(i) Notify the Regional Director for the Eighteenth Region, in
writing, within ten (10) days from the date of this Order what
steps the respondent has taken to comply herewith.