C. Nelson Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 11, 1939

15 N.L.R.B. 1051 (N.L.R.B. 1939)

In the Matter of C. NELSON MANUFACTURING COMPANY and HARRY
SEMON and WYLIE PARKER, COMPLAINANTS
Case No. C-1006.-Decided October 11, 1939
Refrigerated Ice-cream Cabinet and Soda Fountainette Manufacturing Indus-
try-Labor Organization: alleged social club purporting to act as agency for
presentation of employee "views and recommendations on all questions of com-
pany -policy"-Interference, Restraint, and Coercion: interrogation of employees
concerning union affiliation and activity; expressed opposition to outside unions;
invitation to form an inside union ; dissemination of statements intended to
discourage union activity ; threat to shut down plant if union obtained a sub-
stantial membership among respondent's employees ; employer ordered to cease
such practices ; charges of spying on union activities not sustained-Company-
Dominated Unions-Employee Representation Plans: revival of admittedly com-
pany-dominated union coinciding with campaign drive of. outside union; direct
sponsorship by employer ; assistance in formation by supervisory officials ; use of
plant facilities ; activities directed by employer ; contrasting hostility of employer
to outside union ; formation of second plan following strike ; activities directed
by non-striker who led back-to-work movement ; posting of notice of organiza-
tion meeting on plant bulletin board ; attendance of supervisory employees at
meetings; respondent ordered to. disestablish revived employee representation
plan and to refuse to accord recognition to second employee representation plan
as agencies for collective bargaining-Strike: not result of unfair labor prac-
tices-Discrimination : discharges of four employees because of their failure to
utilize company-dominated employee representation plan for presentation of
grievance and engaging in concerted activities ; charges of , for union member-
ship or activity, not sustained as to five employees ; charges of refusal to rein-
state strikers after strike because of union affiliation or activity, not sustained-
Reinstatement Ordered: discharged employees ; preferential list to be main-
tained for strikers for whom"respondent claims no work available-Back Pay:
awarded : discharged employees-Complaint:. dismissed without prejudice with
respect to two employees in view of nonsubmission of evidence concerning cir-
cumstances of their alleged discharges.
Mr. William J. Avrutis, for the Board.
Case, Voyles c€ Stemmler, by Mr. Clarence T. Case and Mr. David
W. Voyles, of St. Louis, Mo., for the respondent.
Mr. Fred W. Myers, of St. Louis, Mo., for the United Association
.of Steam , Gas & Refrigeration Fitters, Auxiliary Local No. 562.
Mr. Eugene R. Thorrens, of counsel to the Board.
15 N. L. R. B., No. 117.
1051
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been filed by Harry Semon
and Wylie Parker, the National Labor Relations Board, herein called
the Board, by the Regional Director for the Fourteenth Region (St.
Louis, Missouri), issued- its complaint dated May 27, 1938,1 against
C. Nelson Manufacturing Company, St. Louis, Missouri, herein called
the respondent, alleging that the respondent had engaged in and was'
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and notice of hearing thereon were duly
served upon the respondent and upon Harry Semon and Wylie-
Parker.
With respect to the unfair labor.practices, the complaint alleged
in substance (1) that the respondent had, since about March 1, 1937,.
dominated and interfered with the formation and administration, of,
Nelson's Protective Association, herein called the N. P. A.; and con-
tributed financial and other support thereto; (2) that the
respondent had, since about July 1, 1937, dominated and inter-
fered with the formation and administration of Nelson's
Employees' Council, herein called the N. E. C., and contributed
financial and other support thereto ; (3) that on specified dates the
respondent discharged, laid off or severed from its employ nine named
employees,2 and has since refused to reinstate them, because of their
union activities; (4) that the unfair labor practices set forth above,':
and others set forth below, caused a strike about June 12, 1937; (5)
that on about June 24, 1937, the respondent failed and refused, and
has since failed and refused, to reinstate 22 named employees 4 who,
participated in said strike; and (6) that the respondent had by these-
and other means, including espionage, interrogation of employees
concerning union activities, making of anti-union statements and
1 The notice of hearing attached to the complaint erroneously referred to the date of the
complaint as June 27, 1938.
2 Ervin Barnes, Elzie Fleeman, Paul Price, Elmer Wuest, Lee Helvey, Henry DuPont,.
Ernest Barnes , Dennis Elmore , and Gordon Hampton.
a Except those relating to the N. E. C. and the hire and tenure of Dennis Elmore and'
Gordon Hampton.
4 Walter Winston, Everet Joyce, Wylie Parker, Roy Riggs, Larry Cranwell, Edw. Owens,.
Otis Faddis, Edgar Pratt, Tony Hammer, Cecil Sumpter, Adam Weston, Nick Studdy,
Glennis Elmore , Stanley Tritley, Harry Semon, Harry Elmore, Ernest Barnes , Ault Helvey,
Carl Barnes, Cecil Like, Hoyt Like, and Gordon Hampton.
C. NELSON MANUFACTURING COMPANY 1053
threats, interfered with, restrained and coerced its employees in the
exercise of rights guaranteed by Section 7 of the Act.
On June 9, 1938, the respondent filed an answer, denying the ma-
terial allegations of the complaint and asserting certain affirmative
matter in defense.
Pursuant to the notice of hearing and notice of postponement of
hearing duly served upon the above-named persons on whom the
complaint was served, a hearing was held at St. Louis, Missouri, on
June 9, 10, 11, 13, 14, and 15, 1938, before Charles E. Persons, the
Trial Examiner duly designated by the Board. The Board and the
respondent were represented by counsel. The business representa-
tive of the United Association of Steam, Gas & Refrigeration Fitters,
Auxiliary Local 562, to which some of the respondent's employees
belonged, appeared on behalf of that organization. All participated
in the hearing, and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. During the course of the hearing the Trial Exam-
iner allowed a motion by counsel for the Board to amend the
complaint to allege that seven of the above-mentioned nine 5 em-
ployees, who were alleged to have been discriminatorily discharged
or laid off, were so treated for the additional reason that "they had
failed to use Nelson's Protective Association as their agent for the
purpose of collective bargaining, or to represent them in their rela-
tions with the respondent;" Pursuant to leave granted by the Trial
Examiner, the respondent specifically denied the new natter by
amending its answer. The Trial Examiner also granted motions of
counsel for the Board to amend the complaint to correct the names of
two employees listed therein,' and the motion of counsel for the
respondent to allow its answer to stand to the complaint as so
amended. Before the close of the Board's case, counsel for the re-
spondent moved to dismiss the complaint as to all persons alleged
therein to have been discriminatorily treated with respect to hire or
tenure of employnnent, except. three.' The Trial Examiner denied
the motion. During the course of the hearing, the Trial Examiner
made a number of rulings on other motions and on objections to the
admission of evidence. The Board has reviewed all the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. After the close. of the hearing, the
respondent filed a brief with the Trial Examiner.
Thus excluding Gordon Hampton and Dennis Elmore.
e These changes were : ( 1) from Larry Cranwell to A. H . Cranwell , also known as Larry ;
(2) from Nick Studdy to Jacob Studnicki, also known as Nick Stud!.
7 The respondent limited its motion to exclude these three persons inasmuch as the Trial
Examiner granted the Board's motion to call the three, who had theretofore failed to appear
at the hearing , as witnesses later in the proceeding.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently the' Trial. Examiner filed ' his Intermediate Report,
dated October 24, 1938, which was duly served upon' all parties,,
finding that the respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8 (1), (2), and
(3) and Section 2 (6) and (7) of the Act, and recommending that
the respondent cease and desist from its unfair labor practices, dis-
establish and withdraw all recognition from the N. P. A. as a, repre-
sentative of its employees for the purposes of collective bargaining,
offer reinstatement with back pay to 23 employees, and back pay
to Katherine Winston as legal representative of Walter Winston,
deceased, who died prior to the hearing. The Trial Examiner also
found that the respondent had not discouraged membership in a labor,
organization by discrimination in regard to hire and tenure of em-
ployment with respect to Dennis Elmore, and recommended dismissal
of the complaint as to him. Stating that the record contained no
evidence of the circumstances surrounding the termination. of the
employment of Lee Helvey and Henry DuPont, the Trial Examiner
recommended dismissal of the complaint as to them without preju-
dice.7a Although he apparently found that the respondent discrimi-
natorily discharged Ernest Barnes, the Trial Examiner recommended
that Barnes not be reinstated or awarded back pay inasmuch as he
assaulted and beat his foreman to avenge his discharge.
After the service of the Intermediate Report the respondent filed
a written motion, accompanied by an affidavit and charts purporting
to show, inter alia, the volume of the respondent's business and the
status of its pay roll from the time of the termination of the hearing
to the date of the Intermediate Report, for leave to make such affi-
davit part of the record. In view of our findings in Section III,
D, infra, we deem the consideration of the contents of the affidavit
and charts unnecessary to the determination of the issues. We, there-
fore, deny the motion.
The respondent and Ernest Barnes filed exceptions to the Inter-
mediate Report. On June 29, 1939, pursuant to notice duly served
upon all parties, oral argument, in which representatives of the re-
spondent and Auxiliary Local 562 participated, was had before the
Board in Washington. At the close of the oral argument the re-
spondent filed an additional brief with the Board. The Board has
considered the respondent's briefs and has considered all the excep-
tions to the Intermediate Report and hereby overrules the exceptions
of the respondent save as they are consistent with the findings, con-
clusions, and order set forth below, and finds the exceptions of Ernest
Barnes to be without merit.
7- The Union filed no exception to this ruling of the Trial Examiner . We hereby affirm
his findings with respect to Lee Helvey and Henry DuPont and , accordingly , we will
dismiss the complaint as to them without prejudice.
C. NELSON MANUFACTURING COMPANY 1055
, ..Ulaoil the. entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 8
The respondent, C. Nelson Manufacturing Company, a Missouri
corporation, having its office and place of business at St. Louis,
Missouri, is engaged in the assembly, sale, and distribution of me-
chanically refrigerated ice-cream cabinets and soda fountainettes. Of
an estimated total of 60,000 mechanically refrigerated ice-cream
cabinets sold annually by manufacturers in the United States, the
respondent manufactures and sells approximately 5,000 units. The
principal raw materials used by the respondent in its operations con-
sist of metal sheets, rods and bars, lumber, cork, sponge rubber, paint,
and fabricated units and parts, including valves, controls, compres-
sors, refrigerating coils, and electric motors. During the fiscal year
beginning October 1, 1936, and ending September 30, 1937, the re-
spondent used metal items having a total value of $240,139.88, of
which $61,603.40 worth, or over 25 per cent, were obtained outside
the State of Missouri. In the same period the respondent used cork
valued at $36,415.42, units, compressors, and parts valued at $226,-
364.26, and refrigerating coils valued at $23,547.87, all of which were
obtained from sources outside Missouri. During the same period, the
total net sales of the respondent aggregated $1,143,906.84. Of this
amount, the respondent shipped finished products, aggregating $1,-
074,458.26, or approximately 94 per cent, to customers located outside
Missouri.
II. THE ORGANIZATIONS INVOLVED
United Association of Steam, Gas & Refrigeration Fitters is a
labor organization-affiliated with the American Federation of Labor.
It chartered Local Union No. 562. Auxiliary Local, which is a sub-
local of Local Union No. 562, admits to membership employees of the
respondent who work as refrigeration craftsmen or service fitters.
Carpenters' District Council, St. Louis, Missouri, is a labor organi-
zation composed of delegates from local unions in the St. Louis area,
affiliated with the International Brotherhood of Carpenters and
Joiners of America, an American Federation of Labor affiliate. The
Council assists in organizing workers for its constituent local unions
who admit to membership employees of the respondent who work as
carpenters.
8 The findings in this section are' based upon a "Stipulation ," dated June 7, 1938, signed
by the respondent and introduced in evidence by the Board.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both of the above labor organizations will be hereinafter jointly
referred to as the Union.
Nelson's Protective Association and Nelson's Employees' Council
are unaffiliated labor organizations admitting to membership all em-
ployees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The Union commenced organizational activity among the respond-
ent's employees in March 1937. On March 16, handbills, announc-
ing a union meeting for the workers, were distributed outside the
respondent's plant. On the next morning, Superintendent Glennon
J. Doyle and the assistant production manager, John Gallagher, as-
sembled the employees into a group when they reported for work and
instructed them to wait on the first-floor shipping room of the plant.
When a substantial number had assembled, Gallagher sent small
squads of employees into an adjoining room where they found Doyle,
C. Nelson, the secretary of the respondent, and Foremen J. W. Situp-
son and Steve Rochele. There the supervisory staff questioned the
employees concerning their union affiliation and made anti-union
statements. According to Edward Owen, a painter, C. Nelson asked
him whether he belonged to any union. Upon receiving a negative
reply, Owen quoted Nelson as saying : ". . . [the employees] could
stay with the company, go along with the company;, . . . [the re-
spondent] wouldn't never allow an outside local to control the plant,."
Although C. Nelson testified generally to the effect that he never
stated that he "wasn't going to tolerate a union in the shop," he did
not specifically deny Owen's testimony. We find that C. Nelson made
the statements above. Doyle asked Wylie Parker, an employee in the
crating department, "where a union ever helped [him] or anyone
else."
During that day, March 17, the employees were instructed by the
respondent's supervisory personnel, including C. Nelson, Doyle, and
L. Bujewski,9 a subforeman, to attend a meeting of employees to be
held that night in the plant. In his testimony C. Nelson admitted
that at the time he issued the call for the respondent's meeting he
knew that the Union had scheduled an organizational meeting for
the same night. That evening, about 6: 30 or 7 o'clock, the night
crew, consisting of 9 or 10 employees, were ushered into Doyle's office
when they reported for work. According to Hoyt Like, who worked
0 Also referred to in the record as Leonard Bridjewski.
C. NELSON MANUFACTURING COMPANY 1057
on the night shift, Doyle told the night crew that he knew they had
attended a union meeting Y0 and warned them : "... if [you] played
ball with [us,] [we] would play ball with [you] ; . . . [you] needed
[your] jobs and if [you] wouldn't sign up with any union [you]
would keep [your] jobs, other than that [we] couldn't guarantee any-
thing . . . if things had gone wrong they would be adjusted as far
as wage increases went . . ." Although in his testimony Doyle de-
nied that he had knowledge of the afternoon union meeting, he
admitted that he talked to the night-shift members and failed to deny
specifically the statements attributed to him by Hoyt .Like..- : Doyle
testified that he :told the men not to work that night inasmuch as
the respondent planned to eliminate the night shift thereafter and
instructed them to wait at the plant until the day crew arrived for
the meeting which the respondent had arranged. The Trial Exam-
iner who heard the witnesses believed Hoyt Like's testimony. Ac-
cordingly, we find that Doyle addressed the night crew in the
manner related by Like.
About 8 o'clock that night C. Nelson and Doyle delivered speeches
to the approximately 80 employees who assembled in the plant.
Beer, paid for by the respondent, was served at the meeting. The
evidence is conflicting as to what C. Nelson and Doyle said. Glennis
Elmore, who worked. as lead man in the all-metal assembly depart-
ment, testified as to what occurred in the following language :
after the men had assembled, Mr. Charles Nelson . .
called the men's names off and they answered by name, and
time check numbers; . . . after this roll call was made, Mr.
Nelson ... outlined the company's founding from his grand-
father's time up to the present day, stating that they had always
been able to run their own business; they intended to keep on
ruv.ving their own business, and that no outside union would
ever- come into their :plant ..: he said that his parents could
live comfortably the rest of their lives and travel and not have
to be worried with the plant . . . that they could shut down if a
union would come in ... they didn't have to run the plant
... [Italics supplied.]
According to Edward Owen, C. Nelson "spoke about the Union,
didn't want the Union in and never did have one in that plant and
they wasn't going to tolerate that; that they would close the place
up before they would have it in there . . . and go out on a vacation
30 Sometime during the first half of DSarch, the night-shift members attended an after-
noon meeting which the Union specially scheduled for them.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... he wanted to know about the Union"' we had in the plant and
why it died away. He still had the papers; he could get them out
and form the Union again." Except for the general denial noted
above to the effect that he never stated that "the company would
not tolerate an outside union," C. Nelson failed to deny specifically
the truth of the above assertions made by Owen and Glennis Elmore.
Moreover, in his testimony C. Nelson admitted that, among other
things, he told the employees that the respondent
... tried to adhere to the fact that ever since the company
was inaugurated, . . . the company, being as small as it was,
every man would have an equal voice . . . he should never be
afraid to speak up for himself . . . that the office door was al-
ways open to anybody that ever had anything to bring up, or
if the management in any way could help a man that was in
a spot ... he was welcome to do so, that he shouldn't feel
that he was just part of a machine, but that both me and my
father,12 being the immediate executives, would be more .than
willing to listen to any man regardless of what his complaint
might be, or of any situation that he may find himself in that
he couldn't cope with . . .; we were faced with . . . stiff com-
petition at the time, and that if there were any immediate griev-
ances that I would like, to have them brought forward at this
time rather than be caught in the middle of a stream . . . later
on in the season . . . [Italics supplied.]
Although C. Nelson stated at the hearing that he did not mention
the subject of unions at the meeting, witnesses called by the re-
spondent contradicted him. Clethrup Hartwick, a supervisory, em-
ployee, testified on cross-examination, that "Charlie Nelson said every
man had to use their own judgment about any outside union," and'
that the "question of the outside union was raised because of the
passing around of those dodgers." Furthermore, Doyle failed to
deny specifically that C. Nelson made the statements attributed to
him by Owen and Glennis Elmore. We find that C. Nelson made
the statements assigned to him by them.
On the basis of the foregoing evidence, we find that the respondent
by requiring its employees to submit to questioning with respect to
their union affiliation and activity, by threatening to discharge em-
ployees who joined the Union, by threatening to shut down the
plant if the Union obtained a substantial membership among the
respondent's employees, and by the dissemination of statements in-
u Referring to an old employees ' representation plan. The plan is more specifically dealt
with in Section III, B, infra.
1a J. W. Nelson, the respondent 's president.
C. NELSON MANUFACTURING COMPANY 1059
tended to discourage. union activity, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Sec-
tion 7 of the Act. We find also that by Foreman Rochelle's warning
to Jacob Studnicki and Doyle's statement to Wylie Parker, 'both of
which are more fully set forth in Section III, D, infra, the re-
'spondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed by Section 7 of the Act.
Shortly before about May 20, the Union requested the respondent
to recognize it as a collective bargaining representative for its em-
ployees. In support of its request, the union representatives fur-
nished the respondent with a list of the names of its members and
stated that the respondent was free to verify the. Union's claim.
Accordingly, on or about May 20, Doyle with a list in his hand,
accompanied by Foreman Simpson, passed through the plant and in-
terrogated substantially all of the 48 employees whose names ap-
peared on the list as to their preference between an outside and an
inside union. When the poll was made the employees were told
that they need make no answer if they so saw fit and that the answers
they made would not prejudice them with the respondent. Since the
union representatives furnished the respondent with its members'
names and invited verification. of its claim, thus apparently ac-
quiescing in the method used in such verification, we find that the
respondent, acting on such invitation under the circumstances here
disclosed, did not interfere with, restrain, or coerce.its employees in
the exercise of the rights guaranteed by Section 7 of the Act.
Although the complaint alleges that the respondent instituted and
maintained a labor-spy system, the evidence does not support the
allegation. We find, therefore, that the respondent has not insti-
tuted and maintained a labor-spy system.
B. Nelson Protective Association
During the period of the National Industrial Recovery Act there
existed in the respondent's plant an employees' representation plan
known as the Nelson Protective Association, herein called the N. P. A.
Foreman Simpson acted as an N. P. A. representative. Little -is
shown in the record as to the structural organization or functioning
of the N. P. A., except that the plan was short-lived due to employee
indifference. .
The record indicates that the respondent suggested the, restoration
of the N. P. A. at the time the Union actively sought to organize
the employees. We have found above that at the March 17 meeting
in the plant C. Nelson announced the respondent's position of unalter-
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able opposition to the Union and stated , among other things, that
he:
. . . still had the papers [of the N. P. A.] . . . could
get them out and form the Union again.13
At the hearing C. Nelson asserted that he made no mention of a com-
pany union at the meeting, but admitted that after he and Doyle
delivered talks, several employees, whom he failed to identify, mani-
fested an interest in the N. P. A. to him; that Foreman Simpson
informed C. Nelson that some employees desired a company-sponsored
organization for musical activities; that he (C. Nelson) gave official
approval to an employee organization for "social purposes" and
granted permission for the election of a committee and the holding
of the election in the plant. . About 2 days after the March 17 meet-
ing a plant-conducted election for committeemen was held. Accord-
ing to Glennis Elmore, the employees had been promised 14 30 minutes
time in which to ballot; that when at about 11:45 in the forenoon no
one had appeared to provide election facilities, Elmore applied. to
Doyle; that Doyle instructed Gallagher to obtain paper and dis-
tribute ballots to the employees. At the hearing Doyle stated that
this incident did not occur. Gallagher, however, although he testi-
fied that he was unaware of the purpose for which the paper was to
be used, admitted at the hearing that he distributed pieces of paper
to the employees. Foreman Simpson allowed the employees 15
minutes' time in which to discuss potential candidates before casting
their votes and stood by to observe the employees writing in their
selections on blank pieces of paper. About 15 minutes were consumed
for-the conduct of the election. The regular lunch period extended
from 12 to 12:30 p. in. Under these circumstances, and in view of
C. Nelson's sponsorship of the election, we find that the incident, as
testified to by Glennis Elmore, occurred.
Although the disposition of the cast ballots is not disclosed by
the record, it appears that supervisory employees collected them from
the employees. The results of the election were posted upon the plant
bulletin board. Under the respondent's rules, no notices could be
posted on the plant bulletin board without the consent of one of the
Nelsons. Among the six committeemen elected there was one straw-
18 Shortly before the March 17 meeting, according to the testimony of Glennis Elmore,
President J. L. Nelson accosted him on the street outside the plant, informed Elmore of the
existence of rumors of union organization in the plant, belittled the benefits to be derived
by employees from such an organization , praised the efficacy of an unaffiliated union, and
advised the establishment of such an organization for the respondent ' s employees in the
form of the old N. P. A. plan. The evidence indicates, however, that President Nelson was
out of the city of St. Louis from about the first of the year to April 10, 1937. Since it is
not clear from the record whether Elmore confused the name of the elder Nelson with that:
of his son , we do not give weight in our decision to this phase of Elmnore's testimony.
14 By whom , the record does not disclose.
C. NELSON MANUFACTURING COMPANY 1061
boss, Bujewski. At the March 17 meeting Doyle had suggested that
the employees select all foremen for committeemen.
A day or two after the election, the committeemen, including
Glennis Elmore, met with Doyle, and either the two Nelsons or C.
Nelson, in the company office. Glennis Elmore testified as to what
happened there in the following words :
The company's officers . . . promised to get out this here
old contract 15 and revive it . . . Mr. Doyle and Charles
Nelson told us . . . that we were the direct representatives
of the men and if they desired anything it would be necessary
to come to the committee for that.
In his testimony Doyle merely denied that he made any statement
to the effect that "it would be necessary to come to the direct repre-
sentatives." At the hearing C. Nelson limited himself to a denial
that . . . "Glennis Elmore asked me to get out the old contract,
there was none." We find that Doyle and C. Nelson.made the above
statements attributed to them by Glennis Elmore.
Subsequently at least two N. P. A. meetings were held in the plant
with the knowledge of supervisory employees, one during working
hours. At the first meeting in the plant cellar the committeemen re-
reported that the old N. P. A. papers could not be located. A vote
was taken to permit the employees to determine whether they should
affiliate with an "outside" union or proceed with the "inside" form
of organization. Fifty-six employees voted for an "outside" union,
26 for an "inside" union. Next afternoon, the committeemen met
with Doyle, Simpson, and Rochelle and reported the results of the
balloting. The respondent's officials objected to the election results
on the ground that foremen were not permitted to vote. When
Glennis Elmore expressed doubt to J. L. Nelson whether the com-
mitteemen could make the N. P. A. an effective organization, Nelson
stated : "You go to the fellows and see that they are interested." This
is not specifically denied.
A few days after the first meeting of the N. P. A., the employees
again assembled in the carpenter shop to reconsider the affiliation
vote. Simpson addressed the workers. According to the testimony
of Glennis Elmore, Simpson, among other things, said :
... [you] fellows [have] automobiles, homes, ... some .. .
even expecting children . . . don't see how you can afford to
have any trouble here . . . if we get this [outside] organization,
we will probably get trouble; the best thing you can do is go
ahead and go along . . . what a measly amount of money
15 Apparently Elmore used the word "contract " loosely to refer to the organic papers of
the old N . P. A. plan.
199549-39-vol. 15--68
-1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Emerson Electric employees] got for the time they had been out
[on strike] . . . if some of [you] take it to the Labor Board
... they work slow down there . . . it would possibly be a year
before you would get a hearing . . . the best thing to do is to go
along and have a little inside union, or not have any at all.
At the hearing Simpson, although denying that he advised the em-
ployees against joining an outside union, admitted that he attended
the meeting and read a portion of the Wagner Act to the employees at
their request. Glennis Elmore's testimony, furthermore, is corrobo-
=rated by Edward Owen and by Louis McClure, the chairman of the
IN. P. A. committeemen. We find that Simpson addressed the em-
-ployees in substantially the language assigned to him above by Glennis
-Elmore. At the conclusion of Simpson's talk, another ballot was
-taken. This time the employees were afforded three choices, there
-being added an "or neither" alternative. The second ballot resulted,
=however, in the largest number of votes being cast in favor of affil
iation with an "outside" union. Thereafter no activity on the part
of the N. P. A. is shown in the record, except that when the Union
met with the respondent in a bargaining conference on June 14, 1937,
-the respondent invited N. P. A. committeemen to attend.
As we hereinafter find in Section III, C, on March 29, 1937, the
--respondent discharged four employees, Ervin Barnes, Elzie Fleeman,
Elmer Wuest, and Paul Price, for the reason, among others, that they
-failed or refused to utilize the N. P. A. as their representative for
A he presentation of their grievances to the respondent.
We find that the respondent, by the acts and conduct set forth
.above, has dominated and interfered with the formation and admin-
istration of the N. P. A. and contributed support to it, and thereby
has interfered with, restrained, and coerced its employees in the exer-
--cise 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 mutual aid and protection as guaranteed in Section 7 of the Act.
C. The discriminatory discharges of Fleeman, Wisest, Price, and
Ervin Barnes
The complaint alleges that the respondent discharged Fleeman,
Wuest, Price, and Ervin Barnes because of their union activities. In
defense the respondent contends that the four named employees
voluntarily severed their employment in connection with a dispute
-which arose over wage rates. We now examine the circumstances
• surrounding their separation from the respondent's pay roll.
On Monday, March 29, 1937, after the lunch period, a.group of
:about 15 to 18 newly recruited general laborers, instead of returning
C. NELSON MANUFACTURING COMPANY 1063
to their work, waited outside Doyle's office until he returned from
lunch. Doyle returned to the plant shortly before 1 p. m. The
group, the four employees named above acting as spokesmen, com-
plained to Doyle that the pay checks which they received on Sat-
urday failed to reflect a 5-cent per hour increase which he had
promised at the March 17 meeting. Doyle told the men that the
rate increase which the, respondent had granted applied to employees
who were in service with the respondent for a period of 90 days only,
and that he had so announced at the March 17 meeting. Doyle in-
formed them that they could return to work upon the basis of their
existing wage rates and questioned each of the men as to whether
he was satisfied with such an arrangement.
There is sharp conflict in the evidence as to whether all the men
thereupon returned to work or•whether.the four individuals involved
in the complaint remained in Doyle's office after the others left,
insisting upon the 5-cent increase. At the hearing Doyle claimed,
and his testimony in this respect in substance is supported by that
of other supervisory employees, that the four men stayed in Doyle's
office after the others withdrew and took the position that they would
not work until they secured the wage increase; that thereupon Doyle
informed them they would be required to "quit" unless they resumed
work ; and when they chose not to do so, that Doyle-ordered the
company auditor to prepare pay checks for them.
Of the four, only Fleemsn and Barnes testified. Their testimony
was in agreement that the four..accompafiied the other men when they
withdrew fro in Doyle's office; that Fleeman and Barnes , returned
to their work; and- that about 20 minutes after resuming their duties
Doyle summoned them and assembled the four in his office. Other
,employees testified that they observed all four actively engaged in
work after the lunch period. In addition, Ault Helvey, a cabinet,
helper, saw all four emerge with the others from Doyle' s office and
noticed the four return and enter Doyle's office about 15 or 20 minutes.
thereafter. According to Barnes, Doyle said: "I will have to turn
you fellows out. I find that you are agitators, having these boys
walking out here." Fleeman testified that Doyle announced he was
"going to discharge us because we are trying to agitate a strike and
didn't take it to the company union." During the conference, Flee-
man further disclosed, Doyle called .. in Chairman McClure of the
N. P. A., and, Fleeman heard McClure reply after Doyle had called
him aside : ". . . the men had not asked [me] anything about it."
Later that day, the N. P. A. committeemen, except Glennis Elmore,
met with Doyle and C. Nelson. Harry Elmore, a committeeman,
testified that Doyle told the committee ".. . the four men should
have come to the committee to discuss their troubles and that the
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee should have come to him . . . he said the reason he was
firing them was because he wanted us to mean something around
there, that he wanted us, the men, to believe in the Committee."
Doyle denied this testimony. Neither C. Nelson nor Committeemen
Bujewski, A. Jeffrey, L. Kiselewski,1e nor L. McClure testified with
respect to this aspect of the case, notwithstanding all, except McClure,
appeared as witnesses for the respondent. All were in the respond-
ent's employ at the time of the hearing. We do not, therefore, credit.
Doyle's denial, and find that Doyle made the above statements.
Upon the foregoing evidence, particularly the statements made by
Doyle and the fact that the presence of all four men at work after
the lunch period is inconsistent- with the contention that they quit,
we are convinced and find that Fleeinanl, Wuest, Price, and Ervill
Barnes did not voluntarily leave their employment, but rather that
the respondent, in an effort to force upon its employees the N. P. A.
as an instrument for the purposes of collective bargaining, discharged
the above-named four persons because they failed to utilize the
N. P. A. to represent them in their labor relations with the respondent
and engaged as leaders in concerted activities among themselves, and
with other employees, to press the grievance 17 concerning their wage
rates. The respondent, by discharging them, discriminated in regard
to their hire and tenure of employment, to encourage membership in
the N. P. A. and discourage it in the Union, thereby interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
On March 31 Ervin Barnes secured another job with a firm in
Indianapolis, Indiana, where lie worked, earning $18.40 a week, until
May 29, 1937,.when he was laid off on account of slack work. While
employed by the respondent, his earnings averaged $15.75 a week.
During 1938 Barnes worked intermittently for a total period of 2
months as an automobile mechanic at which he earned approximately
$10 a week. In April 1938 he'-rented a farm on a share-crop basis
and at the time of the hearing he was engaged as a tenant farmer.
Elzie Fleeman secured another job on May 1 in St. Louis on. a
piece-work basis, earning approximately $20 a week, which is about
the same amount he was earning on an hourly basis with the respond-
ent at the time of his discharge. Fleeman quit his new job on June 1,
1937, when he went to Colorado where he worked on a ranch for
his board for a period of 6 weeks. Since August 1937 and until the
time of the hearing he has been unemployed.
"Also referred to in the record as Jisselewski.
It is unnecessary in this Decision to express any opinion as to the merits of the
grievance.
C. NELSON MANUFACTURING COMPANY 1065
Neither Wuest nor Price testified at the hearing and the record
does not-contain any information as to their employment history
subsequent to their discharge.
D. The discharge of Ernest Barn es, the strike, and the alleged dis-
criininatory refusal to reinstate the strikers
During April and May 1937, union representatives met with the
respondent 's officers on several occasions , apparently without making
substantial progress in their bargaining , negotiations . They ar-
ranged a conference to be held Monday,. June 14, at 2 o'clock.
Alarmed by the respondent 's discharge of six employees ,18 the em-
ployees grew restive as they observed the respondent 's peak season
drawing to a close. They urged the union representatives to hasten
the progress of the negotiations . On June 10 , Fred W. Myers, the
business representative of the United Association of Steam, Gas &
Refrigeration Fitters, Auxiliary Local 562, telephoned President
Nelson and secured his promise not to discharge any more employees
pending the conference, which they agreed to advance to 10 o'clock,.
the morning of the 14th.
Barnes was discharged on Saturday , June 12. There is conflict in
the record with respect to the circumstances surrounding his dismis-
sal. Barnes, who worked in the coil room, testified that Saturday
morning, upon completing the work he had on hand , he asked his
supervisor , Hartwick , a subforeman , for a new assignment; that
Hartwick instructed Barnes to help a group of workers who were
building tanks ; that Barnes approached one of the men, Charles
LaGrasso, and proceeded to help him in the work he was doing; that
LaGrasso protested, saying he had work enough to last only until
plant closing time; and that, as Barnes was engaged in explaining to
LaGrasso that Hartwick had assigned him to assist in tank building,
Hartwick came up, and said: "You cut this 'out, shooting the bull";
and thereupon escorted Barnes to Doyle's office . At the hearing
Hartwick claimed that when Barnes asked for more work , he in-
structed him to solder some fittings ; that Hartwick then left the
department ; that when he returned he found Barnes about 20 feet
from his work bench and discovered that he had not done the work
assigned to him ; and that when Hartwick told Barnes that the
respondent needed the fittings and directed him to resume work,
Barnes applied an epithet to Hartwick . While Harry Elmore, who
worked in the coil room near Barnes, corroborated Barnes' version,
the respondent failed -to call LaGrasso to testify , although at the time
18 Fleeman , Price, Wuest, Ervin Barnes, Leo Helvey, and Henry DuPont.
6
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the hearing he was in the respondent's employ. We do not credit
Hartwick's testimony and find that the incident occurred substan-
tially as testified to by Barnes and Elmore.
After Hartwick reported the affair to Doyle and complained with
respect to repeated acts of idling by Barnes, the superintendent sum-
moned Simpson, Hartwick's superior, and inquired whether he had
any complaints about Barnes. Simpson informed Doyle that Barnes.
had left his department and descended to the first floor of the plants
and that, despite warnings on three occasions, Barnes maintained
an indifferent attitude. At the hearing Barnes denied that he had.
ever been warned by any supervisor, but admitted going to the men's
room located on the main floor of the plant. Although the respond-
ent maintained toilet facilities on the second floor where Barnes:
worked, considerable evidence was introduced to indicate that the-
second-floor room was unfit for use.
Upon hearing Simpson's report, Doyle called the respondent's time-
keeper and instructed him to give Barnes "his time in full."
On his way from Doyle's office to the coil room, Barnes encountered
Hartwick. Without a word passing, between them, Barnes felled
Hartwick with a forceful punch on the mouth, splitting his lip. Em-
ployees attracted to the scene intervened to prevent any further fight-
ing. Word of Barnes' discharge soon reached his fellow employees.
In protest, a substantial number walked out of the plant, and lingered
on the outside.. Superintendent Doyle talked to the strikers and
reached some sort of understanding with them. There is conflict in
the evidence as to the terms under which the employees agreed with
Doyle to return Monday to work. According to the testimony of
strikers, Doyle promised to reinstate Barnes if the men returned to
work. Doyle asserted at the hearing that he merely urged the
strikers to resume work, assuring" them that the respondent would
consider all matters in dispute with the Union at the conference set
for Monday morning. In any event, Doyle and the strikers agreed
that since the hour approached closing time, the men should not
report for work until Monday morning.
Monday morning, when Barnes, with a bandaged hand, ap-
proached the time clock in the plant to report for work, he was
stopped by Doyle. Doyle and J. L. Nelson informed Barnes that
he had been discharged for insubordination on Saturday, that he had
thereafter committed a serious offense in striking Hartwick, and
that, in any event, the condition of his hand, caused by the blow he
gave Hartwick, would not permit his working. .
When word reached the employees, about 8 o'clock that. morning,
that 'Barnes: had been refused reinstatement, another walk-out
ensued. Substantially the same men who had struck on Saturday
•
C. NELSON MANUFACTURING COMPANY 1067'
gathered outside the plant. The union organizers, Myers and Wal-
ter Gablein, a representative of the Carpenters' District Council of ;
St.. Louis, were surprised to find a strike in progress when they :
arrived at the plant for the scheduled bargaining conference. The
parties devoted the morning to a discussion of Barnes' discharge...
Further negotiations that afternoon, however, were halted when
President Nelson suffered a physical breakdown, necessitating his
removal to a hospital during the lunch recess. Since the remaining:
company officials felt unequal to the task of carrying on negotiations,.
the conference adjourned.
That afternoon the Union established a picket line. Some em-
ployees who had not.joined the walk-out failed to report to work:
Monday afternoon. Only 19 ordinary employees came to work on
Tuesday. The plant shut down Tuesday afternoon, according to
the testimony of the respondent's officers; because of a fear of vio-
lence to the workers. The plant remained closed until June 24.
During the 8- or 9-day shut-down period the supervisory per-
sonnel, office force, and salesmen worked at production. None of the-
ordinary employees worked between June 15 and June 24.
Toward the latter part of the shut-down period some employees-
telephoned officials of the respondent, both before and after the
respondent decided to resume plant operations, and asked when.
they could return to work. The record does not disclose what the.
employees were told prior to the making of the respondent's decision-
to reopen the plant. The respondent, however, maintained a list of--
such persons. on file. Shortly before the plant reopened, H. F..
Meyer,"' a non=striker, who worked as an assemblyman in the plant,.
called upon Doyle and C. Nelson. He told them that.the employees
wanted to return to work and suggested that he be allowed to "round
up the men" to return to work. In an automobile provided by one
of the ordinary employees who paid for the gas, Meyer, accom-
panied by one or two ordinary employees, visited the workers. He
told them that he had a definite arrangement with the respondent
calling for the reopening of the plant, and instructed them to be at
a designated street corner located about 2 blocks from the plant on
the morning of June 24. Meyer refrained from communicating with
the strikers. That morning a group of about 32 employees met at
the appointed place, marched to the plant in a body, and returned to
work. Five strikers joined them when they entered the plant and
also resumed work.
Myers, the union representative, met with Doyle and C. Nelson
on several occasions' during the shut-down period, apparently, how-
19 After the strike Meyer organized Nelson's Employees ' Council which is discussed in
Section III , If, infra.
1068 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
ever, without making substantial progress in their negotiations. The
'record fails to reveal the exact nature of their dealings . There were
two conferences , however, of particular significance . One was held
on June 23 , and the other , on June 24 or 25. On June 23 Doyle and
C. Nelson informed Myers that the respondent would enter nego-
tiations looking toward an agreement if the employees returned to
work. They emphasized , however, that all employees could not
immediately be put back to work since company orders had been
canceled 20 and the business season in the respondent 's industry was
nearing its end, and told Myers that the respondent would rehire
those employees who applied promptly. Myers promised the re-
spondent 's officials to use his offices to persuade . the strikers to return
to work. There is testimony also in the record, which, if believed,
indicates that the respondent announced to Myers prior to the
reopening of the plant that it planned to limit the number of strikers
to be reinstated to six specifically named key employees . One of the
strikers who filed the charges in this proceeding , Wylie Parker, tes-
tified that about 2 or 3 days before June 24, Myers told a meeting of
strikers that the respondent would reinstate six men. He further
testified that Myers refused to name them , and instructed all strikers
to apply for work on the morning of June 24 to allow selection by
the respondent . Since none of the other strikers or Myers cor-
roborated Parker's testimony , and in view of the fact that the testi-
mony of Doyle and C. Nelson indicates that the respondent first
designated the six employees for reemployment after the plant had
resumed operations , we do not credit Parker's statement.
On June 24 or 25, but, in any event , after the group of approxi-
mately 37 employees had returned to work, Doyle told Myers that
the respondent could use six named keymen and requested Myers to
notify them to return to work. Instead, to avoid the appearance of
favoritism , Myers notified the entire group to apply for work.
Doyle selected six from a list supplied to him by Myers for rein-
statement and announced to the strikers who assembled outside the
plant that day : "That is all . Let you know when we need you."
The respondent agreed with Myers to allow the remaining strikers
to share work on a part-time basis with those employed . There is
disagreement, however, as to whether Myers undertook to furnish the
respondent with a list of those strikers who were willing to work
part time . At any rate , Myers did not deliver such a list to the
respondent and the plan was never put into effect. Thereafter, no
strikers , except Gordon Hampton who was later released and whose
case we will discuss in Section III, F , and Dennis Elmore, who was
20 At the hearing President Nelson testified that the respondent lost from $50,000 to
$75,000 in canceled orders as the result of the strike.
C. NELSON MANUFACTURING COMPANY 1069'
later discharged and whose case we will discuss in Section III, G,,
obtained reinstatement.
Conclusions with respect to the discharge of Ernest Barnes, the strike,.
and the alleged discriminatory refusal to reinstate the strikers
Although the record hints that the respondent sought to eliminate
Ernest Barnes from its pay roll, it affords no basis to warrant the
conclusion that his union membership or activity motivated the
respondent in discharging him. Harry Elmore asserted at the hear-
ing that on the morning of Barnes ' discharge he was told by Fred
Porta, a fellow employee, that Doyle had instructed Hartwick "to
get that big before noon." Elmore further testified that he
understood the deleted epithet to refer to Barnes because he was the
tallest person in his department . Neither Doyle nor Hartwick tes-
tified with respect to this aspect of the case . Porta, however , denied
at the hearing that he heard ' Doyle so direct Hartwick , and negated
the occurrence of the supposed conversation with Elmore. We do
not credit Elmore's testimony with respect to the incident alleged
above. Moreover , although the respondent knew of Barnes' allegiance
to the Union , since he was no more active than fellow employees
who like him occupied the position of known ordinary rank and
file union members , we see no reason , why the respondent should
have selected Barnes as an example to .discourage its employees from
participation in the Union . Rather we believe that Barnes' dis-
charge is traceable to the dispute with his supervisor with respect
to his performance at work, and that the respondent refused to
reinstate him for such cause and because of his violent attack upon
Hartwick and his physical incapacity for work on June 14. We
find, therefore , that the respondent did not discharge Ernest Barnes,
or refuse to reinstate him, because of his union activity.
We are also of the opinion that the strike resulted in no way
from the respondent 's unfair labor practices , which we have found.
The evidence in the record stands undisputed that the employees
walked out of the respondent 's plant on June 12 because of Barnes'
discharge in asserted violation of the respondent 's promise not to
dismiss any employees pending the June 14 conference with the
Union. It is clear also that the employees struck again on June 14
because of the respondent's refusal to reinstate Barnes that day in
the face of the strikers ' understanding that the respondent would
do so if they returned to work .21 Since we have found that Barnes'
u Even if the respondent had bound itself legally to withhold discharging employees for
the stipulated period , which question we find unnecessary to decide , a breach of such an
agreement , without more, does not constitute an unfair labor practice . Cf. Matter of
Williams Coal Company and United Mine Workers of America, District No. 23, and com-
panion cases, 11 N. L. R. B. 579.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge and his failure to obtain reinstatement were not discrimina-
tory, neither the walk-out called in protest against his dismissal nor
the strike in response to the respondent's failure to rehire him can
be attributed to any unfair labor practice on the part of the respond-
ent. Accordingly, we so find:
We now consider whether the respondent discriminatorily refused
reinstatement to the strikers upon the resumption of plant operations.
Certain evidence in the record tends to indicate that discrimination
was practiced. Approximately two-thirds of the strikers failed to
get their jobs back, while the non-strikers, almost without exception,
were returned to work. Furthermore, supervisory employees made
statements to certain employees to discourage the spread of the strike
and to cause its abandonment. On June 12 or 14, Foreman Rochelle
approached Jacob Studnicki'22 a carpenter :
Studi, what are you going to do? You going for the strike
or are you going to stay here? If you stay here the company
give you union wages. If you are not going to stay, you are
out of luck, you lose your job. That strike is not legal. You
are going to lose this strike anyway. If you lose the strike, you
lose the job.
Studnicki later joined the pickets. When he applied for work some
weeks after the plant resumed normal operations, he was directed to
remove his tools from the factory by Rochelle. Sometime during
the strike, apparently on June 24 or 25, Wylie Parker applied to
Doyle for reinstatement. In the presence of C. Nelson and Gallagher,
Doyle promised Parker a job if he stayed away from "those
trouble makers across the street," referring to the pickets. This
Doyle failed to deny specifically at the hearing. Parker, however,
returned to the picket line. When he applied to Doyle again, later
in June, Parker was informed that no work was available.
An analysis of the record, however, leads us to believe that thef
evidence is insufficient to warrant the conclusion that the respondent
in fact discriminated against the strikers in restaffing its force after
the shut-down. The respondent's business is seasonal , customarily
rising gradually in volume in January of each year and running its
course to July when it declines sharply.. The reopening of the plant
thus took place toward the end of the peak season . Furthermore,
customer cancelation of orders because of the strike resulted in a sub-
stantial diminution of the respondent's business. Moreover, the re-
spondent had departed from its customary mode of operation in, hir-
ing approximately 30 new general laborers for the 1937 season as
22 Also referred to in the record as Nick Studdy and J . Studs.
C. NELSON MANUFACTURING COMPANY 1071
"jockeys." Whereas in the past the duties of the cabinetmakers,
carpenters, assemblers, and coil-room workers included the task of
obtaining their own materials at different places in the plant, the
respondent employed the "jockeys" to carry materials to the benches
of the above-mentioned production workers in order to accelerate
output. At the end of the peak season the respondent could readily
dispense with the services of the "jockeys" without impairing plant
efficiency. Included among the strikers who failed to secure rein-
statement were approximately 10 general laborers 23 who fell within
this category.24
On its June 10 pay roll, the last preceding the outbreak of the
strike, the respondent carried 73 active; 5 ordinary employees. When
the plant reopened on June 24, 37 employees reported for work,
including 5 strikers. The record does not disclose any effort on the
part of the respondent to prevent the strikers from returning to
work. On the contrary, not only were the five strikers allowed to
punch the time clock, but the respondent informed the Union that
it stood ready to rehire those strikers who promptly signified their
desire to work. Only five responded. Although, between June 24
and the payroll week of July 8, the respondent recalled six non-
union employees and Robert McGuire, under circumstances which
are not disclosed in the record, it also added seven strikers to its
force. Of the seven, two were subsequently released under circum-
stances set forth in Section III, F and G, infra. Except for two
men who were each hired for 2 days to do special soldering work,
the respondent hired no new employees during the period from
June 24 to the time of the hearing. Although a group of strikers
assembled outside the plant the day of its reopening, their failure to
obtain reinstatement is attributable to their omission to request it
when jobs were available, and the lack of work in the respondent's
plant after the strike. We find, therefore, that the respondent has
not discriminatorily refused to reinstate the strikers named in the
complaint because of their union activities. Accordingly, we will
dismiss that allegation of the complaint together with the allegations
of the complaint with respect to Ernest Barnes.
28 The complaint contains, for reasons undisclosed in the record , no allegations with
respect to 1 of the 10 general laborers.
24 The employment of approximately 18 of the 30 general laborers above who were hired
by the respondent during the 1937 season terminated prior to the outbreak of the strike.
The respondent rehired after the strike only two general laborers, one a union employee.
P. Fleming, the non-union general laborer, left the respondent ' s employment on July 22,
1937, under circumstances which are not revealed in the record . • The separation of Gordon
Hampton , the union man, from the respondent 's employment is treated in Section III, F,
infra.
m In addition , Robert McGuire, a solderer , was on sick leave.
0
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Nelson's Employees' Council 26
About a week after the plant reopened, a notice appeared on the
respondent's bulletin board in the plant announcing an employees'
meeting to be presided over by H. F. Meyer, who led the back-to-
work movement after the strike, and advising the employees of the
importance of their attendance. Meyer told the men who returned
to work after the shut-down : "We were to organize to unite the boys.
who were back." All employees, including foremen, attended the-
meeting which was held after working hours. Meyer addressed the,
workers, urging the formation of a "social club" with a 25 cents a
month dues plan. Announcement was also made, by whom it does not
appear, that any employee who presented a money-saving or other
valuable idea to the respondent would be' awarded a prize of $5.
Subsequently the N. E. C. held another meeting where refreshments.
were served and Foreman Simpson entertained with a musical instru-
ment. Light, however, is shed upon the true function of the N. E. C.
by its constitution which sets up an employee-representation plan
with elected representatives to act as the Council. It provides, inter
alia:
The purpose of this plan is the development of the spirit of
cooperation and mutual understanding by establishing an orderly
method by which employees may present to the Company their
views and recommendations on all questions of company policy
with particular reference to health, safety, recreation, education,
and other similar matters of mutual interest. [Italics supplied.]
The constitution invests the Council with the duty to make to the
respondent recommendations with respect to the matters referred to
in the purpose clause. In our opinion the function of the N. E. C..
as revealed in the purpose clause of its constitution encompasses
those of a labor organization. Accordingly, we find that the N. E. C.
is a labor organization.
Under the above circumstances, and especially in view of the
respondent's efforts to revive the old N. P. A. and its domination
of the reorganized N. P. A., Meyer's leadership. in the formation of
the N. E. .G, the posting of the notice calling the N. E. C. organiza-
tion meeting on the respondent's bulletin board which, under com-
pany rules, required company consent, and the attendance of super-
visory members of the respondent's staff at N. E. C. meetings, we
find that the respondent has dominated and interfered with the for-
mation and administration of the N. E. C. and, contributed support
21 The Constitution of the N. E. C . designates the full name of the organization as "Nel-
son's Employees ' Council of St . Louis, Missouri."
C. NELSON MANUFACTURING COMPANY 1073
to it, thereby interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
F. The lay-off or discharge of Gordon Hampton
Gordon Hampton, a helper in the cabinet-assembly department,
was first employed by the respondent on March 16, 1937. A union
member, he told Doyle in May of his preference for an "outside"
labor organization, and went out on strike in June. He resumed
work on July 3 after Dennis Elmore, acting on Foreman Simpson's
instructions, delivered to Hampton a message to the effect that the
respondent wished him to return. On Friday, August 6, 1937, not
finding his time card in the rack, Hampton applied to the respond-
ent's timekeeper and was handed his pay with a letter containing
a notice of lay-off "ascribed to the seasonal decline in business.
At the time of the notice, the respondent employed approximately
nine employees who were doing work comparable to that of Hampton.
These the respondent retained in its service. Of the nine, seven were
non-strikers. The two strikers were persons who abandoned the
strike and voluntarily returned to work, one when the plant reopened,
and the other sometime thereafter. Hampton had seniority over
four non-strikers, ranging from 1 week in the case of three non-
st.rikers to 2. weeks in the case of one. Both strikers were first
employed before Hampton. The respondent did not follow a policy
of strict seniority in its lay-offs, although the length of an employee's
service with the respondent was one of the factors considered in the
selection of employees to be laid off.
Even if, contrary to our finding, the respondent did follow a
policy of strict seniority, in view of Hampton's slight seniority and
his relative inactivity as a union member, we disagree with the Trial
Examiner's conclusion that the respondent discriminated against
Hampton because of his union membership or activity, and find to
the contrary. We will dismiss the allegations of the complaint with
respect to Gordon Hampton.
G. The discharge of Dennis Elmore
Dennis. Elmore, a coil-room worker, was first employed in 1930
and worked, intermittently. until August 1937. Elmore belonged to
the Union, answered that he preferred an "outside" union when
polled by Doyle in May, 1937, and went out on strike in June. Some-
time between June 24 and July 3, the respondent recalled him to work
under circumstances not shown in the record. On the evening of
August 14, Doyle summoned Elmore to the superintendent's office
and informed him that the respondent had been served with a gar-
1074 DECISIONS OF NATIONAL LABOR RELATIONS.-BOARD
nishment summons with respect to his wages and that "the company
did not take garnishments ." Doyle rejected Elmore's offer to pay
in installments the judgment upon which the garnishment was based,
saying "it would take too long, " and told him that he was discharged.
The amount of the original claim against Elmore was $40, which,
with 7 years' interest plus court costs, amounted to approximately
$90. Elmore earned about $20 to $25 a week. After his discharge,
at Elmore's request , C. Nelson attempted to negotiate a settlement
of the claim with the judgment creditor . The creditor, however, re-
fused to compromise the judgment by acceptance of a substantially
reduced amount in payment of the claim . At the hearing Elmore
claimed that the respondent discriminated against him in refusing to
loan him a sum of money to meet the financial obligation referred to
above in view of the respondent 's practice in the past of advancing
money to employees for various purposes in similar situations. It
appears , however, that Elmore 's suggestion of repaying the pro-
posed loan by the deduction of $15 each week from the amount of
his pay check would, as C. Nelson pointed out to Elmore , leave an
insufficient sum to provide bare sustenance for himself . At any rate,
the respondent planned to close its books within the 30-day period
which followed Elmore's application and not make new loans there-
after due to its financial condition.
We find that the respondent has not discharged Dennis Elmore be-
cause of his union membership or activity ; and, accordingly , we will
dismiss the allegations of the complaint with respect to him.
IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES 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- have
led, and tend to lead, to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
The respondent will be required to cease and desist from the un-
fair labor practices described above. We shall order the respondent
henceforth to refuse to accord the Nelson 's Employees ' Council, or
the Nelson 's Protective Association , if it ever returns to an active
existence under its old name and form or any other name and form,
any recognition as a collective bargaining agency. By reason of the
respondent's domination and interference , neither the N. P. A. nor
C. NELSON MANUF ACTURI-NG COMPANY 1075
the N. E. C. can serve the respondent's employees as genuine bar-
gaining representatives. Their continued, actual or potential, pres-
ence in the plant constitutes a barrier to collective bargaining through
freely chosen representatives of the employees. We shall, accord-
ingly, require the respondent to completely disestablish the N. P. A.,
to which it has accorded recognition, as the representative of any of
its employees for the purposes of collective bargaining.
As we have found that by discharging Elzie Fleeman, Ervin
Barnes, Elmer Wuest, and Paul Price, the respondent has discrim-
inated in regard to their hire and tenure of employment, we shall
order the respondent to offer each of them immediate and full re-
instatement to his former or substantially equivalent position with-
out prejudice to his seniority and other rights and privileges, and
to make each whole for any loss of pay he may have suffered by
reason of his discharge, by payment to each of a sum of money equal
to the amount which he normally would have earned as wages from
the date of his discharge to the date ' of the respondent's offer of re-
instatement, less his net earnings 27 during such period.
. Since we have found that the strikes were not caused by the re-
spondent's unfair labor practices and that the respondent did not
discriminatorily refuse to reinstate the strikers named in the com-
plaint, we will not order their reinstatement. The respondent main-
tained throughout the hearing that it would have put all strikers to
work upon the reopening of the plant had work been available for
them and Superintendent Doyle testified that the respondent main-
tained thereafter a preferential list of those strikers, who were not
on its pay roll, for employment when work should become available.
In view of the respondent's unfair labor practices set forth in Sec-
tioQi III above, however, there is serious danger that the respondent
will'not reemploy those strikers even if their former or substantially
equivalent positions become available. In order to effectuate the
policies of the Act, we will require the respondent to maintain upon
a preferential list the names of the strikers listed in the complaint 28
n By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , Incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2500, S N. L. R. B. 440. Monies re-
ceived 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 governments
which supplied the funds for said work -relief projects.
28 Except Walter Winston, who died prior to the hearing , Ernest Barnes , whose case is
treated in Section III , D, supra, and Adam Weston , who was not identified in the record.
1076 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
for reinstatement under its usual practice 29 in the event employment
:should become available for them.
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 Association of Steam, Gas & Refrigeration Fitters,
Auxiliary Local No. 562, Carpenters' District Council, St. Louis, Mis-
souri, Nelson's Protective Association, and Nelson's Employees'
Council are labor organizations, within the meaning of Section 2 (5)
.of the Act.
2. By dominating and interfering with the formation and admin-
istration of Nelson's Protective Association and Nelson's Employees'
Council and contributing support thereto, the respondent has en-
gaged in and is engaging in unfa'ur labor practices, within the mean-
.in- of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of em-
ployment of Elzie Fleeman, Ervin Barnes, Elmer Wuest, and Paul
Price, thereby encouraging membership in Nelson's Protective As-
sociation and discouraging membership in the United Association
of Steam, Gas & Refrigeration Fitters, Local No. 562 and Carpen-
ters' District Council, St. Louis, Missouri, the respondent has en-
gaged in and is engaging in unfair labor practices, within the Tnean-
ing of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act, the
respondent has engaged in unfair labor practices, within the mean-
ing of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
;affecting commerce, within the meaning of Section 2 (6) andv (7)
of the Act.
6. The respondent has not engaged in unfair labor practices within
-the meaning of Section 8 (3) of the Act by refusing to reinstate the
strikers named in the complaint and by discharging Ernest Barnes,
Gordon Hampton, and Dennis Elmore.
29 Matter of Link Belt Company and Lodge 1604 of Amalgamated Association of Iron, Steel
and 1'ia. Workers of North America, through the Steel Workers Organizing Committee
affiliated with the Committee for Industrial Organization, 12 N. L. R. B. 854; Matter
of American Numbering Machine Company and International Association of Machinists,
District #15, 10 N. L. It. B. 536; Matter'of American Manufacturing Concern and
Local No. 6, Organized Furniture Workers, 7 N. L. It. B. 753; Matter of Benjamin Levine,
doing business under the name and style of Estellite Fixtures Company and International
Brotherhood of Electrical T-Vorkers, Local Union No. 348, 6 N. L. It. B. 400.
C. NELSON MANUFACTURING COMPANY
ORDER
1077
Upon the basis of, the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, C. Nelson Manufacturing Company, and its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of the Nel-
son's Protective Association, Nelson's Employees' Council, or with the
formation or administration of any other labor organization of its
employees, and from contributing support to Nelson's Protective As-
sociation, Nelson's Employees' Council, or to any other labor organi-
zation of its employees ;
(b) Discouraging membership in United- Association of Steam,
Gas & Refrigeration Fitters,Auxiliary Local No. 562, Carpenters'
District Council, St. Louis, Missouri, or any other labor organization
of its employees, or encouraging membership in Nelson's Protective
Association or Nelson's Employees', - Council, or any other labor or-
ganization of its employees, by. discharging or refusing to reinstate
any of its employees, or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition of their
employment; -
(c) In any, other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to,bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or.
protection, as guaranteed in Section 7 of. the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Nelson's Protective Association
as the representative of any of its employees for the purposes of deal
ing with the respondent concerning grievances, labor disputes,- rates.
of pay, wages, hours of employment, and' other conditions of_employ=
ment, and completely disestablish said Nelson's Protective. Associa-;:
tion as such representative; „ .
(b) Refuse to accord recognition to Nelson's Employees' Council
as the representative of any of its employees for the purposes :of-,deal-
ing with the respondent concerning grievances, labor disputes, 'rates.
of pay, wages, hours of employment, and other; conditions of employ-
ment ;
(c) Offer to Elzie Fleeman, Elmer Wuest, Ervin Barnes, and Paul
Price immediate and full reinstatement to their former or- substan-
199549-39-vol. 15--69
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tially equivalent positions, without prejudice to their seniority or
other rights and privileges;
(d) Make whole said Elzie Fleeman, Elmer Wuest, Ervin Barnes,
and Paul Price for any loss of pay they may have suffered by reason
of their discharge, by payment to each of them respectively of a sum
of money equal to the amount which he would normally have earned
as wages during the period from the date of his discharge to the date
of said offer of reinstatement, less his net earnings 30 during said
period; deducting, however, from the amount otherwise due to each
of said employees, monies received by said employees 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, munici-
pal, or other government or governments which supplied the funds
for said work-relief projects;
(e) Include Everet Joyce, Wylie Parker, Roy Riggs, A. H. (Larry)
Cranwell, Edw. Owens, Otis Faddis, Edgar Pratt, Tony Hammor,
Cecil Sumpter, Jacob Studnicki, Glennis Elmore, Stanley Tritley,
Harry Semon, Harry Elmore, Ault Helvey, Carl Barnes, Cecil Like,
Hoyt Like, and Gordon Hampton upon a preferential list for rein-
statement in accordance with its usual practice whenever employment
becomes available for any or all of them;
(f) Immediately post notices in conspicuous places' throughout
its plant and maintain such notices for a period of at least sixty
(60) consecutive days, stating (1) that the respondent will cease and
desist in the manner aforesaid, and (2) that it will take the affirmative
action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this
Order ;
(g) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order what
steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it al-
leges that, by failing and refusing to reinstate the employees named
in the complaint who participated in the strike, by engaging in
espionage, and, by discharging and thereafter refusing to employ
Ernest Barnes, Gordon Hampton, and Dennis Elmore, the respondent
has engaged in unfair labor practices within the mean of the Act, be,
and it hereby is, dismissed.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that, by discharging and thereafter refusing to employ Lee Helvey
and Henry DuPont, the respondent has engaged in unfair labor
practices within the meaning of the Act, be, and it is hereby is,
dismissed without prejudice.
30 See footnote 27, supra.