Lindeman Power and Equipment Co.

National Labor Relations Board - Board Decisions

Mar 2, 1939

11 N.L.R.B. 868 (N.L.R.B. 1939)

In the Matter of LINDEMAN POWER AND EQUIPMENT COMPANY and
INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No. C-578.-Decided March 2, 1939
Farm Equipment Production Industry-Interference, Restraint, and Coercion:
persuading employees to refrain from joining or to resign from union-Discrimi-
nation: discharges for union membership and activity to discourage membership
in union-Strike: result of employer's unfair labor practices-Unit Appropriate
for Collective Bargaining: no dispute ; all employees exclusive of office workers,
salesmen, foremen, and supervisory officials-Representatives: proof of choice:
election-Collective Bargaining: refusal to recognize representatives of union as
duly constituted agents ; no intent to enter into contract-Reinstatement Or-
dered-discharged employees ; striking employees, upon application, dismissing
newly hired employees if necessary ; preferential list ordered ; to be followed in
further reinstatement-Back Pay: awarded to discharged employees ; statements
of discharged employees made at hearing with reference to returning to work
while strike continued not unequivocal assertions; awarded to striking employ-
ees who are not reinstated or placed on preferential list within 5 days of appli-
cation for reinstatement.
Mr. Patrick H. Walker and Mr. Thomas P. Graham, for the Board.
Clark & Grady, by Mr. Thomas E. Grady, of Yakima, Wash., for the
respondent.
Mr. N. K. Buck, of Yakima, Wash., for the Yakima County Unit of
Farmers Protective Association.
Mr. Sumner Marcus, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Association of Machinists, herein called the International, on behalf
of International Association of Machinists, Local No. 1531, herein
called the Union, the National Labor Relations Board, herein called
the Board, by the Acting Regional Director for the Nineteenth Region
(Seattle, Washington), on November 9, 1937, issued its complaint
against Lindeman Power Equipment Company," Yakima, Washing-
i Incorrectly designated in the complaint as Lindeman Power and Equipment Company.
11 N. L. R. B., No. 66.
868
LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 869
ton, herein called the respondent, and duly served copies of the com-
plaint and notice of hearing upon the respondent and the Union.
The complaint alleged that the respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section 8
(1), (3), and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. The respondent
duly filed its answer, in which it denied substantially all the allega-
tions of the complaint and set forth certain affirmative defenses.
Prior to the commencement of the hearing the Yakima County Unit
of Farmers Protective Association, herein called the Association, filed
a motion to intervene with the Acting Regional Director.
Pursuant to notice, a hearing was held at Yakima, Washington, on
November 26, 27, 29 and 30, 1937, before P. H. McNally, the Trial Ex-
aminer duly designated by the Board. The Board, the respondent,
and the Association were represented by counsel at the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
At the beginning and at the close of the hearing the Association re-
newed its motion to intervene. The Trial Examiner denied these
motions. The rulings are hereby affirmed.
During the course of the hearing the Trial Examiner admitted into
evidence over the respondent's objections two memoranda made by
C. H. Moran; 2 affidavits made by Donald Campbell, H. J. Kroum,
Michael Burgwin, and C. B. McCoy; 3 and a group of newspaper clip-
pings which appeared in Yakima, Washington, newspapers.4 Moran,
Campbell, Kroum, Burgwin, and McCoy were all witnesses at the
hearing. We agree that it was error to admit these documents. The
purported statements and the affidavits were not offered for the pur-
pose of impeachment but rather as probative of the facts recited
therein. The newspaper clippings were admitted as probative of
their contents concerning which the respondent had no opportunity to
cross-examine. The aforesaid documents are hereby excluded from
evidence.
The Trial Examiner also made several rulings on other motions and
on objections to the admission of evidence. The Board has reviewed
these rulings of the Trial Examiner and finds that no prejudicial
errors were committed. These rulings are hereby affirmed.
On April 25, 1938, the Trial Examiner filed his Intermediate Report,
in which he found that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce within the meaning
of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act.
He recommended that the respondent be ordered to cease and desist
2 Board Exhibit Nos . 2 and 3.
s Board Exhibit Nos. 6, 7, 8, and 9.
* Board Exhibit Nos. 23-32, inclusive.
164275-39-vol. xi-56
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from such practices, to bargain collectively with the Union upon
request, and to offer full reinstatement and back pay to Donald Camp-
bell and to II. J. Kroum, replacing if necessary those hired after
June 9, 1937, the date of their discharge.
Thereafter the respondent filed exceptions to the Intermediate Re-
port and to various rulings of the Trial Examiner. On April 30,
1938, the Board notified the respondent and the Union of their right
to apply for oral argument or permission to file briefs within 10 days
from the date of the receipt of the notification. The respondent ap-
plied for and received permission to file a brief, and subsequently
submitted a brief. The Board has considered the respondent's excep-
tions to the Trial Examiner's Intermediate Report and rulings and
the brief in support thereof and, except as hereinabove stated, finds
the respondent's exceptions to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Lindeman Power Equipment Company is a Washington corpora-
tion having its principal place of business in Yakima, Washington.
It is engaged in the production, assembly, retail and wholesale sale,
repair, and delivery of farm and orchard equipment, machinery,
and accessories. Among the chief items in which the respondent
deals are tractors and other heavy farm machinery which the re-
spondent sells as agent for John Deere Plow Company of Moline,
Illinois. The respondent, before making such sales, frequently an-
nexes to these machines parts of its own manufacture or ownership.
The respondent is also engaged in the repair of these machines.
Another large item in which the respondent deals is spraying equip-
ment. The equipment is composed partly of items which the re-
spondent sells on behalf of Friend Manufacturing Company of
Gasport, New York. The respondent manufactures a considerable
amount of machinery other than that already mentioned, and sells
used goods which it receives in part payment for articles which
it has sold. The respondent also repairs farm equipment.
More than 50 per cent of the total sales of approximately $300,000
made by the respondent during the period from July 1, 1936, to
June 30, 1937, were of goods shipped to it by John Deere Plow Com-
pany from outside the State of Washington. Besides these products
and a substantial amount of sprayer pumps, which are shipped to it
from Gasport, New York, the respondent receives from outside the
State of Washington small items such as drill bits and welding rods.
LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 871
During the period from July 1, 1935, to April 30, 1937, the re-
spondent's total sales amounted to approximately $390,000, of which
approximately $20,000 were made to customers located outside the
State of Washington.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, Local No. 1531, is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to its membership all the respondent's employees, except
office workers, salesmen, foremen, and supervisory officials.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
The Union began to organize the respondent's employees some
time in March or April 1937. Several of the respondent's employees
approached Jesse Lindeman, the president and general manager of
the respondent, at about this time, and inquired concerning the
respondent's attitude toward the Union. Lindeman did not reply
to these questions but instead called a meeting of all the respondent's
employees. At this meeting he delivered an address in which he
stated the advantages and disadvantages which might accrue to the
respondent's employees if they affiliated with the Union. He said
that the respondent would never consent to a closed-shop agreement
and that, therefore, those of the respondent's employees, who were
undecided about joining the Union because they feared they would
lose their jobs if a closed-shop agreement were signed, could cease
to worry; that if any of the respondent's employees did join the
Union there would come a time when the Union would demand a
closed shop which the respondent would refuse; that the Union
would then probably call a strike and that those who had joined the
Union would find that its regulations prohibited them from going
to work; that they would consequently be without employment while
their more fortunate non-union colleagues would continue to earn
their wages. Lindeman concluded his address by stating that it did
not matter to him whether or not a man joined a union.
Shortly after this meeting, a group of the respondent's employees
assembled for the purpose of organizing an independent "inside"
union. They postponed definite action regarding this matter until
representatives of the Union had been given an opportunity to
present their side of the case . A meeting was accordingly held
several days later which was attended by, among others, Michael
Burgwin, the Union' s business representative. The drive for an
independent union ceased after this meeting.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As a result of Burgwin's presence at the meeting, Lindeman called
a second meeting of his employees. He stated in an irate manner
that, while any other representative of the Union was welcome on the
respondent's premises, Burgwin was not. Lindeman disliked Burg-
win because of certain statements Burgwin was alleged to have made
regarding the efficiency of the respondent's management. Lindeman
also took the opportunity which presented itself at this meeting to
reiterate to his employees that the respondent would never grant a
closed shop to the Union and by that statement to intimate that under
the circumstances it would be futile for the men to continue their
attempts at organizing the respondent's employees.
Meanwhile Lindeman had met with a committee of the Union upon
several occasions and, when presented with the standard proposals of
the Union, had rejected them on the ground that there was included
in them a proposal for a closed shop. Lindeman talked at some length
with the Union's representatives. His discussions were confined, how-
ever, to statements and restatements of the reasons why the respond-
ent could not operate under a closed shop. He asserted that a closed-
shop agreement would involve the respondent's operating under the
union scale of wages and hours, which the respondent could not afford
from a competitive standpoint. When the representatives of the
Union offered to modify their demands to take into account the
peculiar needs of the respondent's business, particularly its need for
overtime work at certain seasons of the year, Lindeman stated that
this would not cause him to change his mind, since under no circum-
stances would he consent to an arrangement whereby those of his
employees who were not able to or who did not desire to join a union
would be forced into the Union. No progress was made at any of the
conferences toward reaching an agreement.
The Union continued to organize the employees. As it increased
its membership among the respondent's employees, those employees
who did not desire to join became worried as rumors spread about
the shop that the Union would soon secure a contract which might
have the effect of causing non-union employees to lose their jobs. In
some cases this fear turned into hostility against those employees who
were members of the Union.
On June 8 Lindeman returned from a short trip to find the shop in
a disordered state due to the indecision among the men regarding
affiliation with the Union. From Lindeman's point of view the un-
desirable situation in the shop had clearly been engendered by the out-
side union "agitators," who he thought had persuaded Donald Camp-
bell and H. J. Kroum, two of his employees, to carry on the Union's
campaign. The two men, in the words of a statement signed by
Lindeman the following day, "were good fellows, but easily led ...
LINDEMAN POWER AND EQUIPMENT COMPANY ET AL . 873
they were good workmen and got along nicely until they became too
active with their agitation."
On June 9 Lindeman discharged Campbell and Kroum.6 As a result
of these discharges the Union called a strike against the respondent
on the following day.
Although the union membership at the respondent's plant con-
sisted of but 11 employees, some 30 employees failed to report to
work on June 10, the first day of the strike. Subsequently all but a
dozen returned to work. The strike still continued at the time of the
hearing.
Shortly after the strike began, the Union called upon a representa-
tive of the Department of Labor and Industries of the State of Wash-
ington to attempt a settlement. On June 22 an official of the
International, James Duncan, and a representative of the American
Federation of Labor, Charles Hughes, met with Lindeman and Thomas
E. Grady, the respondent's attorney, and discussed the proposals which
the Union had made to the respondent prior to the strike. These
conferences achieved nothing either with respect to the discharges
of the two men or with respect to the signing of an agreement.
On July 9 an election was conducted by the Board's Regional Di-
rector among the respondent's production employees to determine
their representative for the purposes of collective bargaining. The
respondent had previously stated that it had no objection to the
holding of the election and had furnished a list of all those employed
by it on June 1, 1937, excluding office workers, officials, superintendents,
salesmen, and foremen. The 21 employees eligible to vote participated
in the election. Eleven of them designated the Union as their
representative.
As a result of this election the respondent concedes that it was
satisfied that the Union was the exclusive bargaining agent of the
respondent's employees in the appropriate unit. On July 12 the re-
spondent, represented by Grady and two of its officers, met with a
committee which had been authorized by the Union to negotiate a
contract with the respondent. Grady took the position at this meeting,
as he did at the hearing, that the respondent was not obliged to deal
with this committee since it had not been appointed by the Union
subsequent to the election. After discussing the question of the com-
mittee's authority and after having concluded that the committee
was not the "official representative" of the Union, the respondent's
representatives nevertheless proceeded to discuss the proposed agree-
ment. They took this action because, as the respondent stated in a
brief which it filed with the Board, they were "willing to discuss
matters of interest with any representatives of the Union whether
5 These discharges are discussed in detail in Section III C , infra.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were official or not." No agreement was reached at this conference
concerning the proposals of the Union, and this was the last con-
ference which was held between the Union and the respondent.
The contract which the Union proposed at the afore-mentioned
conference was similar to the one it originally proposed to the re-
spondent, but was modified in that the Union requested a lower wage
scale and had consented to change the classifications of employees
so that they would conform more closely with the respondent's opera-
tions. At the meeting the Union's representatives offered to reduce
wages even further. On July 20 the Union, having received no reply
from the respondent concerning the proposed agreement, notified the
respondent that unless the agreement was accepted before July 22
the Union would withdraw its proposed agreement which had been
modified, and would insist upon the original form of agreement. The
following day Ross Lindeman notified the Union by letter that the
respondent would not sign the proposed agreement. Since the time
of this interchange of correspondence no further negotiations have
been held between the respondent and the Union.
B. Interference, restraint, and coercion
It is plain that the speeches which Lindeman, the respondent's
chief executive, made to the employees whom he assembled on two
different occasions, shortly after the Union began to organize, were
calculated to dissuade the employees from joining the Union. The
Union, according to the analysis which Lindeman made, could be of
no advantage and might possibly result in a loss of work for some
of the respondent's employees. Although Lindeman stated during
the course of the meetings that he had nothing against unions, the
speeches were intended and did operate to impede, if not destroy, the
free exercise of the employees' right to self-organization. Moreover,
this expression of the employer's antipathy toward the Union and
its alleged prospective proposals were subsequently implemented by
the discharges of Campbell and Kroum, two of the Union's most
active members.6 We find that, by the afore-mentioned speeches, the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
C. The discharges
Donald Campbell and H. J. Kroum had been employed by the
respondent as machinists for 6 years and 6 months, respectively, prior
to their discharge on June 9, 1937. It was conceded by the respondent
that until a short time prior to June 9 the work of these men had
been completely satisfactory. Lindeman, moreover, stated at the
6 See Section C, infra.
LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 875
hearing that he was willing to reemploy them if any openings became
available. There is thus no question regarding their general com-
petency, although there is an issue concerning the quality of their
work in the weeks immediately preceding June 9. It is also conceded
by the respondent that they were the most active of the respondent's
employees in furthering the Union at the respondent's plant.
A short time prior to June 9 Lindeman had designed a new wheel
arrangement for certain fruit trailers which he was preparing to
build. The castings for these wheels were to be made from chills
or cast-iron molds, which had to be exact within 'A2 of an inch.
The first chills which were manufactured did not conform to the
specifications. Lindeman consulted Campbell and Kroum, who were
working on the chills, in order to determine where the trouble lay.
He testified that the two men attempted to cooperate with him in
the correction of the defect. While the cause for the defects in
the chills was still being sought by Lindeman, the respondent's
pattern maker was by chance given the job of running Kroum's lathe
during the noon hour. He produced more than four chills during
the hour which he worked, whereas Kroum had been producing chills
at the rate of one every 40 minutes. Lindeman testified that the
job was a difficult one and that, consequently, he had asked the
pattern maker to instruct Campbell and Kroum concerning the
proper method of production, but that notwithstanding this in-
struction, the chills which Campbell and Kroum produced were not
satisfactory. On June 6 Lindeman left the city for 2 days and
gave instructions to Campbell to devise a scheme to produce satis-
factory chills during his absence. When he returned on June 8,
he found the chills to be worse than ever.
On the morning of June 9 Lindeman approached Campbell and
Kroum while they were at their work and asked them why they
could not get their minds on their business and produce satisfac-
tory chills. Lindeman stated that he believed that they were intent
solely upon organizing the Union at the plant and asked them why
they did not "let the fellows uptown who are paid to do this work
do the final wrapping up of it instead of having it forced on your
head." Lindeman informed them that unless the "officials in power"
of the Union could relieve them of their organizational tasks and
let them "work in peace" it would be desirable for them to lay off
"until this thing was over," meaning a rumored strike which Linde-
man believed would occur within a day or two. The men replied
that-they did not wish to lay off, and Lindeman suggested that they
ask Burgwin to come to the plant in order to discuss some arrange-
ments which would permit them to continue to work. Lindeman
gave them until 5 o'clock that afternoon to make their decision.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kroum testified that Lindeman stated during the conversation that
the men must surrender their union affiliations or quit. Lindeman
denied having made such a statement and testified that he said that
the men would be obliged to quit unless they were "permitted to
work in peace." We believe Kroum's testimony in this respect, since
it is more consonant with Lindeman's attitude as reflected in his
own testimony and actions and since it is consistent with the testimony
of Burgwin and McCoy discussed hereinafter. We therefore find
that Lindeman told the men that they would have to relinquish their
union membership and activities or quit.
The two men telephoned Burgwin and told him of the option
which Lindeman had presented and requested him to interview
Lindeman on their behalf. That afternoon Burgwin, accompanied
by McCoy, a representative of another labor organization affiliated
with the American Federation of Labor, went to the plant and talked
with Lindeman. Burgwin opened the conversation by asking Linde-
man whether they could not settle their differences upon a friendly
basis. Lindeman replied that the only way this could be done was
for Burgwin not to interfere with Lindeman's employees any
longer, that he could not see why the two men could not continue to
work until the strike or union situation had been straightened out
without at the same time engaging in union activities. Burgwin and
McCoy testified that Lindeman also stated that unless Campbell and
Kroum gave up their union affiliation and stopped their organiza-
tional activities he was going to discharge them. Lindeman denied
having made such a statement. We believe that Lindeman did make
this statement because it is consistent both with his subsequent ac-
tions and the nature of the respondent's defenses which are herein-
after discussed.
After Burgwin and McCoy left, Lindeman asked Campbell and
Kroum if Burgwin had seen them. Campbell said that he had and
that Burgwin did not seem to be able to do anything for them but
that he, Campbell, could not see why some arrangement could not
be reached to permit them to remain at work. Lindeman said that
he did not think that anything could be done unless the men were
permitted to work "in peace" and since this did not seem to be pos-
sible he still thought that the two of them had "better lay off."
At 5 p. m. Campbell and Kroum went to Lindeman's office where
they and Lindeman engaged in discussion for more than an hour.
Lindeman at this time asked the men what their decision was. They
told him that they neither desired to give up their memberships in
the Union nor wished to quit their jobs. Lindeman stated that he
still believed that they had better quit. About 6 o'clock Kroum
stated that supper must. be about ready, and prepared to leave. At
LINDEMAN POWER AND EQUIPMENT COMPANY ET AL . 877
this point Lindeman handed them checks in full payment of their
wages, notwithstanding that this was not the regular pay day. The
men thereupon left and had not returned to the respondent's employ
at the time of the hearing.
Upon the whole record, we are convinced that Campbell and
Kroum were discharged by Lindeman and did not leave of their
own accord. Regardless of the phraseology employed by Lindeman
in his conversations with the men during the day, he clearly pre-
sented them with an ultimatum-either they had to forego their
organizational activities or they had to quit. When they refused to
accept either suggestion, Lindeman discharged them.
The respondent contends in justification of the action taken with
respect to Campbell and Kroum that the Union would not permit
them to work unless the respondent's plant became a closed shop;
that their work had suffered in the week preceding their discharge;
and that they had created "turmoil" in the plant through their con-
stant organizational activities. We shall examine these contentions.
As to the first contention, the record discloses that neither the
Union nor the men demanded a closed shop as a condition precedent
to Campbell and Kroum continuing to work.
The evidence that the work of the two men had suffered during
the week prior to their discharge is inconclusive. The respondent
had complained of their defective chills, but the evidence indicates,
as the respondent recognized, that the defects were attributable in
part to the imperfection and novelty of the process. Kroum claimed
that, although there had been a complaint with respect to the chills,
it was only a minor one. His position is supported by the fact that
Lindeman made only passing reference to the defective chills in his
conversations with the men on June 9, the day of their discharge, and
by the fact that no issue is raised concerning their general
competency.
There is no merit in the respondent's third contention that Camp-
bell and Kroum had created turmoil in the plant through their con-
stant organizational activities. The record does not disclose that
these two men engaged in organizational activity to the detriment
of their own or anyone else's work or contravened any shop rules in
the prosecution of such activity. Nevertheless, the record makes it
abundantly plain that the respondent held them primarily responsi-
ble for the prospective unionization of the plant and regarded their
elimination as an essential prerequisite to the elimination of the
Union. This was solely because they were the acknowledged leaders
of the employees in their effort at self-organization. From the incep-
tion of the Union the respondent was opposed to it and by Linde-
man's speeches had sought to discourage the movement. The re-
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's opposition to the employees' legitimate exercise of their
right to self-organization and collective bargaining created a tension
and unrest among its employees described by the respondent as tur-
moil. This unrest manifested itself in the persistent rumors of a
strike.' The respondent recognized that the inevitable result of the
unrest, unless checked, would be industrial strife, with its resultant
disruption of production. The respondent sought to check the unrest
and prospective strife engendered by its own opposition to the Union,
not by acceptance of the principles of the Act, but by the discharge
of the two acknowledged union leaders."
We find that the respondent has discriminated in regard to the
hire and tenure of employment of Campbell and Kroum to discour-
age membership in the Union, and has thereby interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
We further find that the strike which began on June 10, 1937, was
caused, as the respondent concedes, by the discharges of these men,
which discharges we have found to be unfair labor practices. The
strike is a current labor dispute and the strikers retain their status
as employees.
D. The refusal to bargain, collectively in good faith
1. The appropriate unit
The complaint alleged that the unit appropriate for the purposes
of collective bargaining consisted of all the employees in the re-
7 There is no evidence in the record that prior to the discharge of Campbell and Kroum
either the Union or the employees took any formal strike action for any purpose.
8 That this was the respondent 's attitude and that it discharged the men for the reason
mentioned above is illustrated by the contentions it makes in its brief filed with the
Board The following is an excerpt from the brief
We have tried in this brief to discuss the findings of the Trial Examiner dis-
passionately and to point out the errors therein The respondent feels that a gross
injustice has been done it by the Trial Examiner in his report and recommendations.
This is not a case like so many others coming before the Board where employees who
have been under-paid, forced to work long hard hours and have been discharged
because they took necessary action to piotect themselves . Here is a comparatively
small business laboring under financial difficulties where the employees were satisfied
with their wages, hours of labor and working conditions . Along comes an outside
influence, not solicited or desired by the employees , which seeks to have the em-
ployees join a union so that it may force upon the employer a closed shop Neither
the employer nor the employees wanted a closed shop. It was not to their best
interests . In all of this both were sell within their rights as American citizens.
The respondent made no objection to the employees joining a union if they desired
but they did not want to do so The agitation from without caused turmoil within
to which the employer rightfully objected . Two employees who had joined the union
found that by reason theieof they would be unable to continue unless there was a
closed shop . Their union would not permit them to continue work otheri,ise. The
union was threatening to call a strike, not because there was any controversy over
wages , hours of service or working conditions , but because the employer declined to
sign up for a closed shop These employees werc advised to take a lay-off until the
situation could be clarified . [ Italics ours.]
LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 879
spondent's machine shop. It appears from the record that, more
precisely, the unit claimed to be appropriate consists of the 21 em-
ployees who voted at the election of July 9, 1937. The respondent
makes no contrary contention.
We find that the employees of the respondent, exclusive of office
workers, salesmen, foremen, and supervisory officials, constitute a
unit appropriate for the purposes of collective bargaining and that
said unit will insure to employees of the respondent the full benefit
of their right to self-organization and collective bargaining and
otherwise effectuate the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
As previously noted, an election was conducted by the Regional
Director on July 9, 1937, among the respondent's employees included
in a unit which we have found to be appropriate. At this election 11
of the 21 persons who voted designated the Union as their represen-
tative for the purposes of collective bargaining. The respondent
stated at the hearing that, as a result of this election, it conceded
that the Union represented the majority of its employees in the
appropriate unit.
We find that on July 9, 1937, and at all times thereafter the Union
was the duly designated representative of the majority of the em-
ployees in an appropriate unit, and, pursuant to Section 9 (a) of
the Act, was the exclusive representative of all the employees in such
unit for the purposes of collective bargaining in respect to rates of
pay, wages, hours of employement, and other conditions of employ-
ment.
3. The refusal to bargain
As stated above, when the respondent met with the Union's coin-
mittee on July 12, it asserted that this committee did not truly rep-
resent the Union. Its basis for this position was that the committee
had not been appointed after the election which had determined to
the respondent's satisfaction that the Union represented a majority
of the respondent's employees in the appropriate unit. The same
position with respect to the committee's authority was maintained
by the respondent at all times thereafter and reasserted at the hearing.
As we have noted in other cases, however, the respondent was not
entitled in this situation to question the representatives which the
union, representing a majority of its employees, chose to send for
the purposes of negotiations with it.9
9 Matter of Piqua Munising Wood Products Company and Federal Labor Union, Local
18787, 7 N. L. R . B. 782.
. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the respondent did not consider the committee as the duly
authorized representative of the Union or accord it recognition as
such, the discussion which the respondent's representatives had with
this committee cannot be regarded as having satisfied the duty im-
posed upon the respondent by Section 8 (5) of the Act. In view of
the fact that the respondent withheld essential recognition, its posi-
tion expressed in its brief to the effect that it was "willing to dis-
cuss matters of interest with any representatives of the Union
whether they were official or not" does not suffice. Since the re-
spondent did not even recognize the committee as a proper party
with whom to negotiate, it would, of course, never have entered into
an agreement with the Union through the committee and, in fact,
did not enter into such an agreement.
Accordingly, we find that the respondent on July 12, 1937, and
at all times thereafter, refused to bargain collectively with the
Union as the representative of its employees in the appropriate unit
in respect to wages, hours of employment, and other conditions of
employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed 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 unfair
labor practices described above. The respondent, in addition, will be
ordered to bargain collectively with the Union if requested to do so.
We have found that Campbell and Kroum were discharged by the
respondent because of their union activities and membership. The
respondent has not offered them reemployment since their discharge.
They are, therefore, entitled to their former positions and to back pay
from the date of their discharge to the date when the respondent
offers them reinstatement, including the period of the strike which
was caused by the discriminatory discharges.10 Although Campbell
and Kroum testified at the hearing that they would not return to
the respondent's employ as long as the Union's strike against the
10 Matter of Atlas Mills, Inc. and Textile House Workers Union No. 2269, United Textile
Workers of America, 3 N. L. R. B. 10; Matter of Star Publishing Company and Seattle
Newspaper Guild, Local No. 82, 4 N. L. R. B. 498, enforcement granted National Labor
Relations Board v. Star Publishing Company, 97 F. (2d) 465 (C. C. A. 9th).
LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 881
respondent continued, we do not consider this conclusive in the deter-
mination of the appropriate remedy for the respondent's unfair labor
practices. Such testimony cannot be regarded as an unequivocal
assertion that the men would not have returned had such an offer
been made. Rather, it was the type of statement which any union
member, more particularly a discriminatorily discharged one, would
make if publicly questioned concerning his probable course of action
with respect to working during the pendency of a strike caused by
his own discriminatory discharge. Moreover, the respondent never
actually made any offer of reinstatement to either of the men.
We shall order the respondent to offer reinstatement to the dis-
charged employees and to make them whole for any loss of pay they
have suffered by reason of their respective discharges by payment
to each of them of a sum equal to the amount which he normally
would have earned as wages from the date of his discharge to the date
of the offer of reinstatement, less his net earnings "l during said
period.
Since the strike was caused, as we have found, by the respond-
ent's unfair labor practices, we shall, in accordance with our usual
custom, order the respondent, upon application, to offer reinstate-
ment to their former or substantially equivalent positions to those
employees who went out on strike and have not since been fully rein-
stated. Such reinstatement shall be effected in the following manner :
All employees hired after the commencement of the strike shall, if
necessary to provide employment for those to be offered reinstate-
ment, be dismissed. If, thereupon, by reason of a reduction in force
there is not sufficient employment immediately available for the re-
maining employees, including those to be offered reinstatement, all
available positions shall be distributed among such remaining em-
ployees in accordance with the respondent's usual method of reducing
its force, without discrimination against any employee because of his
union affiliation or activities, following a system of seniority to such
extent as has heretofore been applied in the conduct of the respond-
ent's business. Those employees remaining after such distribution,
for whom no employment is immediately available, shall be placed
upon a preferential list prepared in accordance with the principles
"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 $590, 8 N. L. R. B. 440. Monies received
for work performed upon Federal , State, county , municipal , or other work-relief projects
are not considered as earnings , but, as provided below in the Order, shall be deducted from
the sum due the employee , and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal , State, county, municipal , or other government or govern-
ments which supplied the funds for said work-relief projects.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
set forth in the previous sentence, and shall thereafter, in accord-
ance with such list, be offered employment in their former or in
substantially equivalent positions, as such employment becomes avail-
able and before other persons are hired for such work.
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. International Association of Machinists, Local No. 1531, is .a
labor organization, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Donald Campbell and H. J. Kroum, thereby discouraging
membership in International Association of Machinists, Local No.
1531, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The employees of Lindeman Power Equipment Company, ex-
clusive of office workers, salesmen, foremen, and supervisory officials,
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the Act.
5. International Association of Machinists, Local No. 1531, was on
July 9, 1937, and has been at all times thereafter the exclusive repre-
sentative of all such employees for the purposes of collective bar-
gaining, within the meaning of Section 9 (a) of the Act.
6. By refusing to bargain collectively with International Associa-
tion of Machinists, Local No. 1531, as the exclusive representative
of its employees in an appropriate unit, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (5) of the Act.
7. 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 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, Lindeman Power Equipment Company, Yakima, Wash-
ington, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Association of
Machinists, Local No. 1531, or any other labor organization, by
LINDEMAN POWER AND EQUIPMENT COMPANY ET AL. 883
discharging any of its employees or in any other manner discrim-
inating in regard to their hire or tenure of employment or any term
or condition of their employment because of membership or activity
in International Association of Machinists, Local No. 1531, or any
other labor organization;
(b) Refusing to bargain collectively with International Associa-
tion of Machinists, Local No. 1531, as the exclusive representative
of all its employees, exclusive of office workers, salesmen, foremen,
and supervisory officials, in respect to rates of pay, wages, hours of
employment, and other conditions of employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining and 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) Offer to Donald Campbell and H. J. Kroum immediate and
full reinstatement to their former positions without prejudice to
their seniority and other rights and privileges;
(b) Make whole Donald Campbell and H. J. Kroum for any losses
of pay they have suffered by their discharge by payment to each of
them of a sum of money equal to that which each would normally
have earned as wages from June 9, 1937, to the date of the offer of
reinstatement, less his net earnings during said period ; deducting,
however, from the amount otherwise due to each of the said em-
ployees, 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, municipal,
or other government or governments which supplied the funds for
said work-relief projects;
(c) Upon application, offer to those employees who went out on
strike on June 10, 1937, and thereafter, immediate and full reinstate-
ment to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges, in the
manner set forth in the section entitled "Remedy" above, placing
those employees for whom employment is not immediately available
upon a preferential list in the manner set forth in said section;
(d) Make whole the employees ordered to be offered reinstatement
for any loss of pay they may suffer by reason of the respondent's re-
fusal to reinstate them, upon application, following the issuance of
this Order, by payment to them, respectively, of a sum of money equal
to that which each would normally have earned as wages during the
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period from five (5 ) days after the date of such application for rein-
statement to the date of the offer of employment or placement upon
the preferential list required by paragraph (c) above, less his net
earnings during that period; deducting, however, from the amount
otherwise due to each of the said employees, monies received by said
employee during said period for work performed upon Federal, State,
county, municipal, or other work -relief projects , and pay over the
amount so deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(e) Upon request, bargain collectively with International Associa-
tion of Machinists, Local No. 1531, as the exclusive representative of
all its employees , exclusive of office workers , salesmen, foremen, and
supervisory officials, in respect to rates of pay , wages , hours of
employment, and other conditions of employment;
(f) Post immediately in conspicuous places at its plant notices stat-
ing that Lindeman Power Equipment Company will cease and desist
in the manner aforesaid , and maintain such notices for a period of
sixty (60) consecutive days from the date of the posting;
(g) Notify the Regional Director for the Nineteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply therewith.