Mt. Clemens Pottery Co.

National Labor Relations Board - Board Decisions

Jan 6, 1943

46 N.L.R.B. 714 (N.L.R.B. 1943)

In the Matter of MT. CLEMENS POTTERY COMPANY AND S. S. KRESGE
COMPANY and LOCAL INDUSTRIAL UNION #1083, UNITED POTTERY
WORKERS, AFFILIATED WITH THE C. I. O.
Case No. C-2316.-Decided January 6,19./1.3
Jurisdiction : dinner ware manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coei cion: anti-union statements, speech, notice,
and letter; interrogation concerning union activity.
Company-Dominated Union: formation following campaign of opposition to
"outside" union formation suggested by supervisory employee-support
making of speech and circulation of petition on, behalf of "inside" union on
company time and property with knowledge and assistance' of supervisory,
employees; statements of preference for "inside" organization by supervisory
employees ; assistance by supervisory employees in obtaining membership ; par-
ticipation by employer in pay-roll check with "inside" organization following'
claim of majority -designation by "outside" union ; permitting members of
"inside" union to remain in'plant to combat strike activity of "outside" union.
Discrimination: discharges and lay-offs because of union membership and activ-
ities; allegations dismissed as to employees,who, by refusing to work overtime,
and leaving their jobs before close of working day, indicated their unwilling-
ness to continue working on terms prescribed by employer
Remedial Orders :'cease-and desist unfair labor practices; dominated organiza-
tion ordered disestablished ; contracts with dominated organization abrogated ;
unfair-labor-practice strikers ordered reinstated; striker sentenced to 30 days,
in jail for malicious destruction of non-striking employee's property omitted
from reinstatement order; minor acts of misconduct during strike held not to
bar reinstatement.
Practice and Procedure : complaint as to parent company dismissed where
evidence failed to establish control by it of employer's labor relations policies
and practices.
DECISION
AND
ORDER
On August 28, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding,) finding that the respondent,
Mt. Clemens Pottery Company, Mt. Clemens, Michigan, herein called
the ,Pottery,' had engaged in and was engaging in certain unfair labor
On September 1, 1942, the Trial Examiner issued an Erratum, wherein he corrected
a certain subparagraph in the section entitled "Recommendations" by inserting language
previously omitted through inadvertence
2 S. S Kresge Company' was also named in the complaint as a party respondent. The
Trial Examiner recommended that the complaint be dismissed as to it.
46 N. L R. B., No. 85.
714
D
r
MT.' 'CLEMENS POTTERY , COMPANY''-, 715
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set out in the copy of the Intermediate
Report attached hereto. Thereafter , the Pottery and the Cooperative
filed exceptions to the Intermediate Report and briefs in support of the
exceptions . The United has not excepted to the findings and recom
mendation of the Trial Examiner. Oral argument , in which the Pot-.
tery, S. S. Kresge Company , and the Cooperative participated, was
had before the Board on November 17, 1942. The Board has consid-
ered the rulings of the Trial Examiner at the hearing and finds that no,
prejudicial error was committed . The rulings are hereby affirmed.
The Board has considered the Intermediate Report , the exceptions'
and briefs , and the entire record in the case, and hereby adopts they
findings, conclusions , and recommendations of the Trial Examiner,
except in the respects noted below : -
1. The Trial Examiner found that the Pottery had discharged Paul
Starkey on August 16 , 1941 , because of his membership and activities,
in the United . We do not agree . Although the Pottery was aware
that Starkey was prominent in the United , we are satisfied that he was
not discharged for this reason . The, undisputed evidence establishes
that on the day prior to his discharge Starkey not only failed to ascer-
tain definitely the water level in one of the boilers under his care while
the warning whistle was blowing, but ceased work to talk to a fellow,
employee notwithstanding the continued blowing of the warning:
whistle. It is plain that such neglect of duty involved the possibility
of serious injury to life and property . Upon the entire record, we are
satisfied that the Pottery discharged Starkey because it entertained a-
reasonable belief, based upon its investigation of Starkey 's conduct,,
that Starkey was negligent in the performance of his duties. - We find,
therefore , that the Pottery has not discriminated against Paul Starkey,
and will order that the complaint be dismissed as to him. '
2. The Trial Examiner found that , by discharging Floyd Pearl„
Nicholas Dacko, ;William Behnke, Stanley Holmes, and Nick Mokanyk.
on November 22, 1941 , the Pottery discriminated against these em-
ployees because they had engaged in concerted activity protected by,
the Act. , The Pottery urges - in substance that the three last-named
employees were discharged for walking off their jobs before the close
of the working day and that Pearl and Dacko were discharged, for the
reason that they had,, without permission , pulled switches in an effort
to' stop production. '
We are of the opinion that, by refusing to work overtime and leaving,
their jobs before the close of the working day, these employees clearly-
ihdicated ' their ' unwillingness to 'continue working on the terms pre-
scribed .by the. Pottery: When they returned, to work the following'
morning; the Pottery had reason'to believe that they 'would ' again,en
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gage in like activity whenever they'should be required to follow similar
work orders.3 The Pottery was, under the circumstances, not prohib-
ited by the Act from refusing to permit them to return until they
indicated a disposition to accept the Pottery's terms and conditions
of employment. Since, however, the work of Behnke, Holmes, and
Mokanyk ceased in consequence of and in connection with a labor dis-
pute concerning the terms of their employment, they remained em-
ployees within the meaning of Section 2 (3) of the Act, and the Pottery
could not terminate their employment merely because they had en-
gaged in such activity. The dispute, together with the unfair labor
practices, led the employees to take a strike vote the next day. Conse-
quently, by giving Behnke, Holmes, and Mokanyk their pay on the
morning of 'November 22, 1941; and telling them that they could not
return to work, the Pottery did not sever 'their status as employees.'
However, the discharge of Pearl and Dacko was motivated by the fact
that they had, without permission; tampered with property by pulling
switches in the plant, and they were not penalized because they had
lawfully ceased work in concert with others. We find, therefore, that
Pearl and Dacko were discharged for lawful cause and ceased to be
employees of the Pottery on and after November 22, 1941.
We find, for the reasons stated herein, that the Pottery did not dis-
criminate against Floyd Pearl, Nicholas Dacko, William Behnke,
Stanley Holmes, and Nick Mokanyk on November 22, 1941.
The strike which began on November 24, .1941, was caused in sub-
stantial, measure by unfair labor practices. From October 1940, and'
continuing up to and during the strike, the Pottery, through its agents,
,engaged in numerous unfair labor practices aimed at destroying the
United. These included the making and publishing of various anti-
union statements, and documents designed to discourage adherence'
to the United; dominating'and interfering with the formation of the
Cooperative and contributing support thereto in an attempt to dissi-
pate the strength of the United; and discriminating in regard to the
hire and tenure of employment of its employees who were members of
the United by discharging Edwin Suer, Adam Lahl, John Felong,,
Arthur Baxter, Samuel Kogelman",_Stanley Reeder, Joyce Brusseau
Green, and Alvin Stark, by laying off Lillian Socia, Floyd Pearl, and
Louis Thoel, and by prolonging the lay-off of Stella Baade and George
Houthoofd. The evidence establishes that the Pottery's unlawful:
course of conduct was considered and discussed by the membership
of the United for a considerable period up to the time of the strike.
_ ,3 Indeed, certain employees who were members of the United had engaged in similar
conduct on July 2, 1941.
4 Matter of Wilson & Co., Inc. and United Packinghouse Workers of America, Local No.
49, C. 1 0., 30 N. L. R. B. 314, enf 'd Wilson & Co ., Inc., v. N. L. R. B., 124 F. (2d) 845
(C. C. A. 7). 1
MT. CLEMENS POTTERY COMPANY 717
At the meeting of the United on November 23, at which'it was decided
to strike on the following day, an organizer of the United . reviewed
the events which had occurred since the strike , of April 14, and the
members discussed , among other things, the discharges of Felong and
Baxter and certain acts of the Pottery which they felt demonstrated,
employer favoritism to the Cooperative. Moreover, by harboring a
group - of employees in-the plant during the night preceding the strike
of November 24, and by the statements of Foreman Starner to Larimer
during this strike, the Pottery continued to demonstrate its 'approval
and support of the Cooperative and its opposition to the United.
While the Pottery's refusal to permit the five employees to return to
work on November 22 immediately precipitated the strike , we are sat-
isfied and find that the Pottery's continued course of unfair labor
practices was a substantial and motivating factor in causing and pro-
longing the.strike of November 24, 19415
3. , We have, found above that the Pottery did not discriminate
against Floyd Pearl , Nicholas Dacko, William Behnke, Stanley
Holmes, and Nick Mokanyk on November 22, 1941. Since , as we have
already found, Pearl , and Dacko ceased-to be employees on November
22, our order providing for, the reinstatement or placement upon a
preferential list of striking employees will not include them, although
they joined the strike of November 24 . Since Behnke , Holmes, and
Mokanyk remained employees, and since the evidence shows,that they
joined the strike,of November 24, they will be included within the
terms of our order providing for the reinstatement or .placement upon
a preferential list of striking employees.6 -.
14. 'The Trial Examiner found that the conviction of Albert Thomas,
a striking employee , who was sentenced to 30 days in jail for malicious
destruction of a non -striking employee 's property was not sufficient
to bar Thomas from reinstatement. We find that it would not effec-
tuate the policies of the Act to order the reinstatement - of-Thomas,,
and, accordingly , our order providing for the reinstatement or place-
ment "upon a, preferential list - of striking employees will exclude
'Thomas.
5. In his Intermediate Report, ,the Trial Examiner has set .forth,
and thereafter credited , a portion , of the testimony of Reeder as to
what Foreman Parrott stated to him on October 21 , 1940, after Par-
rott had told him that he was never a very good batter-out and that he
5 Cf Republic Steel Corporation v. N. L R . B, 107 F. ( 2d) 472 ( C. C. A 3 ) ; N L R. B
Y. Stackpole Carbon Co., 105 F. ( 2d) 167 (C. C. A. 3).
s We have considered the Pottery's contentions that certain conduct of Holmes and
Behnke was such as to bar them from reinstatement . We agree with the Trial Examiner
that these contentions are without merit.
7Republio Steel Corporation v. N. L. R. B, 107 F. ( 2d) 472 (C. C. A 3)•.
718 DE,CISIONS_,OF NATIONAL "LABOR. -RELATIONS BOARD
had better-go to work sticking handles. Reeder's entire'testimony as
to what Parrott then added is as follows :
I asked'hirn how come the sudden change all of a sudden when
he told me just a short time ago I would be one of the last ones
to be laid off and now find out my work was not good and he
said, "You know what is going on outside the shop, don't you,
this CIO union business?" I says, "Yes". He says, "you know
Mr. Doll won't stand for it. He would close the place down just
like that-" and banged his hand on the desk when he said that.
I told him I heard some rumors I had been elected steward in the
union. He, said, "Well, I heard some things ^ myself."
We credit Reeder's entire testimony as set forth and find, as did the
Trial Examiner, that the, Pottery discriminated in regard to his hire
and tenure of employment. `
6. There are certain minor and insubstantial inaccuracies in the
Intermediate Report, which we hereby correct: (a) The Trial Exam-
iner found that early' in 1941, while equipment was being moved out
of the plant to make room for additional machinery, ,Gottschalk said
to Claude Copeland, foreman of the maintenance crew, "What are
we going to do with all the dippers after we get all these machines
you-have, in?"; and that Copeland replied, "If they 'don't stop bring-
ingg in the union we will have a lot:more machines in." WO-find that
the conversation took place between Luela Rohrback, an employee,
and Claude Copeland in the presence of Gottschalk. (b) At one
point in the Intermediate, Report the Trial Examiner referred to
Doll's speeches of October 3 and 4; 1941, and at another' point to the
refusal of the Pottery-on October 7, 1941, to assign Kogelman to
work other than batting-out large ware. In both instances we find
that the reference to -1941 is in fact to 1940. (c) In the discussion of
Felgng's discriminatory discharge, the Trial Examiner found that
"Felong denied to Rouleau having asked for the job... ." We
find that Felong denied to Doll having asked for the job. (d) In
the discussion' of Baxter's discriminatory discharge, the Trial Exam-
iner found that Baxter "has not worked since October 7, 1941." We
find that on November 10, 1941, Baxter obtained seasonal work as a
boiler operator for another company and that he desires reinstate-
ment by the Pottery. (e) In footnote 56 the Trial Examiner refers
to footnote 17, supra. We find that this refers to footnote 16, supra.
ORDER '
Upon the entire record 'in the case, and,pursuant to ,Section 10, (c)
'of the National Labor ^ Relations -Act, the National' Labor Relations
Board hereby orders that the respondent, Mt. Clemens Pottery Com-
MT. CLEMENS POTTERY COMPANY- - 719
pany, Mt. Clemens, Michigan, its - officers, agents, 'successors, and
assigns shall : " - -
1. Cease and desist from :
(a)' In any manner dominating or interfering with the adminis-
tration of Pottery Workers Cooperative, or with the formation or
administration of any other labor organization of its employees, and
;from contributing support to Pottery Workers Cooperative or to any
.other labor organization of its employees;
(b), Recognizing Pottery Workers Cooperative as the representative
of any of its employees for the purpose of dealing with the Pottery
concerning grievances, labor disputes, rates of pay; hours of employ-
ment, or other conditions of employment; -
(c) Giving effect to the contract of May' 7-, 1941, with Pottery
Workers Cooperative or to any extension, renewal, modification or
supplement thereof, or to any superseding contract- with said organi-
zation which may now be in force;
(d) Discouraging membership in Local Industrial Union #1083,
United Pottery Workers, affiliated with- the Congress of Industrial
Organizations, or any other labor organization of its employees, by
'discharging or laying off any of its employees or in any other manner
discriminating in regard to their hire and tenure of employment or
any term or condition of their employment-;
(e) 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
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid and protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
• (a) Withdraw all recognition from and ' completely disestablish
Pottery Workers Cooperative as the representative of any of its
employees for the purpose of dealing` with the Pottery concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
-or other conditions of employment; - '
(b),,-Offer to Edwin Suer, Adam Lehl, John Felong, and Arthur
Baxter immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority
and other rights and privileges, displacing, if necessary, any em-
ployees who may have succeeded. to their former positions or'to any
other position for which they are qualified and which -could have
been offered to the above-named employees at the time their employ-
ment ceased;. - -
(c), Make whole Edwin Suer, Adam Lehl; John Felong and- Arthur
Baxter for any loss of pay they may have suffered by reason of the
720 DEICISION'S OF NATIONAL LABOR RELATIONS BOARD
Pottery's discrimination in regard to their hire and tenure of employ-
ment and the terms and conditions of their employment by payment
to each of them of a sum of money equal to that which he would
-normally have earned as wages from the date of such discrimination
to the date of the Pottery's: offer of reinstatement, less the net earn-
ings of each during said period;
(d) 'Make whole Joyce Brusseau Green, Stanley Reeder, and Alvin
Stark for, any loss of pay'that may have suffered by reason of the
Pottery's discrimination in regard to their hire and tenure of employ-
ment and the terms and conditions of their employment, by payment
- to Green' of a sum of money equal -to that which she would normally
have earned as wages from the date of such discrimination to June
9, 1941, the date on which she was rehired, less her net earnings
during said period; by payment to Reeder of a sum of money equal
to that which he would normally have earned as wages from the date
of such discrimination to the date on which he obtained the employ-
ment at which he was engaged at the time of the hearing, less his
net earnings during such period; by payment to Stark of a,sum of
money equal to that which he normally would have earned as wages
.from the date of the discrimination against him to May 27, 1941,
-the date on which -he was offered reinstatement, less his net earnings
during said period ;
'(e) Make whole Lillian Socia, Floyd Pear], Louis Thoel, Stella
Baade, and George Houthoofd for any loss of pay they .may have
suffered by reason of the Pottery's discrimination in regard to their
hire and tenure of employment and the terms and conditions of their
employment, by payment to each of them of a sum of money equal
to that which each would have earned during the period of his or
her discriminatory lay-off, less his or her net earnings during said
periods ; -
(f) Offer to those employees who went on strike on November 24,,
1941, or thereafter, except Floyd Pearl, Nicholas Dacko, and Alpert
Thomas, and who have applied for and have not been offered rein-
statement, immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
' or other rights and privileges, dismissing if necessary any persons
hired by the Pottery after November 24, 1941, the date of the strike,
and not in the employ. of the Pottery on said date. If thereupon,
because ,of the reduction in force, there is not sufficient employment
available for the employees to be offered reinstatement, available
'positions'shall be distributed among all employees, without discrim-
ination against any employee because of his union affiliation or
activities, following such a system of seniority or other non-discrim-
inatory practice to such an extent as has heretofore been applied in
MT. CLE 'MENS POTTERY COMPANY 721
the conduct of the Pottery's business . Those employees , if any,
remaining after such distribution , for whom no employment is imme-
diately available shall be placed upon a preferential list and offered
their- former or substantially equivalent positions as such employment
'.becomes available and before other persons are hired , for such work
in the order determined by such system of seniority or non-discrim-
inatory practice as has heretofore been followed , by the Pottery;
(g) Upon application offer to those employees- who went on strike
on November 24, 1941, or thereafter , except Floyd Pearl , Nicholas
Dacko, and Albert Thomas, and who have not previously applied for
reinstatement , immediate and full reinstatement to, their former or
substantially equivalent positions without prejudice to their seniority
or other rights and privileges, in the manner provided in paragraph
2 (f) above; and place those employees for whom employment is not
immediately -available upon a preferential list in the manner set
forth in said paragraph and thereafter , in said manner , offer them
employment as it becomes available; -
(h) Make whole the employees named in paragraph 2 (f) above,
for any loss of pay they may have suffered by reason of the Pottery's
refusal, if'any, to reinstate them, pursuant to paragraph 2 (f) above,
by payment to each of them of a sum of money equal to that which
he or she would normally have earned as wages during the period
from five (5) days after the date on which he or she applied for
reinstatement to the date of the Pottery's , offer of reinstatement or
placement upon a preferential list, less his or her net earnings during
said period;
(i) Make whole the employees named in paragraph 2 (g) above,
for any loss of pay they may suffer by reason of the Pottery's refusal,
if any , to reinstate them, pursuant to paragraph 2 (g) above, by
payment to each of them of a sum of money equal to that which he
or she would normally have earned as wages during the period from
five (5) days after the date: on. which he• or•she applies . for_reinstate-
ment to the date of the Pottery's offer of reinstatement or placement
upon a preferential list, less his or her net earnings during said
period ;
(j) Upon-application by Samuel Kogelman within forty (40) days
after his discharge from the armed forces of the United States, offer
him reinstatement in accordance with the terms and conditions set
forth in paragraph 2 (b) above;
(k) Make whole Samuel Kogelman for any loss of earnings he may
have suffered by reason of the Pottery's discrimination against him,
by payment to him of a sum of money equal to the amout he would
normally have earned as wages during the periods ( 1) between the
date of his discharge by the Pottery and the date of his induction into
military service, and (2 ) between the date five (5 ) days after Kogel-
504086-43-vol. 46-46
722 DEOISIO' S- OF -NATIONAL LABOR ,RELATIONS BOARD
man's timely 6 application for reinstatement and the 'date of the offer
-of-reinstatement by the Pottery, less his net earnings during each of
those periods;
(1) Immediately post notices to its employees in conspicuous places
in its plant at Mt. Clemens, Michigan, and maintain such notices for
-a period of not less than sixty (60) consecutive days from the date of
posting, stating : (1) that the Pottery will not engage in the conduct
from which it is ordered to cease and desist in paragraphs 1 (a) to (e),
inclusive, of this' Order; (2) that the Pottery will take the affirmative
'action set forth in paragraphs 2 (a) to (k), inclusive, of this Order;
and (3) that the Pottery's employees are free to become or remain
members of Local Industrial Uiiion #1083, United Pottery Work-
ers, affiliated with the Congress of Industrial Organizations, and that
the Pottery will riot discriminate against any employee because of
membership or activity in that organization; -
(m) Notify the Regional Director for the Seventh Region in writing
within ten (10) days from the date of this Order what steps the Pottery
.has taken to comply herewith.
dismissed as to S. S. Kresge Company.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
:dismissed insofar as it alleges that the Pottery has engaged'in unfair
labor practices by diacrinIinating in regard to the hire and tenure "or
terms and conditions of employment of Walter Nofzinger, William
Wendt, William Spanswick, Elsie Graham, Evelyn St. Mary (Hil-
dinger), and Paul Starkey.
AND IT IS ALSO ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Pottery has engaged in unfair labor
`practices by discriminating in regard to the hire and tenure of employ-
ment or terms and conditions of employment of Floyd Pearl, Nicholas
-Dacko, William Behnke, Stanley Holmes, and Nick Mokanyk on No-
-veinber 22, 1941.
INTERMEDIATE REPORT
Mr. Woodrow J. Sandler and Mr. Jerome H. Brooks, for the Board.
Mr. B. V. Nunneley, of Mt.. Clemens, Mich., and Mr. P. -J.,Donovan and Mr.
Albert E. Meder, of Detroit, -Mich., for the respondent Mt. Clemens Pottery
Company.
Mr. Frank H. Boo's, of Detroit, Mich., for the respondent S. S. Kresge
company.
Mr. August Scholle, of Detroit, Mich., and Mr. Edward Lamb,' of Toledo,
Ohio, for the United. ,
Mr. Kenneth I. Logan, of River Rouge, Mich., and Mr. John Wilson Petrie,. of
Mt. Clemens,_Mich., for the Cooperative.
IT IS FURTHER ORDERED that the complaint be, and it hereby is,
s As provided in paragraph 2 (1) of this Order.
Lamb's appearance was entered for. the United the first day of the -hearing. - however,
he never was present at the hearing.
MT. CLEMENS POTTERY COMPANY - 723
STATEMENT OF THE CASE
Upon an amended charge z duly filed by Local Industrial Union #1083, United
Pottery Workers, affiliated with the Congress of Industrial Organizations, herein
called the United, the National Labor Relations Board, herein called the Board,,
,by the Regional Director for the Seventh Region (Detroit, Michigan) issued its
complaint dated February 18, 1942, against Mt. Clemens Pottery Company, Mt.
Clemens, Michigan, herein at tunes referred to as the Pottery, and against
S. S. Kresge Company, Detroit, Michigan, the two corporations being at times
collectively called the respondents, alleging that the respondents had engaged in
and were engaging in unfair labor practices affecting commeice, within the mean-
ing 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. The complaint and
notice of hearing were duly served upon the respondents, the United, and the
Pottery Workers Cooperative, herein at times called the Cooperative. Prior to
and at the hearing, mentioned below, the complaint was amended in certain
respects.
The complaint; as amended, alleged in substance that the Pottery is a subsidiary
,of S. S Kresge Company, the latter owning and controlling all the issued capital
stock of the Pottery. The complaint also alleged upon information and belief that
by virtue of such stock ownership and in interlocking directorate the respondent
S. S. Kresge Company controls the management and operations of 'the Pottery.
Concerning the unfair labor practices the complaint, as amended, alleged in sub-
stance that the respondents : (1) since in or about August 1940 had engaged in a
plan and course of action to interfere with the self-organisation of their em-
ployees, with their efforts 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 purposes of collective bargaining or other mutual aid
and protection, thereby violating the rights guaranteed hi Section 7 of the Act ;
(2) had engaged in such a plan and course of action at the Pottery's plant by
intimating and threatening discharge or other discrimination against employees
if they joined or assisted the United, and that they would be secure against such
discrimmnation if they repudiated the United; warning employees against affilia-
tion,with the United or'any other "outside" labor organization ; disparaging and
vilifying the United; seeking to elicit information fiom employees regarding the
United's meetings and keeping its meeting places under surveillance ; intimating
to employees that the respondents knew of their attendance at United meetings;
threatening to close the Pottery's plant if the employees joined the United; posting
bulletin-board notices designed to discourage self-organization ; circularizing
striking employees in order to undermine their, confidence in the United, and
soliciting, them to return to woi;k{ inciting employees not in,sympathy with the
United to commit acts of violence against United members; reducing hours of
work of employees in sympathy with the United because of such sympathy ; trans-
ferring employees to-less desirable work because of their sympathy for the United ;
seeking to demonstrate to employees that the Pottery's employees received higher
,wages than those in plants, organized by labor organizations, •seeking,to persuade
employees in sympathy with the United to find employment elsewhere ; entering
into„ agreements-with other employers that the respondents would not employ
members of, the United; (3) in or about April 1941, caused the foimation of the
". s The 'ori'ginal ` charge was filed October 21, 1910 Amended charges were filed "April 22
and 25, May 7, and September 23, 1941, and January 23 ,:1942. During the hearing Board
counsel announced -tbat another amended' chaise had been filed on March 24 , 1942 The
eomplaint was never amended, however , on the basis of this last , mentioned amended charge.
724 DEICISIONS' OF NATIONAL LABOR RELATIONS BOARD
Cooperative at the Pottery's plant and since said date have dominated and inter-
fered with it and contributed financial and other support to it by making known
the respondents' hostility to the United as stated above; condoning, permitting,
and encouraging the Cooperative to hold organizational and other meetings on
the Pottery's property ; advising employees to form an "inside" labor organization
in opposition to the United; permitting use by the Cooperative of bulletin boards
'in the Pottery and denying their use to the United ; condoning, permitting, and en-
couraging participation in Cooperative affairs by the respondents' supervisory
employees ; permitting and encouraging' full use of the Pottery's plant to Coop-
erative representatives for. Cooperative business and denying such use to the
United's representatives, receiving `and crediting the Cooperative's claim of
majority representation and denying the United an opportunity to present evi-
dence of a similar claim; signing a purported contract with the Cooperative on
May 7, 1941, notwithstanding the fact that the Cooperative's purported designa-
tion was obtained by the interference, coercion, or influence of the respondents
and that the Cooperative was well known to the respondents to be dominated
by them in its foimatnon' and administration, advising employees that the re-
spondents favored the Cooperative 'questioning employees who had withdrawn
froth the Cooperative as to why they had done so; (4) between September 24, 1940,
and November 22, 1941, terminated the employment of 18 named employees and
refused to reinstate them because of their membership in and activities in behalf
of the United and to discourage ,membership in and activities in behalf of the
United; (5) at various specified dates between October 15, 1040, and July 14,
1941,-laid off for stated periods of time nine named employees because of their
membership in and activities in behalf of the United and to discourage member-
ship in and activities in behalf of the United The complaint, as amended,
further alleged that the United's members and sympathizers, on or about No-
vember 24, 1941, went on strike at the Pottery's plant because of the unfair labor
practices mentioned above ; that the strike was caused and prolonged,by the
respondents' unfair labor p: actices and the strikers are entitled to reinstate-
ment upon application, and that the foregoing acts constitute unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1), (2), and ^(3) and
Section 2 (6) and (7) of the Act. -
The respondents each filed an answer to the complaint, denying that they had
engaged in any of the unfair labor practices alleged in the complaint , as amended.
Pursuant to notice, a hearing was held at Mt. Clemens, Michigan, from March
9 to April. 28, 1942, before William B. Barton, the Trial Examiner duly designated
by the Chief-Trial Examiner . The first day of the hearing the Cooperative made
a motion, filed prior to the 'hearing, for leave to, intervene. 'The motion was
granted as to those issues which arose because of the alleged violation of Section
8 (2) of .the Act. The Board, the respondents, and the Cooperative were repre-
sented by counsel, and the United by its representative,' and all participated in
the hearing Full opportunity to be heard, to examine and cross- examine wit-
nesses, and to introduce evidence on the issues was afforded all parties. During the
hearing the Pottery filed an amended answer alleging in substance that certain
specified unlawful acts of members of the United and its representatives were
a complete defense to the allegations of the complaint. During the hearing,
counsel for the Board moved that the complaint be dismissed in so far as it
alleged that the respondent had discriminated against Kenneth Jorgensen, Gordon
Dubay, and Rita Schulte (Englebert) with respect to hire and tenure of employ-
3 The first day of the hearing the regional director of the C I 0 entered an appearance
for the United, but he did not participate in the hearing thereafter He also entered the
appearance of Edward Lamb as counsel for the United, but Lamb was never present at the
hearing See footnote 1, supra.
r
MT. .CLEMENS POTTERY COMPANY 725
went. The motion was granted. ; Near the close of the hearing the respondent
S. S. Kresge Company renewed a motion,' denied without prejudice early, in'
the hearing, for an'order dismissing the allegations in the complaint, as amended,
that it had engaged in unfair labor practices. Ruling was reserved on this
motion. It is hereby granted for reasons set forth hereinafter.' At the close of
the hearing the Cooperative renewed a motion, also denied without prejudice
earlier in the hearing, to dismiss those allegations of the complaint, as amended,
which alleged that the respondents had contributed financial support to the
Cooperative. Ruling was reserved on this motion. The motion is granted for
reasons' stated below. Near the close of the hearing counsel, for the Board
moved that the complaint be amended to conform to the proof with respect to
dates and spellings of names. There was no objection and the motion was
granted. At the close of the hearing counsel were given opportunity to argue
orally before the undersigned. Only counsel for the Pottery availed themselves
of this privilege. After the hearing the Pottery, the Cooperative, and counsel
for the Board submitted briefs to the undersigned' '
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Mt. Clemens Pottery Company is a Michigan corporation with its principal
office and place of business at Mt. Clemens, Michigan. It has approximately 750
employees' in its plant located at that city, where it is engaged in the manufac-
ture, sale, and distribution of dinner ware. The basic raw materials used by
the Pottery in its Mt. Clemens plant are clay, fuel oil, and coal. The clay and
coal so used are shipped to that plant from points outside the State of Michigan.
Ninety percent of the dinner ware manufactured by the Pottery during the year
1941 was shipped by it to points outside the State of Michigan, and these products
had a sales price of approximately $1,750,000.
The Pottery is a wholly-owned subsidiary of the respondent S., S. Kresge Com-
pany, which is a Michigan corporation with its principal office and-place of busi-
ness in Detroit. It owns and operates approximately 671 retail stores in 26 dif-
ferent States and the District of Columbia.' During the last half of the year 1941,
it purchased 56.68 percent of the dinner ware manufactured by the Pottery. Of
the total dinner ware sold by this respondent, it obtains approximately 50'percent
from the Pottery. The respondent S. S. Kresge Company has ten members on its
board of directors ; the Pottery board has nine members.. Seven of the members
on the two respective boards of directors are identical. The respective offices of
president, secretary, and treasurer of the two respondent corporations are held
by identical 'persons.
II. THE ORGANIZATIONS INVOLVED
Local Industrial Union, #1083, United Pottery Workers, herein called the
United, is a labor organization affiliated with the Congress of Industrial Organiza-
tions, admitting to membership employees of the Pottery.
4 The complete content'of the motion is appended to 'the answer filed by'the respondent
S. S. Kresge Company.
5 See Section IV, infra
8 During the hearing the respondent S. S. Kresge Company submitted a-brief directed to
the question of jurisdiction over that respondent
' At peak production- the Pottery has more than 1,000 employees
8 This respondent also, through a subsidiary corporation, operates some stores in Canada.
726' DECISIONS OF :NATIONAL LABOR RELATIONS BOARD
The Pottery Workers Cooperative, herein called the Cooperative, is an -unaffil-
iated labor organization, admitting to membership employees of the Pottery.
III THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
In or about August 1940, the United began a campaign to organize-the employees
of the Pottery and obtained some members ' On October 3 and 4,)1940, during this
organizational activity of the United, the Pottery' assembled its employees at-
meetings in the plant cafeteria e Ravid Rouleau, superintendent of the Pottery,
was present at these meetings and made some introductory remarks, after which
Charles E. Dpll, vice president and general manager of the Pottery, read to the
employees a written speech. Doll told the employees, among other things, that
he had served as their representative, the consumer's representative, and the'
stockholders' representative; that the Pottery was the only such business in the
Unitd States which gave vacations with pay ; that he had gotten business for the-'
Pottery to keep people working when every other such plant's employees were
working half time or less; and that the Pottery was the only such business whose
employees received 53 weeks of pay per year for 51' weeks of work ; that "these
things and more you have not had to fight for ; they came to you voluntarily, and
you did not have to pay anyone part of your hard-earned money to get them" ;
that any unadjusted grievances existed because they had not been presented to
the proper parties;* that if they had been so presented they would have been im-
partially considered in the interest and rights of employees, consumer, and
stockholders; that "no outsiders helped to build this business,-and you know how,
much easier it is to tear a business down than to build it up"; that the Pottery had,
"some employees who feel that they have acquired a vision of wisdom for the•
future that makes all . .. past records look like the bunk" ; that those employees
had a right to their opinions, but "helpful leadership is not saying you can do
things, but proving it by what you have accomplished." Doll then concluded his
speech as follows :
If you have lost confidence in me, if you want to -put your faith in other--
leadership, the choice is yours. You must weigh carefully all that has gone
before, and all that will come after in the dark days of the new depression
that -will follow this sad war boom as surely -as night follows day. Where-
your true interests lie is the choice you must make; I say to you, don't act
like babes in the woods, don't behave like a flock of sheep, and don't learn
all of life's lessons the hard way. Yours must be the choice of leadership
that affects the future of yourselves and your families My advice and
leadership have been sound in the past, but if you decide it no longer offers
you 'steady work and good wages, make your decisions on the basis of-
wisdom and cold facts, not on hearsay and sympathy for other people's
troubles with which you are not familiar. Think carefully and remember ,
a man owes the same obligation to his, job as he thinks the job owes to him.
There are two sides to consider and your decision must carry conviction to
stand up for your rights as hard as the other fellow thinks he should stand'
up for his. I make no plea for myself or the Company, neither one of us
counts. The 1,000 people working in this plant and those dependent on them
count very much. If we part company yours is the choice, yours is the
responsibility, think- it over slowly, and carefully, so that in the future you
will not have to admit, "Well, maybe the `Old Man' did know what he-was
doing, and wasn't such a bad kind of a fellow to work with after all."
Approximately half the employees were called ' to the meeting on one day and` the remain-
der on the other.
MT. CLEMENS POTTERY COMPANY 727
The remarks made by Doll at these meetings are significant in view of -the
current attempt of the United to organize the Pottery's employees. Doll, in his -
testimony, stated, as is clear from the speech itself, that portions of the speech
had reference to the United's organizational activity that was taking place. -
During the month of October 1940, the United held some meetings at Barn-
Tavern, a meeting place near Mt. Clemens. The day after one of these meet-
ings, Ernest Harms, foreman of, the dipping department, in which there were
90 to 100 employees under his supervision, spoke to Margaret Yochum, secretary
and-a charter member of the United, in the presence of Lillian Socia, another,
charter member of the United, while these two employees were at work in the-
dipping department. Harms asked Yochum on this occasion whether she had
had a good time at Barn Tavern. Also one day early in October 1940, Harms
spoke to five girl employees in the dipping department. Ruth Ann Gottschalk,-
one of these employees, testified that Harms asked on ' this occasion if anyone
had been talking about anything new in the department. She testified further
about this conversation as follows :
and so I said, "Well, who do you mean?", and he said, "Has Lil
said anything to you?", and I said, "About what? The Union." And he
said, "Yes."
Gottschalk also testified that after Harms received a negative reply from the
girl employees mentioned above, Harms stated, "Well, I just heard some
rumors. You can go back to work now." Harms did not deny having engaged'
in the foregoing conversation, and the undersigned credits the testimony of'
Gottschalk regarding it as stated above.
Harms frequently called at the home of Clarence I. Burgess, one of the
employees under his supervision. He did so on Sunday, January 26, 1941, but
did not find Burgess at home The next morning during working hours Harms
told Burgess about this call and'Burgess informed Harms that lie had been in.
attendance at a United meeting when Harms called. Harms then asked Burgess
to talk to him at Harms' desk that evening. Burgess testified as follows
regarding the conversation at Harms' desk after -work that day :
A. Well, he wanted to know what I went over there for. First he said,
he • says,, "Why, what is wrong with you, Burgess'? I treated 'you. all "right
in this place". And lie wanted to know what I went-over there for. And'
he says, well, he figured he treated me all right as long as he has been
foreman there He says, "We always got along in here with any outside-_
organization or somebody from the outside telling us what to do." He-
,said he didn't see.why we-had to have somebody, butt in now.
Q. Anything further said? I ,
A. Well, he says, "Don't go", after we were all through, "don't go and,
tell anybody what we was talking about."
Harms admitted that after Burgess told him about having attended the union
meeting mentioned above, he inquired of Burgess whether he had treated Burgess
all right.10 The undersigned credits' Burgess' testimony about this conversation'
as stated above. - - -
10 Harms' version of the conversation was as follows :
Q (By Mr Nunneley .) What did you say about that (Burgess' attendance at the
United meeting) ?
A. I said, 'Well , I thought we got along all right , maybe something that I had done
that I didn't know of , maybe I could correct myself, if I haven't ' treated them -right r.
would like to know about it, anything I had done to them." He said I treated them all
right, and that was the end of that.
Q. Did you ask him about the union or did,he tell you9 '
A. I did not. I said, "I was out to your place ," and he told me where he was.
0
728 DEICISIONS' OF NATIONAL LABOR RELATIONS BOARD
Part of the dinner ware manufacturing process at the Pottery requires that,
a glaze be"placed on the ware as a finish. During the years 1939. 1940, 'an'd
1941, the Pottery was installing some automatic machinery to be used in spray-
ing such a glaze on the ware. Before the advent of this machinery, all such
work had been done by it group of employees known as dippers or hand dippers.
Early in 1941, while other equipment was being moved out of the plant to make'
room for another unit of such machinery, Gottschalk; mentioned above, said to
Claude Copeland, foreman of the maintenance crew, "What are we going to do
with all the dippers after we get all these machines you, have in?" Copeland
replied, "If they don't stop bringing in' the union we will have a lot more
machines in." "
About the middle of February 1841, there was posted on a bulletin board in
the plant a notice, subscribed with the name of Doll, Sr, which was as follows :
The reason you made application for work here was that you wanted
a job; the Company wanted a worker, and you appeared to be the kind
of a person whose employment would be of mutual benefit. Consequently,
you started to work here.
The wages you receive are earned by yoa.
Therefore, all matters of employment are between you and the Company.
Anyone who may tell you that your employment now or at any time in,
the future, is dependent upon any condition other than as stated above is
either ignorant or is attempting to mislead you.
It can be plainly stated by me that under no circumstances, either now
or at any future time, will I permit any employee to be coerced or intim-
idated with false remarks regarding his or her employment. A statement
made by anyone to you that you will be forced out of your job or made
to join any organization against your will in order to hold your job, is
positively a deliberate falsehood.
Any such instances of coercion or intimidation should be promptly re-'
ported to your foreman or to Supt. Ronieau.
At the time this notice was posted, both the United and the Brotherhood, of
Operative Potters, A. F. of L., were carrying on activities among the Pottery's
employees.' The evidence'fails to show that either the United or the Brother-
hood of Operative Potters had at any time in its campaign made use of false
remarks such as the notice describes. Under the circumstances, the effect of
the. notice was to discourage' the employees from exercising freedom of choice
with respect to union affiliation.
On April 14, 1941, the United called a strike at the Pottery and set up a picket
line in front of the plant 13 The strike lasted until May 13 and the plant was
closed during that time. About two weeks after the strike began, Ralph S.
Randolph , foreman of the molding and casting department, and Macon C Trabue,
foreman in the decorating department," called at the home of Marcel Dupont, an
employee in the glost belt department. Dupont was ii-member of the United
and had walked out at the time of the strike on April 14, 1941. Randolph and
Trabue asked Dupont the cause of the strike. They told Dupont they were calling
The finding as to this conversation is based on the uncontradicted testimony of Gott-
schalk. After the remark stated above, Gottschalk inquired of Copeland if a union was
being brought into the plant and Copeland answered , "well, I think you probably know more
about it than I do."
n The Brotherhood of Operative Potters, A . F. of L, held a meeting for the Pottery's em-
ployees on February 10, 1941.
11 Estimates of'the number of employees who, walked out on the day the strike was called
range from 160 to 400.
14 Trabue, in August 1941 , became a production supervisor in "the glost end of the shop."
0
1 1. MT. CLEME\TS POTTERY COMPANY 729 '
upon him because he was a member of the picnic committee ` and had been a
leader among the employees They also stated that they were not there to sell
him anything . Dupont told them that an additional employee was needed on
the glost belt and one of the switches connected with the belt could not be
reached easily enough to be of proper use in an emergency . Trabue,and 'Itandolpli
offered to make an appointment for Dupont with the management for the purpose
of arriving at an understanding about the difficulties involved Dupont also told
Trabue and Randolph that one of the causes of the strike was "the management
and the way the foremen handled the men." Dupont testified that Randolph
on this'occasion asked if he had ever seen anyone sign up union members in
the shop forcibly or otherwise and he replied in the negative ; that he stated
to Randolph and Trabue that he wag not in sympathy with the foreman or the
management and Randolph said, it was too bad because he was a "good fellow"
and there were some good jobs open in the plant. Randolph and Trabue testified
that they called at Dupont's home merely to find out the causes of the strike.
They did not specifically deny , however, Dupont 's testimony that Randolph
inquired whether Dupont had seen anyone sign up union members in the shop
or that Randolph had told Dupont after the latter's expression of opposition,to
the foremen and management, that it was too bad because Dupont was a "good
fellow" and there were some good jobs open in the plant ." Theundersigned,,
under all the circumstances , credits the testimony of Dupont as stated above.
In view of the subject matter of Randolph and Trabue ' s discussion with Dupont,
the undersigned is convinced and finds that these foremen called at Dupont's
home not merely to ascertain the causes of the strike, but to discourage union
activity.
About a week before the termination of, the strike of April 14 , 1941, Randolph
talked to Pearl when on the picket line Randolph said to Pearl on this occasion,
"Why call in these outside organizations and air your troubles to those ,fellows
in Detroit ; why didn' t you go to the Governor ?" 17 The employees frequently,
referred to Charles E. Doll, vice president and general manager ,of the Pottery,
as the Governor.
On or about April 15, 1941, during the strike which had been called by the
United, the Pottery mailed a letter to all except its office and supervisory em-
ployees. This letter recited , among other things, that after twenty years of
continuous operation , including depressions , it was to be regretted that certain
employees had stopped their work the preceding Monday and walked out of the
-plant; that the employees were doubtless worried about loss of wages, and such
loss was the only concern of the Pottery because it realized that a large majority
"would not have acted in this manner." The letter detailed certain respects in
Is Prior to the contract of May 7, 1941, discussed infra, the employees in the respective
departments elected shop committeemen, there being elected a total of about 30 such com-
mitteemen. The resultant committee, variously called the shop committee, the picnic coma
mittee, and stewards, looked after for their groups such matters as picnics, parties, and
grievances
"'The undersigned was not impressed by Randolph's testimony On December 1, 1941,
Randolph made an affidavit tor use in a contempt proceeding mentioned hereinafter against
Floyd Pearl, vice president of the United and captain of the pickets in a strike called by the
United on November 24, 1941. Randolph stated in this affidavit that on November 24, 1941,
"Pearl was armed with a two-by-two stick and struck one Walter Zoeplitz, an employee
of . . . the Mount Clemens Pottery Company, when he peacefully tried to gain entrance
to said plant in order to go to work " At the hearing in the instant case, Randolph, when
confronted with the affidavit, testified that although lie believed Pearl to be the person who,
struck Zoeplitz he did not see I'eail do so
17 Randolph did not deny, having made these remarks.
730 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
which the Pottery deemed its wages, working conditions, and treatment of em-
ployees to be good. It then concluded as follows :
The dinnerware business you have helped to build will now go to other
Potteries, who for years"have been hoping that some foolish action on the
part of Mount Clemens Pottery Employees, would enable them to take over
our customers. Their oppoi tunity is now here.
In your interest it is our desire to have your regular income restored to you
as soon as po's`sible. However, it would be futile to resume operations except
under conditions that will make impossible a repetition of Mondays walkout
or any other suspension of operations.
In view of your past experience with a relationship that has proved its
value to you, do you want to give up•a success, that while not perfect, has
worked to your interest?
To assist in returning you to employment, we ask that you answer the
questions on the enclosed card. Mail it in the addressed and stamped
envelope enclosed. Please do this at once. ^
You will note that there are no identifying marks, symbols or numbers on
the card or envelope, and that therefore your answers are secret. No signa-
ture is required.
The card referred to and enclosed in the letter stated two propositions, in sub-
-stance and form as follows, to be voted upon:,
Do you approve of the walkout on Monday afternoon?
q No q Yes
Mark X in the space desired
Do you want to return to work as soon as we feel assured that you will
not be interfered,with in exercising your American right to work when and
where you chose.
'q Yes q No
Mark X in the space provided.
'The letter, as described above, contained an innunendo that the plant would not
again operate as long as the United retained sufficient power to call a strike.
The form of the ballots was such as to indicate which way the Pottery preferred
to have the employees vote, and the substance of therr wording was such as
clearly to imply a criticism of the United's activity among the employees. A
large number of sealed envelopes, presumably containing voted ballots as de-
- scribed above, were mailed back to the Pottery, but the Pottery never opened the
'envelopes. -Regardless of this fact, however, the sending of the letters and
ballots to the employees was in itself an interference with the employees' union
activity.
The undersigned finds that by the speeches of Doll on October 3 and 4, 1941, by
the remarks of Harms and Copeland, as set forth above, by the notice posted on
the bulletin board in February 1941, by the activity and remarks of Randolph
and Trabue at the time of their call at the home of Dupont, by the remarks of
Randolph to Pearl as detailed above, and by the mailing of the letters of April 15,
1941, with enclosed ballots as described above, and by the conduct set forth here-
inafter, the Pottery has interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed by Section 7 of the Act
B Domination and support of the Cooperative
Late in February or early in March 1941, Wesley Parrott, general foreman,
of the Pottery's clay department with supervision over approximately 400 em-
MT. CLEMENS POTTERY COMPANY 731
ployees;; spoke during working hours to Ray Willey , a jiggerman 18 in the depart-
ment. , Parrott told Willey on that occasion that he believed the C. J . O. was
getting "pretty strong" in the plant and asked Willey if he was • doing anything
"to protect" his job against that organization. Parrott said that he thought
it was about time for the older men to be thinking of the matter, as nobody else
would do anything for them if they did nothing for themselves. About the
middle of -March thereafter, Parrott called meetings 19 of certain of the jigger-
men, all of whom worked in the clay department over which he had supervision.
Parrott told Eric C. Sopha, a jiggerman, to attend one of these meetings, stating
at the,time that the employees ought to get together and have a union of their
own "to iron out" their troubles ; that to do so would be better than to have
"some outside union" come in and tell them how to run their business. At the
.meeting which followed, Parrott stated to Sopha and the other jiggermen
who attended that when difficulties arose they should be able to talk things over
.among themselves and then take those matters to Doll.20 At the other meeting,
attended by-another group of jiggermen, Parrott told those present that he had
heard the C. I. O.. was organizing the plant and that it might "hurt" the jobs
of those present. He asked if those at the meeting were doing anything "to
protect" their jobs. He stated that he didn't see why it was necessary to use
an "outside organization" for bargaining purposes when it would be possible
for the employees to have their own organization and committees do their own
bargaining. -
Thereafter, on the morning of April 11, 1941, Steven J. Odor and Andrew
, Wodarski, both employees in the clay department, held a discussion in the plant
in which Odor asked Wodarski to help circulate among the employees some copies
of a petition. Odor and Wodarski obtained permission from Parrott to be
absent from work that afternoon. Odor then had prepared during the morning
about 30 copies of the proposed petition which he had discussed with Wodarski.
'This ipetition recited :
We, the undersigned, have agreed to form a union of our own within,
the shops whereby we may bargain collectively with the management.
With our steady employment and high wages we feel as though we can
handle our own affairs. -
During the afternoon of that day, Odor and Wodarski returned to the, plant
with the copies of the petition which had been prepared.
Odor was, in April 1941, chairman of the so-called picnic or shop committee
elected each year by employees in the plant.21 This committee consisted of over
.30 members. He-and Wodarski, upon their return to the;plant, started distribut-
ing copies of the petition to members of this committee, distributing copies to
separate members in the clay, casting, dipping, and decorating departments?' In
the dipping department, Odor and Wodarski had turned over a copy of the peti-
tion to Frank Thoel, who was the department's member of the picnic committee.
Harms, soon after that took place, told Marie Kanekowski, an employee in the
is The jiggerman operates a machine which moulds the clay into the shape of the projected
ware.
la The evidence shows the holding of two such meetings , attended by different groups of
jiggermen.
20 Presumably reference was here made to Charles E. Doll , Sr , vice president and general
manager. However, two sons of Doll, both mentioned at places herein, are also executives
of the Pottery.
21 See footnote 15, supra.
2? Wodarski mentioned the bisque belt department also in connection' with the petitions,
but appeared uncertain as to whether one had actually been left there.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-department,'to speak to Thoel. Kanekowski did so. According to her and John
Felong, one of the dippers, who also testified that he observed events, when,
-Kanekowski spoke to Thoel, not only Kanekowski but also another'girl employee
in the department named Marie Sawicki; spoke to Thoel about the same time.
Felong testified, that he heard Harms. direct Sawicki to Thoel. According to
Felong and Kanekowski's testimony, Thoel said 'at the time he did not know
why the girls were sent to him, but that Thoel spoke to Harms and right after
doing so took the petition from his pocket. They testified that he said the girls
could sign it or not as they pleased.23 Harms admitted having sent Kanekowski
to 'Thoel on the afternoon of April 11, but testified that he did not know why
Thoel wanted to see her. He testified that he, heard about the petition after
,having directed Kanekowski to Thoel,, and denied having sent any other
employee to talk to Thoel. Thoel and Sawicki did not testify. Harms' undenied
attitude at times in opposition to the United is consistent with the testimony,
of Kanekowski and Felong. Moreover, the undersigned does not deem it likely
that Harms, as foreman of a large department, would nave directed an employee
to see, Thoel without having a reason for giving such a direction. The under-
signed 'credits the testimony of Kanekowski and Felong as set forth above and
also finds that Harms directed Kanekowski and Sawicki to speak to Thoel in
order that Thoel might talk to them about signing the petition 24 As, Odor and
Wodarksi were apparently about to continue with the distribution of the peti-
tions in other departments, Harms met in the plant Charles E. Doll, Jr., assist-
viii to the Pottery's general manager, and told Doll, Jr., a petition was being
circulated in that department. Doll, Jr., told Harms to investigate and bring to
him any such paper he might find with information as to its source. Harms
came to Doll, Jr.'s desk soon thereafter and had with him one of the petitions
with some signatures on it, and told Doll, Jr., he had ascertained the document
originated in the clay department Doll,' Jr., proceeded to the clay department
and told Foreman Parrott about the circulation of the petitions, asking Parrott
to see if he could find such a petition in-that department. Parrott reported to
Doll, Jr., a few minutes later that he had found such a petition and that Odor
and Wodarski had originated it. Doll, Jr., then had Parrott seek out Odor and
Wodarski and cause them to collect the copies of the petition which they had
circulated. Meanwhile, Doll, Jr., communicated with Doll, Sr., plant manager,
'regarding the incident, and at the latter•'s/ instruction sent Odor, Wodarski, and
Parrott to the office of Doll, Sr., with the copies of the petition. When Parrott
and these two employees came into the office of Doll, Sr, he told them that the
,.circulation of such petitions on company property was not permissible under
-the National Labor Relations Act, and, at Doll, Sr.'s request, Odor tore'them up,
except for one copy, and took the torn copies from the office. Doll, Sr., kept
.for -the, Pottery's files the'undestroyed copy.
- Meanwhile, on or about April 5, 1941,,p John W. Petrie, Guy Campbell, and
.Richard C Hogarth, employees who worked "on the kilns," discussed among
23 Neither of these employees signed the petition. Kanekowski testified that the paper
•Thoel showed her referred to the'Cooperative. Felong testified that the document referred
to the formation by the employees of a union of their own. Under all the circumstances,
the undersigned finds that the pap, ,t left v ith Thoel was one of those' passed out by Odor
and Wodarski and that Kanekowski was mistaken an testifying that it referred to the
Cooperative. .1
24 Baxter, mentioned in the complaint, testified that he saw Warms speak to a number of
girl employees in the dipping department on the afternoon of April 11. Baxter, however,
was unable to name the employees and did not make clear whether they were directed to
Thoel The undersigned has, therefore, given] no weight to Baxter's testimony on the
subject. ,
MT. CLEMENS POTTERY 'COMPANTY 733
themselves the possibility of organizing an unaffiliated labor organization . Petrie
offered the use of his home for a meeting Accordingly, he, Hogarth, Campbell,
and four other employees of the Pottery met on the morning of April 7, 1941, at
Petrie's home , and discussed further the matter of forming such a labor organi-
zation. At Hogarth's suggestion, Henry Reese, a Mt. Clemens attorney, was
asked during the meeting to join the group. He did so. He inquired whether
the Pottery was taking any part in the affair. After an answer in the negative
and some other discussion between him and those present , it was decided to
form such an organization and to incorporate it. Those present decided that
the name of the organization should be "The Pottery Workers Cooperative."
Campbell was' elected temporary chairman - and Petri-, temporary secretary and
treasurer , these two officers to serve in such a capacity until their successors
were elected by the permanent organization' The chairman appointed a "Con-
stitutional Committee" and the group voted to have 1,000 membership application
cards printed . The same day , Hogarth ordered these cards from a printing
establishment in Mt. Clemens and they were delivered to Petrie the next day.
On April 10, 1941, at the close of working hours, Albert Rocker, an employee
in-the bisque belt department and a member of the shop committee mentioned
above, spoke to a group of 20 to 30 employees in that department. The evidence
raises a question as to whether this meeting was held in support of the move-
ment to organize the Cooperative.
On July 18, 1941, Rocker gave T. H. McKeon, Field Examiner for the Board,
a sworn statement which contained , among other matters, the following recital:,
On April 10 , 1941, Pat Rouleau , son of David 'Rouleau , the superintendent,
who moves cars on the bisque belt; gave me some Cooperative cards, in the
shop and told me to tell the guys about them. After T"got the cards about
25 or 30 fellows gathered around me, and I asked -Al Crothers whether I
should hold the meeting to pass them out, and he said, "well , it's up to you."
The next day Crothers gave me orders not to hand any cards to anyone
inside the shop because the old man said it was against the law. He
referred to Mr. Doll as the old man.
On May 2, prior to giving this statement to Field Examiner McKeon, Rocker, at
his own home, gave a written statement to Arthur Baxter and Floyd Pearl,
members of the United , in which he had recited substantially the same facts
except that he failed to mention that "25 or 30 fellows" gathered around him
on April 10, 1941.
At the hearing, Rocker was on the witness stand parts of two days. The
first day he denied that the incidents mentioned in these two documents ever
took place and declared in:.part.,ofehis testimony ;that he signed both documents
mentioned above for fear of his personal safety.-,° The undersigned is convinced
"Permanent officei s were elected thereafter on April 21.
m Rocker indicated in a portion of his testimony that he signed the statements of May 2
and July 18 , 1941 , because of threats that had been made to him Ile stated that "a couple
days" before he signed the paper for McKeon, Elmer Sahrow, a member of the United who
at times had engaged in In ofessional pugilism , told Rocker to go down to the United s hall
and see McKeon "or else we will get you down there" ; that shortly before June 5, 1941, the
date he joined the United , foul uniccogiuzed men in an automobile stopped Rocker one evening
at about dark in his automobile on a country road as lie was going home from work and
told Rocker he had better sign up with the United ; that prior to the first strike , Sahrow
often struck Rocker on the arm and told him if be didn ' t sign with the United and it "got,
in" he wouldn ' t have any job. Even if all of Rocker ' s testimony , as stated above, is cred-
ited, the claimed incidents would be remote from Rocker 's'act of signing the document of
July 18, 1941, before Field Examiner McKeon , and the undersigned finds nothing that con-
734 DECISIONS OF NATIONAL LABOR RELATIO\7S BOARD
from the evidence and finds that Rocker did not sign either of these documents for.
fear of personal safety. ' Moreover, the second day of his testimony Rocker stated
that the recital set forth on the document signed before Field Examiner McKeon
and quoted above was true except that the number of employees who gathered
around him on April 10 was only about 20. Rocker also testified that, although
Pat Rouleau gave him some cards on that date, and said,"you are the represent-
ative here-tell the boys about them," he was not sure they were Cooperative,
cards. His memory of the cards' appearance, however was vague.21 Moreover,
he testified that he spoke to the group about "forming a union in the shop."
The-fact that Rocker talked 'to those present at the meeting about "forming a
union in the shop" indicates that the cards he had in his hand were Cooperative'
membership application cards, as Rocker had set forth in'his sworn statement,
given to Field Examiner McKeon. This conclusion is supported by the fact
that there is no evidence ofany other "inside" union being in existence or in,
process of formation to which the cards might have had application 'at the
time of the meeting at which Rocker spoke. The undersigned finds that atii
the meeting on April 10, 1941, described above, Rocker spoke 'to those present
on behalf of the Cooperative and had some Cooperative membership application
cards in his possession at the time of meeting.=8 It is also necessary to deter=
mine 'whether Rocker, prior to this meeting, spoke to Crothers, foreman of the,
bisque belt, about holding the meeting, as the written statements Rocker'gave'
indicate. Not only did • Rocker's written statements indicate that` he had
spoken to Carothers prior to the 'meeting, but Rocker also testified as follows :
Q. (By Mr. Sandler:): What was it that' you said to Crothers when you
asked him.
A. I asked-I came up to Crothers and said "Pat came up to me with
cards" and said 'he I wanted me to • tell the boys" about joining a union.
I-told Crothers whether it would'be all right and he, says it wasn't up to him,
it was up.to me, he didn't care what I did, it wasn't none of his business:
stitutes such intimidation as to invalidate the document signed before McKeon. Moieover,
Rocker testified the second 'day be was on the witness stand that the statement he signed
for McKeon was truthful Since - the portion of it here considered was substantially likes
that signed before Baxter and Pearl , the testimony as to truthfulness would also" apply to
that document . Baxter and Pearl denied that they made any threat to Rocker when he
signed the document in their presence: Rocker admitted that he had not, prior to the
hearing, made any claim that they , bad,threatened him. The undersigned credits the denial
of Baxter and Pearl.
27 Rocker remembered that the cards had printing on then , but could not recall anything'
stated on , them . Ile stated that there were blanks on' the cards, but did not remember
whether there was a place for signing . He could not recall whether there was any kind of,
a title or large pint at the top of the cards He testified the cards were about 6 or 7 inches
square . Ile did not recall , whether the cards were perforated , and testified that, although
he thought the cards were yellow , he was not sure about their color. The Cooperative
cards in use at that time were bluish green in color and approximately 5" x 5"-square;-
had the name of the document as an application for membership in the Cooperative at the
top, certain blanks, including one calling for the name of the applicant to be filled in, and a
receipt attached by perforation as a part of the square card
28 Tin o Board witnesses , R.chard H . Hicks and Frank Campeau , both testified that they'
,saw certain cards in Rocker 's possession at the meeting and their description of them ap-
pioxnnately conformed to the Cooperative application cards in use at the time Arthur',
Meitz , another Board witness , testified that Rocker had "some sort of cards" about the size
of the Cooperative membership application cards, but described the one he saw as a yel-
lowish color. Rocker also testified at one point that lie thought the cards were yellow,'
but later testified that he was not sure as to their color In view of Rocker's admission in'
his written statement , mentioned above, that the ' caids were Coopciative cards, the under-
signed credits the testmony of Hiclss` and Campeau about the c`inls The undersigned is
convinced that Meitz was mistaken 'in his recollection that the caid lie saw was yellow. -
MT. CLEMENS POTTERY COMPANY - 735
Crothers testified that Rocker did not ask permission to hold the meeting, but
that Rocker was, a department representative and himself called the meeting,
as he had a right to do. Crothers did not deny, however, that Rocker spoke
to him prior to the meeting, and the undersigned credits Rocker's testimony about
the matter as stated above. Richard H. Hicks, Frank Campeau, and Arthur
Meitz, employees who were witnesses for the Board, also testified that Crothers
attended the meeting. Crothers denied that he attended the meeting or heard,
what was said. He testified, however, that he was at the other end of the
plant at the time "and happened to. be walking by" and noticed that the meeting
was being held. Crothers' testimony that he "happened to be walking by" and,
noticed the meeting lends weight to the testimony of Campeau, Ricks, and Meitz
that Crothers was present. The i ndersigned finds that Crothers' was present.
at the meeting addressed by Rocker on April 10, 1941.
Late in the day on April 11, 1941, after Odor and Wodarski had stopped circu-
lating the petitions- as described 'above, a fellow employee told Wodarski about
the movement to organize the Cooperative. Wodaiski thereupon communicated
with'Petrie. Petrie then arranged for another meeting of those interested in,
organizing the Cooperative at his house on April 12, 1941. Wodarski and Odor,
attended the meeting. Both'joined'the Cooperative'on that occasion. There-
after, on April 14, 1941, the United called a strike against the Pottery as stated
above and set up a picket line around the plant'. On -April 16, during'the strike; i
Foreman Parrott called at-the home of Paul •Frazho; a jiggerman in the clay,
department and a member of 'the United. Frazho testified that Parrott told
him on this occasion, "This is no way to end the, strike, sit home and do nothing.
about it : . . if you would go -out 'and get ten members and encourage them
to each get ten more, you would have a hundred; and-if that hundred would do
the same, then you would have ,a thousand ; and you would have` the whole thing.
in the bag, and you would kick the C I 0 out in a short while, and . . . they
wouldn't bother us any more." Frazho further testified that on this: occasion
Parrott told him to see Wodarski and- Odor and they would tell him "about it" '
so that he would know what to do. 'Parrott testified that he and Frazho ocea
sionally went fishing and hunting and played pool together in Frazho's basement.
He stated that on April 16,1 1941, he went to Frazho's house at the latter's invita-
tion to haul in a cat-fish line placed by Frazho in a near-by 1 lake. Parrott testi-
fied that on that occasion he -mentioned to ,.Frazho the names of Odor -and
Wodarski only after Frazho had inquired what'they were trying to organize,
Parrott telling Frazho to see them if he wanted to know. Parrott did not deny,'
however, making the statement testified to by Frazho as stated above, regarding'
how to end the strike, but testified he did not recall making such a statement.
Prior activity of Parrott in opposition to the United-has been set forth above.
Under the circumstances the undersigned is convinced and finds that Parrott,
on April 16, 1941, made to Frazho the remarks mentioned above as testified to
by Frazho. Regardless of the reason or circumstances under which Parrott went
to Frazho's house, the remarks of Parrott were in any event patently opposed to
the United and helpful to the Cooperative.
Eric Sopha, mentioned above, testified that meanwhile, on', the first day of
the April 1941 strike, his foreman in the clay shop, Robert Fitton, asked Sopha
about the time he 'vas through work to call at Fitton's house; that-Sopha, wear-
ing his work clothes, called with his wife at Fitton's house that evening; that
after they entered .the house and were seated, one Pauline Mudraek handed
Sopha a Cooperative membership application card right away and Sopha signed
it; that Fitton said about that time, "I'm not supposed to know! anything about
this," and left the room ; that one John Rehner then came in with his wife;, that
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mudrack immediately gave Rehner a card and he signed it. Fitton testified that
he did not ask Sopha to come to his place that evening ; that Sopha and wife,
who were driving-by, always had wanted to see Fitton's house, which was only
about two months old, and also wanted to know if Sopha was to work the next
day ; that Sopha asked Fitton what the latter knew about the unions and Fitton
told Sopba to use his own judgment, as Fitton "wasn't supposed to know any-,
thing about it"; that he saw no Cooperative cards that evening. From this,
conflicting testimony the important question for determination is whether Fitton,
asked Sopha to call at the former's home on this occasion. Sopha had never
called at Fitton's home before, and if Fitton actually singled out that evening
as an occasion on which to ask, _Sopha to call it is reasonable to conclude that,
Fitton knew Cooperative business was to be. transacted. The undersigned is,
convinced that Sopha did not go to Fitton's home that evening as a purely social,
call for the purpose of seeing Fitton's new home, because Sopha admittedly
wore his working clothes. The undersigned is also convinced that Sopha did-
not go there to inquire, if he was to work the next day, because Fitton had a
telephone and Sopha could have more easily inquired by telephone than by
personal call regarding whether he was to work the next day. Moreover, it
would have been a simple question for Sopha to have asked Fitton at the plant.
Under the circumstances, the undersigned finds that Fitton on this occasion
invited Sopha to call at his home with the knowledge that Sopha would be asked
at that time to join the Cooperative."
On April 18, 1941, Reese wrote Doll, Sr., a letter claiming that the Cooperative
representative a substantial majority of the plant's production workers and
suggesting a conciliatory conference "between all parties at issue" with the
,purpose of reopening-the, plant and permitting all employees to ,return o work
as of April 14, 1941. There "followed, until 'A'ril 29, ' 1941' an iriterchtznge of
correspondence between Reese and Doll, Sr.3°
On April 22, 1941, during this period, representatives of the United, the Coop-
erative, and the Pottery met at the office of one Owens, a Michigan state labor
conciliator. Both the United and the Cooperative claimed on this occasion to
represent a majority of the Pottery's employees. Reese, one of the, Coopera-
V The evidence shows that Mudiack, who asked Sopha to sign the Cooperative card, was
a sister-in-law of Fitton and lived at the latter's house
30 The letter of April 18 also suggested that'the Pottery join with other groups in hold-
ing a consent election under auspices of the Board and that the Pottery recognize the
necessity of remedying certain detrimental and unsatisfactory working conditions. Doll
answered this letter, stating that the Pottery was willing to reopen the plant upon assur-
ance that employees would not be molested that it had always afforded a means of handling
grievances, that prior to the April 14 strike no grievances had been presented and the strike
was illegal because no notice of intention to strike had been -given as required by State
law, and that the Pottery was willing to attend a conciliatory conference and to' abide by
legal procedure for determination of the question of representation On April 21, 1941,
Reese again wrote to Doll, Sr , stating that he was in agreement with Doll on the subject
of reopening the plant and the holding of a conciliatory conference R,2ese indicated that
'he would interpret Doll's reply letter to constitute "consent" to the holding of a vote unless
notified to the contrary Reese's letter further indicated that the Cooperative was not
responsible for the strike of April 14. 1941 He stated that Doll's mention in his reply letter
that the Pottery had always afforded a means of handling grievances was "not satisfactory"
because corrective measures, in older to avoid ,a repetition of the events of April 14, could
only be brought about'by the Pottery's "agreeing to abide by the outcome of either a con-
ference and/or, later with the properly recognized'and constituted bargaining agency On
April 2S, Reese again wrote to Doll, stating that fur ther delay in reopening the plant could
serve no u,eful purpose and indicating an intention to have the Cooperative designated as
the sole bargaining agency of the employees by an election. To this letter was attached a
list of demands Reese's further letter of April 29, described infra, concluded this tor-
t espondence.,
MT. CLEMENS POTTERY COMPANY 737
tive's.representatives. suggested that the Cooperative was willing at any time
to submit to an election to be conducted by the Board, but Regional Director
August Scholle of the C. I. 0., who was present for the United, stated that he
would not agree to an election as long as the Cooperative was "in the picture."
A letter dated April 29, 1941, from Reese to Doll, Sr, concluded their inter-
change of correspondence mentioned above. Reese, in that letter, asked on behalf
of the Cooperative that a conference be held for the discussion of specific demands.
Reese stated that the Cooperative was prepared to submit proof of majority to
"an impartial and qualified" individual. The letter further expressed' an in-
tention to proceed legally to bring about the desired result in event of failure `of
the Pottery to indicate a willingness to enter into negotiations upon the Coopera-
tive's proof of majority. Demands of the Cooperative were attached to this
letter. 1
1,
After Doll had received this letter, the Pottery and the Cooperative each-
-appointed a representative, and those two a third representative, the three of
whom met on May 1, and 2, 1941, and counted the number of claimed members of
the Cooperative who were on the Pottery pay roll. The United was not asked
to participate in this count. The three representatives decided on the basis of
this count that the Cooperative represented a majority of the Pottery's pro-
duction empioyees. There is no evidence that the representative appointed by
the Pottery made any written report as to the count, but the others made
written reports on May 6 and 7, 1941, respectively."' Meanwhile, the result of the
count was known to both the Cooperative and the Pottery. On May 3, 1941,
Reese demanded that negotiations for a contract be commenced. On May 5, 6,
and 7, representatives of the Pottery and the Cooperative carried on negotiations,
and late in the day on May 7 signed a contract, which subsequently was ratified
by the Cooperative's membership. This contract provided that there should be
no strike, stoppage of work, or reduction in rate of production until exhaustion
of grievance procedure provided for in the contract, and then only after a two-
thirds vote of the production employee membership upon reference to the mem-
bership by the officers and board of directors of the Cooperative. The contract
also provided for the selection by the Cooperative of an executive committee
of not less than five employees, with which Pottery representatives should meet
at least once each month "concerning any problem which the employees or any
individual employee may desire to have considered . . ." There was a pro-
vision for the selection of 22 representatives from the various departments in
the plant. Wherever an employee had a grievance, the contract provided, he
and the representative, or he alone, could take it up with his foreman. If
dissatisfied with the foreman's disposition of the grievance, the employee could
then appeal the matter to the personnel director' or general manager. If the
Disposition of the grievance was still unsatisfactory to the employee and his
representative, then the matter should be reduced to writing and considered
by the executive committee and general manager. Failure of the executive
committee and the general manager to produce a satisfactory result within 30
days should constitute an exhaustion of, the grievance procedure. The contract
provided for time and one-half pay for overtime in excess of 40 hours a week
and for work on Sundays and certain specified holidays, except as applied to
certain operations "classed as seven-day occupations." 93 As to wages, the
$1 The written reports indicated that, of 984 production employees, about 58 percent were
Cooperative members.
33 The specified seven-day occupations were those of watchmen, Janitors, engineers, boiler
firemen, pushermen , kiln firemen , loaders and unloaders of decorating kilns, car unloaders,
maintenance men, and men engaged in cleaning up and making repairs.
504086-43-vol. 46-47
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract provided that they should not be lowered during the life of the-agree-
ment, that if organized potteries made wage advances the Pottery would make
corresponding advances, and that within sixty days after reopening the plant
a conference should be held to determine minimum wage rates as applied to
beginners, said wage adjustments to be retroactive to the time of reopening the
plant. The contract provided that in making increases, decreases, or transfers
of working force, length of service, knowledge, training, ability, skill, efficiency,
physical fitness, and family status should be considered, length of service to
govern if other factors were equal. The Pottery agreed to continue a practice
of giving*53 weeks of pay per year for 51 weeks of work, to review health con-
ditions in the plant within sixty days from the date of the agreement, and to
reopen the plant as soon as assured that the employees would not be molested
or interfered with ih going to and from work. The Cooperative agreed that its
members would return to work. The contract was for a period of one year,
to be continued from year to year thereafter unless either party, at least 30 days
prior to the end of any year, should give 'written notice to the other of a desire
to modify or terminate'the agreement The contract is still in effect. '
'The Cooperative's executive committee, since the execution of the contract
of May 7, 1941, has made various demands upon the Pottery both as grievances
and as matters the 'details of which under the terms of the contract were left
to be negotiated" Most of, the demands made by the Cooperative have been
granted,' Among other demands acceded to have been three wage increases
granted since the execution of the contract on the basis of the increase in the,
cost of living. ,
On August 12, 1941, Eric Sopha, mentioned above, decided `to' discontinue his,
membership in the Cooperative. He proceeded to wind up some duties he had
been performing for the Cooperative by way of collecting dues for it, and then
joined the United. He testified that on the morning of August 16, 1941, after
he had joined the United, Parrott called him from work to the office in the clay,
shop and showed him a sheet on which appeared the wage rates of a few of the
highest paid jiggermen and batter-outs; that Parrott asked Sopha on this oc-
casion his opinion of these rates, and the latter stated he thought they were
"pretty good " Sopha further testified that the next morning Parrott again
called Sopha from work to the office Sopha's testimony of what happened on
that occasion was as follows :
A. He (Parrott) said to me he wanted me to be sure that I joined the
right union, that I shouldn't make a mistake, and he says, "You know that
Mr. Doll favors the Cooperative," and then he asked me why I quit the
Cooperative, and I told him that I didn't like the way that'they run it because
I never heard the financial reports and never heard the treasurer's report,
and that was the reason I quit, and he asked me to sign an affidavit to that
effect, and I did.
Q Who wrote out the affidavit?
A. Wes Parrott.
31 The contract contained a number of other less important provisions.
i4 The contract specifically left for further negotiation matters of wages and health con-
ditions as explained above.
as Petrie , one of the organizers , an officer , and 'a witness for the Cooperative , was interro-
gated at one point in his testimony as to what specific demands of the Cooperative had
ever been denied by the Pottery FIe only mentioned specifically as demands he knew of
having been refused a request for an extra watchman : a request that the count of chipped
ware should not be done on the employees ' time; and "that times be eliminated" on flat
ware selecting, pay to be adjusted on the basis of each selector 's average pay during a six
weeks period
MT. CLEMENS POTTERY COMPANY ' ' 739
Q. And you signed it?
A. I did.
Q. Did you swear to it?
A. No.
Parrott admitted he had two conversations with Sopha at about the time Sopha
Indicated,in his testimony, but gave a different version of these conversations.
According to Parrott, one day soon after, Sopha joined the United, Sopha spoke
to Parrott near the clay shop office, which was only about 12 feet from where
Sopha worked. Parrott testified Sopha stated on this occasion that he had
found out the Cooperative was "being thrown out of the Pottery" because he was
with some United members the evening before when they telephoned the Board
In Detroit and ascertained such fact; that Sopha said he had joined the United
and Parrott said "... that is your business ..." ; that two or three days later
Parrott heard Sopha was mad about something and Parrott "called him-to one
side . . . a few feet away from his job," asking Sopha if'something was wrong;
that Sopha answered in the negative and offered to give Parrott an affidavit that
the Pottery had treated him all right and the reason he had joined the United
was that he didn't like the way the Cooperative was being run. In the conflict,
of testimony quoted above it is significant that Parrott,did not deny having
displayed to Sopha and asked Sopha's opinion about a list of wage rates of a few
of the highest paid jiggermen and batter-outs soon after Sopha had joined the"
United. It is also significant that, although Parrott denied obtaining an affidavit
from Sopha or asking Sopha why he quit the Cooperative, he did not deny indi-
cating to Sopha not to make a mistake as to which union he joined or telling
him "that Mr. Doll favors the Cooperative" The undersigned credits Sopha's
testimony that Parrott showed Sopha a list of wage rates of some of the highest
paid jiggermen and hatter-outs and at the same time elicited Sopha's'opinion about
such rates soon after Sopha joined the United, as testified to by Sopha The
undersigned also credits Sopha's testimony, as stated above, that on August 17,
i941, Parrott called Sopha from his work, telling Sopha that he should not make
a mistake about which union he joined, that ". . . Mr. Doll favors the Coopera
tive," and asking why Sopha had resigned from the Cooperative.30
The continued dealings between the Pottery and the Cooperative and the claim
that the Pottery was rendering assistance to the Cooperative were among the
points of controversy between the United and the Pottery when the United ,went
on strike on November 24, 1941, as mentioned above. The Cooperative joined the,
Pottery in opposing the strike. The Pottery, in turn, during that strike, as it
had also done during the strike of April 14, 1941, made known its opposition to
the United and its support for the Cooperative. On the evening preceding the
commencement of this strike, Doll, Sr., gave permission to a group of about 25
to 30 employees to spend the night in the plant 37 Substantially all this group
were members of the Cooperative. All the male officers of the Cooperative were
38 It is apparent from Sopba 's testimony about the "affidavit" that he did not understand'
the nature of such a document. While the undersigned is satisfied that after Parrott ques-
tioned Sopha as to why he bad resigned from the Cooperative , there was some reference
to a written statement of Sopha's reasons therefor , the undersigned is unable to determine,
from the evidence whether Parrott asked for or received such a document from Sopha
87 This permission was given by Doll in -a telephone call made to him from the home of
Hogarth , one of 'the Cooperative 's incorporators and organizers . Although Doll, Sr , testi-
fied he thought Hogarth made this telephone call, the evidence is not clear as to who did so:
Apparently whoever telephoned gave Doll the names of only some of the employees who'
were to spend ' the night in the plant . However, Charles Doll, Jr, assistant to General,
Manager Doll , Sr., was present in the plant during the night in the vicinity of the group.
which-had been accorded the privilege of spending the night there.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the group and four of the organization's five incorporators. Early the next
morning, soon after the United's picket line had formed in front of the plant,
most of this group of employees who had spent the night in the plant, rushed out of
the employees' entrance and charged the picket line for the purpose, they con-
tended, of enabling certain Cooperative members to pass through the picket line
to work. A physical encounter ensued between those in the picket line and those
who had rushed out of the plant. Doll, Sr., testified, that when he gave per-
mission for this group to spend the, night in the plant he told them they were
doing so at their own risk and there was t6 be no disturbance. However, whether
he so informed the group or not, the fact that the Pottery harbored this group
of employees in the plant during the night before the strike of November 24 and.
thus contributed to'the incident in front of the plant early that morning, as
described above, was activity which was and would naturally be viewed by the
employees as employer support of the Cooperative.
The Pottery, also by other conduct, showed its support for the Cooperative
during this strike. Early during the strike,-Carl Starner, a -foreman in_ the
Pottery's clay shop with supervision over 60 to •70 employees,' called ata the home
of Earl W. Larimer, one of the strikers, with Pete Gottke, a member of the
Cooperative. The uncontroverted testimony of Larimer, which the undersigned
credits, describes as follows what took place on that occasion :
He (Starner) got there, immediately, sat down and started to tell me how,
ungrateful I was to him. He started to tell me how he got my job for me
and one thing another, and then have me being in the picket line ; that I was
putting him in bad with his immediate superior, Doll, in other words .. .
Then he went on and told me about the Cooperative, and told me what kind
,of a fine organization it was, and what it was doing there, it was doing a
good job of it.
Conclusions regarding the Cooperative
The consistent opposition of the Pottery to the United 'was made clear to the
employees soon after the commencement of the United's organizational activities,
in the late summer of 1940. This opposition continued and was reaffirmed by
Doll's statement posted in the plant on or about February 15, 1941, and by the
letter of April 15, 1941, sent to employees by the Pottery. This campaign of
opposition .was of necessity a propelling force in'producing Cooperative member-
ship applications among the employees. The remarks of Parrott to Willey and
Sopha prior to the meetings he held with the jiggermen in March 1941 and his
remarks to the jiggermen at those meetings were unequivocal and could leave
no doubt in the minds of the employees that the Pottery preferred an "inside
union" over the United. I
The subsequent conduct of Odor and Wodaiski, both employees in the clay
department and under Parrott's supervision, in circulating petitions on April
11, inured to the benefit of the Cooperative. In view of Parrott's prior remarks
to, Willey and Sopha and to the jiggermen, it would necessarily be the con-,
elusion of the employees that the circulation of these petitions, on which some
signatures were obtained, had the approval of the Pottery The conduct of
Harms in sending employees to Tboel regarding one of the petitions could not
help but have a similar effect. The Cooperative and the Pottery urge that
the circulation of these petitions wias stopped. Parrott did take a hand to have
their circulation stopped after Doll, Jr., instructed him to do so, and Doll, Sr.,
later had Odor destroy the petitions and told Odor and Wodarski that such
activity was illegal. However, the Pottery did not inform the employees gen-
MT. CLEMENS POTTERY COMPANY .741
erally regarding what Doll, Sr., did with respect to the petitions and it did not
'take appropriate steps to dissipate the effects of Parrott's statements detailed
above which had preceded their circulation. When Odor and Wodarski, a' few
days thereafter, joined the Cooperative, the employees generally must have
concluded that the Cooperative was the labor organization contemplated by the
petition, which had recited an agreement "to form a union of our own.", More-
over, no disciplinary action was taken against Odor and Wodarski for their
activity in circulating the petitions. This treatment is in contrast with that
accorded Pearl and Thoel as set forth below, for claimed activity on behalf of
the United. Parrott's remarks to Frazho on April 16, suggesting to Frazho that
he communicate with Odor and Wodarski regarding their activity in opposition
to the United, had the further effect of identifying the work of those, employees
in circulating the petitions as activity in furtherance of the movement for the
Cooperative. Parrott's conversations with Sopha during August 1941 constituted
activity which continued to show the Pottery's favoritism of the Cooperative
and disapproval of the United.
'The meeting in the meantime addressed by Rocker on April 10 also signified'
the Pottery's support for the Cooperative, especially since it was held with the
prior knowledge of Foreman Crothers and with Crothers' presence at the meeting.
The circumstances under which Sopha was solicited for Cooperative member-
ship at the home of Foreman Fitton, the circumstances under which the group
of 25 to 30 employees spent the night in the plant preceding the strike of Novem-
ber 24, 1941, resulting in their encounter with the United's pickets that morning,
and the statement of Foreman Starner to Larimer soon after the commencement
of that strike, still further signified employer approval and support of the'
Cooperative and opposition to the United.
The nature of the contract entered into between the Pottery and the Coopera-
tive on May 7, 1941, and the events leading up to its execution, have been detailed
above. 'That the Cooperative had membership applications from a majority of
the production employees just prior to execution of the contract there appears to
be no doubt, but under all the circumstances it was not an uncoerced majority.
Moreover, the participation of the Pottery in the determination of the Coopera-
tive's majority, while ignoring the majority claims of the United which it had
made at the conference of April 22, was conduct which in itself showed a prefer-
ence for the Cooperative, especially since the Pottery had known definitely since
the preceding summer about the United's activity and, at the time of the check
of the Cooperative's membership applications against the pay roll, the United
was demonstrating its vigor by a strike of sufficient proportions to keep .the
plant closed.
The Pottery and the Cooperative' point to certain features of the contract
and subsequent dealings between the Pottery and the Cooperative as gains made
for the employees and as thus showing the virility of the Cooperative as a labor
organization free from employer domination and support. Whether the contract
and subsequent dealings between the Pottery and the Cooperative represent
substantial gains for the employees is not free from doubt,88 but even though
"There is evidence to support the conclusion that at least most of the matters agreed
upon between the Cooperative and the Pottery in the contract of May 7,11941, and later,
represent things the Pottery normally would have done anyway. Edmund Phillips, one of
the organizers of the Cooperative , and one of those who participated for the Cooperative in
some of the contract 'negotiations, testified before the Michigan State Unemployment Board
on July 21 , 1941, he did not see that any concessions were gained by the contract of May
7, 1941. Doll , Sr., on cross -examination by Board counsel as to the gains made by the
employees under the contract , testified the contract as a whole was "a bona fide collective
bargaining agreement , which is of value to any organized group ." He further testified that,
X742 DECISIO'N'S OF NATIONAL LABOR RELATIONS BOARD
the Cooperative might have had certain success in obtaining benefits for the
.employees, such fact does not deprive the employees of the right given them
under the Act to, have a labor organization of their own choosing. free from
employer domination and support 8B `
The undersigned finds that the Pottery dominated and interfered with the
formation-and administration of the Cooperative, and contributed support
thereto, and has thereby interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act. The undersigned
further finds that the contract of May 7, 1941, and any other agreements entered
into between the Pottery and the Cooperative, and the contractual relationship
existing thereunder, have been, and are, a means of utilizing an employer-dom-
inated organization to frustrate the exercise by the Pottery's employees of the
rights guaranteed in Section 7 of the Act.
There is no evidence in the record to support the allegation in the complaint
that the respondents have contributed financial support to the Cooperative.
The undersigned will recommend that this allegation of the complaint be
dismissed.
C. The discriminations in regard to hire and tenure' of employmen"t
The complaint alleges that at various stated dates between September 24, 1940,
and November 22, 1941, the Pottery terminated the employment of and refused
to reinstate Edwin Suer, Adam Lehl, John Felong, Arthur Baxter, Samuel Kogel-
man, Stanley Reeder, Joyce Brusseau Green, Alvin Stark, Paul Starkey, Floyd
Pearl, Nicholas Dacko, William Behnke, Stanley Holmes, and Nick Mokanyk
because of their membership in and activity on behalf of the United.
Suer, Lehl, Felong, and William Wendt, discussed below, worked in the
Pottery's dipping department and glaze room. They worked alteinate periods of
2 weeks in the dipping department and 2 weeks in the glaze room. 'The work in
,the dipping department consisted of dipping ware by hand in a tub of glaze in
order to put a finish on it. The work in the so-called glaze room consisted of
preparing the glaze for use in the dipping process At the time of the events
.of September 1940, discussed below, Suer, Lehl, Felong, and Wendt were the
only employees who alternated between the dipping department and the glaze
room. There was at that time 12 other employees who worked full time as
hand dippers. Prior to July 1939, there had been about 19 other employees
who devoted their sole time to hand dipping. During that year and 1940, however,
the Pottery, as stated above, installed and placed in commercial production
three machines which did some of the hand dipping automatically. By Septem-
ber 1940 these machines had so reduced the necessity for hand dippers that there
remained at such work only the 12 employees who worked exclusively at hand
dipping and the four employees, mentioned above, who alternated between hand
dipping and glaze-room work.'0
It was a general practice of the Pottery to require employees to spend a period
of employment in the glaze room before they became hand dippers. The rate of
,although there had always been ways in the past of presenting grievances through the em-
ployee representatives , the contract provided something that was mandatory.
39 Matter of Thompson Products , Inc., and United Automobile Workers of America, Local
300 (CIO ), 33 N. L . R B., No. 181 ; Corning Glass Works v. National Labor Relations Board,
.et al., 118 F. (2d) 625 (C. C. A. 2), enf'g as mod . 15 N. L. R. B. 598; National Labor Rela-
tions Board V. Newport News Shipbu-lding &, Dry Dock Co ., 308 U. S. 241.
so The first two such machines , placed in commercial production in, Iuly 1939 and February
1940, respectively , dipped , white and ivory flatware. The third, placed in commercial pro-
duction in August 1940, dipped colored flatware. . , -
MT. ' CLEMENS POTTERY COMPANY • 743
pay was less for the glaze room than for hand dipping and, the work was dirtier.
For these reasons, apparently, some ' employees deemed work as a, hand dipper
more desirable than work in the glaze room.
Suer and Lehi, in August or early September 1940, joined the United. They
became active in the solicitation of members On September 16, 1940, Rouleau
called Suer and Lehi to his office separately. There is no evidence that either
of these employees had ever complained about his wages in the glaze room.
Nevertheless, Rouleau in these two conversations had before him some data,
apparently based on the practice in some other plants, about a lower wage scale
than that on which Stier and Lehi worked. Suer testified as follows about his
conversation with Rouleau :
He just asked me what I was hollering about in the glaze room. I asked
him, "What does a man holler about?" He says, "I hear you guys are making
complaints about working in the glaze room. I told him I never made no
complaints in the glaze room. I said, "I worked in this plant very near
seven years and this is the first time I was called in your office for any com-
plaint about working here." And be says, "How do you like to work in this
place?" I says, "All right." He says, "How do you like your wages?" I
says, "I haven't complained about that." Well, he says, "How'd you like
your wages according to this here in this book that I have?" And we com-
pared the wages. I said "I would rather have the ones that I was getting."
Then he says, "You would rather have the wages _you are making?" and I
says, "Yes."
As Suer's description of this conversation is not controverted, the undersigned
credits it. In the conversation with Lehi right after that with Suer, Rouleau also
called the attention of Leh] to this lower wage scale.
The day after these conversations of Rouleau with Lehi and Suer, Rouleau
called to his office and held a meeting of the 12 employees who worked full time
as dippers and Felong, Wendt, Leh], and Suer, who alternated in their work
between the dipping department and the glaze room as explained above. Both
prior to and during this meeting, there were complaints about the fact that some
of the dippers had to work part time in the glaze room. It is clear that Felong
and Wendt had made such complaints, but there is doubt that Suer and Lehi ever
did so ' In any event, Rouleau stated at the meeting that the dissatisfaction
about the dippers having to work part time in the glaze room presented a problem.
He stated that he desired those present to consider the problem for a week and
at the end of that time present their solution. However, he said that if no
solution were presented at that time lie had two plans he would offer for consider-
ation. A week later a second meeting took place in Rouleau's office." None of
u llarms'testifed that Suer, Lehi, Felong, and Wendt all complained about the alterna-
tion' of the work before this meeting. Harms and Stief both testified also that these' em-
ployees registered such complaints at the meeting. Suer and Lehi testified that they never
so complained None of the other dippers who testified corroborated Harms and Stief and
that Suer and Lehi had ever made such complaints. The undenied testimony that Suer and
Lehl at the time of their employment termination told Harms they wanted to work in the
glaze room lends weight to their denial that they had ever complained about such work.
Regardless of whether Suer and Lehi had made complaints about working in the glaze
room, there is no satisfactory explanation of why Rouleau called to his office and talked only
to these two employees about the alleged dissatisfaction with their work. Similar treat-
ment would have necessitated such conversations also with Felong and Wendt, who were
not then members of the United. Since the Pottery had not at the time professed to adopt
any system of seniority as applied to the dippers, Felong and Wendt's seniority does not
satisfactorily explain the contrast in treatment.
42 The same group attended this meeting except for George Schroeder, one of 'the dippers,
and William Wendt, one of those alternating between the dipping room and the glaze
room. These two employees were absent.
744 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
the employees present at this meeting suggested any plan. Rouleau, however, in
accordance with the statement made by him at the meeting the week before,
presented to the group two alternative plans to be voted upon. The first plan
provided for division of "Hand dipping jobs equally'with old men of'seniority,"
whereas the second plan provided for equal division of hand dipping and glaze
room jobs among all men regardless of seniority" A vote by written ballot was
taken at this meeting regarding which plan those present preferred. All but one
of the employees who were present voted in favor of the first plan. ,
Nothing was said at this meeting regarding whether any employees would be
laid off or discharged pursuant to the adoption of either plan. However, although
the Pottery had not followed any strict system of seniority up to that time, Rouleau
said during the course of the meeting, "If you fellows want it like you got it
down Detroit, you can have it. We will go according o seniority from now on."
The day after this meeting, Harms called Suer and Lehl into his office, telling
them that he hated to do so, but that he had to lay them off. Lehl and Suer
stated that they wanted to work in the glaze room, but Harms told them there was
nothing he could do about the matter as he had to take orders. Harms also
said there were too much machinery and,, too many men. He sent, Suer and Lehi
to Rouleau. The undersigned credits Lehl's uncontroverted testimony as to
the ensuing conversation with Rouleau as follows:
Q. (By Mr. Sandler) Was there' any conversation there?
A. Well, yes I asked him bow come that we got laid off, and he said that,
he could not do nothing about it, that all the fellows had voted that way.
And I told him I understood that we, would not be getting laid off either way
we voted. He said that he was sorry, that he could not help us in any way
any more, and then he gave us our checks.
Q. Was there anything else said?
A. Well, I asked him if I could use my reference if I needed it for a job
or to get a job, to use my reference. He said,my reference was good there,
that I could get it any time I wanted pit.
Approximately a week prior to Suer and Lehl's termination of employment,
Willard Stief, foreman over the glaze room employees and some of those working
on the glost belt, transferred William Ruprecht, an employee of the glost belt,'
to work in the glaze room. Ruprecht had not worked in the glaze room for a
number of years and the procedure was different from what he had learned when
he worked there before. Suer and Lehi, accordingly, taught him how to do the
work. After the termination of Suer and Lehl's employment, Ruprecht and
another employee, who-was also inexperienced in the glaze room, did the work
in the glaze room which previously had been performed by Suer, Lehl, Wendt,
and Felong, as' described above, and the alternating of employees between the,
glaze room and hand dipping was discontinued.
Louis Thoel, an employee in the glost belt department who is named in the
'complaint as having been discriminatorily laid off and whose lay-off is discussed
hereinafter, testified that soon after Suer and Lehl's termination of employment,
Harms asked him if he had heard that Suer and Lehi "got the works." According
to Thoel's testimony, Harms also said, "If they go to work and take a couple of
,43 The full texts of the two plans as posted on the wall of Rouleau 's office were as follows :
PLAN No. 1
Will we divide the Hand dipping jobs equally with old men of seniority allowing just
enough days off to make 'department run Smooth.
PLAN, No. 2
Will we divide Hand dipping and Glaze room jobs with all dippers giving all men
equal share of work regardless of seniority taking Extra days off the week.
MT. CLEMENS POTTERY COMPANY, 745
them out of every department and fire them, maybe the rest of them would shut
their damned mouth about the union." Harris denied having made these remarks.
Other remarks and conduct of Harms in opposition to the United, some of which
are undenied, are set forth above. The undersigned was impressed by Thoel as
a credible witness. Under the circumstances, the undersigned credits the testi-
mony of Thoel as set forth above. Ruprecht testified that about a week after
Suer and Lehl's employment termination he and Stief' had a conversation in the
glaze room during working hours and that Stief, referring to these two employees,
said. "I suppose you heard a lot about the union from them two fellows." Stief
did not deny this testimony, but testified that he did not remember making such a
statement." The undersigned credits Ruprecht's testimony regarding Stief's
statement. .
As indicated above, there had been some complaints about alternating between
work in the glaze room and the dipping department. Although Lehl and Suer
both denied that they made'any such complaints, and there is doubt that they
did so, it is clear that the other two employees who did the same work, Felong
and Wendt, in fact made complaints about the' work in the glaze room.95 It is
unnecessary to resolve the conflict in the evidence as to whether Suer and Lehl
did so complain, because whether they did or not, there is no satisfactory
explanation as to why only Suer and Lehl, and not Felong and Wendt also, were
called to Rouleau's office for discussion of the situation. Since, at that time
the Pottery was not following a strict system of seniority, the fact that they were
the youngest dippers in point of service is an unsatisfactory explanation of
the difference in treatment accorded Lehl and Suer as contrasted with Wendt
and Felong. The undersigned views this difference in treatment as significant
in the light of the fact that Suer and Lehi at the time had already become
active members of the United, but Wendt and Felong had not yet joined the
United. It is also significant that Rouleau decided to apply seniority in the dip-
ping department, to the disadvantage of Suer and Lehl, soon after their affilia-
tion with the United, when no such use of seniority had been made before that
time. Moreover, about the same time as Suer and Lehl's termination of em-
ployment, and thereafter, the Pottery was not applying seniority in its clay
department, which, similarly had been affected by the installation of labor saving
machinery. Furthermore, the fact that Ruprecht was assigned to learn the
work in the glaze room a week before Suer and'Lehl's employment termination
indicates a decision to displace them before the vote of September 24, 1940, took
place. The Pottery contends that when the dippers voted for the first plan, as
described above, at the meeting of September 24, 1940, they understood, the
effect of their vote would be to terminate the employment of certain employees.
The undersigned'is not convinced that when the dippers voted at the meeting
they knew that under either plan proposed by Rouleau any of them would have
their employment terminated." In any event, the primary consideration is not
"As a matter of fact, Stief's testimony was that he did not remember such a conversa-
tion about a week before Lehi's employment termination. The undersigned has treated
this testimony, however, as though it referred to such a conversation about a week after,
as Ruprecht testified.
" See footnote 41, supra.
" All the dippers who testified on the subject stated they did not understand that either
plan was to have that effect Certainly the 'wording of the plans was not such as neces-
sarily to impart that meaning to the employees, who voted. There is testimony of wit-
nesses for the Pottery that Lehi said to Suer after the meeting something to the effect that
the two were "out of a job." Regardless of whether he so stated, however, the important
consideration is not what he and the other employees thought was to be the effect of the
vote on their employment, but whether the Pottery used the vote as a means of discriminat-
ing against Suer and Lehi for union membership and activity.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what the employees thought the effect of their vote on September 24, 1940, would
be, but whether the Pottery utilized the vote as a means of terminating, the
employment of Suer and Lehi for membership and activity in the United.47
The undersigned finds that- the Pottery terminated the employment of Suer
and Lehi on September 24, 1940, because of their membership and activities in
the United, thereby discouraging membership in a labor organization and inter-
fering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section T of the Act.
Felong, an employee of the Pottery since 1936, discontinued work in the glaze
room after Suer and Lehl's employment was terminated as indicated above,
and devoted full time to clipping. He continued to do dipping work until the
April strike. During the month of January 1941 Felong joined the United.
About the middle of February thereafter, Felong was hand dipping at the same
tub with Clarence Burgess, another dipper, mentioned above. At a moment when
Burgess was away from the tub, Harms came to Felong and inquired whether
Burgess had been talking to him about union matters. Felong answered in the
negative and Harms then stated, "You had better watch out for him, he is a great
organizer, he is strong for the C. I. O " Thereafter, one day during the month
of March, during working hours Harms again spoke to Felong as the latter was
getting a pail of glaze with which to refuel the dipping tub. Harms on this oc-
casion inquired of Felong whether anybody had been bothering him with respect
to joining the United Harms told Felong to tell anyone who asked him to join
that he was big enough and old enough to look after his own affairs He also
reminded Felong that he was being given more work than older men in the
department. Harms further stated, "You keep your nose clean and you will
always have a job here" Harms did not deny that the conversations as de-
scribed above took place. Felong participated in the strike, which began on
April 14, 1941, and during the strike was elected a steward of the United.
After the strike, for the first time he wore in the plant a C I. O. button and
also wore a steward's button. One day during the week he resumed woik,
Harms spoke to Felong while at work. Felong's uncontroverted account of this
'conversation, which the undersigned credits, was as follows :
Ernie#Harms came up to me and he looked at me and he said, "Boy, some
people sure can fool you, can't they?" I said, "Who do you mean; me?"
He didn't say anything He just shook his head and give me a funny grin
and walked off.
At the time work was resumed on May 13, 1941, after the strike, the Pottery
was planning to put into commercial production a fourth automatic dipping
machine, and in July after the strike commercial production on that machine
began 48 The installation of this fourth ,machine and the slowness with which
capacity production got under way after, the strike again reduced the amount
of work for hand dippers. Accordingly, during the month of May, soon after
the strike, another meeting of the dippers was held in Rouleau's office Doll,
Sr., Rouleau, Harms, J. R Doll, the Pottery's personnel director and supervisor;
and most of the 14 dippers attended this meeting. Some of the dippers com-
plained at this meeting that they-would like to have more work. Doll, Sr., told
47 Although the installation of dipping machines had caused a reduction in the number
of dippers , as stated above, it is obvious that the machinery was not the cause of Suer and
Lehl's employment termination , since two other employees took over the work in the glaze,
room of Suer , Lehl, Felong , and Wendt , each , of whom had been working half of the time,
there.
48 Immediately after , the strike , Felong dipped four days a week for two weeks Then
he worked a while easmantling a mangle, and after that work the schedule described herein
was posted.
MT. CLEMENS POTTERY 'COMPANY 747'
the grotip'on this occasion that hand dipping as a trade was a' thing of the past -
and suggested to the dippers that they try to find other work. He stated that
if any dipper would find himself another job he would give such employee a
recommendation, his vacation check, and another check equivalent to his vacation
check. Doll, Sr., also stated at this meeting that he was going to give each of
the seven dippers with most seniority 32 hours of work per week and would
divide the remaining dipping work among the others 49 After this meeting, the
Pottery adopted the practice of posting every two weeks a schedule which stated
the names of the dippers and the times they were to,work. When the first
schedule was posted, it listed Felong for two and one-half days of dipping work
a week.
Felong meanwhile had asked that he be transferred to some other kind of work.
Thereafter, about the first week in June 1941, Rouleau talked to 'Felong in the
former's office and told Felong that there was a steady job for him unloading
box cars. Felong explained that he might be unable to do such heavy work
because of a back injury. Rouleau stated that he had offered a maintenance
job to William Wendt, but the Wendt had refused it. Rouleau also told Felong
he would be better off on the unloading than on the maintenance job and would
make' more money. Felong agreed to try the work and Rouleau told him to
report in a week or so as to how he was "making out." Felong began work on the
unloading job about June 4 and continued it until his employment termination
on or about September 4, 1941.
Felong weighed about 160 pounds and was smaller than most of those em-
ployees who had done unloading work. Moreover, as he indicated in the
conversation with Rouleau, mentioned above, he in fact had received a back
injury while working for the, Pottery in the glaze room in 1938 and had in
the past complained to both Stief and Harms about the difficulty. He last
complained to Harms concerning it early in 1940. The unloading work consisted
of pushing as much as 350 to 400 pound loads of material in wheelbarrows
out of box cars and up an incline into bins in the plant. The unloader would
handle 20 to 30 tons of such material in a day. Felong, after his transfer
to the unloading job, complained to Rouleau several times that he could not
"stand" the work and that his back was troubling him. Rouleau sent 'Felong
to see J. R Doll-about the matter on two occasions, but Doll said there was no
other job available. Felong also asked why he could not have one of the jobs
in the dipping department for which new men had been hired, but Doll told
Felong the latter was now out of that department. Doll also told Felong on
one occasion after his transfer to the unloading job that he had asked for it.
Felong denied to Rouleau having asked for the job and also testified at the
hearing that he mever asked for the job. Although Doll, Sr., and J. R. Doll
testified, and the undersigned finds, that Felong asked for a' change from
his work as a dipper, there is no testimony that he asked for the unloading job
The undersigned finds that Felong never asked for the unloading job.60
'-On September 4, 1941,61 Felong told` J. R. Doll he had recently injured his
43 There was testimony that Felong said in substance at this meeting that if it were not,
for fear of losing their vacation checks the dippers would go out and look for other jobs.
Felong denied baying made such a statement at that meeting . The undersigned credits his
denial . Even if Felong made such a remark, however, ' it' could not reasonably be viewed
as an offer to quit his job
50 Felong told J It. Doll about this time that he would take any kind of a Job'and no,
work was too bard
"
51 Felong was confused in his testimony as to whether this event took place on September'
4 or 6. 1941 . There is evidence that Felong 's employment termination was discussed' at a,'
United meeting on September 4 The undersigned has, therefore, found that his employ-
ment termination took place on that date.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ribs and had lost weight at ,the unloading job and that he did not feel physically
able to continue the work. He said he deemed his health an important matter
and would be willing to work for less money at a , job which was less difficult
physically . He suggested that he be given one of the jobs in the dipping depart-
ment other than actual hand dipping work, that had not long before been given
to new employees . J. R. Doll told Felong that there was no other job,for
him. Felong accused J. R. Doll of bad faith in saying that there were no other
jobs, and left the plant , but indicated to, J. R. Doll before doing so that he
would return frequently to ascertain if the Pottery had found another job for
him. He ' did return several times during a period of about two weeks after
September 4, and talked to Rouleau and J . R. Doll , but was not offered any
other job . He has not worked for the Pottery since September 4, 1941.
The question presented by the above facts is whether the insistence of the-
Pottery that Felong continue the unloading job at the time he finally demurred to
it on September 4, 1941, constituted discrimination against Felong because of
union membership and activity . It is clear that, as Felong contended, there
were new employees hired by-the Pottery . u both before and after Felong's em-
ployment termination . Doll, Sr., testified that following the April strike the
"turn-over rate on help became much higher than it had ever been before" ; that
in certain instances experienced employees did not return to employment and
others had to be trained to take their places. Some of these new employees
were hired in the dipping department . For instance , certain new employees were
hired to clean the automatic spraying machines , to wash ware , to clean boards,
to move ware , and do sweeping . Such jobs were sometimes referred to by the
dippers as odd jobs, and Felong at times before the strike of April 14 had been,
assigned to work at certain of these jobs. The Pottery contends that these jobs
were boys ' jobs and it would not transfer a, dipper to such work permanently
because the transfer would be a demotion and would be destructive of morale. It
is true that some of these jobs filled by new employees after the April strike were
in fact boys ' jobs . However, the record shows that various employees approxi-
mately as old or older than Felong were hired to clean spraying machines in the
dipping department after the April strike. Furthermore , on, the basis of Doll's
testimony as to labor turn-over , the undersigned is convinced and finds that-
during the summer of 1941 , prior to Felong's employment termination ; there was
work other than boys ' jobs to which Felong could have been transferred . More-
over , Doll, _Sr.; indicated that up to about the summer of 1940 the Pottery
had followed the practice of transferring the dippers displaced by machinery to
lower paying jobs in order to give them employment , but that early in the sum-
mer of 1940 , with the advent of better business conditions , the Pottery changed
its policy and adopted the practice of releasing such employees and making them
find other work. That the Pottery should claim a change in this policy as applied
to the dippers so near the time the United began to obtain members among the
16 dippers is itself a suspicious circumstance . Especially is the circumstance
suspicious in view of an admittedly different policy being applied as to the
clay department , where labor saving machinery was being installed also.62 Even
apart from this apparent conflict in policy , however, the Pottery's argument
against 'placing Felong in a lower paid position is without merit, in view of his
,expressed willingness to take such employment . Under all the circumstances,
19 Foreman Parrott testified that his instructions at that time were "to try to place
everybody that needed to be transferred or were replaced by the machinery to ti to place
them in some other part of the plant rather than lay them off; to cooperate with Mr. Rouleau
.on it and see if we wouldn't find a job for everybody."
MT. CLEMENS POTTERY COMPANY 749
k
the' undersigned is convinced that the refusal to give him work other than the
unloading job was because of his membership and activity in the United.
The undersigned- finds that on September 4, 1940, the Pottery discriminated
as to hire and tenure of employment of Felong because=of his membership and
activities in the United, thereby discouraging membership in a labor organiza-
tion and interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Baxter began his employment for the Pottery in 1933. About a year and a
half later he was placed at work as a hand dipper. For some time prior to the
meetings of the dippers in Rouleau's office in September 1940 as detailed above,
however, Baxter had been working as an operator's helper on one of the newly
installed- automatic dipping machines. After that meeting he resumed hand
dipping and worked at it until his employment termination. Baxter joined
the United in September 1940 and in April 1941, during the strike, was elected'
treasurer. As treasurer of the United he was also one of the four 'member"s of
the United's grievance committee. Baxter, as a member of this committee,
called with the others on Doll; Sr., several times after the termination of the
strike of April 14, regarding claimed discriminations by the Pottery against
the members of the United and about the possibility of giving other jobs to the
dippers whose work had been reduced by installation of the automatic dipping
machines. Moreover, after the termination of the strike, Baxter wore in the
plant both 'a C. I. O. button and a steward's button ' In May, soon after termina-
tion of the strike, Baxter attended the meeting of the dippers in Rouleau's
office, as described 'above, at which Doll announced the intention of giving 32'
hours of work a week to the seven dippers with the most seniority and dividing
the balance of the dipping work among the others. Baxter was not one of the
seven dippers with most seniority,, but was the ninth dipper in order of seniority.
When the Pottery began the practice of posting the work schedule for the dippers
early in June, he was scheduled for only 31%z days of work a week. In August
the amount of work, assigned to him and some of the others below the seven,
with most seniority was further decreased. On Tuesday, August 26, 1941, the
work schedule for the dippers was not posted, although that was the customary
time'of week to post it. None was posted during the remainder of that week.
J. R. Doll, who usually prepared the schedule, was away from the plant during
that time and, according to the Pottery, it was because of his absence that the'
schedule was not posted. In any event, at the close of work on August 26 Harms
told Baxter and Burgess, another one of the dippers mentioned above, that they,
could go home and he would call them when, he needed them. Two days later
the United sent the Pottery a notice of intention to strike. On August 29, Harms
told Baxter he could return to work, and upon Baxter's return to the plant shortly
thereafter told him he could work one day a^week. as,a dipper, and, three days
carrying cups.
This work of carrying cups involves the successive handling bf`cups stacked in
boxes and on boards, the lots handled each weighing from 35 to 45 pounds.
Baxter told Harms he could not carry cups because of a back injury he had'
received some time before. This back injury was known as a sacro-iliac strain.
Baxter had received treatment for the injury at various times since about 1935.
Over a period of time prior to the offer to him of the job carrying cups, he had at
various times mentioned to Harms the matter of this injury. After his refusal of"
the cup-carrying job he went to Dr. Austin W. Heins, a Mt. Clemens physician
who had formerly treated him for the injury, and obtained a certificate which,
recited that I)r. Heins had treated Baxter for such an injury.' Baxter brought
this certificate to the plant and showed it to J. It Doll and Rouleau.
750 DE!CISION 'SW OF `NATIONAL LABOR : RELATIONS BOARD
Thereafter , on October 7, 1941, Rouleau had an interview with Baxter in the
former's office . - Rouleau on this occasion ;offered Baxter a job as a batter-out.
Baxter's uncontroverted testimony , which the undersigned credits as to this
conversation , characterized Rouleau as having stated that he "was , doing as'
he was told-he was told to offer me a job as batter-out and nothing else."
Baxter told Rouleau that he could not take Ithe job and mentioned the physician's
certificate which he had previously shown Rouleau . He asked . Rouleau for a
job as operator 's helper, a type of work on "which he had had experience prior to
the September 1940 dippers ' meeting, and named two employees with less seniority
who were doing such work. Rouleau declined to offer him, any other work
than the batting-out job. Rouleau told Baxter, "I guess you are all done" and
Baxter left the plant . He returned the next day and undertook to obtain,an
interview with Doll , Sr., but after a wait of about 15 minutes left the plant
without having talked to him He has not worked since October 7, 1941.,
The above facts present the question whether the Pottery's insistence that
,Baxter take the batting-out job or "nothing else " when he demurred to it on
October 7, 1941 , constituted discrimination against him for union membershiD
and activity . - The offer of a batting-out,job to Baxter was in effect an offer
,of such a job with respect to medium and largo ware , as the automatic machinery
mentioned above was by that time turning out practically all the small ware.
The process of batting-out either of these kinds of ware calls for a constant
process of reaching up and pulling down a piece of machinery known as a batter
head in order to flatten lumps of clay which are placed on a block below the
batter head. The clay is thus spread through the force of the impact and the
batter head , which is electrically heated. ' Although it is arguable that Baxter
should have given this work a trial; the undersigned is convinced his contention
that-the work might ,aggravate his back -injury had foundation in fact and his
refusal of the job was , not 'unreasonable ."$ Moreover, the Pottery makes no
satisfactory explanation of why if would not offer Baxter other work which
was available in the dipping department . Baxter specifically expressed his
desire to take one of the lesser paying jobs of operator 's helper in the dipping
department , work with which he previously had experience as set - forth above.
These positions were held by employees with less departmental seniority than
Baxter." The Pottery's refusal to assign Baxter to one of these jobs at a time
when it professed to be considering departmental seniority under the contract of
May 7 , 1941, constituted a departure from the general treatment it claimed to be
giving its employees at that time . In view of the testimony of Doll , Sr., about the
,large labor turnover between the two strikes, as mentioned above, the under-
signed is also convinced that there'were still other jobs in the plant which might
have been given to Baxter.
The undersigned finds that on October 7, 1941 , the Pottery discriminated as
to hire and tenure of employment of Baxter because of his membership and
activities in the United , thereby discouraging membership in a labor organiza-
c3 The experience of Kogelman , 'as detailed below , lends support to Baxter 's contention
that batting-out work is strenuous . The physical effort entailed in; the job of carrying cups,
offered Baxter a few weeks previous , has been stated above . The same reasoning applies
with respect to the Pottery 's offer and Baxter's refusal of that job as applies to its offer and
Baxter's refusal of the batting -out job . The machines ,used in batting -out medium and large,
ware were substantially the same,, the difference being in,the size of the bead used on the-
two machines. -
54 The testimony ' of Baxter is unCOntroverted that Art Eckert and Carl Nicka, who were
working at such jobs had less departmental seniority than Baxter . The Pottery purported
at that time to be giving consideration to departmental seniority.
MP.,'CLEMENS -POTTERY COMPANY ' 751
tion and interfering with, restraining and coercing its 'employees, in the exercise
of the rights guaranteed in Section 7 of the Act.
Kogelman began working for the Pottery in October 1936. He worked as a
batter-out of small ware until December 1939 except -for a lay-off of approx-
imately six months in 1938. In December 1939 Kogelman had an argument
with Robert Fitton, a foreman in the clay shop, about the quality of his,-work.
The day after the argument Fitton transferred Kogelman to a sweeping job.
Early in the summer Doll, Sr., suggested to David Rouleau, superintendent of
the Pottery, that an effort be made to place Kogelman at some other work
than sweeping floors. Doll stated in his testimony that he made this suggestion
because Kogelman was a young man and he desired to see Kogelman placed
at work which had greater possibilities. During the month of August thereafter
Kogelman joined the United and in turn solicited three or four other employees
to join. During the'week before Labor Day 1940 Kogelman was assigned to
a job batting-out small ware." On Saturday of that week Fitton again assigned
Kogelman to a sweeping job, but for only a week to take the place of a sweeper
while on vacation. Fitton told Kogelman at the time that his work was good
and that Kogelman would "be back in the clay shop again in another week."
On September 7 of the week Kogelman was reassigned to sweeping, Randolph,
mentioned above, foreman of the moulding and casting department, approached
Kogelman and held' a conversation with him: Kogelman testified as follows
regarding this conversation :
Well, Mr. Randolph came up to me, and he says "I am surprised at you
joining up with an organization like you have," and I ,denied, it, and he
says that he heard I had joined up with them, but he didn't see me at no
meetings . . . he said he was looking for an opening in his department
for me, that he wouldn't put no one in the department like that that joined
up with an organization. He said that the pottery would be better off
without the C. I. 0. ih there.
Randolph denied that he ever had discussed Kogelman's union affiliation with
him. Kogelman impressed the undersigned as an honest and forthright witness.
The undersigned was not impressed favorably by Randolph as a witness,66 and
credits Kogelman's testimony about his conversation with Randolph as stated
above. On Monday thereafter when Kogelman reported back for work in the
clay shop, Fitton placed Kogelman at the work of batting-out big ware. Kogel-
man weighed about 125 pounds at that time. The other batter-outs of big ware
weighed more than Kogelman'? He complained that he was too light in weight
for such work, but Fitton said there was no other place to assign Kogelman and
the latter took the assignment. Kogelman soon' strained his side on the job.
After about two weeks on such work Kogelman told Fitton the work was too
strenuous and asked Fitton for a transfer to batting-out small ware. Fitton re-
plied that there was no way to make such a transfer. Kogelman suggested that
Bud Moore and Art Eckert; two employees who were batting-out small ware,
weighed more than Kogelman fib and that a transfer with one of them might be
es During that week Kogelman took the place of a small ware batter-out-who was on
vacation
68 See footnote 17, supra. -
5 Although Fitton testified on direct examination that Alfred'Ehrke and Joseph Buschere,
two- batter-outs, were no heavier than Kogelman, he admitted under cross-examination by
Board counsel that-he was not sure what kind of ware they 'were batting out at the time
of Kogelman's employment termination
The uncontroverted testimony shows that each of these employees weighed about,40
pounds more than Kogelman. -
752 DECISIONS . OF -NATIONAL r`UABOR RELATIONS BOARD ,
arranged. Fitton said that these employees -did not know how' to, bat-out big
ware and he could not transfer them.,, On the Wednesday before' October 7,,1940,
Fitton complained to Kogelman that the" latter was not achieving sufficient pro-
duction and suggested that Kogelman rest two days.59 Kogelman did so and re-
ported back to work October 7, but found another employee assigned to his 'job.
Fitton told Kogelman to see Parrott, general foreman of the clay department.
Parrott on this; occasion told Kogelmali the latter was not achieving, sufficient
production, a complaint he had made several times 'about Kogelman since the
latter's assignment in August to-the work • of batting-out heavy ware. Parrott
suggested that Kogelman "take a few days off" to look for other work and'sent
+Kogelman, to see David'Rouleau, plant superintendent. Kogelman asked Rouleau
for other work,,but Rouleau said he had nothing else to offer. Rouleau told
Kogelinan he could not be'reassigned to his former job as a sweeper; as the,em-
ployee who had been assigned to that job needed the work more than Kogelman.
Both Parrott and Rouleau testified that Kogelman on. October 7 expressed him-
self as quitting" ,his job. Kogelman's testimony conflicts, with the version of
Parrott and Rouleau. He testified, as 'indicated above, that he requested both
Parrott and Rouleau to,assign him -to other work than batting-out large ware,
and that he,left the Pottery after they refused to do, so. He further testified
that Rouleau promised to call Kogelman back to the Pottery if he found other
work for Kogelman, but -failed ever to do,so.' Moreover, the Pottery made an
entry on its employment records at the' time of Kogelman's termination of em-
ployment that he was too small and slow to bat-out big ware and likewise so re-
ported to the Michigan Unemployment Compensation Commission In any event,
it is unnecessary to determine whether Kogelman on October 7 expressly stated
that he'was quitting his employment with the Pottery because even if he did so it
is clear that he did so involuntarily and because of the 'Pottery's refusal to give
him any other work than that of batting"out big ware.` It remains for determina-
tion, however, whether' the refusal of the Pottery .on October 7, 1941, to assign
Kogelman to other work than batting-out large ware was because of his affiliation
with and activity on behalf of the United. It is significant, that Fitton refused,
during September, to, interchange the work of Kogelman with that of Moore or
Eckert. Each of these employees was more robust physically and should have
been better able than Kogelman to bat out large ware S0 It is also significant that
the Pottery selected work as a batter-out of heavy ware to which to transfer Kogel-
man. His previous experience as a batter-out had been confined to small ware.
No good reason, appears as to why a heavy-ware job was singled out for assign-
ment to him rather than some other work in the plant. Rouleau testified that
when he transferred Kogelman to batting out he told Kogelman that the latter
could not later have back the sweeping job. If the, implication is that Kogel-
man should have protested at the time, the undersigned finds no merit in the con-
tention, because during the first week after his transfer Kogelman was assigned to
work batting out small , ware, work for which he was physically capable. Not until
he was again assigned to batting-out after the sweeper's vacation of a week, was
Kogelman assigned to heavy ware, and at that time it is clear that he did protest
that he was physically incapable of doing the work.
50 As the Pottery normally did not operate Saturdays this two-day rest would `entail'a
return to work the following Monday. '
, 10 The contention of Fitton to Kogelman that these employees, knew how to bat out only
small ware applied equally to Kogelman It• would have been more tenable apparently, in
,view of Kogelman's slight physique, to have one of them rather than Kogelman learn to bat
out large ware. .
MT. CLEMENS POTTERY COMPANY 753:
The insistence of Kogelman 's superiors after he had given the batting -out work
a trial and found himself physically incapable of doing the work that he could not
have back his sweeping job or receive any work except that of batting out heavy
ware, convinces the undersigned - that the real purpose of the Pottery was to
confront him with the probable necessity of quitting work he was unsuited to.
do. The motive which impelled the Pottery to do this is better understood when
considered in connection with its attitude toward Reeder at about the same time.
Reeder began work for the Pottery in 1926 sticking handles on cups. In or
about 1929 Parrott transferred Reeder to work as a batter -out of heavy ware.
Parrott told Reeder at the time that his hands were too big and awkward to do,
handle 'sticking and that he would make more money at batting out. Reeder
continued this type of work until his employment terminated on October 22, 1940.
He joined the United during September 1940 and on October 12 thereafter was
elected one of the United 's three trustees . About a week before Reeder's election
as trustee , Parrott summoned Reeder to his office and engaged Reeder in conver-
sation. On this occasion Parrott asked Reeder if the latter intended "to stay
with the company" and stated it would be necessary to lay some employees off
because of • slack work , but that Reeder would be one of the last laid off from
batting out work. Parrott further stated on this occasion , "You know, you
don't want to pay any attention , Stan, but somebody might come up to you and
say things that is going on; you just look out for yourself and don't worry about
the other fellow, you look after Stanley Reeder ." On Octeber 21, 1940, Parrott
again summoned Reeder to his office , telling Reeder that he was never a very
good batter-out and he had better go to work sticking handles. Reeder further
described in his testimony what happened on this occasion as follows: " . . .
ne [Parrott ] says, `You know Mr . Doll won't stand for it. He'would close the
place down just like that-' and banged his hand on the desk when he said that."
Parrott denied having made these remarks about Doll 's opposition to the United.
Reeder impressed the undersigned as an honest and forthright witness. The-
opposition of Parrott and Doll to the United set forth above also lends credit to
Reeder 's testimony . The undersigned , finds that Parrott made the remarks
.about Doll's opposition to the United as testified to by Reeder, Reeder protested'
the transfer to the handle sticking job, arguing that he had been a batter-out
a long time and could not make as much money at handle sticking as at batting
out. He also stated that he would return to the plant the next morning to take
his old job . When Reeder did so he found another employee operating his
batting-out machine. Joe Cornish , the foreman immediately over him, placed
him at work on a machine "down the line." After 30 to 45 minutes' work on this
machine Parrott again summoned Reeder, to his office and talked to him in
Rouleau's presence . Parrott told Reeder he was assigned to handle sticking
and that there was no other work for him. Reeder again protested the assign-
ment, stating that lie "couldn 't live on that money." 61 Parrott told Reeder he
"had better get out then ." Reeder left the plant and has not worked there since.62
61 The evidence indicates some male handle stickers who work on a piece rate basis as
.distinguished from the hourly basis of the batter-outs were making as much money as -the
batter-outs, but that others were not. Parrott described as "problematical" whether Reeder
could do so.
02 The statement of events as detailed above is based on the testimony of Reeder, who
impressed the undersigned as a credible witness Parrott did not deny that when be assigned
Reeder to batting out in 1929 he told Reeder his hands were too big and awkward for
handle sticking. Neither did he deny that another employee, on October 22, was placed on
the job of operating Reeder's batting-out machine, but said he was unable to recollect who,
the employee was. He admitted that he had two conversations with Reeder at about the
times specified by Reeder, but gave a different version of them. He testified that at the
504086-43--vol. 46-48
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is necessary to determine whether the Pottery assigned Reeder to 'the
job of handle sticking because of the necessity of reducing the number of batter-
outs or because of Reeder's affiliation with and activity on behalf of the United.
It is significant, that such transfers of batter-outs as were made in 1940. were
not on the basis of seniority, as Parrott testified without contradiction that
,some of the batter-outs whom he transferred in 1940 had less seniority than
Reeder, others more. It is also significant that the batting-out machine at
which Reeder worked continued in operation after his transfer. The fact that
this machine continued in use indicates that the prior installation of two
automatic clay machines, which' had displaced some of the batting-out machines
and their operators , did not necessitate the' abandonment of the machine operated
by Reeder. The two automatic clay machines, which, had been installed in
January 1938 and January 1940 respectively, over a period of time reduced
the number of batter-outs from approximately -75 to approximately 35. These
machines, however, did not produce heavy ware and it is clear, as stated above,
that Reeder's batting-out machine was ;continued in operation by another
employee. The undersigned therefore finds that the installation of the auto-
matic clay forming machines was not the reason for Reeder's transfer to work
as a handle sticker. Apart from the above considerations it is significant that
the Pottery at about the same time it insisted that Kogelman should transfer
from other work to that of batting out heavy ware, as set forth above, also
insisted that Reeder should transfer from batting out heavy ware to other
work: For the contradictory attitude toward these employees the undersigned
finds no reasonable basis other than their affiliation with and activity on behalf
of the United. Reeder's demurring under such circumstances to his transfer
to the job of handle sticking cannot properly be viewed as a voluntary termina-
tion of employment on his part. The undersigned finds that the Pottery dis-
criminated in regard to the hire and tenure of employment of Kogelman on
October 7 and of Reeder ,on October 22, 1940, thereby discouraging membership ^
in a labor organization and interfering with, restraining , and 'coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
The strike of April 14, 1941, was settled only after an agreement by the
Pottery and the United to submit to Captain Donald S Leonard of the Michigan
State Police for, an arbitration award the names of 12 employees against whom
,the United contended there had been discrimination. 'Kogelman, 'one' of the
12 employees whose names were thus considered, was ordered reinstated pur-
suant to this agreement for arbitration. Soon after Captain Leonard's order the
Pottery offered Kogelman reemployment. Kogelman testified that the offer
was that of a job again as a batter-out of heavy ware. J. R. Doll and Parrott
both testified that the offer was that of a ' job as batter-out of medium ware.
first, substantially all that was said was that because of too much help he was going to
assign Reeder to handle sticking shortly and Reeder expressed hope of remaining on batting-
out work as long as possible , that on October 21 Parrott told Reeder he would have to trans
fer more people to other jobs and that although'Reeder protested Parrott told Reeder he
expected him to start handle sticking the next morning ; that the' morning of Reeder's em-
ployment termination he insisted on resuming his batting -out work ; again stated he could
not make as much money at handle sticking as at batting out, and accused Parrott of dis-
crimination against him for CIO affiliations, Parrott denying the charge ; and that Reeder
left the plant at the conclusion of this conversation . Parrott denied making the remarks
to Reeder in opposition to the United as testified to by Reeder Parrott's consistent oppo-
sition to the United as detailed herein lends weight to Reeder's testimony that Parrott made
the remarks .-' Moreover , the inconsistent treatment accorded Reeder and Kogelman, as ex-
plained above , strongly indicates that opposition to the United entered into the decisions
made in the handling of these two employees and made it likely that Parrottgave expression
' to such opposition by anti -union statements when he talked to Reeder.
1
MT. CLEMENS , POTTERY COMPANY 755
In any event Kogelman declined the offer . Since these , two jobs call for similar
work the undersigned is convinced and finds that in either case Kogelman was
not offered a job on that occasion of which the Pottery in good faith should have
deemed him physically capable a and that . for such , reason the discrimination
against him continued thereafter.
Green ' began work for the Pottery on August 17, 1937. During her employ-
ment by the Pottery she , was° a finisher in the flatware division of the clay
department , from some time early in 1940 working on center ware. This work
consisted of cutting and sponging the faces and edges of clay dishes after they
had been handled by the batter -outs and jiggermene' About 50 to 75 other girls
were engaged in this same operation . There was also an automatic jiggering
machine in the department and certain other girls did similar finishing work
on the same kind of ware, which was removed from a belt after it had passed
through this so-called automatic . The finishing work on ware that had passed
-through the automatic was as a matter of practice assigned to new and com-
paratively - inexperienced girls in•-thes'department and was considered by em-
ployees to be less desirable work , than that ' done from the hand batting-,out and
jiggering jobs.°3 Green joined the United as a charter member and was elected
a trustee on October 12, 1940 . Two days later Parrott held a conversation
.with Green at the mangle where she was working . He told Green that he had
heard she had joined the United , asking her if she was not satisfied with her
work and what she liked about the United. Green stated that she favored the
United's stand in favor of seniority and complained regarding one girl with
about three years experience in the department having been placed "on the
automatic" and left working there nine months although told when placed there
that it was a temporary assignment . Green told Parrott that if she were
assigned to the automatic she would' have to quit work because of the low
pay at working on the automatic . Parrott asked Green if she did not think
it would be better to take grievances direct to the Pottery 's officials rather than
to use an "outside" organization . Green then stated that she 'was exercising
"a perfect right of an American citizen," and Parrott replied , "Well, do what you
please ; I don 't give a damn."
Parrott called a meeting for 2 p. m., October 24, 1940 , of the flatware finishers
in the combined morning and afternoon shifts of the department . The calling
of such a combined meeting was ' not a customary procedure . Parrott spoke
03 This employee is mentioned in the complaint as Joyce Brusseau , but is herein referred
to under her marriage name of Green acquired since her employment by the Pottery
"4 After the cutting and sponging operation the ware was piled in stacks and was in-
spected. There was testimony that at times Green's work was rejected by the inspectors for
imperfections , but there was no testimony that there were more rejections of ware done by
her than of that done by other finishers. Since the Pottery's witnesses do not contend that
her employment termination took place because of poor work, the question of whether a
disproportionate amount of ware finished by her was rejected by the inspectors is not
discussed.
ae There was disagreement in the -testimony-as to whether the average earnings of finishers
..on the automatic were less than those on work: from the hand batter-outs and jiggermen. In
any event it is clear that the employees - considered the finishing work on ware from tTe
automatic to be less desirable and the girls of less experience than Green were normally
assigned to such work.
se Green testified to the conversation of October 14 as here detailed. Parrott denied that
,he told Green he had-heard she joined the United the preceding Saturday and stated that he
may have asked her.what she liked about the United, she having asked him what he thought
about it. He stated that be was unable to remember the entire conversation and did not
deny the substantial accuracy of Green's testimony about it except as detailed above
Green impressed the undersigned'not only as a credible witness, but as unusually intelligent
Under the circumstances the undersigned has credited Green's version of the conversation.
756 DFJCISIONS OF NATIONAL) LABOR RELATION BOARD
to the approximately 40 girls 'who attended, telling them that the meeting was
called "for the purpose of discussion, , (sic) any problems or complaints the
'girls had to make" about their •woik. He appointed a committee, of six 'to
receive complaints, stating that the names of those who complained would not
be divulged. Parrott then left the meeting and Ruby, Harder, an employee
he had appointed to the committee mentioned above, assumed -charge of the
meeting. Referring to Green , she said , "Well, Joyce, you seem to be doing the
most complaining; how about you'telling us what you have to say?" Green
mentioned the conversation of a few days previous with Parrott. She remon-
strated that it was unfair to put'the older employees "on the automatic,"
rotating that girls doing such work were not able to make both ends meet" and
that she would have to leave her employment if assigned to such work. About
30 to 45 minutes after this meeting -Parrott told Green, "I am calling your
bluff ; you are going'to work on the automatic or else." Green asked Parrott
why he was making such an assignment and stated that she refused "to go on
the automatic without good reason." Parrott replied, "Yes, you are ; you are
doing what I say." Green then told' Parrott, ". . . it is or else then." She left
'the Pottery and; on leaving, asked Parrott if 'slie was fired. Parrott replied in
the negative, telling her that she was quitting.
'The next afternoon Green called at the plant and talked to Rouleau regarding
her situation. He told her he knew nothing about her -matter, but would
examine into it and for her to return the next Monday. 'The uncontradicted
testimony of Green shows that Rouleau also'said on this occasion, "You know,
Joyce, people in this world get along a lot better and' help their interests out
a'lot.more, if they will just attend to their own business and not worry about
"their 'fellow man." ' '
When Green--returned the next Monday Rouleau told her that he could not
have' her reinstated because the, foremen regarded her as one who caused
dissension. He said that her talking to other employees had caused them to
be dissatisfied with working on ware produced "on the automatic." He told
Green 'to look for another job and if she could not find one in a month or two
to return and he would give her necessary financial aid.
Parrott stated in his direct 'examination that Green had previously refused
to work "on the automatic" and that the girls doing the same kind of work
had-taken turns "on the automatic" except for Green. On cross-examination by
Board counsel, however, Parrott, after testifying that Green had at times said
she would not work on, ware.from the automatic and had asked him not to
assign her to such work, testified in part as follows :
Q. Then your testimony is, on one,, two,- or three occasions, you asked
Miss Brusseau to take a• turn on the automatic and she refused, is that
right? - '
A. No She told me not to ask her, that she wouldn't take a turn.
Q. When -did she tell you that?
A. Well, as I would be along inspecting her work.
Q. You mean you would come along 'and she would say, "Don't ask me to
go on the automatic because I won't do it?"
,A. I don't recall just bow it come up.
Q. Well, do 'you mean your testimony, to leave the impression that on
these two or three occasions you actually, assigned her,'to the automatic
and she refused to go?
A. Well, that is asking me to remember a lot of details that are pretty-
a little bit vague. +
MT. CLEMENS POTTERY COMPANY 757,
Parrott admitted that Green had at times during 1940 taken turns finishing
ware , from the automatic . He, also admitted that any instances of her failure,
to work on ware from the automatic had, not at the time, as far as he could
recollect, been considered of sufficient` importance to report to. anyone. Green
denied that she had ever protested against taking her turn working on ,ware'
from the automatic. Under all the circumstances, the undersigned credits
her denial. Rouleau's interview with Green and part of Parrott's testimony
raises the question whether Green had, prior to October 24, made efforts to get
the, other girls to refrain from working on ware from the automatic. There
is no direct evidence that she held any such conversations, with other employees..
When asked whether she had ever made any such specified remarks, she denied
having done so." The undersigned finds that Green made no such remarks
prior to the' meeting of October 24.
There remain for consideration the significance of the meeting of October 24
and the events subsequent thereto. The fact that Parrott, so soon after that
meeting, assigned Green to work on ware from the automatic, after her com-
plaint about such work at the meeting, causes the undersigned to conclude
that the meeting was called for other purposes than to set up a bona fide
plan for presenting grievances. Moreover, Green testified that she heard
Harder tell Parrott after the meeting, "I got all you needed, Wes." Parrot did
not specifically deny this, and Harder did not testify. The undersigned finds'
that Harder made this remark to Parrott. The undersigned views as significant
the fact that criticism of Green's relations with the other employees did not
begin until the time'of the meeting of October 24, 1940, twelve days after she
joined the United " Parrott stated in his testimony that the assignment of
Green to work on ware from the automatic on October 24, 1940, was intended
to be only temporary. Green indicated by her testimony, however, as stated
above, that she asked Parrott at the time of the assignment what the reason
was for her transfer and he did not answer her question. As Parrott did not
deny this testimony, the undersigned credits it. Such fact, together with the
discussion a few days previous between Green and Parrott 'about an older
employee who had been working permanently on ware from. the automatic,
created such a situation as to infer that the assignment was permanent. That
Parrott himself -so regarded it, moreover, is indicated by events following the,
strike of April 14, 1941. As part of the strike settlement agreement, as ex-
plained above, the names of 12 employees whose employment had been terminated
were submitted to Captain Donald S. Leonard of the Michigan State Police
for consideration for reinstatement, and he. rendered an award accordingly
on May 24, 1941, in which" he directed reinstatement of Green. The Pottery
gave,her employment accordingly on June 9, 1941, but as a finisher on ware
from the automatic. Green accepted the, assignment under protest and the,
Pottery continued her at such assignment until September 14, 1941, when
she discontinued her employment. Under the circumstances, the under-
signed finds that the assignment of Green on October 24, 1940, to the work of
finishing ware from the automatic was at the time intended to be permanent
and that she so understood it. Parrott told Green on October 24; 1940, that
quitting her employment. Her demurrer to Parrott's assignment toshe was
67 Green was asked whether she had ever called the girls who finished ware from the auto-
matic "suckers " She answered in the negative She was also asked whether she had ever
told them they were "crazy" to work on ware from the automatic . She answered that she
had never done so prior to the meeting of October 24.' ,
61 Green testified without contradiction that no foreman or supervisory employee ever
accused her of causing dissension prior to the meeting of October 24, 1940.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the automatic,on, that date, however, `was not, -under all the circumstances' as'
set forth above,' a voluntary termination of her 'employment, but was a protest
against discriminatory treatment. The undersigned.'finds that the Pottery"on'
October 24, 1940, discriminated in regard-to hire and tenure of employment of
Green, thereby discouraging membership in a labor organization and interfering
with, restraining, 'and coercing its employees, in the exercise of the rights
guaranteed in Section 7 of the Act. '
Doll', 'Sr., testified` that during the winter following the incidents of October
24, 1940, Mary D. Ryan, the Pottery's supervisor of female employment, ac-
cording to reports made by her to Doll, called on Green to ascertain whether she
would be interested in returning to' work for the Pottery. Parrott testified
also that during the same time approximately he asked Esther Sopha, another
employee, on two occasions to ascertain if Green wished to return to work'
and 'that on one occasion Green said 1^ she did not want to do so, while on
another she'said she would not return until the C. I. O. was in control. Ryan'
did not testify. Sopha testified' that Parrott, at times during the above period
inquired of her about Green and once asked her whether Green was interested
in returning to work. She also'testified that on one occasion after October
24, 1940, he asked her to tell Green that if she wanted work to come back
and see him, but that Parrott never mentioned a specific day or job Green
testified' that neither Ryan nor Sopha sever brought her an offer of a definite
job. She denied that she ever told Ryan she would not work for the Pottery
again or told Sopha she would not return to work unless the C. I. O. was in
control. 'The undersigned credits this testimony of Green, since the only
evidence in contradiction thereto was hearsay.69 The undersigned further.
finds that Green was never offered reemployment by the Pottery until June
9, 1941.
Stark had worked for the Pottery since,February 1934. After about three'
months he was assigned work on the presses as a press puller and continued
at such work until his employment termination on October 2S, 1940. The
Pottery has six regular press - pullersi+,,who work in' pairs on three different
shifts. The presses referred to are used in the preparation of the clay for
the work of the batter-outs. These presses are' pumped full of clay in liquid
form known as slip. After the clay has gone, through a hardening process
it is removed from the presses. This process of removing the clay is known
as pulling the presses and the-employees who do the work are known as press
pullers.
Stark joined the United in September 1940, obtained membership applications
from three of 'the 'other press pullers, and was a member of the United's'
organizing committee. Hilaire Deliiere, a foreman who in October 1940 had
supervision over Stark and about 15 other employees,70 during that month had
a conversation with Stark while at work. Stark's testimony shows, and Dekiere'
did not deny, that Dekiere told Stark on this occasion he did not see why'
Stark had joined a union because the 'employees could get what they wanted'
61 Some of the testimony introduced by the Pottery might also indicate that Green was in-,
efficient The evidence is not sufficient to establish that she was inefficient. - Moreover, since
the Pottery contends that 'she quit her employment October 24, 1940, the alleged inefficiency.
under the Pottery's theory obviously could not be a reason for termination of her employ-
.merit. Under the circumstances the undersigned finds it unnecessary to consider the question
of inefficiency. , '
70 The employees under Dekiere 's supervision in addition to the press pullers included the
mill chargers and clay pluggers. `
MT. CLEMENS POTTERY COMPANY 759>
without a. union.71 On the morning of October 28, 1940, which was one to
two weeks after Stark's conversation with Dekiere, Rouleau summoned Stark
from his home to the plant. Rouleau told Stark on this occasion that there
were complaints from the clay shop about Stark "having a farm" and also-
about the clay shop running out of clay, Rouleau saying that the shortage of
clay was Stark's fault. Rouleau on this occasion gave Stark his pay check
and terminated his employment.
It is necessary to determine whether Stark was discharged for causing clay
shortages. About Labor Day before Stark's discharge there had been a clay
shortage which had slowed up production. Doll, Sr., about that time asked Tom
Al. Place, a ceramic engineer employed by the Pottery, to ascertain tbe'cause,
of the shortage. Place during a period of about two weeks in September made
a study of the press pulling operation and turned in to Doll, Sr., records showing,
inter alza, the number of presses of clay produced by each shift of press pullers.
According to Place's testimony these records showed that the shift of press
pullers on which Stark worked was producing two or three presses less per
day than the other shifts." Doll, Sr., then referred the matter of the clay
shortage to Rouleau. Another clay shortage of consequence took place on
October 25, 1940, Dekiere during that day mentioning the matter to Rouleau.
The night of that same date about 9 o'clock Foreman Carl Starner telephoned
Rouleau that the clay shortage situation was serious. Rouleau went to the
plant and himself worked for some time to help relieve the shortage. While at
the plant that night Rouleau said to Stark, "I am usually called in on these
things once, but I am never called the second time." Rouleau conferred that
night at the plant with Peter Grass, sub-foreman on the night shift. According
to Rouleau, Grass reported to him that Stark would go outside and smoke,
while at work, sometimes being away from worli 20 to 30 minutes when presses
were ready to be pulled. Grass did not testify. Thoel testified that he never
observed Stark go outside and smoke on such occasions. The undersigned credits
Thoel's testimony on this subject as against Rouleau's hearsay testimony regard,
ing the observations of Grass as reported to him. On October 26 Rouleau
conferred with Place as to what his investigation had shown about the clay
shortages." The same day he also conferred with Dekiere and Dekiere told,
Rouleau something should be done about the situation. Dekiere testified that
he had personally observed that Stark did less work than the other press,
pullers. Both he and Rouleau testified also that Dekiere had on certain
occasions some time prior to October 25, 1940, spoken to Rouleau about Stark as
a cause of slow production of clay. -
It is clear that Stark was discharged on October 28, 1940 , after at least
two clay shortages during a period of a few weeks prior thereto. The cir-
cumstances were such that Rouleau might have discharged Stark because Rouleau
and Dekiere believed him responsible for the shortages. Dekiere's testimony
that lie had observed Stark as doing less work than the other press pullers,'that
he had before October 25 discussed Stark's name with Rouleau in connection
with clay shortages and that he had suggested to Rouleau that they take
71 Stark's complete account of this conversation was as follows : "Well, he just came up
to us and he said to me be did not see why we had to join a union , that we could get what
we wanted without a union . I told him I had been, over there six years and we never got
nothing yet and it was about time we did something else, and he left."
72 Board counsel during the hearing asked ' for production of these records , but counsel for
the Pottery stated that they had not 'been preserved . The latter said that records of total
daily production of the department were the only such records that' had bean preserved.
7' It•is'significant that -Place's study merely assigned slowness in production to Stark and'
Thoel 's shift and did not assign responsibility to Stark personally.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action in the matter might be convincing were it not for a conversation between
Dekiere and Stark in June 1941. In the award of Captain Leonard as men-
tioned above was a direction that Stark be reinstated. The Pottery wrote Stark
a letter offering him reemployment accordingly. Upon receipt of the letter
he went to the, plant one day early in June 1941 and had a conversation with
:Dekiere. Stark testified as follows about this conversation :
... He asked, me if I had heard about the dirty deal he got, and I said,
'Yes', I had heard about it." 7. Then he went on to say about my back
pay. He said, "You will get your back pay won't you? . . . They will have
to pay it; I don't see how they can get out of it; these other companies had
to pay it, and, . . . I don't see how they can get out of it . . . You know
how you got fired, don't you . . . It was not for holding up production
either," and he just grinned about it and walked away.
Dekiere did not specifically deny the remarks attributed to him by Stark regard-
ing back pay and the reason for the latter's discharge. The undersigned credits
-Stark's version of this. conversation as stated above.
There is a conflict in the testimony as to whether Stark had ever received
warnings before his discharge about being the cause of clay shortages. Dekiere
testified he had on occasions spoken to Stark about the matter. Stark denied
that he had ever received such warnings° or that his work had been criticized
prior to his discharge. The undersigned views as significant the fact that
{both Stark and Thoel denied that their shift prior to Stark's discharge pulled
fewer presses than, the other shifts." Their testimony becomes the more
-significant in the absence of testimony to the -contrary by other press pullers
and in the absence of documentary evidence to such effect. Moreover, the
undisputed testimony shows that there have been clay shortages since Stark's
-discharge. Under the circumstances there is great doubt that Stark before
the date of his discharge had ever received criticism of his work or been accused
-of causing clay shortages. In any event the conversations of Dekiere with
Stark as set forth above, Stark's length of service with the Pottery, his activity
-On behalf of the United, and the fact that he was dischrged for allegedly causing
clay shortages within a few weeks after he joined the United, cause the under-
signed to conclude that his membership and activity for the United were the
real reasons for his discharge. The undersigned finds that the Pottery termi-
nated the employment of Stark on October 28, 1940,•b6cause of his membership
and activity on behalf of the United, thereby discouraging membership in a
labor organization and interfering with, restraining, and coercing its employees
in the exercise of their rights guaranteed in Section 7 of the Act.
Starkey began work for the Pottery in or about the ,year 1926. Except for
a lay-off of several months approximately 10 years prior to the hearing,"' Starkey
worked for the Pottery continuously until his employment termination on
August 16, 1941. For a time after he began work for the Pottery this employee
worked at various jobs, but by 1940 and for some time prior thereto was
-working in the clay shop as a batterout. During the- fall of 1940 Starkey
was transferred to the maintenance department and in turn after about 2
months to the boiler room as a fireman. 'Starkey had been working as a fireman
in the boiler room for a period of 7 or 8 months prior to his employment termi-
74 It is possible Dekiere at this point referred to,his department having been placed under
the general supervision of Foreman' Parrott after the strike of April 14, 1941. -
75 The evidence showed that a record was made each day showing the times the presses
shad been pulled. Those who went to work on the afternoon or evening shift could observe
the record as to the number of presses-pulled, by the preceding -shift or shifts..
7e Starkey testified that on this occasion he was "off" about 7 months "for fighting."
MT.- CLE'MENS 'POTTERY COMPANY 761
nation. He joined the United on January 30,1941, not long after his transfer-
to work in the boiler room. Starkey was on the picket line during the strike of
April 14', 1941. Shortly after this strike he was elected a steward of the United'
and about that time began, wearing in the plant both a steward's button and
,a C. I. O. button. Sometime between May 13 and Starkey's employment termina-
tion on August 16, 1941, Claude Copeland, foreman of the boiler room and
-maintenance, held a conversation with Starkey in the boiler room. Starkey's
uncontroverted version of this conversation, which the undersigned credits, was.
as follows: ". . . he (Copeland) told,me, `If you fellows would get rid of
,them buttons, and throw them away, you would be better off.'-... He said that
somebody was pulling the wool over our eyes . . ."
On the morning of August 15, 1941, Starkey left the boiler room 10 or 15•
minutes to go to the lavatory. Upon his return to the boiler room he heard
the blowing of a warning whistle which indicated that the water in one of the
three boilers was either too high or too low. It was-not an uncommon thing
that the water became'high enough to cause the whistle to blow, but it was-
uncommon when the water became so low as to cause it to blow. On a previous
occasion not long before August 15 Starkey had been temporarily absent from
the boiler room doing some work assigned to him elsewhere in the plant when'
-another of the boiler room firemen told him that the warning whistle was blow-
ing. Starkey and the other fireman hurried back to the boiler, room on that
occasion and found that the whistle was blowing for high water. Starkey-
on the morning of August 15, 1941, upon his return to the boiler room, looked'
at the water column glass of the boiler for which the whistle was blowing, and,
although it was apparently empty he read it as indicating high water, as had'
been the situation on the occasion mentioned 'above. Starkey then started' to-
shovel coal into the hopper of this boiler While he was doing so Otto Rocker,
an employee from another part of the plant, came into the boiler room and
spoke to Starkey a few seconds about a topic which was not connected with, the-
work of these employees. While Starkey was standing in front of the boiler,
shovel in hand, talking to Rocker, there came into the boiler room, the acting-
foreman of the boiler room, Raymond Seifferlein, who inquired of Starkey why-
the whistle was blowing Starkey indicated it was blowing for high water,
but Seifferlein upon examining the water, column glass said that there was no,
water in the boiler. Starkey thereupon tested the water level and found there
was no water at the level of the water glass. Starkey then shut off the flow
of water into the boiler, shut off the boiler's stoker, and removed the fire-
from the furnace. He also went on top of the boiler and shut off the valves.
He and Seifferlein about that time made a check and found there was no water
at a still lower level. Seifferlein thereupon called Rouleau to the boiler room.
Meanwhile, Starkey went outside the boiler room and returned. He told Seif-
ferlein that had found the blow-off valves of the boiler open. Presently-
Rouleau' entered the boiler room. ` Starkey, told Rouleau he had removed the•
fires. Rouleau then told Starkey to start 'the pump and' put water in the
boiler. Starkey protested doing so, saying, "I ain't supposed to put water in
an empty boiler what's hot." He also 'said they would 'not do so if Fred Pearl"
was there. Nevertheless, after Rouleau said, "I am still superintendent here and'
you do what I tell you," he and Starkey'put some water into the boiler. After he,
helped fill the boiler with water Rouleau left the boiler room. During the
time Rouleau was there Starkey told him also that somebody had opened the,
blow-off valves. '
I "Fred Pearl, who was Starkey's father-in-law, had worked 9 years in the boiler room,.
-and had given Starkey instructions about how to operate the boilers. -
762 DECISIONS OF NATIONAL 'LABOR RELATION1S BOARD
After the incident with the boiler that morning, neither Rouleau nor Seiffer-
lein said anything more to Starkey about the matter that day. Starkey com-
pleted his work for the day as usual. The next morning about 10: 30 Starkey
was. working r on an assignment in the plant away, from the boiler room when
Seifferlein called him to, the vicinity of the boiler room. Rouleau- was there
and he talked to Starkey and Seifferlein just outside the plant near the boiler
room. Rouleau asked Starkey to state his version of what had happened the
day before. Starkey did so and Rouleau made' notes as to what Starkey said.
Seifferlein indicated that he agreed with the version of events as stated by
Starkey. After. this conversation Rouleau said nothing further to Starkey
until, almost noon. At that time he returned to the boiler room and told Starkey
that as far as he was concerned Starkey was "fired." Rouleau told Starkey,
however, that the latter could appeal "to the governor [Doll, Sr.].'.' Starkey
testified that additional,remarks were made in this conversation as follows :
Q. (By,Mr.'Sandler.) Did you say anything?
A. Yes, I did. I said what are you firing me for? He said "For not
paying attention" to my work "and for putting coal in the hopper first
instead of testing out the water more thoroughly."
Then I said he was a poor stick for doing a thing like that and then he
told me "You shouldn't worry about being fired." He says "A strong, healthy
looking man like you, and a good worker, and if you want any references
I will give them to `you." And I did say "You could at least give me my
old job back."
Rouleau did not specifically deny having made these remarks and his own
,version of the conversation is not inconsistent therewith. The undersigned
credits the testimony of Starkey as to this conversation.
After Starkey's discharge the'United's discrimination committee asked Doll
to discuss the matter. -Doll refused to talk to the committee about the matter,
but agreed to talk to Starkey individually. At this discussion he told Starkey
in the presence of Rouleau that he was sustaining Rouleau's decision.
The basis of Rouleau's decision as stated by him was that Starkey had vio-
lated one of the rules posted by the Pottery about visiting and that he was
careless in standing within a few feet of the alarm whistle without knowing
whether it was blowing for high or low water. It is significant with respect
to these reasons as stated by Rouleau that Rocker was not disciplined for talk-
ing to Starkey even though his offense was worse than Starkey's in that he
was not only talking but also was absent from his department when doing so.48
.Starkey stated frankly in his testimony that he made a mistake in not taking
steps definitely to ascertain the water level in the boiler when he came into
the boiler room during the blowing of,, the warning whistle. However, his
activity on the, basis of the mistaken conclusion that the water level was high
actually resulted in no damage. Moreover, Starkey's testimony is uncon-
tradicted and the undersigned finds that he had not had any such trouble with
the boilers previously and had not previously during his term of employment
for the Pottery been threatened with discharge. Rouleau and Doll contend also
that they were convinced Starkey falsified about the blow-off -valves being open,
indicating that their conclusion that Starkey had thus falsified also entered into
their decision to discharge him. The explanation of this contention is that
,when the blow-off valves are opened from one of the steam-filled boilers the
water goes into a cistern at the side of the plant, but the steam goes up'through
.78 Rouleau testified, that he understood Foreman Stief talked to Rocker after the incident
and warned him that if he ,ever, again violated, the rule against visiting he would, be 'dis-
nilssed.
MT: CLEMENS POTTERY COMPANY 763
"a vent-pipe that sticks out of the cistern," and if a boiler's blow-off valves have
recently been opened the pipe would be warm. Rouleau testified about the con-
dition of the vent-pipe on the morning of August 15, 1941, when he was in the
• .boiler room as follows :
Q. (By Mr. Donovan.) Did you examine that vent-pipe on this occasion?
A. Yes, sir.
Q. Was it warm or not?
A. I put my_hand on it and it was hot, good and warm., I couldn't put
my hand on it.
Q Do you state, then- -
A. (Interposing.) Pardon me. I put my hand on it and it was cold.
Q. It was cold? Did you feel it?
A. I felt the pipe was cold.
Seifferleiu also was interrogated about the vent-pipe. He testified on cross-
examination that he felt of it about a half hour after the incident on the morn-
ing of August 15 and could not remember it being hot. Later in his cross-
.,examination he testified as follows:
Q. (By Mr. Sandier.) Did, you- report to, Mr. Rouleau the fact that you
found the standpipe cold?
A. No, sir.
Q. When you found the standpipe cold did you go back and speak to
Mr. Starkey again?
A. I didn't find the standpipe cold.
Q. Well; perhaps I misunderstood your testimony, Mr. Seifferlein. Didn't
you testify that you went out half an hour later and found that the stand-
pipe was cold? -
A. I said it was warm yet.
Q. It was warm yet?
A. And what conclusion did you draw from the fact that the standpipe
was warm when you felt it half an hour after the accident?
A. You got me all balled up. -
Trial Examiner BARTON. Do you want the question read?
A. No. ' There is another question there, and I answered it wrong.
Trial Examiner BARTON. All right, if you want to explain some of your
testimony.
Mr. SANDLER. Go ahead.
A. When he said if I found the standpipe cold, I said "no, it was warm,"
It should have been "cold."
Q (By Mr. Sandler.) You say the standpipe should have been cold, or
that your answer should have been that it was cold.
A. It should have been that, it was cold.
'Seifferlein admitted upon further 'cross-examination that his recollection was
"not very good now" as to the temperature of the standpipe.
In view of the confusion which exists in the testimony of Rouleau and
'Seifferlein quoted above and the fact that Starkey not only testified that he
found the blow-out valves open on the morning of August 15, but also during
the excitement on that morning he admittedly said to both Seifferlein and
Rouleau that he had found the blow-out valves open, the undersigned credits
his testimony about having found the blow-out ,valves open.'
TO Rouleau.questioned two, employees in the -machine shop to -ascertain whether they had
noticed anybody tampering with the blow-off valves. They answered in the negative. ' How-
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances the undersigned finds that the Pottery terminated
the employment of Starkey on August 16, 1941, because of his membership and
activities in the United, thereby discouraging membership in a labor organiza-
tion and interfering with, restraining, and coercing its employees in the exercise
of, the rights guaranteed in Section 7 of the Act.
Pearl, Dacko, Behnke, Holmes, and Mokanyk all worked in the Pottery's,
glost belt department, a department through which the'ware passes on a con-
veyor belt system. The employees in the glost belt department place the ware
in certain containers known as saggers and while encased in the saggers the
ware goes through a baking process in a kiln. Thereafter employees in this
department remove the ware from the.saggers and pass it on to another depart-
ment. Pearl had worked for the Pottery since April 1925, Dacko since February
1940, and the other three since sometime in the month of October preceding
their employment termination on November 22, 1941. Pearl joined the United
in January 1941, became active in the' `solicitation of applications for member-
ship, became vice president in March 1941, and served on the grievance com-
mittee. He was still active in these capacities at the time of his discharge on
November 22, 1941, as set forth below. Dacko joined the United in September
or October 1940 'and soon after the termination of the strike of April 14, 1941,
became a steward. Thereafter, he wore a C. I. O. and a steward's button 80
while at work. Behnke, Holmes, and Mokanyk joined the United in October
1941 at separate times soon after they began their respective employments for
the Pottery, during that month. All three wore C. I. O. buttons in the plant
after joining the United.
'On the morning of ' November '21, 1941, Stief, foreman 'with supervision over
part of, the employees in the glost belt department, told Pearl and other em-
ployees in that department that it would be necessary to work overtime that
day and the.next day. Certain employees of the Pottery contended that every
time they worked in excess of 8 hours on a given day they should'be paid
"overtime pay at the rate of time and a;half." In fact several members of the
United claimed that the Pottery owed them for overtime for certain past work
in excess of 40 hours a week for a ,period extending back to October 1938 with
respect to some employees and since in or about April 1941, there had been a
suit pending against the Pottery in the federal court for the Eastern District
of Michigan on behalf of these employees, including Pearl and Dacko, for such
claimed overtime. During the lunch period after Stief had informed the em-
ployees they would have to work overtime, Pearl met with Dacko and three
other stewards of the United. The stewards decided against work after 4 p. m.,
the regular quitting time, "without overtime pay at the rate of time and a
half." That afternoon Pearl so informed Stief, but Stief did not reply. During
the afternoon Dacko also informed Stief that the employees would not work
after 4 p. in. without pay at the rate of time and a half. About 2 p. in. that
day Behnke had a conversation also with his foreman, Floyd Barney, in which
Barney asked Behnke in the presence of another employee if he would work
after 4 p. m. that day. Behnke asked Barney if the Pottery would pay at the
rate of time and a half for such work. Barney replied in the negative. Behnke,
thereafter, discussed the question that afternoon with other employees who
worked near him in the department.'
ever, ' they were under no duty to watch the 'valves and their work was a number 'of feet
from the valves . Moreover , their work was 'such that they would not necessarily face the
valves.
:80 It is not 'clear whether,Dacko wore 'both buttons at the same time or wore them alter-
nately. . ' ' ) ,
MT. CLEMENS POTTERY COMPANY 765
At 4 p. in. after the events mentioned above, the conveyor belt in the depart-
ment was not stopped and the employees were not dismissed. At that time
Dacko disconnected the power and stopped the conveyor belt by throwing an
emergency switch' near the belt. Stief turned the power back on, again- starting
the belt by throwing this switch and pushing Dacko away from the switch when
the latter again attempted to operate it. Pearl at that time disconnected the
power by pushing another switch near the belt and Stief in turn again connected
the power. The belt during this episode started and stopped' several times:
Foreman Macon C Trabue and Albert Fattier, an employee, as witnesses, for the,
Pottery, testified that Pearl once during this period disconnected the power at
a main or master switch. Pearl denied that he did so; but testified: he reached
for the switch and found it already "pulled." It is unnecessary, to resolve this
conflict in the evidence since in any event Pearl was active in his attempts to,
disconnect the power and admittedly did succeed in disconnecting it at another
switch. Dacko during the stopping and starting of the belt was- active also
in `urging employees to leave the -department. The belt continued to run, how-
ever, and as-Dacko returned to a pointsnear where he had been- working Stief
told him to "get out." After these events Pearl, Dacko, Behnke, Holmes, and
Mokanyk left the department. The conveyor belt continued, to run and. the other
employees to work until approximately 4:10 that day.81 The next morning when,
the five employees mentioned above returned to the plant in time for work,,
Stief met each one-of them separately at the employees' entrance, gave them the
pay checks they would have received that day, and told them that they could
not go back to work again s2
It is clear that these five employees were by their•acts'on November 21, 1941,
carrying out a program of the United. Prior to their conduct at 4 p in. that day
the United's-stewards had determined that there should not be work after 4 p. m.
without pay therefor at the rate of time and, a half. The,question, presented is
whether the conduct of these five employees was so indefensible as to warrant
the Pottery in discharging them. The Pottery contends that it was such, urging
that they were attempting to fix their own hours and wages, to force a stoppage
of production, and to prevent the approximately 150 other employees in the depart-
ment who did not agree with them from working. The undersigned finds no
merit in these contentions. Section 7 of the, Act guarantees to employees' the
right to, engage in concerted activities for the purpose of collective bargaining or
other mutual aid' and protection. The guarantee in the Act extends to a partial
strike as well as to a total strike. Moreover, the handling of the switches by
Pearl and Dacko was not such conduct as to warrant the Pottery to terminate
their employment. In a similar situation presented by another case,, the Board
ordered, reinstatement of three employees, who. participated in switching off
certain conveyor chains. In that case the Board stated:
- Nor can we agree ... 'that these stoppages were sit-down strikes or "an
outlaw enterprise." The-stoppages-did not involve seizure or destruction of
or damage to the respondent's property-with resultant financial loss to the,
respondent. Under the circumstances, we find no warrant for holding that
.11 There is conflict in the testimony as to whether other employees started to leave the
department at 4 p . in. Since in any, event they did not do so, the undersigned has not
resolved this conflict in the evidence. •
82 Stief testified as follows about these conversations : -
Yes,, I gave them all their pay checks that they were going to receive that day which
was not their pay in full ; it was their pay up until the Tuesday night previous of that
week. I also told them I could not allow them to go into work that day, and the actions
that came up the day before, leaving their stations before the belt had stopped the
work, I couldn't have them going back to work again
8
766 DECISIONS OF NATIONAL LABOR RELAT'I6m BOARD
these ' -concerted activities for the 'purpose of'... mutual aid or'-protec-
tion" are not protected by the Act "
Furthermore, any contention that Pearl and Dacko were,discharged because
they tampered with the switches is not convincing. Behnke, Holmes, and
Mokanyk were discharged notwithstanding the fact that, none of them had
interfered with the switches. Moreover, in a, report made by the Pottery to,
the Michigan Unemployment Compensation Commission stating why Pearl and
Dacko should not receive unemployment compensation benefits the Pottery did,
not recite the act of tampering with the switches, but stated that they had
left their employment "voluntarily without notice, before the day's work was
completed " That all five of these employees deemed their activity on the day
before their discharge to be on behalf of the United, and the Pottery understood
it to be such when it discharged them. is "indicated by the uncontroverted testi- '
mony of 'Holmes regarding the' conversation- between him and Foreman Stief
on the morning of the discharges. Holmes testified regarding this conversation:
"I told him I quit at four o'clock. He asked me if I knew I was supposed to
work longer than four o'clock. I told him no ; I believed we should get time
and a half for overtime ; I belonged to the union and agreed to walk out and.
I went home at four o'clock like I agreed." Under the circumstances the
undersigned is convinced that the Pottery terminated the. employment of all
five' of these employees because of their concerted activities on behalf of the
United, and that the activities which brought about their discharge came within
the protection of the Act.
The Pottery contends that Holmes and Behnke are barred from protection
of the Act because they falsified their ages at the time they obtained employment,
with the Pottery.' In Michigan there', is a' law requiring minors under 18 to
obtain a certificate from the school authorities in order to take employment.,
As a matter of practice the school authorities in Mt Clemens in administering
this law issue the required certificate in all cases where the employer asks
for it. It is clear that at times, moreover, the Pottery knowingly employs
minors under 18 years of age. There is no showing by it of any policy against
doing to. Under these circumstances it is, not, reasonable to conclude that the
Pottery would not have hired Holmes and Behnke had it known their correct
ages. Moreover, at the time these employees were discharged their ages were
not stated as a reason The undersigned, therefore, finds no merit in the
contention that these 'employees have barred themselves from asserting their
rights tinder the Act to request reinstatement after a discriminatory discharge.'`
&i Matter of Cudahy Packing Company and Local Union No 60, United Packing House
Workers of America, Packinghouse Workers Organizing Committee , affiliated with C. I 'O,
,et at, 29 N L R B 837, 868 . See also Matter of Harnischfeger Corporation and Amalga-,
matrd As,ociation of Iron, Steel and Tin Workers of North America, Lodge 111§, 9 N L R B
676 : Matter of Niles Fire Brick Company and United Brick Workers, L . I. U No. 198, affi liated
with the Congress of Industrial Organizations , 30 N. L R . B, No` 61; Matter of Firestone
Tire and Rubber Company of California and United Rubber Workers of America, Local 100,
22 N L. R. B 580 ; Matter of Armour and Company and United Packinghouse Workers of
America, Local No. 113, affiliated with the O I. 0 , 25 N. L R. B 989.
&i Each of these employees at the time he was hired gave his age as 18, although each was
at the time only 16 years of age_
81T'"e Pottery also contends that Holmes and Behnke are juvenile delinquents . The evi-
dence in support of the contention that they have been before the courts as such 'is mostly
in ,connection with some of the incidents during ttie , strike which began November 24,'1941.
For reasons stated hereinafter the undersigned finds no merit in the contention that the
offenses committed by employees at that time were by their nature so'indefensible as'.to
bar their reinstatement . Since I3olmes ' and Behnke 's activities at that time were no
different from those of other strikers who are ' entitled to reinstatement , the undersigned
finds no merit in barring them from reinstatement i ierely 'because of their minority. 'The
MT. CLEMENS POTTERY COMPANY - - 767
The undersigned finds that the Pottery terminated the employment of Pearl,
Dacko, Behnke , Holmes, and cMokanyk on November 22_19 41, because of- their
membership and activities in the United , thereby discouraging membership in
a labor organization and interfering with, restraining , and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act. -
The complaint , as amended , alleges that the Pottery on various specified
dates in 1940 and 1941 laid off Lillian Socia, Floyd Pearl , and Louis Thoel
because of their membership in and activities on behalf of the United.SB
Socia, an employee in the brushing and dipping department , began work for
the Pottery in 1937 and just before her lay-off on October 15, 1940, was "spong-
ing and taking off cast ware ." " On August 24 prior to her lay -off she joined
the United as a charter member and was elected financial and recording secretary
on October 12- thereafter . She also took an active part in the solicitation of
membership applications for the United. As stated ' above , one day early in
October 1940, Harms , who was Socia 's foreman , inquired of five girl employees
in the dipping department whether "Lil" had said anything to them "about the
union."- The only employee in the department by the name of "Lil" was Socia.
On October 9, 1940, also Harms spoke to some other girl employees in the
department about Socia , apparently after Socia had been in conversation with
them. On that occasion he asked whether Socia had been talking to them
about anything beside their work. The girls replied in the negative . Shortly
thereafter Socia told Harms that if he had anything to say to anybody about
the union to ask her and not the girls. Harms denied to Socia that he had
said anything to the girls about the union . and Socia called him "a damned
liar." 88 She also told him that if he knew much about "the Wagner Act" he
would not be asking people those questions about her After.that, Harms , talked'
to some of the girl' employees with whom he had been speaking before his
conversation with Socia and then returned to Socia, telling her that they denied
he had asked them about the union He also asked Socia what girl had told
her "about it." ' Soon thereafter he held about a ,10-minute conversation with
Rouleau and one of the foremen , after which he said to Socia, "Let's forget
all about this conversation we had and don't tell anybody else what we talked
about "
On October 15, 1940, at about 8 or 9 a in the dipper with whom Socia worked
went to the dressing room and during his absence Socia went to a drinking
fountain in, the department ." Near the drinking fountain she inquired of
only other evidence of juvenile delinquency was an escapade of Holmes in breaking five locks
on lockers in a school building In February 1941 before he worked for the Pottery as a result
of a bet. fie took nothing from the lockers. The undersigned does not find under the cir-
cumstances that it would eaectuate the purposes of the Act to deny Holmes reinstatement'
on account of this misconduct.
The specific dates of the various alleged lay-offs were :
Lillian,Socia---------------------------- October 15 to 23, 1940
Floyd Pearl____________________________ April 7 to 14, 1941
Louis ThoeI____________________________ April 8 to 14, 1941
ar This'was a process performed in order to remove excess glaze after the ware had been
dipped Prior to doing this work on cast ware Socia had done the same work on cups.
There was no substantial difference in these two operations.
88 Although Socia did not • admit that she made this remark in her testimony about the
conversation, the undersigned has credited Harms' testimony that Socia called bim,"a
damned liar." The undersigned by no means views such a statement by an employee to her
superior as warranted. However, the remark does not here have great importance because
of the reason given by the Pottery for laying off Socia was that she left her workbench and
talked while on the job - '
89 An employee doing Socia's type of work could continue "sponging and taking off cast-
ware" only as long as the dipper on the same job continued to function.
'768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Margaret Yochum, who was recording secretary of the United, regarding the
whereabouts of a certain girl employee who was absent. As Socia returned to
her work Harms told her that he did not want any visiting, soliciting, or work
stoppages in the department. Socia protested that she had never before.heard•
of any rule which prohibited talking, stating, however, "0. K., if that's the way
you want it but •I have never heard that before." About 3 o'clock that afternoon
Harms sent Socia to see Rouleau, and Rouleau told Socia he was laying her off a
week "for talking." • Socia protested, "If you are going to give me a week off
for talking you had better give everybody in that department a week off for
talking because everybody talks." Rouleau'told her that he was laying her off,a.
week "anyhow" and if she found a job she ]filled better to take it but if not to
return to work for the •Pottery at the end of the week. At the end of the week's
lay-off Socia returned to work for the Pottery. About 2 weeks later she was
transferred from her work of "sponging and taking off cast ware" to work as a•
brusher of large dinnerware, heavier and dirtier work than she had previously'
'had. The Pottery offered no explanation as to why Socia-was thus transferred.
Rouleau testified he laid off Socia only after Harms within a few days prior to
October 15 had at least twice reported to him that Socia was leaving her work
bench and visiting with employees on the other side of the department; and
Harms contended in his testimony that Socia, over a period of about 6 months,
had made a habit of leaving her work bench and talking to other girls. The
uncontroverted testimony of Socia was, however, that it was the practice of
employees in the department to talk while on the job and that she had never prior
to October 15, 1940, been informed of any plant rule 90 against talking. The
undersigned credits this testimony. Moreover, Harms had never warned Socia
against talking prior to October 15, 1940.
The undersigned also views as significant that on October 9, 1940, before Socia's
lay-off, Harms asked certain girl employees mentioned above whether Socia had
spoken to them about'matters other than their work. The fact that he asked
them such a question and did not speak directly to Socia about the matter indi-
cates that he was interested in the subject matter of the conversation rather
than in the fact that Socia had talked to these employees, and lends force to
Socia's contention to Harms in her conversation with him on October 9, 1940,
that he was in • fact inquiring as to union matters. Socia's contention is the
more reasonable, in view of the fact that about the same time Harms inquired
of another group of girl employees whether "Lil" had said anything to them
"about the union." Moreover, it is significant that Harms made no issue as to
Socia's talking during, working, until soon after she had joined the United,
although he contended that she had been an offender in this regard for a period
of 6 months. ..
Under all the circumstances the undersigned finds that the Pottery on October
15, 1940 laid off Socia for a week and on or about November 5, 1940, transferred
Socia to work as a brusher of large, dinnerware, because of her membership in
,'and activity on behalf of ` the United, thereby discouraging membership in a
90 On October 15, 1940, the Pottery posted a notice which announced a rule that "visiting,
soliciting, or carrying on of any actions not connected with the actual work of any em-
ployees must not be done in the plant or during working hours, except by permission "
Rouleau testified that Harms reported having seen 'Socia reading the notice on October 15.
Harms did not so testify, however, and Socia testifled that 'she'did not see the notice until
her return to the Pottery's employment after her lay-off Since the only evidence to the
contrary is hearsay, the undersigned credits Socia's testimony regarding when she first
saw this notice The notice also recited that there had been such a rule for many years.
If there had been such a rule, the evidence does not show that it had been enforced or
publicized to the employees.
MT. CLEMENS POTTERY COMPANY 769
labor organization and interfering with, restraining, and coercing its employees
in the exercise of their rights guaranteed in' Section 7 of the Act.
Pearl's term of employment with the Pottery, his United membership and
activities, and his discriminatory discharge on November 22, 1941, have been
detailed above. One day during Februaiy 1941 Stief, Pearl's foreman, called
Pearl to the cafeteria in the plant and engaged Pearl in conversation. On this
occasion Stief asked Pearl why he had assumed an unfriendly attitude. He,
told Pearl during the conversation which followed that if he had grievances,
the best way to handle them would be'to take them up direct with Stief, Rouleau,'
or Doll. Thereafter, on March 9, 1941, Pearl was elected vice president of the
United. On April 7, 1941, after the close of work Rouleau summoned Pearl to
his office, Foreman Stief telling Pearl to report to Rouleau. Pearl testified as
follows regarding what happened on this occasion:
Q. (By Mr. 'Sandler. ) Now, when you went to see him, will you tell us
what happened? S
A. Well, I seen him and he said , "Come along with me ; ' I want to show
you something." So we walked up to the clay shop time clock , there was a
bulletin board up there , and he showed me this bulletin about soliciting for
membership in the pottery . I says or then he said, "Do you want me to read
you that?" , I said, "You don't have to read that to me; I can read." Then
he took me back down to his office and started, to or told me that they had
enough on me to hang me, for he said I was soliciting memberships, and he
took the back of his hand and rubbed my neck, and says , "you are too damned
active in the'union " I says, "I am sorry ; what union do you mean ? He says,`
"I mean that goddamned CIO."
Q. Was anything else said?
A. And he says , "Well, I should fire you, but I am going to give you
another chance to stop your soliciting of memberships ; I will give you a
week off."
Rouleau denied.that,the events as described above took'place or that lie made
any such remarks as those detailed by Peail,and testified that he merely spoke
to Pearl because Stief and two named employees had complained to him that
Pearl had been "calling men on the job yellow bellies, rats, anything he could
lay his5tongue to." ,Rouleau testified that he neither mentioned the C. I. O. nor
any union on this occasion. Stief testified that he had received complaints
from the employees about union solicitation by Pearl over a period of 5 or 6
months prior to April 7, 1941. The undersigned was impressed by Pearl's
denial that he had ever used the language toward any,of the employees attributed
to him,as stated above, and by the fact that none of the employees to whom
such remarks were allegedly made or any other witnesses claiming to have
actually, heard such. remarks testified at the hearing. Since Pearl' did not
join the United until the middle of January 1941, the' undersigned does not
credit Stief's testimony that -he had received complaints about solicitation by
Pearl. for a period of 5 or 6 months prior to April 7; 1941. Moreover, Pearl
testified that he never had engaged in the solicitation of members in the plant-
and no witness, who claimed ever having observed Pearl do so, was called to
testify. The undersigned credits Pearl's testimony that he, had never solicited
for the United in the plant. Furthermore, Stief and Rouleau both admitted
on cross-examination that they had never prior to April 7, 1941, spoken individu-
ally to Pearl about solicitation' for, the United in the plant. This admission
indicates that prior to that time they had not, seriously. considered Pearl an
offender in this regard -and, when viewed in relation to other events about the
same time , indicates also that, Pearl was not called to the office by Rouleau'
504086-43-vol. 46--49
770 DECISIONS OF NATIONAL LABOR ` RELATIONS, BOARD
on April 7 , 1941, because of having- solicited for the United during working
hours or by reason of any conduct in connection with such activity., The activity,
of Odor and Wodarski in circulating petitions in the plant during workinglhours
early in April 1941 in furtherance of organizing an "inside union" has been
set forth above. Likewise , the activity ' of Alvin Rocker in making a speech
to a group of employees in the plant on April 10 , 1941, in support of the Cooperative
has been detailed . Odor, Wodarski, and Rocker were in no way disciplined.
The treatment accorded these employees is in 'contrast with that accorded Pearl,
who was summarily accused without warning and , disciplined for alleged
activity during working hours on behalf of the United . The undersigned is
convinced that Rouleau talked to Pearl on April 7, 1941, not because Pearl
was guilty of violating the company rule about union solicitation in the plant
during working hours but because of Pearl's membership and activity in the
United. Under all the circumstances, Pearl's testimony , quoted above , about,
the remarks and actions of Rouleau on April 7 is credited
The undersigned finds that the Pottery laid off Pearl from April 7 to 14, 1941,
because of his membership and activity , in the United, thereby discouraging
membership in a labor organization and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act. . ' I -
Thoel had worked for the Pottery about 10 years prior to his lay-off on
April 8, 1941 . ( Most of thist i time he had worked in the glost belt department,
carrying ware. He was doing that kind of work at the time of his lay-off in
April 1941 . On September 24; 1940, Herman Engleman, a foreman in the glost
belt department ,91 told Thoel he wanted to see Thoel that day after work., In
this conversation Engleman , ' although Thoel was not then a member of the
United, accused Thoel of being dissatisfied and of trying to obtain United
membership applications "in the beer gardens and all over." Engleman also
told Thoel that he had a brother -in-law working in "a union , factory" and
that the brother -in-law was "making less money now than what he did before."
That night Thoel joined the United. A short time thereafter Rouleau sum-
moned Thoel to. his office and told Thoel that if Thoel thought his nephew
Frederick Reinhold should continue to work for the Pottery, Thoel had better
tell him "to shut his mouth" and keep quiet about the union 92 Thereafter, at
a meeting of the United held on March 27, 1941, Thoel was elected a steward.
The next morning Frank Jolly , a straw boss in charge of certain employees who
empty ware out of the saggers in the glost belt department , walked past Thoel
soon after Thoel began work and said ,, "Hi, steward ." On April 7, 1941,
Thoel did not work . When he went to work the next morning , Engleman sent
him to see Rouleau. Rouleau took Thoel to the bulletin board in the plant and
asked Thoel if he had 'read the notice which had been posted there during
about the middle of February as detailed above. Thoel answered in the nega-
tive and Rouleau read the notice to him, telling Thoel he had been doing all
the things prohibited by the notice . Thoel denied that he had engaged in any
of the acts specified in this notice . There was no testimony by any witness
who claimed to have observed him commit any such acts . The undersigned
credits his denial that he had done so. Rouleau testified that he laid off Thoel,
however, because of complaints from Engleman that Thoel had used abusive
language toward certain girl employees , and in his work of carrying ware
D'Although Thoel referred to Engleman as an assistant foreman, the evidence shows
that he had the title of'foreman See Pottery Exliibit No. 78.
°' Rouleau did not deny having made this remark.
MT. CLEMENS POTTERY COMPANY 771'
had favored some girl employees to the detriment of others °' Engleman did
not testify. The evidence fails to establish that Thoel ever showed favoritism
in 'carrying ware to girl employees in the department. Although it is clear
that he did at times use unseemly language to certain of the girl employees
and that one of them complained to Engleman regarding the.matter about-
2 weeks before Thoel's lay-off, the undersigned is convinced that Rouleau did "
not lay Thoel off for such conduct. There is no evidence to show that the
language used by Thoel to girl employees was in any way mentioned to him
at the time of his lay-off. The fact that Rouleau called Thoel's attention to
the notice on the bulletin board at the time of the lay-off shows a representa-
tion at the time that he was laying off Thoel for alleged violation of his pro-
visions. There would have been no point in discussing it if Thoel was in
fact being laid off for using bad language to girl employees, as the subject
matter of the notice was entirely foreign to the matter of using unseemly lan-
guage to girl employees. This inconsistency between the reason claimed for.
having laid off Thoel and the conversation between him and Rouleau on April S
convinces the undersigned that Thoel was not laid off because of the language
he used to girl employees.
Under all the circumstances , the undersigned finds that the Pottery laid-off
Louis Thoel from April 8 to 14, 1941, because of his membership and activities
in the United, thereby discouraging membership in a labor organization and
interfering with, restraining , and coercing its employees in the exercise of-the
rights guaranteed in Section 7 of the Act.
The complaint, as amended, alleges that on July 3, 1941, the respondents
terminated the employment of William Spanswick and on the same date °4 laid
off for various specified periods Stella Baade. ENelyn St. Mary (Hildmger), and
George Houthoofd because of, their membership in and activity on behalf of the
United. All these employees worked in-the glost belt department under Foreman
Engleman Baade had been an employee of the Pottery since 1933, Hildinger
and Houthoofd since 1937, and Spanswick since about June 18, 1941 ' Hildinger
and Houthoofd joined the United in September 1940, Baade in October 1940, and
Spanswick about June 20, 1941. Baade was appointed a stewardess and
Houthoofd a steward in the United soon after the strike which ended, on May 13.
1941, and each .wore both a steward's button and a C. I O' button during work
after that time.
There was a practice on the part of the Pottery for work to be done on Satur-
days of those weeks in which time was lost because of a holiday On, Monday
or Tuesday prior to the holiday of Friday,,July 4, 1941, a vote of the employees
of the Pottery was taken by the Cooperative as to whether the employees should
work the following Saturday.- The vote was against such work. The hour in
the afternoon at which employees had been quitting work for the clay was 4 o'clock.
During the day of July 2, 1941, however, Foreman Engleman notified the employees
of the glost belt department that on that day they would work until 5 o'clock
As indicated above, there was disagreement between the Pottery and some
of its employees regarding the question of time and a half pay for overtime.
Certain employees contended that they were entitled to such pay for work done
after 4 p. in. After Engleman on July 2 had informed the enployees that they
were to work until 5 p. in. that clay, Baade asked him if they were to receive
ea The contention was that if Thoel did not carry to an employee her proportionate share
of the ware , it would slow up her work and thus decrease her earnings.
94 The complaint ' originally specified July 2, 1941 . as the date of these lay-offs , but the
evidence shows the correct date to be July 3, 1941 . The complaint was amended to confoim
to the proof as to such matters. -
77.2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay at the rate of time'and a half for overtime for such work Engleman an=
swered in the negative. The employees in the department worked until that hour'
and at approximately that time the glost belt stopped. It is not clear just how
the belt happened to stop, but it, was not uncommon for the employees in July
1941 to operate the power switch when it was time to start and stop work. It is,
therefore, possible that some employee pulled the power switch on this occasion.
In any event the belt again started to operate after a few seconds In the interims
Houthoofd asked Engleman if they were "all through"' and Engleman replied,
"I guess so." 9' Just before or about the time the belt was starting, Spanswick,
Itaade, Hildinger, Houthoofd, and two totlier employees, James Hynes, Jr., and
Rita Schulte (Engelbert), left their places in the glost belt department and quit
work for the day. Baade was the first of the four employees mentioned above to
leave the glost belt department and quit, work for the day on this occasion Hil-
dinger and Schulte followed her. After them, Spanswick, Houthoofd, and Hynes,'
who is not named in the complaint, left the department in that order. The other
employees in the department worked until a few minutes after 5 p. in, when they
were dismissed
On July 3, 1941, when the employees mentioned above, who on the preceding
day had left their work ahead of the others, returned to work, J R. Doll sum-
moned them to his office and held a discussion with each one individually On this
occasion Doll told Spanswick and Hynes to return to see him early the next week.
However, he had Hynes, the only one of the six employees who had left, thee'
work when the belt stopped the preceding &t3' at 4 o'clock who was not a member
of the United, see Rouleaa before leaving the plant that day. Hynes testified
that on this occasion Rouleau asked him whether be belonged to the United.
Hynes further testified about this conversation, "Then he (Rouleau) asked
me if George Houthoofd talked me into going out and I told him he didn't."
Rouleau denied having made these remarks to Hynes . Hynes impressed the
undersigned as a truthful witness. No motive is apparent for him to falsify as
to his conversation with Rouleau. He has never joined the United and is still
an employee of the Pottery. The undersigned' credits his testimony regarding
this conversation. Early the next week when Hynes and Spanswic$ returned
to see Doll, Haynes was informed that he could return to his employment July 10.
Spanswick was told he would be notified when his services were needed He
has never been so notified and has not worked for the Pottery since.
During the course of Houthoofd's interview with J. R. Doll on July 3, Hout-
hoofd told Doll about his conversation with Foreman Engleman when the belt
had stopped the day before The girl employees told Doll that they had under-
stood they were to work until 5. o'clock the preceding day and that when the
belt stopped at that time they left. Doll told Houthoofd and the girl employees
that he was not satisfied with their explanation and they would hear from him
after he had investigated the matter He sent Houthoofd and each of these girl
employees a letter on July 7, 1941, and asked them to return to the plant. When
Houthoofd, Baade, Hildinger, and Schulte returned to the plant in response to
the letter of July 7, Doll read to each individually a written statement.' He
Ili This finding is based on the testimony of llouthoofd Although J R Doll testified
that pursuant to an investigation made by him , he concluded that Engleman never made
this remark , the undersigned was impressed not only by Houthoofd 's testimony on the sub-
ject, but also by the fact that Engleman did not testify Houthoofd 's testimony regal ding
the conversation is therefore credited.
Schulte was mentioned in the coniplaint , as being discritninatonly laid off , but she did
not testify and `the complaint was dismissed as to her upon notion of counsel for the
Board. Hynes never joined the United and was not named • in the complaint . He testified
at the hearing , however.
I
MT. CLEMENS POTTERY COMPANY 773
told them in. this statement that they had, "knowingly and wilfully and deliber-
ately walked off their job before the day's work was completed." He stated to
Houthoofd in addition that the latter heard and completely ignored a call by
his foreman when Houthoofd was leaving his place of work on July 2' Doll,
in the presence of Englemnau, exacted a promise from each of these employees not
to walk off the job again He then allowed Hildmger ' and Schulte" to return
to work on July 10, but did not allow Baade and Houthoofd to return until July 14
J. R Doll testified that lie laid off each of these employees for the reasons given
in the statement read to them as set forth above.
':Although Englenian daring the day of July 2 had by his remarks to the
employees in the department indicated that work would stop at 5 p. in., it is
clear that most of the employees continued their work for a few minutes after
that time. The evidence is conflicting as to whether the glost belt had started
again when the six employees who left before -the others made their exit
from the department. However, it is reasonable that they would have observed
that most of the employees in the department were not leaving, and for such
reason the undersigned finds that these employees did in fact on that occasion
knowingly leave their places of work before being dismissed for the :day. The
evidence fails to show that this conduct of these employees was a union activity.
Their act of quitting work at 5 o'clock was not the i eeult of any previous
plan or understanding among members of the United Neither did these em-
ployees by concert as individuals plan their, course of conduct on July 2'
The undersigned concludes that the Pottery was within its rights under the
Act in disciplining them for their conduct. provided the disciplinary measure
,used was applied without discrimination against any of the employees involved
because of menibeiship and activity' in the United The question remains
whether there was any such discrimination As indicated above, Hynes, Hil-
dinger, and Schulte were allowed to return to-work on July 10, 1941, but Baade
and Houthoofcl were not allowed to return until July 14, 1941. The only
explanation by Doll as to why he gave *Baade a longer lay-off than some, of
the others appears to be that it was necessary to stagger the time these em-
ployees were allowed to,return -because it was impossible to absorb all of them
into. the department at once. This explanation does not correspond with the
treatment accorded Hildinger, Schulte, and Hynes Doll did not stagger- the
dates for return to work of those employees, but allowed all of them to return
to work the same day. Moreover, when Hildinger and Hynes called at the
plant after 'receipt of Doll's letter of July 7 they were allowed to return to
their work the next day 'W Baade called at the plant July 10 after receiving his
letter No satisfactory reason is given for failing to accord her similar treat-
nment by allowing her to return to work July 11, which was the next day after
she had reported to Doll.
Doll testified that he ggive Houthoofd a longer lay-off than he gave the others
because lie deemed this employee's "offense was a little more serious." Doll,
in explaining his position as to Houthoofd, testified: " He had walked off in
KHildmger from choice, however, actually did not return to work until July 14, 1941
98 Schultze did not testify and the allegations as to her alleged ' discriminatory lay-off
were dismissed upon notion by Board counsel as stated above , The Pottery' s answer,
however, admits the lay-off of this employee to have taken place from July 3 to 10, 1941.
This fact is considered only insofar as it may give meaning to the four alleged discriminatory
lay-offs which were not dismissed at the hearing
99 Counsel for the'Board contended both at the hearing and in a brief filed with the Trial
Examiner that the actions of these employees were not the result of a, "concerted decision"
by them.
100 Appaiently the same thing lids true as to Schulte
774 DEICISIONS, OF NATIONAL LABOR -RELATIONS BOARD
spite of the fact that his foreman had called to him to come back, and his
story that he gave me wasn't very straightforward and didn't fit in with the
facts " 101 The facts indicate, contrary to Doll's testimony, that in some respects
Houthoofd was less at fault than the others mentioned above with respect
to walking off the job on July 2 As found above, he did not leave his work
until he had inquired of Engleman whether the employees were through for
the clay and Engleman had answered , " I guess so." Moreover , Houthoofd
was not the first of the six employees to leave the department that day, but
followed the girl employees mentioned above and Spanswick. The evidence
does not support Doll's contention that Houthoofd heard and ignoredi Engle-
man's call that day. The only employee testifying that Engleman so called
was Hynes, and he did not indicate that the call was directed in any way
specifically to Houthoofd. Houthoofd denied that he heard Engleman call and
since he was ahead of Hynes at the time it is not unreasonable that he might
have failed to hear the same call that Hynes heard The undersigned credits
Houtloofd's denial that lie heard Engleman call when leaving the department
on July 2, 1941. The undersigned also views as significant the fact that Rouleau
signaled out Houthoofd as explained above, when making inquiry of Hynes
.about the events of July 2 and after having asked Hynes whether he belonged
to the United. -
In view of Baade and Houthoofd's official'positions in the United, their period
,of. service with the Pottery and all .the other circumstances as set forth, the
undersigned finds that following the incidents of July 2, 1941, as detailed above,
the Pottery discriminated against Baade by prolonging her lay-off beyond July
11, 1941, and against Houthoofd by prolonging his lay-off beyond July 10, 1941,
because of their membership and activities in the United, thereby discouraging
membership in a labor organization and interfering with, restraining, and-
coercing its employees in the exercise of the rights guaranteed in Section 7 of the
Act.
• J
As stated above, the disciplinary action taken by the Pottery after the events
,of July 2, 1941 , was proper as long as such action was administered without
discrimination against any of the employees involved because of union member-
,'ship and activity . Since Hildinger was given opportunity to return to work
July-10, 1941, but of her own choice did not return until later the undersigned
finds that in making the disciplinary lay-offs the Pottery did, not discriminate
against Hildinger in regard to her hire and tenure of employment.
After rDoll told Spanswick that .the Pottery would let him know when his
services were needed again, the Pottery never so notified Spanswick. Doll
testified that Spanswick was it slow worker and unsuited to his employment.
He also testified that Engleman had for these- reasons been planning Spans-
wick's release anyway and therefore Spanswick was never informed that his
services were again needed. In view of Spanswick's short period of employment
by the Pottery and the lack of evidence that there was any special activity
of Spanswick on behalf of the United, the undersigned credits Doll's testimony
as to why Spanswick was never recalled for work The undersigned finds that
in terminating the employment of Spaiswick on July 3, 1941, the Pottery did
not discriminate against him in regard to his hire and tenure of employment.
The undersigned will recommend that the allegations of the complaint with
respect to Hildinger and Spanswick ,be dismissed.
101 It is not clear from ' the evidence just what day Houthoofd received Doll's letter or what
day he called at the plant thereafter . Regardless of when he might have called to see
Doll, however , it is plain that Doll had resolved to give Houthoofd a lay-off to July 14
MT. CLEMENS POTTERY COMPANY' 775
The complaint also alleges that the Pottery on January 31, 1941, terminated
,the employment of and refused to reinstate Walter Nofzinger, 'laid off,Elsie
'Graham from that date to July 7, 1941, and on September 17, 1941, terminated-
-the employment of and refused to reinstate William Wendt' because of the
membership and-activities of these employees in the United.
Nofzinger began working for the Pottery in 1924 and until his, discharge on
`January -31, .1941, worked at one end of the bisque belt as a kiln placer.'0'
+Nofzinger,joined the United in September 1940, between that time and his dis-
charge attended a few of its meetings , and attempted to obtain some applica-
tions for United membership from certain employees during the same period.
In 1938 Nofzinger had difficulties with his wife The Pottery contends that
it discharged Nofzinger because from sometime in 1939 it received complaints
.from Nofzinger's wife that he was neglecting her and the family, that early
in 1940'she complained that lie had gone to the country to live with another
woman, and that from sometime in 1940 it had received complaints from em-
ployees and others about Nofzinger's conduct The Pottery contends that- the
other woman complained about by Mrs. Nofzinger was Elsie'Graham, named
in the complaint, whose employment was terminated temporarily on January 31,
1941, the same date as Nofzinger's discharge'.' Rouleau testified, and-the under-
signed finds, that Mrs. Nofzinger called on him three times about her husband.
'The first time was late in 1939, when she reported that Nofzinger was not staying
at home regularly and was "running around" with another woman. Rouleau
at that time called Nofzinger to the office and reported the conversation to him,
asking Nofzinger whether something could be done to rectify his difficulties.
Rouleau also told Nofzinger he should send more money to his wife. Early in
'1940 she again called on Rouleau, reporting that Nofzinger had left home to live
'with another woman and was not adequately supporting his wife and children.
About the same time Al Crothers, Nofzinger's foreman, reported to Rouleau that
he had received complaints about Nofzinger's conduct, and Crothers meanwhile
had accused Nofzinger'in 1939 of not making adequate financial provision for
this family.1O' Late in 1940 Nofzinger obtained a money order to send his wife.
By mistake he sent her the receipt instead of the money order. The next
evening he called at his wife's place of residence and corrected the mistake by
leaving the money' order. The day after Nofzinger had corrected the mistake,
Crothers mentioned to Nofzinger the mistake that had been made. Nofzinger in-
formed Crothers that it had been corrected Mrs Nofzinger called on Rouleau
about this mistake. Whether Crothers obtained the information about this matter
as a result of her call on Rouleau is not clear. Rouleau's testimony would
101 This work consisted of placing the ware in containers and on cars, preparatory to its
being baked in the bisque kiln. After passing through the bisque kiln , the ware went to the
brushing and dipping department . Nofzinger did a few odd jobs at times besides his work as
a kiln placer.
101 Although at the time of Nofzinger 's discharge , Crothers and Rouleau mentioned miscon-
duct as the cause, it is clear from their testimony that they claim to have discharged him
because of the repeated complaints made to them by Mts. Nofzinger and other people. As
for Graham , the only reason ever given for her lay-off was slow and inefficient work, as
discussed below. The Pottery adduced evidence to show that pursuant to investigation
made after January 31, 1941, they found these two employees to have been in fact living in
.the same house both before and since January 31 , 1941. S ince this investigation was made
after the-action of that date had been taken, however, it obviously could not have
motivated Crothers and Rouleau as representatives of the Pottery in the action they took.
The undersigned finds it unnecessary to resolve the issue as to whether these employees
were guilty of any misconduct in their relations with one another.
,104 Nofzinger, after this conversation with Crothers, took his four children to Crotheis to
demonstrate that they had adequate clothing.
,776 DE)CISIO\°S OF NATIONAL LABOR RELATIONS BOARD
indicate , however, that this call may have been later, because according to his
recollection the call took place in January 1941. In any event, on January 31,
1941 , at the close of Nofzinger ' s working hours, Crothers informed Nofzinger
that he was discharged on orders from Rouleau for misconduct . Upon Nofzinger's
request a conversation was then held in Rouleau 's' office at which Rouleau,
Crothers , and Nofzinger were present . At this conversation Rouleau said to
Nofzinger , "You are running around and not living with your wife. " Nofzinger
asked if his job would be good in case he obtained a divorce , and Rouleau replied
in the negative . After this conversation , Nofzinger left the plant and has not
worked for the Pottery since.
The only ,question for determination is whether the'Pottery , notwithstanding
the situation set forth above, in fact discharged Nofzinger because of his mem-
bership in'and activity on behalf of the United . The Pottery contends that on
January 31 , 1941, it did not even know that Nofzinger was a member of the
United. Nofzinger 's own testimony supports this contention . He testified that
,he discovered , but not until after January 31, 1941, that one other employee
who had worked at the same end of the bisque belt as Nofzinger was a United
member. ^ United membership at that time was not made a matter'of common
knowledge and the members did not begin to wear their union buttons until
during May thereafter . Under these circumstances , and since Nofzinger himself
did not know on January 31 , 1941, the fact of the union membership of another
employee who worked near him, it is not unreasonable that the Pottery did not
at the time know of Nofzinger 's membership , as it contended . This contention,
moreover , is supported by the fact that Nofzinger was not unusually active in
the United.
The undersigned finds that by discharging Walter Nofzinger on January 31,
19,41, the Pottery did not discriminate in regard to his hire and tenure of
employment
Graham began work for the Pottery in March 1937 . Sometime in 1938 she
was transferred to the work of brushing cups and flatware. She continued to
,work as a brusher of cups and flatware until a few days before she was laid off
on January 31, 1941. At that time her foreman , Harms , transferred her to
work brushing castware , more difficult work , and work in which Graham had
had no, experience " except for about 2 weeks approximately a year previous.
Graham joined the United in September 1940 and about December thereafter
,became active in obtaining membership ' applications . She was a friend of
Lillian Socia , frequently ate lunch with Soocia, and at times outside of. working
hours sat in a hallway ' with Socia as certain of the foremen passed in December
1940 and January 1941. -
During the afternoon of January 31, 1941, Graham saw Harms , her foreman,
looking over her ware very often. That day Harms asked Graham to work
longer than the other employees, and after they had gone told Graham he must
terminate her employment . She asked him why he was • doing so and why he
had not spoken to her about The matter before. Harms told her that she was
too slow about her work- and that it was not up to the department's standard
He also , said on this occasion that he had told her before at different times that
she would have to hurry more.
Harms testified that he laid Graham off because she was slow about her
work and "left a lot of dirt on the ware ." He testified that her work was not
up to standard According ,to Harms, she said she could not see, but could not,
afford to buy glasses. Harms contended that a number of the other employees
who worked in the same group with Graham had complained about Graham's
MT. CLEMENS POTTERY COMPANY 777
slowness during a period of a few months prior to her lay-off.10.3 Harms also
testified, without contradiction, and the undersigned finds, that when he laid
Graham off she told him she was glad because she was getting a much-needed
rest.
Graham returned to work July 7, 1941, after an offer of reinstatement pur-
suant to Captain Leonard's award mentioned above. She continued to work
until the strike of November 24, 1941. She went on strike at that time and
has not returned to work since. The Pottery makes no contention' but what
her work was satisfactory between her return to work on July 7 and the strike
of November 24, 1941.108
Although Harms' explanation as to why he laid off Graham on January 31,
1941, seems somewhat unsatisfactory, the undersigned is not convinced that
he laid her off for union membership and activity. Graham admitted that Harms
occasionally found fault with a piece of ware brushed by her prior to her lay-off.
Site mentioned only one other employee as having received similar criticism
from Harms. It is therefore not unreasonable to conclude, as Harms testified,
that her work at that time was not up to standard. Moreover, the undersigned
is impressed by the fact that the Pottery did not contend that Graham had done
unsatisfactory work after her return to employment on July 7,, 1941 Had the
Pottery been charging inefficiency as an excuse to rid itself of Graham, it would
probably have claimed her work to be unsatisfactory also at this later date.
The Pottery contends, moreover, that it did not know on January 31, 1941, that
Graham was a member of the United. The circumstantial evidence that Graham
had' associated with United members is not sufficient to convince the undersigned
that the Pottery had such knowledge at the time of her lay-off.
The undersigned finds that by laying off Elsie Graham on'January 31, 1941,
the Pottery did not discriminate in regard to her hire and tenure of employment.
The undersigned will recommend accordingly that the allegations of the coin-
plaint with respect to this employee be dismissed.
Wendt began work for the Pottery in 1934. Soon after his employment began
he was assigned to the job of trucking ware from the bisque belt to the dipping
room. He continued, at that work until some time in 1937 when he went to work
as a hand dipper.10i He worked as a hand dipper until the termination of Lehi
and Suer's employment in September 1940 as described above For some time
prior to that, however, lie had not spent full time as a hand dipper, but had alter-
nated at intervals of two weeks between the glaze room and hand dipping. At
the time of Lehi and Suer's employment terminations Wendt and Felong were
paired together on these two kinds of work.- At that time lie was transferred
from his hand dipping and glaze rooms to a job of carrying cups 108 He worked
at that job rather steadily until the strike on April 14, 1941
Wendt joined the United a month or two after it began to organize the Pot-
tery's employees in 1940. On April 11, 1941, while Wendt was at work carrying
cups Harms held a conversation with him. Up to that time Wendt had not
worn a C I O. button and there is no evidence that he had been active in the
United. Wendt testified that Harms on this occasion told Wendt if he would
1°6 Graham worked in a group where the pay was based on the piece work done by the
entire group.
100 Graham did not in fact wear glasses after her return to work on July 7, 1941. The
undersigned does not view such fact as conclusive , however, because it is possible the inter-,
vemng rest gave her better use both of her eyesight and her othei faculties
107 Wendt dipped cups. He never did any dipping of flat ware.
108 This work was sometimes referred to by the employees as carrying boaids The cups
were carried away from the tubs where the hand dippers woi ked.
778 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
"stick, with the old' man" he would "get a good job out of this" He testified
further as follows about this conversation : "I said, `Ernie, it is up to each indi-
vidual what he wants to do'. He says, `Yes ; I am not telling them to go to the
hall or not to go to the hall'.108 I said, `Well, if you would tell them not to go,
they would just go that much more'." As Wendt's testimony regarding this
conversation is uncontroverted, the undersigned credits it.
Wendt participated in the April strike and upon his return to work after the
strike began wearing a C 1. 0 button. A week or two after the plant reopened
he again-was working carrying cups. One morning late in May or early in June
thereafter Harms sent Wendt to Rouleau's office. In a conversation which took
place on that occasion'Rouleau told Wendt that there was a vacancy in the
maintenance department and that Wendt could have the job. Wendt protested
that he knew nothing about maintenance work, but Rouleau said the Pottery
would 'teach Wendt how to do the work. Wendt that afternoon told Rouleau,
however; that he did not want to take the work. Wendt's uncontroverted testi-
mony shows and the undersigned finds that Wendt on this occasion asked for
his "old trucking job back", but Rouleau said it would be unfair to lay off Alvin
Swark, the employee who then had the job; 'that Wendt also asked whether the
maintenance job, which Wendt was refusing, would be offered one of the other
dippers and Rouleau answered in the negative There is a conflict in the testi-
mony of Wendt and Rouleau, however, as to the conversation regarding; the
effect Wendt's refusal of the maintenance job was to have on Wendt's future em-
ployment chances. Wendt testified Rouleau told him that the job carrying cups
would still be "good" if Wendt refused the maintenance job: Rouleau on the
contrary testified that he told Wendt : " .. now I have offered you a transfer.
I had a definite opening for you, you refused to take this =job. Don't come to
me with-any complaints if you-are laid off later on." Wendt's admitted inquiry
on this occasion about getting his "ola trucking job back" is hardly consistent
with Rouleau's assuring him that the cup carrying job was definitely to continue.-
The undersigned credits Rouleau's testimony stated -above regarding what he
told ' Wendt' on this occasion
-After'the conversation with Rouleau as stated above Wendt's name was placed
with those of the other dippers•on the chart which was posted in the dipping
room usually at intervals of two weeks as explained above. These charts ordi-
narily listed Wendt for one to three days of work a week. On occasions he com-
plained to Harms about being listed for less work than certain other dippers.
At the time of one such complaint Harms said to him, "Bill, if I was in your
place and if I did not like it,, I would go out and find myself another job "
Wendt's part-time work continued until September 17, 1941. ° On that date
Wendt was not scheduled to work, and Rouleau sent for him. A conversation
followed in Rouleau's office, the latter informing Wendt that it was necessary
to terminate Wendt's employment because work in the dipping room was getting
109 Wendt testified that this portion of the conversation referred to the C I 0 hall
110 Although meanwhile August 26, 1941, was the date on which a new schedule should
have been posted, none was posted that day or the balance of the week, as explained herein-
before, apparently because J R Doll, who prepared the schedules, was absent from the plant.
Harms told Wendt when the notice was not posted that he would send for Wendt when
needed The, latter pact of that week the United voted to strike and sent a notice of inten-
tion to strike to the Pottery.' On August 31 thereafter the plant was to operate because of the
time that would be lost the following Monday, which was Labor Day. Rouleau went to
Wendt's house on that Saturday and asked him•to report to the plant for work. Although
there is an inference in the events of that Saturday and the days just preceding that Wendt
might not ever have been asked to report again for work at the Pottery except for the strike
notice, the undersigned views the evidence as insufficient to warrant a finding- that the
Pottery intended to terminate Wendt's employment at the time of these events.
MT. CLEMENS POTTERY COMPANY 779
slack Rouleau gave Wendt a small check which he said was "a present" from
Doll, and answered negatively a question of Wendt as to whether another job
was available As Wendt left he said to Rouleau, "Well, if you need anybody
ever, you know where you can get me." Wendt has not since that occasion
worked for the Pottery.
From the facts as stated above it is clear that Wendt was never especially
active for the United. It is,also clear that prior to his employment termination
the Pottery offered to transfer him to a maintenance job. Rouleau testified with-,
out contradiction, and the undersigned finds that this job would have afforded
steady work Wendt contended that he did not like to take the position because
he knew-nothing about such work. The Pottery's offer to teach him, however,
appears not to have been unreasonable. The evidence shows that it was a
common practice for Pottery employees to learn a trade under the tutelage of
the Pottery."' Shortly after his employment termination Wendt's part- time em-
ployment carrying cups was given to Steve Anderson, another dipper, who had
more seniority than Wendt and was president of the United ; Wendt's former
work of trucking ware was given Nelson Luchtman, another employee in the
department who was a United member and had seniority over Wendt.
Although the undersigned is not free from doubt that the Pottery, terminated
the employment of Wendt because of his membership and activity in that labor
organization in view of its hostility, toward the United and Harm's remarks
to Wendt•as stated above, the .unders.gned.is not convinced that this employment
termination was motivated by such considerations. The undersigned finds that
the Pottery did not discriminate in regard to Wendt's hire and tenure of
employment.
D The strike of November 2y, 19'1
On August 28,,1941, the members of the United held a meeting. As early as
October 21, 1940,'the United had filed a charge alleging, inter alia, that the
Pottery had discriminated with respect to the hire and tenure of employment
of 'Lehi, Suer, and Socia. On April 22, April 25, and May 7, 1941, it filed
amended charges. In the charge of May 7, which was the last filed before
the meeting of August 28, mentioned above, the United alleged that the Pottery
had assisted and dominated the Cooperative and had discriminated with respect
to the hire and tenure of employment not only of Lehl, Suer, and Socia, but
also of Green,"' Reeder, Stark, Kogelman, Thoel,"` and Pearl. At the meeting
of August 28, the members of the United discussed some of these and other
claimed cases of discrimination and voted to file a strike notice On that date
the United sent such a notice to the chairman of the Michigan Labor Media-
tion Board A copy,of the notice was at the same time sent to the Pottery.
The notice recited that a strike was impending and indicated that the issues
involved wete repeated discrimination against members of the' United and
continued refusal to deal with representatives of the United. On September
4, 1941, the members of the United held another meeting. They discussed
further their claims that the Pottery had been discriminating against members
of the United and on that occasion voted to strike. The exact time of calling
the proposed strike, however, was delegated to August Scholle, Regional Director
of the C. I. 0, who was present at the meeting, and members of the United's
executive committee. Scholle at this meeting spoke against going on strike
"'It is obvious from the evidence that Wendt had himself learned his trade as a dipper
from the Pottery.
""Mentioned in the charge as Brusseau.
113 The charge 'referred to Louis Thoel , discussed above.
780 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
except as a "last hope" and indicated that the Board was likely at any
time to obtain a stipulation in settlement of the dispute. At various meetings
of the United thereafter until November 23, the members who attended the
meeting discussed the matter of discrimination against United members, the,
reluctance of the Pottery to deal with the United's representatives, and the
problem presented by the treatment accorded by the Pottery to the Cooperative.
There was also continued discussion during this period that the Board might
obtain a settlement of the difficulties between the United and the Pottery.
Meanwhile on September 23,'1941, the United filed a further amended charge,
which renewed its allegations that there had been discrimination against cer-
tain of its named members, added the claim that Paul Starkey had been dis-
criminated against and again' alleged that the' Cooperative was company-
dominated.
After the discharges on November 22, 1941, of the five members of the United
as detailed above, the United held a meeting-on November 23. The members
discussed these five discharges as well as previous discharges of United members
named in the complaint and expressed fear that in view of the dispute with the
Pottery about the question of time and a half for overtime, if nothing was clone
about the five who1 had been discharged the preceding day, the length of time
the employees had to work might be increased.
Although substantially all the grievances of the United, except the cases of the
five discharged on \ovember 22, had been submitted to the Board in the charges
previously filed, the United wanted speedy action and the members voted during
the course of the meeting in favor of going oil strike the next day. A strike
took place 'the next day accordingly. The day the strike began representatives of
the Pottery, the United, the Cooperative, the Michigan State Police, and the
Mt. Clemens police met and discussed the possibility of settling the strike. The
representatives of the United indicated that the strike would be settled if all
five of the employees discharged on November 22 were reinstated No such
agreement was concluded and the strike dispute was not settled Evidence
during the hearing indicated that at least a substantial number of employees
still consider themselves to be on strike. i
The unfair labor practices detailed above, the discussions held at the meeting-,
of the United during the weeks preceding the- strike, the nature of--the charges
filed by the United with the Board prior to the strike, and the discussion of
-November 24, as detailed above, show that the strike which began on that
date had in a substantial measure its origin in the unfair labor practices of the
Pottery. The United used the strike as a "remedy parallel with recourse to the
Labor Board""' The undersigned finds that the Pottery's unfair labor prac-
tices were a cause of the strike of November 24, 1941.
Iv THE ALLEGED PARTICIPATION AND RESPONSIBILITY OF S. S KRESGE COMPANY IN
AND FOR THE UNFAIR LABOR PRACTICES OF THE POTTERY
The respondent S S Kresge Company contends that the complaint should be
dismissed as to it. The record shows as stated above that the Pottery is a
wholly owned subsidiary of S. S Kresge Company and that there is a partial
identity of officers and directors The evidence shows also that the parent cor,
poration buys over 50 percent of the output of the Pottery. The record fails
to show, however, that the respondent S S Kresge Company directs and con-
trols the operations of the Pottery or that it determines the labor policies of
the latter. Doll, Sr., testified, "At all times the policy of employee relations has
"nN. L R B v Remington Rand , Inc, 94 F. (2d)' 862 , 871 (C C. A. 2).
MT. CLEMENS POTTERY COMPANY 781
been left entirely to my judgment and direction.'' 118 Evidence as to the manner
of handling of the Pottery's specific labor relations matters lends corroboration
to this testimony. The undersigned finds that S. S. Kresge Company is not
an employer of the employees at the Pottery's plant within the meaning of the
Act. Moreover, there ' is no evidence to show any, necessity of an order against
S S. Kresge Company as a means of insuring its effectiveness. The undersigned
will recommend dismissal of the complaint in so far as it alleges that S. S
Kresge Company has engaged in unfair labor practices
V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Pottery set forth in Section III above, occurring in con-
nection with the operations described in Section I above, have a close, intin-rte,
and substantial relation to trade, traffic and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce. i
VI. THE REMEDY
The Pottery contends that the conduct of the employees named in the com-
plaint, other members of the United, Andrepresentatives of the C. I. O. during
the course of the events mentioned in the omplaint has been such as to bar all
employees from any right to reinstatement or other relief under the Act. Specifi-
cally the Pottery states that there was a preconceived plan, scheme, design, and
conspiracy by these groups in the form of an unlawful attempt to close the plant,
to destroy an existing employee organization by fear, intimidation, violence and
destruction of property, and by i arious mentioned unlawful methods to intimidate
and coerce the Pottery into doing something which it was not legally obliged to do.
The Pottery also contends that all employees are barred from any right to rein-
statement because of certain criminal convictions against ten 15 specified members
of the United or persons allegedly acting on behalf of the United and convictions
for contempt of court for violations of a Macomb County Michigan Circuit Court
injunction 1e by nine member of the United and a representative of the C. I. O.
In support of the above argument the Pottery points to certain picket-line and
other activities during the strike of April 14' 1941 Although none of these acts
resulted in criminal convictions the Pottery contends that they are matters which
mu,t be given consideration under its theory of defense One such act relied
upon by the Pottery took place the first day of the strike when J. R. Doll was
118 There was testimony by Rupert A Bell secretary of both corpoi ations, that the re-
spondent S S Kresge Company "dictates a very broad policy that all wages should be the
highest and the working conditions the best, though the details of working out those are
left pretty 'much to Mr. Doll because he is the practical pottery man " As stated infra
the evidence regarding the Pottery's handling of ipecific labor matteis shows that Doll.
Sr., in fact makes all such decisions for the Pottery. Although the labor difficulties of the
Pottery have a few times been discussed at S. S Kresge Company board of directors meet-
ings and between Doll and R B Williams, president of both coipoiations. there is no show-
ing that either the respondent S S Kresge Company or Williams ever has advised or in-
structed Doll regarding what course or steps to take-with respect to labor matters. Such
discussion as has taken place appears to have been no more than the type of discussion
that any regular buyer in its interest as a buyer might hold with a supplying manufacturer
regarding labor difficulties of the manufacturer
115 In addition to introducing evidence as to convictions of nine persons named in the
second paragraph of its amendment to answer flied on April 9, 1941, during the bearing, the
Potteiy also introduced such evidence as to Norman Gunn , who was a striker and appar-
ently a United member.
ne For a more complete statement of the. Pottery's theory of defense see its amendment
to answer, Board exhibit 1-Z, mentioned supra.
782 DECISION'S OF NATIONAL LABOR' RELATIONS BOARD
starting to transport to their homes in his automobile Clayton Curtin , a foreman,
and three other employees Arthur Sibbe, a striker , two other individuals named
Orville Zorn and Alfred Palowitz but otherwise unidentified , and two entirely
unidentified negroes drove a car in front of Curtin 's driveway into which Doll
had driven his car. Sibbe and the others on this occasion got out of the auto-
mobile in which they were riding and said to Doll and those with him,"We don't
want you to go back or to go in that plant and work any more ; we are just
warning you so you won't do it, get into trouble and get hurt ." Another act
relied upon by the Pottery as a defense consisted of certain conduct by Earl
Larimer and one Garcia , employees of the Pottery. These employees while on
the picket, line, acting in concert with a number of unidentified persons who
were also on the,plcket line turned over the automobile of.Charles E. Doll, Jr.,
when it was occupied by Doll , Jr., and three supervisory employees and was
proceeding with police assistance toward the automobile gate of the plant. A
third such act was the breaking of the employees ' entrance door window on
May 8 as Foreman Randolph and two other supervisory employees accompanied
by a state policeman were entering the plant. In line with its theory of defense
as stated above the Pottery also made offers of proof that one Dobrowski, an
employee of the Pottery , was seized on April 14 by Paul Starkey while attempting
to enter the plant and struck in the face by Walter Brant, then an officer of the
United ; that while two employees named Steinbrink and La Forge were driving
to the plant to help in shutting down the kilns , pickets and others not in the
picket line who were members of the United stopped the car and Arthur Sibbe,
a striker , raised the hood of the car and Marcel Dupont , another striker , stripped
the wires from the ignition system, other pickets raised up the car and dropped it,
and the car was damaged ; that almost every night during the strike the United
`'and its affiliated group" carried on an activity whereby roofing nails were strewn
in the driveways and parking lots at the plant and the tires on cars of many
persons protecting the plant were punctured , Trabue and Seifferlein , foremen,
each having four punctures at once; that while the plant was being picketed by
the United and its affiliated organizations locks on the gates of the Pottery's
property were tampered with in various specified ways on about ten or twelve
occasions so that they had to be burned off before use could be made of the gates
and unlocked gates were on occasions padlocked by the same group of persons
and that such locks also had to be burned off; that during the strike while the
premises of the Pottery "were being picketed and guarded by persons not in the
picket line" persons "connected with or members" of the United or its affiliates
threw various specified objects through the windows of the plant , breaking up-
wards of 150 windows and the glass in the front door ; that one evening Paul
Starkey for the purpose of hampering and discommoding those in the plant or
who might want to go in placed human excrement on and over and into the
gate lock 119
The identity of those persons allegedly involved in the matters set forth above
is specified in,only a few instances . Sibbe, Zorn , Palowitz , Larimer , Garcia,
Starkey, Brant and Dupont are identified by name in the evidence and offers of
proof. In another case 120 the Board in a similar situation mentioned Section 6
of the Act of March 23 , 1932, known as the Norris-LaGuardia Act, which states :
n9 Doll, Sr., testified that he received reports during the strike of still other similar
incidents , but the matters set forth represent in substance those as to which direct evi
ilence or offers of proof were made.
120 See Matter of Republic Steel Corporation and Steel Workers Organizing Committee,
1) N. L R. B. 219 , enf'd as modified in Republic Steel Corporation v National Labor Rela-
tions Board, 107 F. (2d) 472 ( C. C. A. 3).
MT. CLEMENS POTTERY COMPANY, 783 '
No officer or member of any association or organization, and no association
or' organization participating or ; interested in a labor dispute shallAe held
responsible for liable in any court of the United States for the unlawful
acts of individual officers, members or agents except upon clear proof ,of
actual participation in or actual authorization of such acts or of ratification
of such acts after actual knowledge thereof.
There is neither evidence nor offers of proof as to the individual identity of other
participants in,these acts of alleged violence set forth above. To hold such acts,
even if it were to be conceded that they all took place, to be a complete defense to
all the allegations'in the complaint would be beyond the letter and intent of the
law. In no event should the alleged act constitute a barto reinstatement of other
employees, especially since there was neither proof nor offer of "clear proof of
actual participation in or actual authorization . . . or . . . ratification . . ." Of
those eight individuals mentioned above Starkey has been found to have been
discriminated against for union membership and activity. The other seven, in so
far as they may be employees who participated in the strike of November 24,-1941,
would be entitled to reinstatement under the conditions hereinafter provided -
unless the acts discussed above be deemed a proper reason to deny them that right.
The undersigned is convinced moreover that it would not effectuate the purposes
of the Act to deny reinstatement to any of the eight individuals named above.
The Pottery contended at the time it discharged Starkey that it was doing so
because of carelessness and not for any conduct on his part during the strike of
April 14. The undersigned is impressed by the fact that all employees were
allowed to return to work at the close of that strike. That fact and the lack of
any criminal convictions as a result of the alleged acts set forth above cause
the undersigned to find no merit in the Pottery's contention that the events
during the strike of April 14 should bar reinstatement of any employees otherwise
entitled thereto. '21
The Pottery further contends that the agreement whereby Captain Donald S
Leonard of the Michigan State Police rendered the arbitration award mentioned
above with respect to 12 persons against whom the United claimed there had
been past discrimination, was a bar to urging that any other matters occurring
prior to the agreement and not referred to therein were unfair labor practices.
On May 12, 1941, after the Pottery had determined to reopen the plant, Captain
Leonard, acting as an intermediary, obtained an agreement between Scholle and
Doll, Sr., that the C. I O. would withdraw its pickets, the Pottery would allow
all employees of the plant at the time the strike of April 14 began to return to
121 Apart from the acts of alleged violence during the strike of April 14 the Pottery also
contends that the strike was illegal and all employees involved are barred from any relief
under the Act because supervisory and other employees essential to the care of the plant
were not ' allowed ready admission to the plant except upon presentation of passes issued
by C I 0 authoiities, because the kilns were damaged as a result of cooling off during
the strike, and because of general financial loss to the Pottery and its employees. The
requirement as to passes, although, it doubtless caused inconvenience to those concerned,
was not such an activity as to bar either those mentioned in thet complaint or any of
the strikers from reinstatement or other relief under. the'Act. Their issuance and use
were disconnected from acts of violence and there is no showing that the C. I. 0 authori-
ties ever refused to issue one after requested Their use was a union activity within the
meaning of the Act.' As for the claimed damage to the kilns and other losses to the
Pottery and 'its 'employees the evidence shows that some such damage and losses did ini
fact take place There is nothing to show, however, that they were-moie than results of
the'usual struggle for economic power between the employer and the union . They'were
in no sense consequences of acts of violence . All these matters are among the usual con-
sequences of. any protracted strikes and are not matters which can be availed of as a
defense to unfair labor practices.
784, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work • without discrimination, and the cases of the 12 employees mentioned
above should be arbitrated before Captain Leonard. It was agreed that what-
,ever award Captain Leonard might make was to be without prejudice to the
determination of such matters by the Board
After these events the pickets were wthdrawn, the plant reopened on May 13,
and the employees returned to work. On May 24 thereafter Captain Leonard
rendered a decision with respect to the 12 cases referred to him. His interpre-
tation of the effect of the proceeding on action by the Board was stated by
him in a report of his award proceeding as follows :
It was also agreed that my decision in this matter would have no bearing-
whatsoever on the status of ,the cases pending before the National Labor
Relations Board. The question of ultimate reinstatement and back pay-
ment of wages must still be determined by this Board. My decision
applies only to the reinstatement of these employees until the decision is
given by the N. L. R. B. The other questions involving charges of com-
pany domination over the independent union and the election at the plant
remain with the N. L. R. B 122
This award and Captain Leonard's recital regarding its effect must be con-
sidered in the light of surrounding circumstances. The, United and the C. I. O.
were at the time insisting that the matters later considered by Captain Leonard
must be disposed of in return for a concession to withdraw the picket line and
allow peaceful resumption of operations at the plant. Under these circum-
stances it would not effectuate the purposes of the Act to bar from later con-
sideration other past acts claimed by the United to be unfair labor practices
merely because the United and the C. I. O. did not exact their consideration,by
Captain Leonard as a part of the bargain upon the terms of which the plant
might be reopened. To take such a narrow view, in the absence of an express
understanding that all matters not referred to in the agreement were foreclosed
from later consideration by the Board, would discourage the, making of tempo-
rary concessions for the purpose of settling labor disputes. Aside from the
above considerations, the Board was not a party to the agreement pursuant to
which Captain Leonard rendered the award of May 24, 1941. It is, therefore,
in no event bound by the agreement 123 .
As mentioned above, the United again called a strike on November 24, 1941.
The Pottery contends that the acts of the United, its members, and C. I. O.
representatives also during that strike were such as to constitute a defense
to the alleged unfair labor practices and to bar the employees named in the
complaint and the strikers from any right to reinstatnient. The events-early
on the morning of November, 24, 1941, when those employees who had been
harbored in the plant during the preceding night charged the picket'line, have
been detailed above. The circumstances surrounding these events were gen-
erally such and were so related to the Pottery's unfair labor practices that it
would not further the purposes of the Act to deny reinstatement or other relief
to any of the strikers or discharge employees because of these events.
About the time the employees who were inside the plant charged the picket
line that morning two officers of the, Mt. Clemens police force arrived at the
122 See Board Exhibit No. 89. Of those employees named in the complaint in the instant
case Captain Leonard made a decision in his award with respect to Green, Graham, Kogel-
man, Stark, Lehl, and Suer Reeder's case was also before him, but decision thereon was
postponed at the time the award was rendered.
123 Whether the Board shall give effect to a settlement agreement between parties is a
matter for its discretion See Matter of Picker X-Ray Corporation, Waite'Manufacturinp
Division, Inc. and International Association of Machinists, 12 N. L. R. B. 1384.
MT. CLEMENS POTTERY COMPANY 785,
plant and soon thereafter undertook to let certain employees through the picket
line at the employees' entrance. The pickets resisted moving'out of the way,
but committed no acts of violence on the officers in doing so. Between 5 and
6 a. m. thereafter about 10 police officers finally assembled there and kept a
passage way clear until about.8 a. m when the number of pickets and others
had so increased that the Mt. Clemens police discontinued their efforts to keep
a, passage way into the plant. About 4 p. m that day, however, 40 to 50 state
police arrived at the plant and opened a passage way to the employees' entrance.
The plant resumed operations. Some state police continued on duty in front
of the plant about 3 weeks. t
During these early morning events on November 24 the Mt. Clemens police
arrested 'Esther Sopha, Claude Cottiell, Nicholas Dacko, and John Metz, all
employees of the Pottery and members of the United, who were present,
among others, in front of the plant that morning while employees were going
to work. All later pleaded guilty and were convicted before a justice of the
peace of having disturbed the peace that morning in front of the plant. Sopha,
Dacko, and Metz were each charged with costs and given 1 year of probation.
Cottrell was charged with costs and given 6 months of probation. Thereafter,
on November 28 Norman Gunn, one of the strikers, was arrested on a complaint
that he had the preceding day committeed an assault and battery on a member
of the Mt. Clemens Police force. The complaint had reference to an incident
while the police officer was in the vicinity of the plant to maintain order. Gunn
entered a plea of not guilty, but later changed his plea to guilty. He was
charged with costs and given 1 year of probation. On November 28 Albert
Thomas, a striking employee and a group of others, followed from the plant
an automobile in which Leonard Miller' and Guy, Campbell, employees of the
Pottery and cooperative members, were riding Thomas and the others turned
over the automobile and damaged it. Thomas thereafter upon an information
filed against him and after a trial by jury was found guilty of malicious
destruction of personal property. He was given a jail sentence of 30 days.
Edna Scheible, another striking employee, on a complaint of having on De-
cember 5 committed an assault and battery on an employee of the Pottery,
was tried and found guilty. • This incident took place while the assaulted
employee was on her way to work. Scheible was charged with costs and
placed on probation for 1 year. It has been held in another case that similar
convictions and court sentences as a result of acts committed in the heat of
bitter industrial strike did not constitute offenses of such a nature as to bar
reinstatement. The undersigned adopts such conclusion'24
The Pottery also sets up as matters of defense the eleven convictions of con-
tempt of court, mentioned above, which took place during the strike which
began on November 24, 1941. These convictions developed out of a proceeding in
.which the Pottery on May 9, 1941, had obtained in the Circuit Court of Macomb
'County, Michigan, a temporary injunction ordering the United, certain of its
named officers and certain named representatives of the C I. O , as parties
defendant, to cease and desist from certain specified acts in the vicinity of the
'u See footnote 120, supra. It follows that these convictions and sentences do not con-
stitute a defense as to any of the alleged unfair labor practices . There were also a few
other criminal convictions during the strike of November 24, 1941, as a result of strike
violence , but none against defendants who were employees of the Pottery. There is no
evidence establishing authorization or ratification of such criminal acts by any of the
employees of the Pottery . Under those circumstances , for reason already stated, it is
unnecessary to consider the full nature of the offenses committed.
504086-43-vol 46-50 -
7 86 DECISION 'S OF -NATIONAL LABOR RELATIONS BOARD
respondent Pottery's plant.' Late in November and early in- December 1941
separate petitions were filed by the Pottery alleging that Nick - Dacko, Floyd
Pearl, Carl Nicka , Albert Schiappacasee , Steve Anderson , Earl Larimer , Albert
Watkins, Hilda Gohl , Kempton Williams , Lillian Socia , and Arthur Sibbe had
by certain specified acts , violated the injunction order mentioned above Wil-
-liams was an organizer for the C. J . O. The other ten named in these petitions
were members of the United and employees of the Pottery . Separate orders to
show cause were issued against these individuals as to why they should not be
committed for contempt . - On pleas entered in open court on 'larch 6, 1942, that
they had violated the injunction by engaging in picketing when more than eight
persons were in the picket line all eleven individuals were found guilty- of
contempt of court.326 The undersigned , does not concur in the view that the
nature of the offense to which these persons pleaded guilty was such that by
reason thereof either they or any of the strikers or employees mentioned in the
complaint should be denied reinstatement or other relief under the Act."
1sc The acts from which the defendants were ordered to cease and desist were :
(a) In any manner interfering with the employes of plaintiff or persons who desire
to enter the employ of plaintiff, 'by way of threats , personal violence , intimidation
or any other illegal means calculated or intended to prevent persons from entering
or continuing in the employ of said plaintiff , or calculated or intended to induce
any employe to leave the employ of plaintiff ;
(b) In any manner interfering with the free access , ingress or egress of the plain-
tiff 's employes or the public to the plaintiff 's premises , and-front in any manner
interfering with said employes at their place of employment or while going to or
coming from their place of employment , at their homes , and elsewhere,
(c) Congregating or loitering about the premises of plaintiff or in the vicinity
thereof , or from interfering with or obstructing the plaintiff 's trade or business by
coercion, threats , intimidation or false information, provided, however, that peaceful
picketing by not more than eight ( 8) men walking up and down in front of the plant
shall not be construed as a violation of this order ,
(d) Carrying on or operating a sound car or truck within the vicinity of said
pottery company plant or using the same in said vicinity for any purpose whatsoever;
(e) Interfering in any manner with persons desiring to do business with plaintiff
or in any way obstructing plaintiff 's business by coercion , threats or intimidation ;
(f) Endeavoring to prevent deliveries and entrance to and from the premises by
persons having business therein, and from obsti ucting highways, sidewalks , railroad
siding and other ways ' leading to plaintiff's plant so as to prevent the free and
unobstructed use thereof
After a trial the court on January 22, 1942 , issued a final injunction deciee The final
deciee prohibited substantially the same acts as the tempoiaiy injunction and added the
following prohibitions
From congregating upon , entering upon or coining within fifty (50) feet of the iailioad
tracks of the Grand Trunk Railway Company or the siding leading from the right of way
of said railway company to the premises of the plaintiff , or in any othei manner inter-
fering with the passage of railroad cars and locomotives to and from the premises of
the plaintiff ;
From obstructing or interfering with the highways leaping to and adjacent to plaintiff's
plant, or the doveways, entrances or` paiking lots on plaintiff ' s premises or adjacent
,thereto by placing, throwing of distributing thereon or therein tacks , nails, spikes, or
other articles which might cause damage to the toes or other parts of the motor vehicles
using said highways, driveways, entrances of parking lots.
126 Although each of the orders of conviction finds these eleven persons guilty of con-
tempt "as charged in said petition and affidavits ", the plea of, guilty on which the order
was based went only to the violation of the portion of the order which prohibited the
use of more than eight pickets at one time . The sentence of these eleven peisons was
pending at the time the hearing in the instant case began There is no evidence in the
record as to what sentence was finally imposed See Board Exhibit 64.
124 Apart from court convictions there were a few other picket -line incidents duiing
the stiike which began November , 24, 1941 Most of them involved persons not specifically
identified These incidents precipitated injury neither to petsons nor property . Even if
it be conceded that the stoking employees named , in the , complaint participated in these
MT.' CLEMENS POTTERY COMPANY 787
Having found that the Pottery has engaged in unfair labor practices, the
-undersigned will recommend that it cease and desist therefrom and,take certain
affirmative action designed-to effectuate the policies of the Act and to restore as
nearly as possible the conditions which existed prior to the commission of the
unfair labor practices.
The undersigned has found that the Pottery dominated and interfered with
the Cooperative and contributed support to it. The effects and consequences of
said ' domination , interference, and support render the Cooperative incapable
of serving the Pottery's employees as a genuine collective bargaining agency.
The undersigned finds that the continued recognition of the Cooperative as the
bargaining representative for any of the Pottery's employees constitutes a con-
tinuing obstacle to the free exercise by the employees of their right to self-
organization and to bargain collectively through representatives of their own
choosing. The undersigned will recommend that the Pottery withdraw all
recognition from the' Cooperative as the representative of any of its employees
for the'purposes of dealing with the Pottery concerning grievances, labor dis-
putes, wages, rates of pay. hours of employment, or other conditions of employ-
ment. The contract of May 7, 1941, entered into by the Pottery,and the Coopera-
tive, was invalid since it was a means whereby the Pottery utilized an employer-
dominated labor organization to frustrate self-organization and to defeat genuine
collective bargaining by its employees. Under these circumstances, the entorce-
ment of said contract or any extension, renewal, or modification thereof, whether
written or oral , and the enforcement of any other contract with the company-
dominated Cooperative, would perpetuate the conditions which have deprived
the employees of the rights guaranteed to them in the Act and would render
other portions of the recommendations herein made ineffectual to remedy the
Pottery's unfair labor practices. The ^indersigned, therefore, in order , to
effectuate the policy of the Act, will recommend that the Pottery' cease giving
effect to the contract of May 7, 1941, or to any substantial renewal or modification
thereof, whether written or -oral, and to any other agreements, arrangements,
or understandings with the Cooperative. Nothing in the recommendations, how-
ever, shall be deemed to require the Pottery to vary or abandon the wage rates
or other substantive features of its relations established with its employees in
performance of such contracts, arrangements, or understandings, or any modifica-
tion, renewal , or extension thereof. ,
The undersigned has found that the Pottery has discriminated in regard to
the hire and tenure of employment of Edwin Suer, Adam Lehl, Stanley Reeder,
Joyce-Brusseau Green, Alvin Stark, Paul Starkey, John Felong, Arthur Baxter,
Floyd Pearl, Nicholas Dacko, William Behnke, Stanley Holmes, and Nick
Mokanyk by terminating their employment because df membership and activity
in the United by them and each of them. It will be recommended that the Pottery
offer them, except Green, Reeder, Stark, and Dacko, immediate and full rein-
statement to their former positions, or, if these are not available, to substantially
equivalent positions . Where necessary, it is recommended that the Pottery
displace employees who have succeeded to these positions or to positions which,
either because of seniority or the practice of the Pottery, should have been offered
to one of the above-named employees. The undersigned will' also recommend
that the Pottery make whole each of the above-named employees, except Green,
Reeder, Stark, and Dacko, for any loss of pay he may have suffered by reason
activities , the undersigned finds none of the activities to be of such a nature as to con-
stitute a reason for denying reinstatement or other relief under the Act See footnote
120, supra.
788 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD,
of the Pottery' s discrimination against him by payment to each of them of a
sum equal to the amount he normally would have earned as wages from the date
-of the discrimination to the date of the offer of reinstatement, less his net
earnings .'`' Stanley Holmes and William' Behnke, whose cases have been dis-
cussed above, are both under 18 years of age. If these employees are to return
to work for the Pottery it will be necessary that they obtain the usual working
permit issued by the local school authorities pursuant to Michigan law. The
undersigned will recommend the reinstatement of these employees upon the
condition that they obtain such a permit, the Pottery to take such steps to
enable Holmes and Behnke to obtain such permits as it customarily takes when it
employs minors under 18 years of age. Green on June 9, 1941, returned to work
at the Pottery under conditions set forth above, later terminating that employ-,
ment of her own volition, and does not desire reinstatement. The undersigned
will, therefore, recommend that the Pottery make her whole by paying her the
wages she would have received from the Pottery from the date of the discrimi-
nation against her on October 24, 1940, until her return to work on June 9, 1941,
less her net earnings during that period Dacko, Reeder and Stark do not desire
reinstatement. All three have employment. Reeder deems his present employ-
ment better than that he had with the Pottery. Dacko apparently does not
,desire reinstatement for the same reason. Pursuant to the award of Captain
Leonard the Pottery on May 27, 1941, offered Stark reinstatement and he re-
fused it. The undersigned will recommend accordingly that the Pottery pay
Dacko and Reeder, the amount of wages they