The Sands Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 17, 1936

1 N.L.R.B. 546 (N.L.R.B. 1936)

In the Matter of THE SANDS MANUFACTURING COMPANY and
MECHANICS EDUCATIONAL SOCIETY OF AMERICA
Case No. C-33-Decided April 17, 1936
Water Heater Industry-Unit Appropriate for Collective Bargaining : produc-
tion and maintenance employees-Representatives : proof of choice : member-
ship in union-Collective Bargaining : refusal to meet representatives ; bar-
gaining with individual employees ; employer's duty, as affected by temporary
shut-down-Condition of Employment : join rival union-Employee Status:
during temporary shut-down ; during lockout-Discrimination : lockout ; non-
reinstatement following temporary shut-down-Reinstateinent Ordered-Back
Pay: awarded.
Mr. Nathan Witt and Mr. Harry L. Lodish for the Board.
Stanley & Smoyer, by Mr. W. K. Stanley and Mr. Harry E. Smoyer,
of Cleveland, Ohio, for respondent.
Brooker & Brooker, by Mr. William L. Brooker, of Cleveland, Ohio,
for Mechanics Educational Society of America.
Mr. Joseph Rosenfarb, of counsel to the Board.
DECISION
STATEMENT OF CASE
On October 14, 1935, the Mechanics Educational Society of Amer-
ica, hereinafter called the MESA, filed with the Regional Director
for the Eighth Region a charge that the Sands Manufacturing Coin-.
pany, Cleveland, Ohio, hereinafter called the respondent, had en-
gaged in and was engaging in unfair labor practices within the
meaning of the National Labor Relations Act, approved July 5,
1935, hereinafter called the Act. On November 12, 1935, the Board
issued a complaint signed by the Regional Director for the Eighth
Region alleging that the respondent had committed unfair labor
practices within the meaning of Section 8, subdivisions (1), (3) and
(5) and Section 2, subdivisions (6) and (7) of the Act. The com-
plaint alleges in substance :
1. On or before June 15, 1935, a majority of the employees in the
production and maintenance departments of the plant of the respond-
ent had designated the MESA as their collective bargaining represen-
tative, and that at all times since the MESA had been the exclusive
546
DECISIONS AND ORDERS 547
representative of the employees in such unit for the purposes of
collective bargaining.
2. On June 15, 1935, an agreement for a period to March 1, 1936
was entered into between the respondent and the MESA concerning
rates of pay, hours of work and other conditions of employment.
3. On July 23, 1935, August 21, 1935 and on other dates during
the months of July and August, 1935 the respondent notified 75 of
its production and maintenance employees that their services would
not be required during a temporary and indefinite period.
4. On September 3, 1935 the respondent entered into a collective
agreement covering rates of pay, hours of employment and other
conditions of employment of its production and maintenance em-
ployees with the International Association of Machinists for a
term beginning September 3, 1935 and ending September 3, 1936.
5. On or about September 6, 1935, and at various times thereafter,
the respondent hired in its production and maintenance depart-
ments certain persons not theretofore employed by the respondent,
and recalled to employment certain of the 75 employees laid off
temporarily, but refused to recall to employment 48 of the 75 for the
reason that they were members of the MESA and had engaged in
concerted activities for the purpose of collective bargaining.
6. The acts of the respondent constitute unfair labor practices
affecting commerce, within the meaning of Section 8, subdivisions
(1), (3) and (5) and Section 2, subdivisions (6) and (7) of the Act.
The complaint and the accompanying notice of hearing were duly
served upon the respondent and upon the MESA. Thereafter the
respondent filed its answer to the complaint alleging, inter alia, as
follows:
1. The National Labor Relations Act is unconstitutional because it
violates the 4th, 5th and 10th Amendments to the Constitution of the
United States.
2. It is an Ohio corporation, organized in,1913, has its principal
office and place of business in the County of Cuyahoga and State of
Ohio, and is engaged in the manufacture, sale and distribution of
gas and kerosene water heaters. It obtains its raw materials partly
from without and partly from within the State of Ohio and its
products are shipped to destinations within and without the State
of Ohio.
3. The MESA was not the representative for purposes of collective
bargaining designated by a majority of the production and mainte-
nance employees but only had the right to accompany the committee
chosen by the employees for that purpose in their dealings with the
respondent.
548 NATIONAL LABOR RELATIONS BOARD
4. The employees discharged by the respondent during July and
August were dismissed because of lack of work.
5. The shutdown of the plant on August 21, 1935 occurred because
the respondent considered the agreement of June 15, 1935 had been
violated by the employees' committee.
6. The agreement of September 3, 1935, entered into between the
respondent and the International Association of Machinists was not
a closed shop agreement and was cancelled by mutual consent of the
parties on or about September 10, 1935.
7. Upon the reopening of the plant on or about September 3, 1935,
the respondent did not recall to employment a large number of
workmen previously employed by it, but with the exception of a few,
none of its previous employees had applied to it for reemployment.
8. The respondent did not discharge or refuse to reinstate any
employees because they belonged to the MESA and had engaged in
concerted activities for the purpose of collective bargaining.
9. The respondent did not commit unfair labor practices within
the meaning of Section 8, subdivisions (1), (2) and (3) of the Act.
A hearing commencing November 25, 1935 and continuing to and
including November 30, 1935, was held in Cleveland, Ohio, before
Saul S. Danaceau, duly designated by the Board as Trial Examiner.
Full opportunity to be heard, to cross-examine witnesses and to pro-
duce evidence bearing upon the issues was afforded to all parties.
On December 26, 1935 the Trial Examiner duly filed with the
Regional Director an Intermediate Report in accordance with
Article II, Section 30 of National Labor Relations Board Rules and
Regulations-Series 1. The Trial Examiner found, that the re-
spondent had committed unfair labor practices within the meaning
of Section 8, subdivisions (1) and (3) of the Act, and recommended
that the respondent cease and desist from interfering and coercing its
employees in the rights guaranteed by the Act, and reinstate to their
former positions the employees discharged, but without back pay.
The motions of the respondent to dismiss the complaint made and
renewed during the hearing were overruled by the Trial Examiner.
Exceptions to the Intermediate Report were filed by both parties in
accordance with Article II, Section 32 of National Labor Relations
Board Rules and Regulations-Series 1. Thereafter oral argument
was held before the Board at which the respondent participated by
its counsel, who also filed a brief.
Upon the entire record in the case, the stenographic report of the
hearing and all the evidence, including oral testimony, documentary
and other evidence offered and received at the hearing, the Board
makes the following :
DECISIONS AND ORDERS 549
FINDINGS OF FACT
1. THE RESPONDENT AND ITS BUSINESS
The respondent is a corporation organized in 1913 under the laws
of the State of Ohio. It has its principal office and place of business
in the City of Cleveland, County of Cuyahoga, State of Ohio. It is
engaged in the manufacture, sale and distribution of gas and kerosene
water heaters.
The respondent obtains raw materials in the form of brass, cast-
ings, sheet iron, steel tanks, tubing, packing material, and miscel-
laneous other material from Ohio, Michigan, Connecticut, Massa-
chusetts, New York, Illinois, Wisconsin, West Virginia, Virginia and
other states. During the period from January 1, 1935 to October 1,
1935, its purchases of raw materials totalled $181,828.51, of which the
purchases from within the State of Ohio totalled $106,616.31.
The respondent ships and transports tank heaters, storage heaters,
instantaneous heaters and valves and other parts produced and sold
by it to every state and the District of Columbia. During the period
from January 1, 1935 to October 31, 1935, the value of its shipments
totalled $318,117.08, of which shipments within Ohio were $34,091.17
and those outside of Ohio were $284,025.91.
The shipments to and from the respondent are by common carrier.
Its articles are shipped on consignment to various warehouses, not
owned or operated by the respondent, throughout the United States,
where they are stored pending the filling of individual orders. The
respondent has representatives in various parts of the United States,
who, with the exception of the one in New Jersey, are paid by
commission.
The advertising of the respondent is on a nationwide scale. Dur-
ing the period January 1, 1935 to October 31, 1935 its disbursements
for advertising totalled $8,750.48.
The operations of the respondent constitute a continuous flow of
trade, traffic and commerce among the several States.
II. THE RELATIONS BETWEEN THE RESPONDENT AND ITS EMPLOYEES-
THE BACKGROUND OF THE LABOR DISPUTE-APRIL, 1934 TO JUNE 15,
1935
Early in 1934 the production and maintenance employees of the
respondent became members of the MESA, an independent labor or-
ganization with headquarters in Detroit, Michigan. All of the em-
ployees of the respondent in the production and maintenance depart-
ments, exclusive of supervisory and clerical employees, were eligible
for membership in the MESA. In April, 1934, in a letter to the
550 NATIONAL LABOR RELATIONS BOARD
respondent, 32 of the production and maintenance employees who had
joined the MESA, designated a committee of three of their number,
Harry Potter, Clarence Dusek and Lada Jindra, to be their repre-
sentatives for the purpose of collective bargaining, and requested that
representatives of the MESA be present at the dealings between the
respondent and the committee. These 32 employees constituted
practically all of the employees in the plant at that time.
We find that the production and maintenance employees of the
respondent constitute a unit appropriate for the purposes of collec-
tive bargaining.
After negotiations between the committee and the respondent, an
agreement was made on or about May 2, 1934 providing, inter alia,
for an increase in wages. The agreement was to run for 60 days,
but by mutual consent the parties continued to operate thereunder
until some time in May, 1935.
In the fall of 1934, while the respondent was endeavoring to
obtain a contract with the United States Government for the manu-
facture of a large amount of merchandise, it obtained a promise
from the employees that there would be no labor trouble in the
plant to interfere with the filling of the order. About 35 new and
additional men were hired to help do the work on the Government
order. After the completion of the Government order in December,
1934, these new and additional men were discharged. While em-
ployed by the respondent all but 3 of the additional men became
members of the MESA.
In the spring of 1934 Harry Potter, who had become state chair-
man of the MESA, left the employ of the respondent. Tony Moraco,
one of the employees of the respondent, supplanted Potter as a
member of the shop committee. Potter, however, continued to par-
ticipate in the negotiations between the respondent and the shop
committee as a representative of the MESA.
During the middle of May, 1935, negotiations took place between the
respondent and the shop committee concerning a new agreement. The
main demand of the employees was for an increase in wages. The
negotiations were unsuccessful and a strike was called on May 21,
1935. Negotiations continued during the strike, with the participa-
tion of Potter and a United States Department of Labor Conciliator.
An agreement was finally arrived at on or about June 1, 1935 and
pending the drafting of a written contract the strikers returned to
work on June 3, 1935. A dispute arose as to 7 men whom the re-
spondent refused to reinstate on the ground of inefficiency, and on
June 6 the men struck again. The respondent's position was that
the shop committee agreed to the discharge of the 7 men.
Further negotiations continued which culminated in a written
agreement on June 15, 1935, between the respondent and the shop
DECISIONS AND ORDERS 551
committee on behalf of the MESA. This agreement called for an
increase in wages, and provided that no employees be discharged
without a hearing before the management and the shop committee
on specific charges. On June 17 , 1935 all of the employees , including
the 7 whom the respondent had refused to reinstate , returned to,
work.
. It is clear from the evidence that . on June 15, 1935, and at all
times thereafter , the MESA was the representative of the majority
of the respondent 's production and maintenance employees.
III. THE LABOR DISPU E
In order to complete the orders which had accumulated during
the strike, the respondent, after the plant reopened on June 17, 1935,
hired approximately 30 additional men, some of whom had worked
for the respondent while the Government order was being filled, and
some of whom were new.
By the middle of July practically all of the accumulated orders
had been filled and respondent proceeded to reduce its working force.
About July 15, 1935, after conferences between the management and
the employees , all the men in the tank heater department with the
exception of the foreman were laid off.
In the agreement of June 15 , 1935, the 31 men who were employees
of the respondent prior to the Government order of 1934 were desig-
nated as "old men", and those employed while the Government order
was being filled were "new men." About July 30, 1935 a notice was
posted on the time clock in the plant of the respondent that the new
men would be laid off on July 30 and the old men would be laid off on
August 2, 1935. After the layoff of the new men another notice was
posted to the effect that the plant would be operated with the old men
on a schedule of three days a week.
Thus, by the end of July and the beginning of August, some depart-
ments were being operated on a part time basis and others had been
practically shut down. At or about this time, the respondent wished
to increase the working force in the machine shop, the key depart-
ment, while at the same time shutting down the other departments.
Repeated conferences were held between the management and the
shop committee in reference to this matter. The positions of the
respondent and the employees were diametrically opposed. The man-
agement contended that new men, experienced in machine shop work,
be employed in preference to the old men. The shop committee con-
tended that there was sufficient stock in the machine shop, and that
in any event , under the agreement of June 15 , 1935, the respondent
could not hire any new men for the machine shop as long as old men
were still laid off . The management claimed that the shop committee,
97571-36-vol 1-36
552 NATIONAL LABOR RELATIONS BOARD
was insisting upon a violation of Article 5 of the agreement. The
pertinent articles of that agreement are :
"5. That when employees are laid off, seniority rights shall rule,
and by departments.
"6. That when one department is shut down, men from this
department will not be transferred or work in other departments
until all old men only within that department, who were laid off,
have been called back.
"7. That all new employees be laid off before any old employees,
in order to guarantee if possible at least one week's full time
before the working week is reduced to three days."
For many years both before and after the organization of the
employees, it had been the practice at the plant of the respondent to
transfer men from one department to another. This practice pre-
vailed even after June 15, 1935. In this connection it should be noted
-that when men were transferred from one department to another they
.continued to receive their normal wages irrespective of the work done.
Wages of employees of respondent depended on length of service.
The discussions between the management and the shop committee
continued until about August 19, 1935, when the shop committee was
given the alternative between consenting to an increase in working
force of the machine shop with new men and a temporary shutdown
in the other departments, on the one hand, and a temporary complete
shutdown of the plant on the other. The shop committee was asked
-to consult the men and advise the management which of these alter-
natives they preferred. On August 21, 1935, another meeting took
place, at which time the committee informed the management that
-the men considered a temporary complete shutdown of the plant as
-the preferable course. The same day the management placed a notice
-on the time clock reading: "The factory will shut down Wednesday
night, August 31st, until further notice"-and the plant was closed.
On or about August 26th or 27th, Garry Sands, secretary-treasurer
of the respondent during all of the occurrences in this case, and
-Hilliard J. Sands, superintendent, went to the office of the business
agent of the International Association of Machinists, and negotiated
an agreement between the respondent and the International Associa-
tion of Machinists, District No. 54, which was executed on or about
August 31st and became effective September 3rd. Garry Sands testi-
fied that he was advised to take this step by a friend who had a similar
agreement with that union. The respondent opened its plant on Sep-
tember 3rd. In order to do so it sent telegrams to each of its workers,
almost all new men, who were members of the International Associa-
-tion of Machinists, and in addition called upon the Cuyahoga County
DECISIONS AND ORDERS 553
relief organization to supply additional workers. The International
Association of Machinists also supplied the respondent with new help.
With the exception of four men, none of the old men, members of
the MESA, was called back to, work by the respondent. Two of the
four, Stanley Lipsky and Frank Pansky, after being sent for by the
respondent on August 30th, were offered employment on the basis of
reduced hourly wages with increased rates at later dates and with
guaranteed steady work. They were told to think it over and to come
back September 4th. Linsky testified that when he came back Sep-
tember 5th, Garry Sands repeated his offer concerning the wages but
told him that if he wanted to work he would have to join the Inter-
national Association of Machinists and would be given protection
against harassment by MESA men. Garry Sands denied that he
made joining the International Association of Machinists a prerequi-
site to getting work but admitted the rest of the conversation.
Pansky testified that when he came back September 4th, the wage
offer was repeated. He also testified that he was told by Garry Sands
that he would have to join the International Association of Ma-
chinists if he wanted to get the job, and that the rest of the old men
would not be recalled to work because their hourly rates were too
high. Garry Sands expressed satisfaction with the agreement with
the International Association of Machinists, gave Pansky a blank for
application to the International Association of Machinists to sign,
and said that if Pansky worked for the rest of the afternoon he
would have enough for initiation fees. He also told Pansky that the
agreement of June 15th was invalid because Potter had not signed it.
Pansky filled out the application blank but did not work that after-
noon. Garry Sands' version of the conversation is substantially the
same, except that he denied having said that Pansky would have to
join the International Association of Machinists in order to get the
job, and that he did not want the rest of the old men back. He
further testified that he procured the application blank for Pansky
when the latter expressed a desire to join the International Associa-
tion of Machinists, having heard from him, Sands, that the members
of the International Association of Machinists who were working
were getting protection. Sands also testified that his reference to the
invalidity of the agreement of June 15th was on the ground that the
old men had broken the agreement. However, Hilliard J. Sands, who
was' present at these conversations, admitted in his testimony that
Garry Sands told Pansky, Linsky, Dolish and Ochs, the four men
who were called back, that the offer of reemployment was being made
only to them and not to the rest of the old men.
None of the four, however, went back to work. A few of the old
men asked respondent for work after the plant reopened, but were
told that their places were taken.
554 NATIONAL LABOR RELATIONS BOARD
When the MESA men discovered that the plant of the respondent
was in operation, they met with Harry Potter who communicated by
telephone with Garry Sands in behalf of the shop committee. Potter
protested against the lockout of the old men. He testified that in the
course of this telephone conversation, he asked for a meeting with
the management, but Garry Sands refused and claimed that the
agreement of June 15th was invalid because Potter had not signed it.
Garry Sands admitted that Potter had 'called him, but denied that
Potter had asked for a meeting. He testified that when Potter threat-
ened to have the plant picketed and to file charges under the Act, he
replied that the old men broke the agreement of June 15th. Pansky
testified that he heard Potter ask Garry Sands to meet with him or
with the committee. The MESA men then immediately started to
picket the plant and continued their picketing during the month of
September. The plant continued in operation during the picketing.
On or about September 10, 1935, at the request of the respondent,
the agreement between it and the International Association of
Machinists, District No. 54, was cancelled by mutual consent of the
contracting parties. Garry Sands testified that he decided to have
the agreement cancelled because he was apprehensive of the conse-
quences which might follow from the filing of a charge under the
Act. However, the present employees continue to work under the
same terms as in the written agreement, at a wage scale considerably
lover than that under which the old men had worked.
IV. THE UNFAIR LABOR PRACTICES
To the complaint that the respondent has committed unfair labor
practices within the meaning of Section 8, subdivisions ( 1), (3)
and (5 ), the following contentions are made in behalf of the respond-
ent, aside from the arguments on constitutional grounds :
1. The old employees wilfully violated the agreement of June 15,
1935 in respect to shifting employees from one department to another.
2. Even if there was an honest difference of opinion on the con-
struction of that agreement , the respondent and the old employees
reached an impasse in their negotiations . The respondent was there-
fore not obligated to continue negotiations and was further justified
in replacing the old employees with new ones.
In the course of the dispute which arose after June 17th between
the respondent and the shop committee concerning building up the
force of the machine shop , the committee took the position that it
would not be a violation of the agreement of June 15th to transfer
old men who had been laid off to the machine shop, if they could do
the work, before new men were hired.
DECISIONS AND ORDERS 555
It is true that the phrase "and by departments" was added to
Article 5 when it was originally submitted by the men in the follow-
ing form : "That when employees are laid off, seniority rights shall
rule." However, this was not integrated with Article 7 which pro-
vided: "That all new employees be laid off before any old employees,
in order to guarantee if possible at least one week's full time before
the working week is reduced to three days." The operation of
Article 7 is not limited to departments. Yet it deals with the same
subject as Article 5. It is clear that the shop committee was not
unreasonable in contending that the preference to old men over new
men applied to the whole plant and not only to departments.
Besides, the problem was complicated by the fact that the dispute
over building up the machine shop involved seniority in hiring as
well as in laying off, while the two articles involved state the rule
of seniority only in laying off. The confusion on the point is abun-
dantly evident in the testimony of the old men, so much so, that coun-
sel for the respondent, by resorting to a mixture of hypothetical and
factual questions in his cross-examination of them, confused rather
than clarified the record.
Because of its importance in explaining the respondent's conduct
during and following the closing of the plant on August 21st, the
reason for the opposition of the respondent to the transfer of old
men from other departments to the machine shop must be explored.
Garry Sands claimed that the opposition was based on inefficiency of
the transfer system. However, in view of all the circumstances the
claim is not convincing. The shop of the respondent appears to be
highly mechanized and the individual operations correspondingly
simplified. A complete set of new amen were broken in for the Gov-
ernment order in 1934 without any apparent difficulty. No efficiency
records were introduced, and apparently none were kept. Employees
were transferred from one department to another over a period of
years both before and after the organization of the MESA, and most
of the old men had worked in the machine shop at some time or other.
No evidence of persuasive materiality was introduced by the
respondent to substantiate the claim that the old men were unsatis-
factory when transferred from one department to another. In fact,
the respondent failed to put in evidence showing that any particular
'old men were inefficient when transferred.
In this connection, the case of Jack Norman may be cited. He
was one of the 7 whom the respondent refused to reinstate on June
3rd. He was later discharged on the ground of inefficiency. When
all the facts were put before the shop committee, it consented to the
discharge. It is true that Norman's case did not arise because of a
transfer. However, the evidence tends to show that the shop com-
556 NATIONAL LABOR RELATIONS BOARD
mittee would have been reasonable if the respondent had in good
faith attempted to show in specific cases that the transferring of
men resulted in inefficiency. There is no evidence to show that the
respondent had ever attempted to do so.
Other evidence bearing on the subject of efficiency would show
the old men to better advantage than the new men. Charles Rudd, the
foreman of the tank heater department, testified that in the spring
of 1935 with 8 old men in the department, 850 to 909 heaters were the
daily average, while in July, 1935, with only 2 old men, and with
the remainder new men, the highest number per day was 790. Fi-
nally, no consideration of efficiency and experience deterred the-
respondent from calling on the Cuyahoga County relief organization
for a supply of workers when the plant was reopened in September.
Rates of pay in the respondent's plant depended on length of serv-
ice and not on the nature of the work. Thus, when old men were
transferred to any department, they continued to receive higher rates.
than younger men in the same department. We are inclined to be-
lieve that the impelling motive for the opposition of the respondent
to transferring the old men ' to the machine shop instead of hiring
new men lay in this fact. In fact, Garry Sands testified that after
the shutdown of August 21st, he complained to Albert Farrell, one
of the old men, about the unfairness of transferring men receiving
high wages to do work which could be done by men receiving much
less.
Although the Board is of the view that an honest difference of
opinion existed on the construction of the June 15th agreement, the
case against the respondent is not in any way prejudiced if the stand
of the shop committee in resisting the demand of the respondent to-
build up the machine shop with new men instead of with old men is
considered a violation of the agreement. After the shutdown of
August 21, 1935 the old MESA men continued to be employees of
the respondent irrespective of the cause of the shutdown. The Na-
tional Labor Relations Act makes no distinction based on the issues
involved in labor disputes. An "employee" under Section 2, subdivi-
sion (3) of the Act includes "any individual whose work has ceased
as a consequence of, or in connection with, any current labor dispute
or because of any unfair labor practice." Moreover, after the shut-
down on August 21st, inasmuch as the MESA still represented a
majority of the employees in an appropriate unit, it was, by virtue
of Section 9(a) of the Act, the exclusive representative of the em-
ployees for purposes of collective bargaining. The respondent, there-
fore, could not alter the status quo without bargaining with the
MESA. Instead of bargaining with the MESA, however, the re--
spondent entered into an agreement with a union which did not rep--
DECISIONS AND ORDERS 557
resent its employees , and thereupon discharged the members of the
MESA.
The contention the respondent makes, however , is that its negotia-
tions with the committee had reached an impasse at the time of the
shutdown and further negotiations would have been ' futile unless the
respondent were prepared to accede to the committee 's demands.
It is hardly necessary to state that from the duty of the employer
to bargain collectively with his employees there does not flow any
duty on the part of the employer to accede to demands of the em-
ployees. However, before the obligation to bargain collectively is
fulfilled, a forthright , candid effort must be made by the employer
to reach a settlement of the dispute with his employees. Every
avenue and possibility of negotiation must be exhausted before it
should be admitted that an irreconcilable difference creating an im-
passe has been reached . Of course no general rule as to the process.
of collective bargaining can be made to apply to all cases. The proc-
ess required varies with the circumstances in each case . But the
effort at collective bargaining must be real and not merely apparent.
This could hardly be said of the conduct of the respondent in this
case. The respondent was not justified in not negotiating with the
committee after the shutdown of the plant . The closing of the plant
on August 21st was only "until further notice ," as the notice posted
on the time clock by the respondent explicitly stated. Nothing was,
said by Gary Sands or anybody else in behalf of the respondent to.
the committee which would have indicated that the closing of the,
shop meant that the old employees would not be recalled. It is.
inconceivable that the committee would have accepted this, especially
since the men had been so successful when they struck a few months
earlier.
Furthermore , a new issue arose after the shutdown which com-
pletely overshadowed the issue of building up the machine shop.
The respondent wished to reduce the wage rates of its employees.
with guaranteed steady work . Why did not the respondent notify
the committee of this new offer? There was no reason to believe
that the committee would not have considered it. As a matter of
fact, the respondent thought well enough of the proposition to offer
it to four of its old men.
A meeting with the respondent was asked for by Potter in behalf
of the committee on September 4th, but Garry Sands refused. In-
deed, there was no obligation on the employees to ask for a meeting.
Since the plant was closed until further notice and the respondent.
changed its position on the wage rates, the duty devolved upon the
respondent to advise the committee of the new offer. Instead, the
respondent surreptitiously entered into negotiations to replace the.
558 NATIONAL LABOR RELATIONS BOARD
MESA men with a new set of men at lower wages, some of them
belonging (in the opinion of its secretary-treasurer) to a mere con-
servative union. This conduct is not compatible with a sincere
effort to bargain collectively with one's employees.
We fail to see in the respondent's conduct anything other than a
refusal on its part to bargain collectively with the representative
of its old employees. This, especially in conjunction with the nego-
tiations of the respondent with the four men individually, consti-
tuted a violation of the respondent's duty to bargain collectively
with the representative of its employees.
We are the less hesitant in reaching this conclusion because the
record shows that following the strikes in May and June, the re-
spondent had become antagonistic to the MESA. Thus, when, late
in July, Charles Rudd, an old MESA man, complained to Hilliard J.
Sands, the superintendent, that the MESA men were being intinmi-
dated while new men were being asked to join the International Asso-
ciation of Machinists within 15 days after they began to work, con-
trary to an oral understanding with the management, Sands replied
that the management would rather have the International Association
of Machinists than the MESA because the former was more conserva-
tive and did not call strikes often. Likewise, after Jack Norman was
dismissed about June 26, 1935 for incompetency, he was told by
Edward McKiernan, assistant superintendent, not to worry, that he
-would be taken back as soon as the respondent was rid of the MESA.
The whole conduct of the respondent leaves no other reasonable
inference than that the old employees were locked out, discharged
and refused employment because they were members of the Mechan-
ics Educational Society of America and had engaged in concerted
activities for the purpose of collective bargaining.
By failing to recall its employees who were members of the Me-
chanics Educational Society of America, and by requiring that four
of them join the International Association of Machinists as a con-
dition of employment, the respondent discriminated against its em-
ployees in regard to tenure of employment, and thereby discouraged
membership in the Mechanics Educational Society of America, a
labor organization.
By refusing to bargain collectively with the representative of its
employees, and by discriminating against its employees in regard
to tenure of employment, the respondent interfered with, restrained
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
The men discharged were : Tony Avon, Clarence Ball, Joseph
Blaha, William Brandt, Frank Dolish, C. J. Dusek, Albert Farrell,
H. H. Garms, John Greeley, Mike Hudak, Lada Jindra, Leo Kahn,
DECISIONS AND ORDERS 559
Stanley Linski, H. J. Meyer, Tony Moraco, Martin Moritz, Louis
Nagy, Elmer Ochs, Frank Pansky, John Pansky, John Popp, C. E.
Rudd, Ed. Stack, Joe Swancer, Emil Tulow, W. Bakum, Charles,
Becks, Joseph Bondra, Stanley Dymidowski, Max Feinstein, Carl
Frank, Robert Herman, Robert Hronek, Myron Kanner, Emmett
Kenna, Joseph Kozlowski, Willard Kraus, Louis Meyers, John
Patchford, Henry Schilthorn, George Sevcik, William Sumanek,.
John Sweitzer, Harold Wenger, Matthew Wiersch, Clarence Wisniew-
ski, Joseph Wycickowski.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON INTERSTATE COMMERCE
The respondent contends that since the picketing which took place
after its plant was reopened in September did not interfere with the
operations of its plant, and commerce was therefore in no wise affected,
the Board has no jurisdiction. The remedy provided by the Act
is preventive. There is therefore no necessity that an actual obstruc-
tion to commerce exist in each case before the Board assumes juris-
diction. It is sufficient if the acts of the respondent lead or tend to
lead to labor disputes burdening and obstructing commerce and the,
free flow of commerce. Furthermore, during the strikes in May
and June, 1935, the plant of the respondent was completely shut
down.
We find that the aforesaid acts of the respondent have led and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
THE REMEDY
In administering the remedies provided by the Act, and wishing to
protect the right to collective bargaining of the employees of the
respondent who were locked out and discriminatorily discharged, the
Board considers it imperative that these employees be reinstated to
employment by the respondent on the same basis as to wages and
other conditions of employment that existed prior to August 21, 1935,
with back pay from September 3, 1935, when the plant reopened, to^
the date of offer of such reinstatement, less amounts earned by each
during such period.
CONCLUSIONS OF LAW
Upon the basis of foregoing findings of fact, and upon the entire
record in the proceeding, the Board finds and concludes as a matter
of law:
1. The production and maintenance departments of the plant of the
respondent constitute a unit appropriate for the purposes of collec-
tive bargaining, within the meaning of Section 9 (b) of the Act.
.560 NATIONAL LABOR RELATIONS BOARD
2. The Mechanics Educational Society of America is a labor
organization within the meaning of Section 2, subdivision (5) of the
Act.
3. By virtue of Section 9 (a) of the Act, the Mechanics Educational
'Society of America, having been designated as their representative
for the purposes of collective bargaining by a majority of the em-
ployees in an appropriate unit, was the exclusive representative of
all the employees in such unit for the purposes of collective bar-
gaining.
4. The respondent, by refusing to bargain collectively with the
representative of its employees, has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8, subdivision
.(5) of the Act.
5. The respondent, by discriminating in regard to tenure of em-
ployment, and thereby discouraging membership in the Mechanics
Educational Society of America, has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8, subdivision
,(3) of the Act.
6. The respondent, by interfering with, restraining and coercing its
,employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
-within the meaning of Section 8, subdivision (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
ORDER
On the basis of the findings of fact and conclusions of law and
pursuant to Section 10(c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
Sands Manufacturing Company, and its officers, shall:
1. Cease and desist:
(a) from 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 or protection;
(b) from discouraging membership in the Mechanics Educational
Society of America by discrimination in regard to tenure of employ-
ment or any term or condition of employment; and
(c) from refusing to bargain collectively with the Mechanics Edu-
cational Society of America as the exclusive representative of all its
production and maintenance employees, other than those engaged
in a supervisory or clerical capacity, for the purpose of collective
DECISIONS AND ORDERS 561
bargaining in respect to rates of pay, wages, hours of employment,
and other conditions of employment.
2. Take the following action, which the Board finds will effectuate
the policies of the Act :
(a) offer to all of the employees listed in part IV of the findings
of fact immediate and full reinstatement, respectively, to their former
_positions with all the rights and privileges previously enjoyed;
(b) make whole said employees for any losses of pay they have
suffered by reason of their discharge by payment, respectively, of a
sum of money equal to that which each would normally have earned
as wages during the period from September 3, 1935 to the date of
offer of reinstatement, computed at the wage rate each was paid
prior to discharge, less the amount which each may have earned dur-
ing such period; and in the event of any dispute as to the amount
due, the dispute shall be laid before this Board, for determination
within the terms set forth in this Order; and
(c) upon request, bargain collectively with the Mechanics Educa-
tional Society of America as the exclusive representative of all its
production and maintenance employees, other than those engaged in a
supervisory or clerical capacity, for the purposes of collective bar-
gaining in respect to rates of pay, wages, hours of employment and
-other conditions of employment.