C. G. Conn, Ltd.

National Labor Relations Board - Board Decisions

Dec 13, 1938

10 N.L.R.B. 498 (N.L.R.B. 1938)

In the Matter of C. G. CONN, LTD. and METAL POLISHERS INTERNA-
TIONAL UNION, LOCAL No. 77
Case No. C-116
R nut Instrument Manufacturing Industry-Interference, Restraint , and Coer-
c ion: anti -union statements ; engendering fear of loss of employment for union ac-
tivity-Discrimination : employer ' s statement that employees taking part in walk-
out were discharged , held to have no actual effect upon tenure of employment;
non-reinstatement following strike; charges of dismissed , as to two employees
reinstated prior to hearing-Employee Status : following walk-out-Strike: field
to exist when employees cease work in order to secure compliance with a demand
for some condition of employment, the refusal of which by the employer has
given rise to a labor dispute-Reinstatement Ordered* employees refused rein-
statement during strike , excluding those reinstated prior to hearing-Back Pay.
awarded to employees ordered reinstated , from date of denial of reinstatement,
excluding period between date of withdrawal of charge and dismissal of com-
plaint and date of order reinstating charge and entire proceedings ; as to one such
employee , not to include period between date of Intermediate Report and date
of Decision ; monies received by employees for work performed upon Federal,
State, county , municipal , or other work-relief projects to be deducted and paid
over to agency which supplied funds for said projects.
Mr. Harold A. Crane field, for the Board.
Mr. Verne G. Cawley, of Elkhart, Ind., for the respondent.
Mr. William E. Rodriguez, of Chicago, Ill., for the Union.
Mr. A. Bruce Hunt, Jr., of counsel to the Board.
r SUPPLEMENTAL DECISION
AND
ORDER
December 13, 1938
STATEMENT OF THE CASE
On November 1, 1935, Metal Polishers International Union, Local
No. 77, herein called the Union, filed a charge with the Regional Di-
rector for the Thirteenth Region (Chicago, Illinois) against C. G.
Conn, Ltd., Elkhart, Indiana, the respondent herein, alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On March
11, 1936, the National Labor Relations Board, -herein called the Board,
1 0 N L. R . B., No. 38.
498
DECISIONS AND ORDERS 499
by the Regional Director for the Thirteenth Region, duly issued its
complaint against the respondent, alleging that the respondent had
engaged in unfair labor practices affecting commerce within the mean-
ing of Section 8 (1) and (3), and Section 2 (6) and (7) of the Act.
In respect to the unfair labor practices, the complaint alleged in
substance that the respondent had urged, persuaded, and warned cer-
tain of its employees to refrain from becoming or remaining members
of the Union, had threatened said employees with discharge if they
became or remained members thereof, and had discharged and refused
to reinstate Reuben Molebash, Theodore Nimroth, Elmer Sherrill, Iral
McCaw, Julius Fillinger, and Carl Hudson for joining and assisting
said Union and for engaging in concerted activities for the purpose of
collective bargaining and other mutual aid or protection. The com-
plaint and accompanying notice of hearing were duly served upon the,
parties.
On March 19, 1936, the respondent filed a motion to dismiss on the,
grounds that the Act is unconstitutional and that its manufacturing
activities are intrastate in nature and therefore beyond the jurisdic-
tion of the Board. Reserving all its rights under the motion to dis-
miss, on the same day the respondent filed an answer to the complaint.
in which it admitted some of the specific acts alleged therein, but
denied that it had engaged in unfair labor practices.
Pursuant to notice, a hearing was conducted before Leon M. Despres,
the Trial Examiner duly designated by the Board, at Elkhart, Indi-
ana, on March 19, 20, 23, 24, 25,-26, 27, 28, and 30, 1936. Full oppor-
tunity to be heard, to examine and cross-examine witnesses and to.
introduce' evidence bearing upon the issues was afforded all parties.
At the commencement of the hearing and again at the conclusion of
the presentation of the Board's jurisdictional evidence the respond-
ent renewed its motions to dismiss. The motions were denied in so far
as they pertained to the constitutionality of the Act, but the Trial;
Examiner reserved decision with respect to the applicability of the Act-
to the business of the respondent. During the hearing, upon a show
ing that Julius Fillinger and Carl Hudson had been reinstated by the
respondent and, on the day prior to commencement of the hearing, had
signed releases waiving their rights to back pay, the Trial Exam-
iner, over objection and exception by the Board's attorney, dismissed
the proceedings as to these individuals. His ruling is hereby affirmed.
During the course of the hearing the Trial Examiner made several
other rulings on motions and objections to the admission of evidence.
The Board has considered such rulings and finds that no prejudicial'
errors were committed. The rulings are hereby affirmed.
On June 5, 1936, the respondent filed a brief. On June 6, 1936, the-
Trial Examiner duly filed his Intermediate Report, in which he denied-
500 NATIONAL LABOR RELATIONS BOARD
the respondent's motion to dismiss the proceedings on jurisdictional
grounds and found that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (1) and (3), and Section 2 (6) and (7) of the Act
by the discriminatory discharge of Reuben Molebash, Theodore Nim-
roth, and Elmer Sherrill, because they had joined and assisted the
Union and had engaged-in concerted activities for the purpose of col-
lective bargaining. He found, further, that the respondent had not
discriminatorily discharged Iral McCaw. The respondent filed excep-
tions to the Intermediate Report and to the conduct of the hearing on
June 29, 1936, a petition for oral argument on July 13, 1936, and an
additional brief in support of said exceptions on July 31, 1936. Be-
fore any date for oral argument on the merits was set, the case of
Carter v. Carter Coal Company was decided by the Supreme Court of
the United- States.' In consequence of this decision, certain doubts
arose as to the legality of the Act's application in the instant case and
the Union filed a request to withdraw the charge without prejudice.
The Board, on August 14,"1936, pursuant to the Union's request, dis-
missed the complaint "without prejudice to the Board's right to rein-
state the complaint upon the petition of the aforesaid Metal Polishers
Union, Local 77 for good cause shown, and, with or without further
hearing, to take such further proceedings as it may deem warranted."
On May 8, 1937, the constitutionality of the Act as applied in
several cases having previously been upheld 2 the Union filed with the
Board a petition for reinstatement of the proceedings on the ground
that there had been no compliance with the Intermediate Report, and
on December 29, 1937, filed a supplemental petition for the reinstate-
ment of the original charge as well as the record' and proceedings.
On January 22, 1938, the respondent filed its objections to rein-
statement of the proceedings. Pursuant to notice, on January 25,
1938, an oral argument on the petition and supplemental petition
was held before the Board in Washington, D. C. at which the re-
spondent was represented by its counsel and the Union by Ray
Kelsay, its international vice president, and Lewis G. Hines, an
American Federation'of Labor representative. During the course of
the argument, the respondent filed a brief in support of its objections
to the reinstatement of'the proceedings and the Union filed its brief.
On May 21, 1938, the Board issued a Decision and Order 3 granting
the reinstatement of the charge and entire proceedings and offered
the'parties an opportunity to file within ten (10) days briefs and/or
applications for oral argument on the merits. On May 28, 1938, the
1 298 U S 238, decided May 18, 1936
2 National Labor Relations Board v. Jones it Laughlin Steel Corporation , 301 U. S. 1, and
other cases to which the Boai d was a party, all decided on April 12, 1937
37 N.L.R B 337.
DECISIONS AND ORDERS 501
respondent filed its exceptions to said Decision and Order and, with-
out waiving same, also filed on the same day a petition for oral
argument.
Pursuant to notice, an oral argument 4 on the merits was held be-
fore the Board in Washington, D. C., on June 21, 1938, at which the
respondent was represented by its counsel and the Union by said Ray
Kelsay and Lewis G. Hines. At this time, the respondent was again
advised of its right to file additional briefs but it asserted that it
preferred to rely upon its briefs already filed.' No additional briefs
have been filed.
The Board has considered the respondent's exceptions to the Trial
Examiner's rulings and Intermediate Report and the arguments ad-
vanced by the respondent at the oral argument of June 21, 1938, and
in its briefs in support of its exceptions, and we find that they are
without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, an Indiana corporation, has its principal office and
place of business in Elkhart, Indiana, and, on the basis of gross
annual sales, is the largest manufacturer of band instruments in the
United States. It employs approximately 1,000 persons, about 637•
of whom are engaged in factory work. Its only plant is located '3n
Elkhart.
The principal raw materials used by the respondent are silver,
textile linings and coverings for cases, steel, bakelite, grenadilla wood,
ebonite, and reeds, all of which are shipped to the respondent from
points outside the State of Indiana; brass, nickel, maple, and stains,
which are shipped principally from points outside Indiana. From
May 1, 1934, to May 1, 1935, the respondent spent $243,495 for raw
materials.
The respondent's primary finished products, based upon sales values,
are brass musical instruments, principally cornets, trumpets, saxo-
phones, alto horns, baritones, French horns, and bass horns, which
4 By notice , dated June 8, 1938 , the parties hereto were advised "that included among
the matters in issue in this proceeding is the alleged discriminatory discharge of each
employee named in the complaint and that you will be afforded an opportunity to argue at
said hearing the merits of the case including each such discharge , regardless of the findings
and recommendations of the Trial Examiner in his Intermediate Report "
6 On the day prior to that on which oral argument was held, the respondent filed a peti-
tion in which it requested additional time for purposes of oral argument at said hearing,
asserting that "at least two ( 2) hours" were so required By telegram of the same date
from the Board , the respondent and the Union were advised that additional time for such
purposes could not be granted because of the "crowded condition " of the Board's docket,
and were adhised further "of your right to file briefs on or before June thirtieth."
147841-39-vol 10--33
502 NATIONAL LABOR RELATIONS -BOARD
are sold mainly to retail music dealers. Approximately 94 per cent of
the respondent's finished products, based upon a gross sales value, are
shipped to points outside the State of Indiana . The total sales for
the fiscal year ending April 30, 1935, were approximately $2,500,000
and it was estimated by the respondent's vice president that such sales
for the fiscal year 1936 would be "considerably over $3,000,000."
IL THE ORGANIZATION INVOLVED
Local No. 77 of the Metal Polishers, Buffers, Platers and Helpers
International Union is a labor organization , affiliated with the Ameri-
can Federation of Labor, admitting to membership certain persons
employed by the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The background of the unfair labor practices
We are concerned in the instant case with employees of the respond-
ent engaged in polishing and other work closely allied thereto, all of
which is broadly termed "polishing." There are two active polishing
departments in the plant , departments numbers 33 and 46. The six
employees alleged to have been discriminatorily discharged were
engaged in their trade in department 33.
From May 1934 until February 1935, the Union on several occasions
sought unsuccessfully to obtain recognition . The respondent took the
position that it would neither recognize the Union nor enter into
any sort of agreement with any labor organization. Upon the failure
of these attempts , the Union appealed to the first National Labor Rela-
tions Board under the N. I. R. A. That Board intervened in the matter
and after this intervention there were some conferences between the
respondent and representatives of the Union but the respondent main-
tained essentially the same position . The last of such conferences oc-
curred on February 22, 1935, after which Alfred L. Smith, the re-
spondent 's vice president and active head, wrote to Kelsay , the union
organizer, that it had been agreed at the February 22 conference that
any employees who believed themselves to have been discriminated
against could negotiate "with the management through their chosen
representatives."
The record establishes that there had been substantial union activity
within the respondent 's polishing departments for many months prior
to the controversy in issue and that the respondent had met this ac-
tivity with a partially successful effort to discourage and terminate
it. These findings, concerning activities prior to July 5, 1935, are of
importance only in assisting in the evaluation of the respondent's sub-
sequent conduct , which is the subject matter of this proceeding.
DECISIONS AND ORDERS 503
B. The strike and the refusals to reinstate
The months of September, October. November, and the early part
of December are probably the respondent's busiest yearly production
period. In September 1935, employees within department 33 com-
menced working overtime, which took place generally on Monday,
Tuesday, Thursday, and Friday nights, with the result that the weekly
hours of work ranged in excess of 57i/2. The respondent did not pay
an increased rate for overtime work, and there was dissatisfaction
among the polishers with the then existing rates, particularly in so far
as overtime work was concerned. Some of the polishers were remuner-
ated on a "piece-work" basis, and several contended that the average
hourly earnings at night were less than during the day because over-
time was largely confined to work on musical instruments which car-
ried lower piece rates. While the record is not specific as to the exact
inequities in the rates of pay causing the dissatisfaction, it is evident
that there was considerable discontent.8
Pursuant to a resolution adopted at a union meeting held on
October 4, 1935, a petition was prepared and presented on October 9,
1935, to Rodney J. Beckwith, foreman of the polishing departments,
by three polishers named Elmer Sherrill, Julius Fillinger, and Roy
Ferm. This petition, on union stationery, contained the names of 31
employees of department 33 and was as follows :
We the undersigned Polishers and Buffers of Department #33,
ask an increase of 15% on all piece work prices or, time and one-
half for all overtime over 40 hours per week in return we will
endeavor to obtain better co-operation between Employees and
the Company.
On Monday, October 14, 1935, the same committee was invited to see
Philip F. Getzen, factory superintendent, who informed the com-
mittee that the requests embodied in the petition would not be granted.
This refusal was accompanied by a threat to open a third polishing
department and to employ additional polishers, unless the polishers
contented themselves with existing rates. The consequence of opening
such department would have been to decrease, during slack production
periods, the daily earnings of polishers who were employed at that
time. On the same day the committee reported the respondent's re-
fusal to make an adjustment to the employees in department 33, most
of whom decided not to work overtime that night. Also, some of these
employees apparently had decided prior to this day that they would
not continue overtime work unless the increase in pay was granted.
" "Respondent's objections to Reinstating the Charge, Complaint and Proceedings." filed
January 22, 1938, contains an affidavit of Otis E. Beers, general manufacturing manager
of the respondent which is in part as follows
. substantially all of the piece work rates applicable to said department, have,
since October 14. 1935, been revised and changed.
504 NATIONAL LABOR RELATIONS BOARD
Accordingly, at approximately 6 p. in. on that day at least 25 polishers
in department 33, of whom 22 were union members, ceased to work.
Getzen and Beckwith saw them leave the plant. The next morning,
Tuesday, October 15, they commenced work again as usual, and dur-
ing the course of that morning the employees in department 33 were
directed individually by Beckwith to sign one of two statements which
he handed to them. These statements, dated October 15, 1935, were as
follows :
We, the undersigned employees of Department 33, refuse to
work any overtime, overtime to be considered any work over and
above 48 hours per week.
We, the undersigned employees of Department 33, agree to
work at least three nights per week overtime, as long as the
volume of work makes this necessary.
The former paper contains the signatures of 22 employees, while the
latter paper contains the signatures of 11. In securing these signa-
tures, Beckwith first called to his desk Elmer Sherrill, Theodore Nim-
roth, and Reuben Molebash. These employees, all of whom are alleged
to have been discriminatorily discharged, were asked to sign either of
the papers. Upon receiving their signatures to the paper containing
the refusal to work overtime, Beckwith then left his desk and com-
menced calling upon all other employees of department 33 to solicit
their signatures. These employees were given no understanding as to
the reason for which they were requested to sign and it appears that
they believed that the management was endeavoring to ascertain
individual sentiment in regard to overtime work. On the same after-
noon Beckwith told all, or practically all, employees who refused to
sign the paper agreeing to work overtime that they were "laid off
indefinitely" that day.
On the afternoon of October 15 the respondent inserted in the local
newspaper an advertisement for polishers experienced on band-in-
strument work. As a consequence, approximately 20 new employees
were hired between October 15 and October 19. The respondent as-
serts that these men were offered jobs to become permanent if their
work proved satisfactory. In the meantime, Local No. 77 had com-
municated with Kelsay, the union representative, who directed the
men to return to work on Monday, October 21.
Within 1 or 2 days after October 15, Robert B. Golden, the respond-
ent's production manager, commenced calling upon certain of the
group to solicit their return to work. Golden asserted his first efforts
in this respect were made without the advice or knowledge of Beers
and ' Getzen and that, after consulting with several polishers who
agreed to return, he conferred with Beers and Getzen, who approved
a continuation of his action. Before the end of the week Golden had
DECISIONS AND ORDERS 505
called upon an indefinite number, admittedly 14 1 o 16, but not upon
any of the 6 employees named in the complaint. During that week
2 or 3 of the group were reinstated and on the following Monday,
October 21, about 1.4 others were reinstated, who constituted the re-
mainder, excluding the 6 named in the complaint. At least 10 new
employees, hired after October 15, were discharged on this Monday,
October 21, but 10 of such new employees were retained to do the
work of the 6 polishers who were denied reinstatement. Of these six
employees, five requested reinstatement on Monday, October 21. The
remaining one had endeavored to obtain reinstatement during the
previous week.
On October 22 Kelsay, the union representative, called upon Smith
to obtain the reinstatement of the six employees named in the com-
plaint, but their reinstatement was refused. After Smith was visited
by-Ke]say on October 22 he was visited for the same purpose by L. C.
Bajork, the agent of the Board, and by representatives of the United
States Department of Labor. So far as it appears, Smith failed to
give any of these persons any reasons for the refusals to reinstate.
It is clear that on October 14 the polishers in department 33 engaged
in a concerted protest against the prevailing overtime and piece rates.
This concerted activity amounted to a strike.7 The striking employees
intended to work as many as 48 hours per week under then existing
conditions, but concertedly refused to work in excess of that number
of hours. On the morning of October 15, these striking employees
commenced work as usual, but in the afternoon the respondent as-
sertedly discharged them.
Since the polishers were striking employees they retained their
status as employees, and the respondent's effort to discharge them was
inoperative. In fact, the purported discharges were intended only as
a tactical maneuver to break the strike. This is plain because imme-
diately after the purported discharges the respondent began to solicit
the return to work of some of the "discharged" employees. More-
over, a permanent discharge of the polishers in department 33 would
seriously have hampered production, if not have caused its cessation.
We find that on October 14, 1935, a labor dispute concerning the terms
and conditions of employment existed in the respondent's plant and
that the employees named in the complaint, as well as the others who
were purportedly discharged, were in fact striking employees on
whose status the respondent's action had no effect. They continued
to be employees within the meaning of Section 2 (3) of the A6t8
7 While the respondent asserts in its brief of July 31 , 1936, that its conduct on October
15, 1935, did not constitute a "lock-out," as held by the Trial Examiner, the respondent,
in the affidavit of Otis E. Beers (see footnote 6), refers to the conduct of the employees on
October 14, 1935, as a "walk-out."
Splatter of American Manufacturing Concern and Local No. 6, Organized Furniture
Workers , 7 N. L. R. B. 753. It should be noted, however , that in the cited case there was
no application for reinstatement by the strikers.
506 NATIONAL LABOR RELATIONS BOARD
The remaining question is whether or not the respondent, in rein-
stating ,the strikers, discriminated against the six named in the com-
plaint because of their concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection." The record es-
tablishes that the respondent's refusal to reinstate the six employees
named in the complaint was because of their concerted union activity
and was not because their places had been filled or because they were
inefficient or otherwise unsuitable employees.
These six employees were distinguished for their outstanding union
activities. Kelsay testified that they were the Union's most active
members and that they had assisted in creating and fostering it:
Reuben Molebash regularly accompanied Kelsay when the latter en-
deavored to bargain with the respondent. Elmer Sherrill and Julius
Fillinger were members of the committee which presented the peti-
tion to the respondent. There can be no doubt about the leadership
of the six employees, which virtually is conceded in the respondent's
brief of July 31, 1936.
When the respondent sought to secure the return of the strikers to
complete its complement of polishers, Golden deliberately refrained
from soliciting the six men to return to work. The reason for his
action is found in the explanation in the respondent's brief that he
called upon those employees who were deemed to be merely the fol-
lowers, rather than the leaders, in the "mutiny." 10 Another con-
sideration impels us to this conclusion, despite Golden's assertion that
his omission of the six men was fortuitous. Getzen and Beers main-
tained that their decision to deny these men reinstatement was made
on Friday, October 18; and Golden asserted that his failure to call
on the men, while calling on practically all, if not all, of the others,
was a pure oversight on his part, not actuated by any knowledge that
the respondent did not care to reinstate them." Since Golden con-
tinued to call on the men, with the exception of the six, after October
18, the date on which Getzen and Beers admittedly decided not to
Cf National Labor Relations Board v. Mackay Radio if Telegraph Co, 304 U S 333
(1938).
"In explaining Production Manager Golden 's failure to solicit the return of these six
employees to \\oik , the respondent states in its brief as follows:
Production Manager Golden being well acquainted with most of the men
in the department did not believe that these men (those solicited ) were actually un-
willing to work overtime , but concluded that they had merely followed the leader of
the mutiny and he, therefore , without consulting Beers or Getren and upon his, own
responsibility decided to interview some of his friends and see if they were willing
to return to work . . [Italics supplied
11 Although Golden asserted that he knew "nothing" of the "disciplinary difficulties"
which Beckwith had been having , and that it was a "coincidence , a mere incidental over-
sight" that he failed to call on the employees named in the complaint , the following
statement appears in the respondent 's brief of July 31, 1936:
Golden did not interview the six former employees whose names appear in the com-
plaint, for the reason, as he stated , that he knew they had been unsatisfactory em-
ployees and also would not return to work if he had talked to them.
DECISIONS AND ORDERS 507
reinstate them, `the respondent's defense results in Golden omitting
the six by chance and Beers and Getzen omitting them by design.
It is true that new employees were hired and that presumably all
jobs of the strikers were filled by October 21. However, it is equally
true that in order to reinstate less active strikers, new employees
were discharged, and that the respondent's requests of certain strikers
to return to work continued on the same day, Saturday, October 19,
that one of the employees named in the complaint, namely Iral Mc-
Caw, applied for reinstatement. Moreover, the ten new employees
who were retained on October 21 could not efficiently do the work of
the six experienced polishers who were denied reinstatement.
The respondent's attitude toward the employees whom it refused
to reinstate is revealed explicitly by statements made by officers and
supervisory officials. In order not to lengthen this discussion unduly
we shall cite only several of these instances. One of the employees
named in the complaint, namely, Julius Fillinger, quotes Beckwith as
saying on December 30, 1935, in response to a request by Fillinger
that he be reinstated :
Joe, I am afraid not . . . because you belong to the Union-
As far as you are concerned, I would take you back right away
but I am afraid of the other guys. (Meaning the officials of the
Company.)
On October 26, 1935, Getzen said to Fillinger :
You know that I had two foremen talk to you about dropping
out of the Union. Beckwith used to belong to the Union and he
never got anything out of it. I had those foremen talk with you
about dropping out of the Union because I know you are a good
fellow and I didn't want you to be mixed up with anything like
that.
The above-quoted statements of Fillinger are denied by Beckwith and
Getzen. However, we believe them, because they are consistent with
other actions of the respondent and because Fillinger was patently
friendly toward the respondent at the time of the hearing.12
On October 16, 1935, Beckwith directed Paul Neff, a polisher in
department 46 who had not participated in the labor dispute, to do
certain work formerly done by persons in the group of employees
who had been purportedly discharged. Neff refused, giving as his
reason that he would not do the work unless a satisfactory reason for
the "discharges" was given to him. Approximately 10 days later, at
which time Neff was without work to be done, he went to Beckwith
12 Filhnger , who resigned from the Union during November 1935 , was reinstated by the
respondent in 1936. In his testimony he revised , in certain particulars , a previously
signed statement with which he was confronted.
508 NATIONAL LABOR RELATIONS BOARD
to obtain an assignment. Again Neff was offered work formerly done
in department 33 and again he refused. Again Neff asked that the
reason for the "discharges" be explained to him. Beckwith replied :
"Well" he says, "Paul, they were damned union agitators,"
and I said, "Mr. Beckwith, that does not satisfy me. You know
I am a union man too, don't you?" "Yes," Mr. Beckwith says,
"I know you are, but I thought you might see this my way.
Anyhow, you might just as well forget the Union because they
will never do a damned thing for you as long as you have a
drunken son-of-a-bitch at the head of it," and I said, "Who do
you mean, Mr. Kelsay," and Mr. Beckwith says, "No, I mean
Mr. Britton."
At this point Beckwith walked away from Neff, who was later as-
signed work properly belonging to department 46. Beckwith denied
the quoted conversation with Neff, and admitted only that he said :
"Paul, I don't believe you will get anywhere with that union head."
However, his denial was unconvincing to the Trial Examiner in this
and other instances, and is likewise unconvincing to us. We accept
the testimony of Neff as true.
The respondent's purpose in the elimination of the union leaders,
and thus the Union, is made apparent by the respondent's subsequent
activity. After the refusal to reinstate the six strikers the respondent
appointed a committee to replace the Union in dealing with the re-
spondent. On various occasions prior to October 21, 1935, but sub-
sequent to the group "discharges," Otis E. Beers, the respondent's
general manufacturing manager, interviewed approximately 14 of
the employees who were to be reinstated. According to Beers, his
purpose was to learn "why they would not work overtime and what
the cause of this was." Apparently, the chief grievance was the in-
equality in the rates of pay, some being too high .and others too low.
Acting upon this information and after discussions with other pol-
ishers, Beers sent a letter to employees of department 33. The letter
relates that Beers had discussed with some of the employees a man-
ner of "correcting conditions," that he had "prepared a plan," that he
had appointed a committee to handle wage adjustments, and that
the respondent would give to the employees in department 33 a "fair
and square deal" if the employees, in turn, would be fair and square
in their dealings with the committee. After stating that if "it is
found that you have not been honest and fair in revising the high
rates, then the company reserves the right to further equalize these
high rates," the letter continues :
In discussing this with some of the men in the department they
have suggested that this committee also serve as a group to hear
any other suggestions or complaints from department No. 33. In
DECISIONS AND ORDERS 509
accordance with this desire this committee will handle, in addition
to wage adjustments, complaints or petitions of any other nature.
However, as all of you men realize, in an organization the size of
ours it is necessary to follow certain routine discipline, and in
order to insure this all requests or petitions for anything other
than wage equalizations or adjustments will be taken up and dis-
cussed with the foreman by any member of the committee or the
committee as a whole . . . I might mention here that I want all
employees to feel perfectly free to see Mr. Getzen or me at any
time if they have a problem which cannot be adjusted with the
foreman. They cana see either Mr. Getzen or me without in any
way jeopardizing or endangering their jobs. This is a general
policy and applies to all employees in any department.
This plan will be put into effect for a trial period of 6 months
ending April 30, 1936. During this period the committee will
have full charge. of equalizing all rates. The adjustment of rates
will be done by the committee in conjunction with the manage-
ment. If the experience during this trial period proves that the
committee and employees have taken an honest and fair view-
point in establishing rates, then the committee will be given full
charge of adjusting all rates as well as equalizing present rates.
If for any reason it appears advisable, the company reserves the
right to change the personnel of the committee or discontinue this
plan at any time. However, I sincerely hope that this will not be
necessary as I really feel that this will do much towards improv-
ing conditions in your department. [Italics supplied.]
If there were any doubt as to the real reason reinstatement was de-
nied Molebash, Nimroth, Sherrill, and McCaw, the above-quoted letter
dispels it. The respondent had to reinstate many of the union mem-
bers, though not its leaders, in order to continue production. After
Beers' investigation he realized the necessity for remedying the exist-
ing conditions, though not through the Union, the agency selected by
the employees to deal with the management. It will be recalled that
the Union originally instigated the protest against the piece rates
and overtime, and reenforced the employee demands by a strike. The
mass "discharge" ensued, followed by the gradual reinstatement of
all employees but the most active protagonists of the employees' con-
certed resistance to the prevailing conditions. With these leaders
eliminated, the respondent abandoned any pretext of dealing with the
Union and appointed its employee committee, removable at the re-
spondent's will, to represent the employees in negotiations with the
management.
W. C. Hudson and Julius Fillinger, two of the six employees named
in the complaint, signed releases and were reinstated prior to the com-
510 NATIONAL LABOR RELATIONS BOARD
mencement of the hearing.13 The respondent advances various reasons
for its refusal to reinstate the remaining four employees, namely Reu-
ben Molebash, Elmer Sherrill, Theodore Nimroth, and Iral McCaw.
The Trial Examiner found that the first three had been discrimina-
torily refused reinstatement and that McCaw had not been discrimina-
torily denied reinstatement. We are unable to agree with the find-
ings of the Trial Examiner in respect to McCaw. We will examine
the respondent's defenses with respect to each of the four individuals.
Reuben Molebash, was first employed by the respondent in 1916_
Thereafter he worked continuously for the respondent until 1925, with
the exception of about 3 months. From 1925 to 1927 Molebash worked
elsewhere. From 1927 to 1929 he worked intermittently for the re-
spondent. In 1930 or 1931 he again commenced working for the re-
spondent and this term of employment, aside from a month, was
uninterrupted until his discharge. On the various occasions when
Molebash ceased working for the respondent, he was not discharged
for cause. During all the time he was so employed, except for approx-
imately 2 years, he was a polisher. It is not asserted that he was
incompetent; rather, the record shows that he was among the re-
spondent's most efficient polishers. It is asserted that Molebash occa-
sionally left the plant before quitting time and thereby refused to
work, that he violated rules prohibiting smoking and talking within
the plant, that he used profanity directed in particular toward Beck-
with, and that on several occasions his discharge had been considered.
An examination of the various alleged reasons convinces us that they
were not the actual reason for the respondent's refusal to reinstate
Molebash. Molebash denies having violated for a year prior to his
purported discharge the rule prohibiting smoking. Beckwith, his
foreman, violated the rule in the presence of the polishers and it was
lightly regarded by the employees. That obedience to the rule was
not expected is apparent from the testimony of Golden. The
employees congregated in the toilet when they desired to smoke, and
Golden testified :
"These releases were prepared in the respondent 's offices without the assistance of the
two reinstated employees , who signed them in the presence of Grace D Farley, secretary
to Smith. The releases or waivers are in the form of letters to the Board and are sub-
stantially alike. That signed by Fillinger is in part as follows :
Please be advised that I do not wish any such claim ( for back pay) to be included
in the hearing in my behalf , as I am making no such claim against the company, by
whom I am now employed . I have never asked or authorized the Metal Polishers'
Union or anyone else to make any such claim in my behalf , and if one has been made,
it was without my knowledge or consent.
Hudson refused to sign a release in the exact form of that signed by Fillinger, but Hud-
son's release differs only in that it concludes :
. . . It was without my consent.
Under the circumstances of this case we will give effect to these releases although we do
not regard them as binding on the Board.
0
DECISIONS AND ORDERS 511
... and sometimes I have seen men going into the toilet, but
I did not make a practice of watching them. I know at times
I felt I had to knock before I went in because of things I would
see that I didn't want to see.
Beckwith stated that Molebash would leave his place of work and
go elsewhere in the plant where he would engage in conversation in
violation of the rule prohibiting talking. According to Beckwith,
this occurred in 1935 for 5 or 6 minutes on each of five or six occa-
sions each day. - Molebash was among the highest paid of the polishers
on a piece-rate basis.14 It seems to us unlikely that he could have
maintained that position and yet have loitered 30 to 35 minutes of
each working day. The alleged use of profanity by Molebash and the
circumstances surrounding it do not indicate that this was the reason
for the refusal to reinstate him. It is stated by the respondent that,
although the discharge of Molebash had been frequently considered,
it was thought inadvisable because the respondent would have been
accused of anti-union activity. Smith testified that Molebash was
threatened with discharge about 7 or 8 months before he was pur-
portedly discharged, and Smith could recall no occasion during those
months on which he had heard further complaints about Molebash.
The alleged reasons advanced for not reinstating Molebash involve
natters arising as early as 1932, yet the record leaves no doubt that
Molebash before and after that date was among the respondent's most
efficient employees. We cannot believe that the respondent, in deny-
ing reinstatement to him, was actuated by any reason other than his
union activities.
Theodore AVimroth first commenced working for the respondent in
February or March 1919. His employment by the respondent was
continuous until his purported discharge on October 15, 1935. It is
not alleged that he was inefficient. He was a highly capable polisher.
It is alleged by the respondent that Nimroth, in company with Mole-
bash, tried to "run" department 33 for a year and a half before his
purported discharge ; that during the same period of time Nimroth
engaged in a dispute with another employee, and violated the rules
prohibiting smoking and talking; that he used profanity and that
he had been threatened with discharge. The same findings we have
made heretofore concerning Molebash 'in the instance of smoking- and
ta]king are likewise applicable to Nimroth. Nimroth admits several
of the allegations against him, particularly with reference to talking
and smoking, and admits that he was reprimanded. An examination
14 The following statement appears in the respondent 's brief of July 31, 1936 :
It will be found by examining the wages paid all employees of this department,
that the compensation of Molebash , Nimroth and Sherrill . was more, than a large
majority of the other employees of the department received .. .
512 NATIONAL LABOR RELATIONS BOARD
of this mass of testimony concerning his alleged insubordination does
not indicate that the respondent seriously objected to Nimroth's activ-
ities or acts other than those in behalf of the Union. We are not im-
pressed with the effort of the respondent to indicate that many of the
allegations against Nimroth first came to its attention after his pur-
-ported discharge. Our examination of all the evidence concerning
Nimroth leads us to the conclusion that he was an efficient ' employee
and that his union activities were the cause of his having been denied
reinstatement.
Elmer Sherrill was first employed by the respondent in 1919 or
1920 and thereafter worked for the respondent intermittently, his
last period of employment being from October 1934 until his pur-
ported discharge on October 15, 1935. Sherrill was employed during
these years as a grinder, burnisher, and polisher. On the occasions
when Sherrill's employment ceased, he either quit or was laid off
because of slack work. He was never discharged for cause. It is
asserted that Sherrill was a frequent violator of factory rules and
that his discharge had been under consideration for 2 or 3 months
before October 1935. It is to be noted that the- complaints against
Molebash and Nimroth had existed for 2 or more years, but that
Sherrill's discharge had only recently been considered. Also it is
to be noted that Sherrill was reemployed in 1934, at which time he
must have been an acceptable employee. Sherrill admits having vio-
lated the rules prohibiting smoking and talking. However, since
the rule prohibiting smoking was not obeyed or expected to be en-
forced, and since Sherrill was obviously no more of a violator of
the working rules than many other employees, we do not believe
that these alleged infractions of the rules are the reasons which
actuated the respondent in denying him reinstatement. The quality
of his work seems to have been satisfactory. That he was active
in union affairs and was highly regarded by his fellow employees is
evident by the fact that he was on the committee which endeavored
to bargain with the management. We find that Sherrill's union activ-
ities were the cause of the respondent's failure to reinstate him.
Iral McCaw commenced working for the respondent about 1923
or 1924. His work was intermittent until 1925 when he again en-
tered the respondent's employ and continued so until laid off during
the summer of 1931 or 1932. On the occasions when he ceased work-
ing for the respondent, McCaw was not discharged for cause. After
this summer lay-off, McCaw returned again and worked continu-
ously until his purported discharge in October' 1935. During much
of the time McCaw was employed as a polisher. The sole reason
given for denying reinstatement to McCaw is that he was allegedly
inefficient in that he was unable to polish expensive instruments.
DECISIONS AND ORDERS 513
The Trial Examiner, finding some support for this allegation in
McCaw's testimony, found that he had not been discriminatorily de-
nied reinstatement. We cannot agree with this finding. That Mc-
Caw was not as efficient as some other polishers is apparent, but that
this was the reason for the refusal to reinstate him, we do not believe.
McCaw stated that he was incapable of polishing expensive instru-
ments and that he had never learned because he was unwilling to
polish them unless "paid by the day." This refusal occurred long
before October 1935, and it appears that for at least a year prior
thereto he had not been asked to polish expensive instruments. One
polisher, not one of those to whom reinstatement was denied, testified
that McCaw was an expert polisher in "his line of work," that is, on
"Pan Americans and Cavaliers," two types of instruments manufac-
tured by the respondent. Further, it is clear that McCaw's ability
was superior to that of the individuals who replaced him.
McCaw had joined the Union about September 1934, and he'was
a signer of both the petition for an increase in wages and the paper
refusing to work overtime. He did not work overtime on October
14, not because he was one of the strikers, but because he had no
work to do that night and was not expected to work. After his pur-
ported discharge and before October 21, he called upon Getzen, seek-
ing reinstatement. Getzen was apparently under the impression that
McCaw had been one of those who refused to work overtime on
October 14. Getzen testified :
Well, he (McCaw) came in and I said, "Hello, Pete"-that
is his nickname, Pete. And he said, "How is chances for my
job," and I says, "Well, we haven't any opening, Pete." "Why
not?" "Well," I says, "I will tell you. I am awfully sur-
prised at what you did the other night in the face of the fact
that we have been carrying you such a long time," and so we had.
"We have put up with an awful lot with you, and I was very
much surprised you would do a thing like that, and I don't
believe we will' ever be able to make a polisher out of you,
from the report I get from Beckwith, and we have no opening
for you."
Under the respondent's theory of this case, (1) neither McCaw nor
any of the other employees named in the complaint would have been
"discharged" on October 15 had they signed the agreement to work
overtime, and (2) the refusals to reinstate were actuated solely by
reason of their being unsatisfactory employees. Here in Getzen's
statement we find a frank admission that the lawful act of the pol-
ishers to enforce their demands was being considered by the re-
spondent in offering or denying reinstatement. The fact that Mc-
Caw had not refused to work overtime on October 14 is immaterial;
514
NATIONAL LABOR RELATIONS BOARD
it is only material that Getzen thought that he had refused to work
overtime on that day. It is plain that because Getzen was "awfully
surprised" at the concerted activities of the respondent's employees
in attempting to bargain collectively he intended to deal with them
in a manner the respondent thought best to halt and prevent those
activities. We find that McCaw was refused reinstatement because
of his union activities.
We find that Reuben Molebash, Theodore Nimroth, Elmer Sher-
rill, and Iral McCaw were denied reinstatement by the respondent
because of their membership in a labor organization and their con-
certed activities for the purposes of collective bargaining and other
mutual aid or protection, and that by the refusals to reinstate them
the respondent has discriminated in regard to hire and tenure of
employment, thereby discouraging membership in a labor organiza-
tion, and that by such acts and by the quoted statements of Beck-
with and Getzen the respondent has interfered with, -restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, B, above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
have led and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we will order it to cease and desist therefrom. We will
also order the respondent to offer full reinstatement with back pay to
Reuben Molebash, Theodore Nimroth, Elmer Sherrill, and Iral McCaw.
However, since the charge in the instant case was withdrawn on
August 14, 1936, we shall not direct that said employees be made
whole for their respective losses of pay during the period from Au-
gust 14, 1936, to May 21, 1938, the, date of said Order reinstating the
proceedings herein. ' Our Order will provide that said employees, and
each of them, be made whole for any losses of pay they have suffered
by reason of the respective refusals to reinstate them by payment to
each of them of a sum equal to the amount which he normally would
have earned as wages during the periods from the date of such re-
fusals to reinstate, October 21, 1935, to August 14, 1936, and from May
21, 1938, to the time of the offer of reinstatement, less his net earn-
DECISIONS AND ORDERS 515
ings 15 during such periods. However, since the Trial Examiner dis-
missed the complaint in so far as it alleged that the refusal to reinstate
Iral McCaw constituted an unfair labor practice, we will exclude from
the computation of his back pay the period from the date of the Inter-
mediate Report, June 3, 1936, to the date of this Order, which period
includes the shorter period so excluded above in the instances of the
three other employees who also were denied reinstatement.-
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following : -
CONCLUSIONS OF LAW
1. Metal Polishers, Buffers, Platers and Helpers International
Union, Local No. 77, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. 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 (1) of the Act.
3. The respondent, by discriminating against Reuben Molebash,
Theodore Nimroth, Elmer Sherrill, and Iral McCaw in regard to their
hire and tenure of employment and thereby discouraging membership
in or affiliation with Metal Polishers, Buffers, Platers and Helpers
International Union, Local No. 77, has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (3)- of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
"By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union , Local 2500, 8 N L R B 440 Monies re-
ceived for work performed upon Federal, State, county, municipal , or other work-relief
projects are not deductible as "net earnings ," but, as provided below in the Order , shall be
deducted and paid oler to the appropriate fiscal agency of the Federal , State , county,
municipal , or other government or governments which supplied the funds for said work-
relief projects .
16 See Matter of Kentucky Firebrick Company and United Brick and Clay Workers of
America, Local Union No. 510, 3 N. L . R B 455 ; enforcement order entered in National
Labor Relations Board v . Kentucky Fire Brick Company, 99 Fed (2d) 89. CC C. A Gth
1938).
516 NATIONAL LABOR RELATIONS BOARD
spondent, C. G. Conn, Ltd., and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Metal Polishers, Buffers, Platers
and Helpers International Union, Local No. 77, or any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees or in any other manner discriminating in regard
to their hire or tenure of employment or any terms or conditions of
their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the National Labor Rela-
tions Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Reuben Molebash, Theodore Nimroth, Elmer Sherrill,
and Iral McCaw immediate and full reinstatement to their former
positions, without prejudice to their seniority and other rights and
privileges;
(b) Make whole said Reuben Molebash, Theodore Nimroth, and
Elmer Sherrill, and each of them, for any losses of pay they have suf-
fered by reason of said refusals to reinstate, by payment to them,
respectively, of a sum of money equal to that which each would nor-
mally have earned as wages during the period from October 21, 1935,
to August 14, 1936, and from May 21, 1938, to the time of such offer
of reinstatement, less the respective net earnings 17 of each during such
periods; deducting, however, from the amounts otherwise due to each
of the said employees, monies received by said employees during said
periods for work performed upon Federal, State, county, municipal, or
other work-relief projects; and pay over the amounts, so deducted; to
the appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for said
work-relief projects;
(c) Make whole said Iral McCaw for any loss of pay he has suf-
fered by reason of said refusal to reinstate, by payment to him of a
sum of money equal to that which he would normally have earned as
wages during the periods from October 21, 1935, to June 3, 1936, and
from the date of this Decision to the time of such offer of reinstate-
ment, less his net earnings 17 during such periods; deducting, how-
ever, from the amount otherwise due to said employee, monies re-
11 See footnote 15.
DECISIONS AND ORDERS 517
ceived by said employee during said periods for work performed upon
Federal, State, county, municipal, or other work-relief projects; and
pay over the amount, so deducted, to the appropriate fiscal agency of
the Federal, State, county, municipal, or other government or gov-
ernments which supplied the funds for said work-relief projects;
(d) Post immediately in conspicuous places in and about its plant
and, particularly in and about the polishing departments therein, no-
tices to its employees, and maintain said notices for a period of at
least sixty (60) consecutive days from the date of posting, stating that
the respondent will cease and desist as aforesaid;
(e) Notify the Regional Director for the Thirteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
147841-39-vol. 10-34