Chambers Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1940

21 N.L.R.B. 808 (N.L.R.B. 1940)

In the Matter Of CHAMBERS CORPORATION and ALLIED STOVE MOUNTERS
AND STOVE PROCESSORS INTERNATIONAL UNION, LOCAL No. 36 (A. F.
OF L.)
Case No. C-14418.--Decided March 20, 1040
Stove Manufacturing Industry-Interference, Restraint, and Coercion: inter-
rogation by stockholder and director as to employee's union membership and
statement that union membership would be a bar to employment; foreman's
statement to employee of futility of joining union-Unit Appropriate for Collec-
tive Bargaining: all employees exclusive of supervisory, clerical, and salaried
employees and employees in engineering department ; unit corresponding to
unit defined in consent election agreement-Representatives: proof of choice:
majority vote at consent election ; alleged loss of majority not sustained, refusal
to bargain occurring prior to defections in membership and causing such defec-
tions-Collective Bargaining: announced refusal to incorporate in writing terms
to be agreed on; preconceived determination to avoid any agreement. refusal
to agree on existing practices ; "counterproposal" to maintain status quo without
agreement; refusal to adopt suggestions as "unnecessary" because restating
legal obligations or existing policies ; reiterations that contract unnecessary, no
legal compulsion to agree, and agreement might be impossible ; respondent's ex-
pressed unwillingness to commit itself to any settled policies. reference to
alleged legal irresponsibility of unincorporated associations; insinuations at con-
ferences of hostile action and attacks on union representatives and member-
ship ; failure to arrange, on request, for further meeting for contract negotia-
tions; ordered to bargain and to embody understandings in written agreement-
Agreement: for settlement and consent election : evidence of company domina-
tion preceding, considered because of respondent's violation of agreement and
purpose of election by failing to bargain with union receiving majority vote-
Company-Dominated Union: solicitation on company premises with knowledge
of supervisory employees ; meeting held on company time and property : shutting
power off for ; attended by foremen ; statements by supervisory employees in
favor of-Discrimination: charges of, not sustained as to 20 persons; charges
of, sustained as to failure to grant equal work during lay-offs to one fore-
man ; duty not to discriminate against foreman for union membership in
absence of non-discriminatory rule requiring foremen to refrain from union
membership and participation in inter-union rivalry-Back Pail: awarded.
Mr. Colonel C. Sawyer, for the Board.
Mr. Frederick A. Fischel and Mr. Max H. Weinberg, of Chicago,
Ill., Mr. Francis M. Curlee, Mr. Richard F. Moll, and Mr. Alden A.
Stockard, of St. Louis, Mo., and Mr. Wilbur F. Pell, of Shelbyville,
Ind., for the respondent.
Mr. William Murrell Denney, of Shelbyville, Ind., and Mr. Edward
J. Winters, of Belleville, Ill., for the Stove Mounters.
Mr. Joseph Forer, of counsel to the Board.
21N L.R.B,No 83.
808
CHAMBERS CORPORATION
DECISION
AND
ORDER
809
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Allied Stove
Mounters and Stove Processors International Union, Local No. 36
(A. F. of L.), herein called the Stove Mounters, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Eleventh Region (Indianapolis, Indiana), issued its complaint
dated December 7, 1938, against Chambers Corporation, Shelby
County, Indiana, herein called the respondent, alleging that the re-
spondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (2),
(3), and (5) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint
and notices of hearing and postponement of hearing were duly served
upon the respondent, the Stove Mounters, and Employees Welfare
Association, herein called the Association.
Concerning the unfair labor practices, the complaint alleged, in
substance, that the respondent (1) discouraged membership in the
Stove Mounters by discharging and refusing to reinstate 4 of its
employees 1 and discriminating in regard to the hire and the tenure,
terms and conditions of employment of 17 employees 2 on account
of their union membership and activity; (2) dominated and inter-
fered with the formation and administration of the Association, a
labor organization, and contributed support thereto; (3) refused to
bargain collectively with the Stove Mounters as the representative
designated by a majority of the employees in an appropriate unit;
(4) discouraged membership in the Stove Mounters by urgings and
threats and by surveillance of -union meetings; and (5) by these and,
other acts interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
On December 15, 1938, the respondent filed an answer denying the
alleged unfair labor practices and setting up certain allegations of
affirmative defense, including allegations that the Act and the instant
proceedings violate the Constitution of the United States. On the
'Ray Thoiuburg, William Handly, Ralph Yeley, and Dorey McKenney (erroneously re-
ferred to in the complaint as Dora McKinney ). The complaint was amended at the hear-
ing to conform to the proof
2 Lucien Arbuckle, J. A. Cassidy, Raymond Coidrey, Mat ion Harrell, Ary Fleck, Carl
Junken , Amos Kerby, Joseph Owens, C R Pendleton, Lloyd Phares, William G Riggs,
Jerry E . Shaw , Herbert D. Small, John FI Snyder , Donald Stulb , Eugene H Walker, and
Harold K . Williams.
810 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
same date the respondent filed a motion to dismiss the complaint
and a demurrer thereto.
Pursuant to notice , a hearing was held from January 16 to Febru-
ary 2, 1939, at Shelbyville , Indiana, before William R. Ringer, the
Trial Examiner duly designated by the Board. The Board and the
respondent were represented by counsel and the Stove Mounters by
its representative ; all participated in the hearing and were afforded
full opportunity to be heard , to examine and cross -examine wit-
nesses, and to introduce evidence bearing upon the issues. The
Association did not appear . At the hearing the respondent filed
amendments and supplements to its answer , which appear of record.
During the course of the hearing the Trial Examiner denied the
respondent 's motions for dismissal of the complaint and overruled
the respondent 's demurrer . He also denied a motion by the respond-
ent for a trial by jury. The Board has reviewed these rulings, which
are hereby affirmed.
During the course of the hearing the Trial Examiner made numer-
ous other rulings on motions and on objections to the admission of
evidence . The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed . The rulings
are hereby affirmed.
After the close of the hearing counsel for the Board and for the
respondent participated in oral argument before the Trial Examiner.
Thereafter , pursuant to leave granted to all parties at the hearing,
counsel for the Board submitted a brief for the consideration of the
Trial Examiner.
On December 14, 1939, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties . Therein
he found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 ( 1), (2), (3), and ( 5) and Section 2 (6) and ( 7) of the
Act. He recommended that the respondent cease and desist from the
unfair labor practices so found and take certain affirmative action
of remedial nature. He also recommended that the complaint be
dismissed in so far as it alleged discrimination against employees
of the respondent other than Lucien Arbuckle . Exceptions to the
Intermediate Report and to the conduct of the hearing were filed by
the respondent and, as to that portion of the Intermediate Report
recommending dismissal of the complaint in part, by the Stove
Mounters.
Pursuant to notice duly served upon all the parties , a hearing was
held on February 6, 1940, at Washington , D. C., before the Board,
for the purpose of oral argument. The respondent , represented by
counsel , and the Stove Mounters , by its representative , participated
in the argument.
CHAMBERS CORPORATION 811
The Board has considered the exceptions filed by the respondent and
the Stove Mounters and finds the exceptions to have merit only in so
far as they are consistent with the findings of fact, conclusions of law,
and order set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is an Indiana corporation having its principal office
and place of business adjacent to the city of Shelbyville, Indiana.
It is engaged in the manufacture and sale of gas stoves and ranges and
in the purchase and sale of aluminum cooking utensils. Approxi-
mately 59 per cent of the raw materials used by the respondent at, its
Shelbyville plant are obtained from sources outside of the State of
Indiana, including sheet steel, steel stampings, and castings from
Ohio,; enamel, nuts, and bolts from Illinois; thermostats and aluminum
tubing from Pennsylvania; and gas cocks from Michigan. During
1938 approximately 96.2 per cent of the respondent's finished products
were sold and shipped to customers outside of Indiana, less than 1
per cent of this amount being shipped to customers in foreign coun-
tries. The respondent's annual sales substantially exceed $200,000
per year. The respondent employs approximately 225 persons.
II. THE ORGANIZATIONS INVOLVED
Allied Stove Mounters and Stove Processors International Union,
Local No. 36, affiliated with the American Federation of Labor, is a
labor organization admitting to its membership employees of the
respondent.
Employees Welfare Association is an unaffiliated labor organization
admitting to'its membership employees of the respondent.
III. THE -UNFAIR LABOR PRACTICES
A. Chronology of events
Prior to November 1936 there was no labor organization of the
respondent's employees. On the evening of November 25, 1936, the
first meeting of the Stove Mounters was held in secrecy at a private
home in Fairland, a town 5 or 6 miles from Shelbyville. Eleven
or twelve of the respondent's employees attended the meeting. There-
after meetings of the organization were held regularly.
On December 10, 1936, the respondent shut down its plant for an
indefinite period and notified its employees of the termination of
their employment. Prior to this time the Stove Mounters had made
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no demands on the respondent and had taken no public action. During
the shut-down, the respondent, contrary to its practices during pre-
vious shut-downs, closed the plant gates, hired and armed plant guards,
and installed floodlights.
Early in February 1937 operations were resumed at the plant.
Approximately 41 members of the Stove Mounters were not reem-
ployed. During and after the shut-down the Stove Mounters filed
with the Board charges against the respondent. On July 8, 1937, it
entered into a written agreement with the respondent in settlement of
the charges. The agreement provided, in part, that the respondent
would offer within a specified time employment to 41 named indi-
viduals, would pay $3,500 to the Stove Mounters for distribution as
it should decide, and would comply with the provisions of the Act,
including those relating to collective bargaining. The Stove Mount-
ers agreed that it, "its individual members, the men named in para-
graph 13 and any employees of said Chambers Corporation
represented by said Union will not file or cause to be filed with said
National Labor Relations Board any charges or complaints on ac-
count of or arising out of any acts done by the Chambers Corporation
prior to the date of this agreement, and in further consideration of
such offer, said Union, its individual members, the men named in
paragraph 1 and any employees of said Chambers Corporation repre-
sented by said Union agree to and do hereby waive all claims, action
or causes of action, damages, losses and demands had or asserted
against the corporation to the date of this agreement."
The Board's agents participated in the negotiations which culmi-
nated in the settlement agreement, and after execution of the agree-
ment the Board cancelled hearing on a complaint which it had issued
on the charges made by the Stove Mounters. The respondent made
the offers of employment and paid the $3,500 as provided in the
agreement.
On August 19, 1937, the respondent posted a plant notice recog-
nizing the Association as the exclusive representative of all the re-
spondent's employees, with the exception of supervisory and clerical
employees. The notice stated that the Association had submitted
evidence of its designation as representative of a majority of the
employees. The Stove Mounters objected to the recognition of the
Association, and after extended conferences the respondent, the Stove
Mounters, and the Association entered into a consent election agree-
ment on October 22, 1937.
In accordance with the terms of the agreement an election was held
on October 29, 1937, under the supervision of the Regional Director,
3 Referring to the 41 individuals to be offered employment.
CHAMBERS CORPORATION 813
among the employees of the respondent exclusive of supervisory, sal-
aried, and clerical employees, and employees in the engineering de-
partment. Of 218 ballots cast at the election the Stove Mounters
received 112, a majority, the Association received 91, and 15 were
challenged.
After the election, the respondent orally recognized the Stove
Mounters as the bargaining agent of the employees in the defined unit.
On November 27, 1937, the respondent posted in the plant a notice
recognizing the Stove Mounters as -representative of its employees.
B. The refusal to bargain collectively
1. The appropriate unit
The Stove Mounters alleged in its charge, and it was alleged in
the complaint, that the employees of the respondent, exclusive of
supervisory, clerical, and salaried employees, and employees in the
engineering department, constitute a unit appropriate for the pur-
poses of collective-bargaining. , The claimed unit is the same as that
described in the consent election agreement of October 22, 1937. No
question was raised at the hearing as to the appropriateness of this
unit, and we see no reason to modify the unit defined by the consent
election agreement. We find that all the employees of the respondent,
exclusive of supervisory, clerical, and salaried employees, and em-
ployees in the engineering department, constitute a unit appropriate
for the purposes of collective bargaining and that said unit insures
to employees of the respondent the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuates
the policies of the Act.
2. Designation of the union by a majority of the employees in the
appropriate unit
It has already been seen that the Stove Mounters obtained a ma-
jority of the votes cast in the consent election of October 29, 1937.
At the hearing, evidence was introduced of certain resignations from
the Stove Mounters dated as of various days in 1938. For the rea-
sons stated below,' these resignations had no effect on the status of
the Stove Mounters as the representative designated by a majority
of the employees of the respondent in an appropriate unit.
We find that on October 29, 1937, and at all time thereafter, the
Stove Mounters was the duly designated representative of a major-
ity of the employees of the respondent in the appropriate unit. Pur-
suant to Section 9 (a) of the Act, the Stove Mounters was and is,
4'Section III, B , A infra.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore, the exclusive representative of all employees in such unit
for the purposes of collective bargaining.
3. The attempted negotiations
On November 23, 1937, representatives of the respondent and the
Stove Mounters met to discuss a proposed contract which the Stove
Mounters had submitted to the respondent. Leefers Karmire, the
respondent's secretary-treasurer, Nolke, its superintendent, and Glass
represented the respondent; Kiser and Winters of the Stove Mount-
ers' international union and a committee from the union local rep-
resented the Stove Mounters. The record contains transcripts of
this conference and following conferences.
Almost from the start of the conference Karmire questioned the
necessity of a contract, and subsequently returned to this subject.
He also indicated that the first clause of the proposed contract, pro-
viding for preference in employment for members of the Stove
Mounters, was unacceptable. In a discussion on wages Karmire took
the position that the respondent would not be justified in pegging
labor costs in view of the possibility of a market recession. Thomas
Butler, president of the Stove Mounters, suggested the possibility
of providing for wage adjustments if the market declined. Karmire
replied that it would first be necessary to adjust individual inequali-
ties. The discussion then returned to the first clause of the contract
draft, after which Karmire stated that the Act did not compel agree-
ment. The Stove Mounters requested a counterproposition, and Kar-
mire said he would give consideration to the request. Clause 1 was
then passed over, as was clause 2, an allied provision.
Clause 3 provided for continuance of the existing working days
and hours, with the addition of extra pay for overtime work. Kar-
mire objected to the latter provision but raised no question as to
the former.
Clauses 4 (provision for a bargaining committee) and 5 (working
supervisors to be members of the Stove Mounters) were passed over
after brief discussion of their meaning. Clause 6 provided for a
week's vacation with pay. Karmire referred to the possibility of a
series of enforced vacations and objected to the clause on the basis
that it necessitated a commitment for the future. He suggested that
vacation privileges be left to the respondent's discretion.
Clause 7 provided for the recognition of certain holidays, with
double time for work on such days. All the holidays with the pos-
sible exception of one were already observed by the respondent.
Karmire objected to the double-time provision.
Clause 8 provided for an equal division of work among employees
in their respective departments when practical. Karmire objected to
CHAMBERS CORPORATION 815
the clause on the grounds that it only restated the respondent's exist-
ing policy. Butler stated that there had been instances of inequality.
Karmire replied, "I have the answer to that right now. We will
adjust the rates that are too high downward." Briggs, a member of
the Stove Mounters' committee, interposed, "How about the lower
ones upward?" Karmire answered, "They have gone as far as they
could go. We will go into that later." He stated that the clause
should be easy to agree on because it restated existing practice, but
then added, "Why talk about something that is already in force, that
is what I can't understand." Winters later pointed out, "You haven't
granted a thing yet." Karmire replied, "You are right, that is one
thing we can agree on."
Clause 9 provided for the establishing of a price list after the Stove
Mounters' Committee and the respondent had adjusted prices on the
various jobs. Winters explained that this meant that after piece-
work rates were established, the list of rates for each job would be
posted. Karmire said, "Don't they know that now?" He also asked
how rates would be revised when necessary. This led to consideration
of clause 10, which provided for arbitration of disputes concerning
job rates. After an inconclusive discussion of this clause, Karmire
read clause 11, which set the specific hours of work. He stated that
this clause would be easy to agree on because it represented existing
practice.
Clause 12, providing for a 10-percent wage increase, was passed
over as having been earlier discussed. Clause 13 provided that the
respondent would give at least 2 hours' pay to employees who re-
ported to work pursuant to call and were then sent home. Karmire
took the position that the respondent did not summon men unless
there was work to do, but that if the men summoned could not be
put to work for some reason, he did not wish to get involved in an
argument on the clause.
Clause 14, providing a 13 months' term for the contract, and clause
15, calling for recognition of the Polishers and Platers Union No.
171, Indianapolis, as bargaining agent for its members, were read.
Arrangements were then made for the calling of a future meeting,
and the conference adjourned.
On December 9, 1937, the same persons met with the exception of
Kiser and one committee member and the addition of Robert E.
Mythen, a conciliator of the United States Department of Labor. -
Karmire definitely rejected the clause providing for preference in
employment for members of the Stove Mounters and also refused
Winters' offer to amend the clause to provide preference for former
employees of the respondent. Karmire said there was no need to
have a clause recognizing the Stove Mounters as collective bargain-
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing agent because the recognition notice had already been posted on
the board. He offered to mail notices of recognition to every em-
ployee. Winters agreed that a recognition clause in the contract
was unnecessary. Clause 2 was passed over as being dependent on
clause 1. Karmire stated that the provision for an 8-hour day and
a 5-day week was unnecessary because it represented the respondent's
existing policy and that the provision for overtime rates was unac-
ceptable. He also rejected clause 4, which provided for recognition
of a grievance committee of the Stove Mounters and contained a
stipulation that members of the committee would not be discrim-
inated against, on the basis that it was a matter of internal union
concern and was unnecessary because restating a legal obligation.
Karmire dismissed clause 5 (working supervisors to be members of
the Stove Mounters) as an internal problem of the Stove Mounters.
Winters agreed that vacations should be left to the option of the
respondent. Karmire rejected the holiday provision because of its
double-time clause. With regard to clause 8, the following colloquy
took place:
KARMIRE. Clause 8: That' has to do with an equal division
of work to employees in their respective departments when
practical, and that is something else we already do, I think.
WINTERS. Is that a fact, Tom?
BUTLER. Mr. Karmire, that may be your impression of it, but
I don't think so.
KARMIRE. Then clause 8 is unacceptable to the company.
Karmire also stated that cases of discrimination in allotment of
work could be brought to his attention as a grievance, and that he
and Nolke had no intention of discriminating against employees.
He said that an agreement, if reached, would not be reduced to writ-
ing and that he understood that a case dealing with the necessity
of reducing agreements to writing had not been adjudicated by the
Supreme Court. He asked Mythen, "Is it possible for Congress to
legislate in any manner to enforce you and me for example to enter
a contract?" Karmire then initiated a discussion of alleged labor
difficulties involving the international union of the Stove Mounters
in Mt. Vernon, Illinois, and claimed that a contract could not be
enforced against an unincorporated association. Winters invited
him to "check" the international union. Karmire said he had already
done so and remarked to Butler, "By the way, Tom, it might be
well for you to do a little checking, too." Karmire then alleged
the existence of labor difficulties in Belleville, Illinois, involving
the international union, and the discussion became an attack on the
international union by Karmire and a defense by Winters. The
CHAMBERS CORPORATION 817
necessity of mutual confidence was mentioned, and Karmire said,
"If mutual confidence exists what is the necessity for reducing any-
thing to writing?" Karmire then turned to accusations regarding
local happenings. He asked the committee members individually
if they knew which of the respondent's employees upset a machine
at a local garment factory. He asked Winters if he had not told
Earl Hurst, the respondent's time-study man and employment man-
ager, that if Hurst took care of "the boys" on rates "the boys"
would take care of Hurst. Winters denied the accusation, and Kar-
mire remarked that "such a thing as that involves one man's word
against another." Karmire questioned the committee members
about statements he attributed to the Stove Mounters' members to
the effect that employees had better join their organization soon, as
later the entrance fee would be made $25.
Karmire objected to clause 9, providing for the establishing of a
price list after rates were set on jobs, on the grounds that the work-
ers would know their rates without posting of a list. He objected
to clause 10, the arbitration provision, and remarked, "You can
bargain from here on until next year, and neither you nor me need
to agree, you know." He stated that the working hours proposed
in clause 11 were substantially the same as those now in force, and
passed on to the next clause without indicating whether clause 11
was acceptable. He rejected the wage raise proposed in clause
12, and objected to clause 13, dealing with payment of men sent
home after they were summoned to work. He again raised the
question of why it was necessary to have a contract in view of the
alleged history of satisfaction among the respondent's employees.
Mythen pointed out that if conditions were satisfactory they would
not become less so if reduced to writing, and asked if that placed
"any more burden." Karmire replied, "Not a bit, but what is the
necessity for it?" He further stated that if the committee would
forget about a contract "they can do more for themselves and for
this company to assure continued employment than any other thing
they can do. In other words, do you realize the only thing we as
a company are asking these men to do is to continue to be satisfied
with the conditions as they have existed here?" Karmire later
stated the following as a counterproposition : "Why can not our
relationship, company and employees, continue in the future just as
it has in the recent past?" Karmire then charged that Winters'
presence was in violation of assurances from the committee that it
would bargain with the respondent without "outside interference,"
but added that the men had a right to choose any individual they
desired to negotiate for them. He renewed his counterproposition
of preserving the status quo, offered to meet with the committee
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whenever necessary to discuss grievances and problems, and said
that he did not wish to be bound by any one set of rules in view
of the possibility of rapid econo nic fluctuations.
On February 14 and March 22, 1938, the respondent's representa-
tives and the Stove Mounters' committee met to discuss various
grievances. No mention was made of the proposed contract. On
April 15, 1938, the Stove Mounters sent Karmire a new draft of the
proposed contract deviating from the earlier draft chiefly in the omis-
sion of the clauses as to preference in employment and a raise in
wages, and the addition of provisions for seniority recognition and
maintenance of existing wage rates. The new draft was accom-
panied by a letter charging Karmire with having refused to bargain
in good faith and stating that it was felt that he would reconsider
his "mistake."
On May 12, 1938, the Stove Mounters' committee met with Karmire
and other representatives of the respondent to discuss certain pro-
posals of the respondent concerning wages. Toward the end of the
conference Butler asked for a date to negotiate concerning the new
contract draft. Karmire said, "You mean to go back over all that
rigmarole?" He then questioned whether the Stove Mounters still
had a majority and referred to resignations from the organization.
He stated that before resuming contract negotiations he would have
to decide whether he might not be doing wrong in bargaining with
the Stove Mounters. Finally he said that he would be able to set
a day for a meeting within the near future.
On May 20, 1938, Butler asked Superintendent Nolke to set a
date for discussion of the contract draft. Nolke said he would speak
to Karmire and then advise Butler. However, the respondent never
communicated further with the Stove Mounters on the subject of
resuming contract negotiations, nor did the Stove Mounters again
request a meeting for that purpose. After May 20, 1938, the Stove
Mounters' committee and the respondent confined their relations to
discussions of specific grievances with Nolke, except that on or about
May 26, 1938, the Stove Mounters sent the respondent a supplement
to the contract draft. The supplement provided that all production
employees of the respondent should become members of the Stove
Mounters within 30 days after signing of the agreement.
4. Conclusions regarding the refusal to bargain
It is clear from the foregoing that the respondent refused to bar-
gain collectively with the Stove Mounters. Its announced refusal
to incorporate into writing terms which might be agreed on demon-
strates in itself a lack of good faith and constitutes a refusal to bar-
gain. But the respondent's actions went even further; its representa-
CHAMBERS CORPORATION 819
fives approached the conference table with a preconceived determi-
nation to avoid agreement of any kind, oral or written. The existence
of such an attitude is demonstrated by a number of circumstances.
Karmire's refusal to incorporate existing ' operating practices into
an agreement can be convincingly explained in no other fashion,
particularly in view of the fact that at least some of these practices
were not inconsistent with his expressed fear of economic changes.
A prime illustration is Karmire's refusal to agree on the clause pro-
viding for equalization of work within departments, so far as prac-
tical. As has already been seen, Karmire claimed that the respond-
ent was already following such a policy and that he had no desire
to discriminate among individuals. Yet when Butler suggested that
in fact the policy was not being followed, Karmire retorted, "Then
Clause 8 is unacceptable to the company."
Karmire's "counter proposal" is further evidence of his intention
to avoid agreement regardless of the nature of the Stove Mounters'
proposals. After rejecting the terms suggested by the Stove Mount-
ers he made the "counter proposal" that the existing relationships be-
tween the respondent and its employees be continued. His "counter
proposal" was, therefore, merely a proposal that collective bargaining
be dispensed with in the future, as in the past.
On no other thesis than that of a mind closed to the possibility of
agreement can we explain, also, the combination of the following
factors : (1) Karmire's refusal to adopt suggestions on the basis that
they were "unnecessary" because they represented legal obligations
or existing policies of the respondent; (2) Karmire's reiteration that
a contract was unnecessary, that there was no legal compulsion to
agree, and that it might not be possible to achieve agreement; (3)
Karmire's open avowal of unwillingness to commit himself to ally
settled policies; (4) Karmire's insinuations of possible action by the
respondent unfavorable to its employees, such as the references to the
possibility of enforced vacations and the adjustment of "too high"
rates downward accompanied by his evasion of a suggestion that
"too low" rates be revised upward; (5) the reference to the alleged
legal irresponsibility of unincorporated associations, and (6) Kar-
mire's attacks during contract negotiations on the Stove Mounters,
their membership, their international union, and their international
representative.
The respondent refused, therefore, to bargain with the representa-
tive of the employees in an appropriate unit on November 23 and
December 9, 1937. Its subsequent failure to set, on request, a date for
further contract negotiations also constituted a refusal to bargain.
The latter refusal cannot be justified by the allegation that the Stove
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mounters lost its status as the representative designated by a majority
of the employees in the unit. The respondent engaged in the unfair
labor practice of refusing to bargain with the Stove Mounters late
in 1937. Such interference with the rights of its employees neces-
sarily caused some. defections in union membership. As we have pre-
viously held, an employer cannot evade the obligation to bargain
because of a loss of majority attributable to its unfair labor practices .5
In any event, the refusal to bargain in 1937 could not be excused by
a loss of union membership in 1938. Furthermore, the evidence of
withdrawals from the Stove Mounters is insufficient to rebut the pre-
sumption of a continuing majority.6
Upon the entire record we find that the respondent on and after
November 23, 1937, December 9, 1937, and May 12, 1938, refused to
bargain collectively with the Stove Mounters as the representative
of its employees in the appropriate unit in respect to rates of pay,
wages, hours of employment, and other conditions of employment,
and that it thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
C. Domination of the Association
1. Effect of the settlement agreement
We have hitherto held that where an agreement in settlement of
charges of unfair labor practices has been reached in negotiations
participated in by the Board's agents, we shall, for reasons of policy,
not thereafter disturb such agreement and shall refrain from consid-
ering the alleged unfair practices antedating the agreement.7 Where,
however, there has been a continuation of the practices which pre-
ceded the agreement, we have considered such practices in their en-
tirety.8 We have also treated a consent election agreement partici-
pated in by agents of the Board as an acknowledgment by the Board's
agents that unions placed on the ballot are able to operate as repre-
sentatives of the employees. Accordingly, we have not considered
charges that any such union is company dominated, provided that
'Matter of A,thur L Colten and A. J. Colman, etc and Amalgamated Clothing Wa,kers
of America, 6 N. L R B. 355 , enf'd , N. L R B v Arthur L. Colten and A J Colman,
etc. 105 F (2d) 179 (C C A 6) ; Matter of Moltrup Steel P,oducts Company/ and ,Steel
Workers Organizing Comnnttee Lodge No. 1202, 19 N. L R. B 471.
6 Cf Matter of Clark Shoe Company and United Shoe Wo, hers of America, 17 N L.
R B 1079, Matter of Woodside Cotton Mills Company and Textile Workers Organizing
Committee, 21 N L R B 42
4 Matter of Shenandoah -Dives Mining Company and Inte,national Union of Mine, Mill &
Smelter Workers, Local No. 26, 11 N L R B 885; Matter of Godchaux Suga,s, Inc and
Sugar Mill Woi hers' Union , etc, 12 N. L R. B 568
'Matter of Corinth Hosiery Mill, Inc. and Ame„can Tede, ation of Mos,e,y 1l'o,hers,
16 N 1, R B 414
CHAMBERS CORPORATION 821
there has been no continuation of employer interference after execu-
tion of the agreement.9
These holdings, however, are not applicable in the preseutinstance.
In the settlement agreement of July 8, 1937, the respondeiit'exp'ressly
undertook to comply with the provisions of the Act, including those
relating to the duty of collective bargaining. We have found that
the respondent thereafter violated the collective bargaining provi-
sions of the Act. We see no reason to respect, for the respondent's
benefit, an agreement which the respondent itself has not respected.
In this connection, however, it should be pointed out that the com-
plaint in the present case does not allege the occurrence of violations
of Section 8 (3) of the Act prior to the date of the settlement agree-
ment. The charges as to such violations, if any, were fully"' settled
by the respondent's offers of reinstatement to the individuals allegedly
subjected to discrimination and by its payment to the' Stove 1Vlount-
ers of an agreed sum for distribution among the ,employees.
The consent election in which the Association was on the `ballot
will also not be permitted to preclude an inquiry into evidence of the
alleged domination of that organization by the respondent, even
though such evidence relates in part to actions antedating the election.
The purpose of the consent election was to ascertain a representative
for the purposes of collective bargaining. The respondent's flouting
of this purpose by its refusal to bargain operates to remove any
immunity which it might otherwise have enjoyed as a result of the
election agreement. Under the terms of that agreement the respond-
ent undertook to recognize the organization which obtained a majority
of the ballots cast. With this provision the respondent complied
pro forma. But recognition not implemented by bargaining is an
empty gesture.
2. Domination of the Association
About June 15, 1937, Henry Wheeler, an employee of the re-
spondent, discussed with various other employees, particularly with
Edward C. Terry, the possibility of forming an independent labor
organization. Wheeler and Terry consulted an. attorney on the sub-
ject and visited the nearby town of Columbus, Indiana, to obtain
information concerning an independent union existing there. On or
about June 22, 1937, Wheeler and Terry circulated in the plant dur-
ing working hours papers dealing with the projected new organiza-
tion and solicited the signatures thereto of the employees. The pre-
cise nature of the papers circulated is not indicated in the record, but
9Matter o f Hope Webbing Company and Textile Workers Organizing Committee of the
C. I. 0, Local No 1l, 14 N L. R B 55; Matter of Wickwire Brothers and Almalgamated
Ass'n of Iron, Steel t Tin Workers of North America, etc., 16 N L R B 316
283032-41-vol 21-53
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it appears to have been well understood that signers were to be con-
sidered members of the contemplated organization. According to
Wheeler 's own testimony , he obtained permission from his foreman,
Woodbury Mohr, "to pass that paper around among the employees."
Wheeler's pay was docked for the time he spent in this activity.
Three or four days before this solicitation occurred , Maurice Eades,
an employee of the respondent , had been told by his foreman, George
Watts : "It won 't be long that there will be a paper around. They
are going to start an organization here of our own. You want to
sign it." Eacles signed the papers circulated by Wheeler and Terry
and the next morning was informed by Watts, "That is the paper that
I told you you ought to sign."
On Friday morning, June 25, 1937, Wheeler and Terry decided to
call a meeting of the employees . Wheeler testified that he attempted
to see Nolke and Karmire to obtain permission to hold the meeting in
the plant but that they were not available and that consequently he
obtained no such permission from the management . Nevertheless,
Wheeler and Terry orally informed the employees while they were at
work that there would be a meeting at 4: 45 p. m. in the sheet-metal
department. The working day ended at 5 p. m. Lloyd Phares, one
of the respondent 's employees , was notified of the meeting by Wheeler
and within a half hour was again informed of it by his foreman,
Russell Havens. At 4:45 Wheeler blew the lunch whistle and the
employees assembled in the plant. There were no remonstrances by
supervisory employees as to this wholesale quitting of work before
closing time, and four foremen attended the plant meeting. The
power in the plant was also turned off at 4: 45. Wheeler testified that
neither he nor Terry had arranged to have the power shut off, and
that although he and Terry were the only persons who planned the
meeting he was not surprised when the power was shut off since he
knew that it would be somehow shut off when the men quit work. We
do not credit Wheeler's testimony to the effect that no arrangements
had been made beforehand for the shutting off of the power both
because of the implausibility inherent in the explanation and in other
portions of Wheeler 's testimony and because of the uncontradicted
testimony of Lloyd Phares that Wheeler, in notifying him of the
meeting, told him that the power would be shut off.
Wheeler presided at the meeting, proposed the formation of ' an
independent organization, and told of the trip he and Terry had
made to Columbus . A committee for the drafting of a constitution
and bylaws for an independent organization was chosen.
Two witnesses testified that Wheeler stated at the meeting that the
committee would meet on the following Monday in a room in the
plant and that he had been informed that the room could be 'used
CHAMBERS CORPORATION 823
for the meeting as it had lights and chairs. Wheeler testified that
he did not recall announcing that the committee would meet in the
plant on Monday and denied having made any arrangements for such
a meeting. We do not credit Wheeler's testimony in this respect.
It is clear from the record that the solicitation of signatures by
Wheeler and Terry was known by supervisory employees of the
respondent. Nevertheless, according to Wheeler's own testimony, he
was never reprimanded for his violation of the respondent's rule
against plant solicitation.
On June 28, 1937, the Monday following the plant meeting,- the
employees observed on the respondent's bulletin board a notice dated
as of the preceding Saturday and signed by Karmire. This notice
quoted Section 8 (2) of the Act and then stated :
We have been notified that the soliciting of membership in
any labor organization during working ,hours or upon our
premises is construed to be a financial contribution by the Com-
pany to that organization.
We have no knowledge of any such practice within our organ-
ization, but in order to obviate any such complaints, we are
calling your attention to the fact that no employee of this Com-
pany can be permitted to solicit memberships in any labor
organization during working hours or upon the Company's
premises.
On the day following the plant meeting, Earl Hurst, the respond-
ent's employment manager, came into the plant and showed the time
book to Wheeler. Foreman Havens informed Phares that the men's
pay was being docked for the 15 minutes spent in the plant meeting.
A wage deduction was in fact so made.
The committee chosen at the plant meeting never met. Instead,
Wheeler and Terry called a second meeting for the evening of June
28, 1937, at the Shelbyville City Hall, allegedly because of their fear
that the previous organizational activities were tainted with illegal-
ity. As a result of the second meeting and subsequent meetings
the Association was fully organized, interested employees again
signed up as members, officers were elected, and a constitution and
bylaws were adopted for the new organization. As already stated,
the respondent posted a notice on August 19, 1937, to the effect that
the Association had been designated by a majority of the employees
as their representative and that the respondent recognized the Asso-
ciation as the exclusive bargaining representative of all of its em-
ployees with the exception of supervisory and clerical employees.
This recognition was, of course, subsequently vitiated by the results
of the consent election of October 29, 1937.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About February 20, 1938, Steven Scott, a rimmer employed by the
respondent, was advised by Carl Bennett, an inspector in the re-
spondent's plant, that it would be better for Scott to join the Asso-
ciation; that Scott knew Bennett had hired him and had been hold-
ing his job for him, and that the respondent would think more of
him if he joined the Association. In the summer of 1937, Bennett
solicited Ray Thornburg, a rimmer employed by the respondent, to
attend an Association meeting. Bennett, in addition to exercising
the normal duties of an inspector, tells the rimmers when to come
to work and when to quit work, what days they will be off, when
they resume operations, what work to get out, and whether they shall
come back at night to finish particular tasks. Bennett also asked
Scott if he wanted a job and then, on receiving an affirmative answer,
instructed Scott to report to work for the respondent.
We find that Bennett exercises supervisory functions. His ac-
tivities in favor of the Association are therefore attributable to the
respondent.
In February 1938 Russell Havens, a foreman, pulled an Associa-
tion card from his pocket and showed it during working hours to
employees Maurice Eades and Herschel Hewitt, stating that he be-
longed to the Association and "wanted to show them that he ap-
preciated them letting him work while the rest of us were off."
The respondent's domination of the Association is demonstrated
by the following circumstances among others: (1) Foreman Watts
knew beforehand that membership in an independent organization
would be solicited; (2) the initial solicitation for the Association
membership was on the respondent's premises during working hours
with the knowledge of supervisory employees ; (3) the first meeting
of the Association was held in the respondent's plant before the end
of the working day without remonstrance by supervisors; (4) the
power in the plant was shut off for the meeting under unexplained
circumstances; (5) foremen attended the plant meeting; (6) Wheeler
was not reprimanded for his flagrant violation of the respondent's
rules; (7) Supervisors Watts, Bennett, and Havens spoke in favor
of the Association to other employees.
We regard the respondent's notice prohibiting plant solicitation-
particularly in view of the tenor of the notice and the expressed
unconsciousness of facts the respondent must have known-as no
more than an attempt to conceal the fact that the respondent had
inspired Wheeler's activities. The deduction in pay for the time
spent in the plant meeting appears in the same light.
Upon the entire record we find that the respondent dominated
and interfered with the formation and administration of the Asso-
ciation and contributed support to it, and that thereby it interfered
CHAMBERS CORPORATION 825
with, restrained , and coerced its employees in the exercise of the
rights -guaranteed in Section 7 of the Act.
D. The alleged discrim,7owtory discharges
The complaint alleges that the respondent discharged and refused
to reinstate Ray Thornburg, Dorey McKenney, William Handly,
and Ralph Yeley becaiuse of their union membership and activity.
Ray Thornburg was a rimmer in the enameling department who
started to work for the respondent in May 1936 and joined the Stove
Mounters in March 1937. He was working at the time the plant
closed in December 1936, was among the first to be recalled to work
in February 1937 when the plant reopened, and continued to work
through July 8, 1937. Nevertheless, for no reason disclosed by the
record, he was one of the 41 men named for reinstatement in the set-
tlement agreement of July 8, 1937.
The respondent alleges that Thornburg was discharged on account
of repeated violations of its rules occasioned by his failure to report
unwillingness or inability to come to work and by his frequent
tardiness.
Thornburg last worked at the plant on July 8, 1937. Two or
three weeks earlier he had been invited to a meeting of the Associa-
tion by Carl Bennett but had .not attended. Thornburg testified
that on July 8 Raymond McKee, a fellow rimmer, also asked him to
attend an Association meeting. This testimony was contradicted
by McKee.
On Friday, July 9, 1937, Thornburg did not report to work. He
remained absent until Monday, July 19, when he returned, only to
be informed by Woodbury Mohr, his foreman, that his place had
been filled.
Thornburg's explanation of his absence is that he was sick from
July 9 to July 19. He testified that he called in a physician on
July 13 and received treatment thereafter. Thornburg did not per-
sonally notify the respondent that he would be absent from work,
but testified that he sent word to the respondent by two of his fellow
workers, Jack Antle and Stephen Scott. Scott testified ,that on
Wednesday, July 14, he obtained Thornburg's pay check from Wood-
bury Mohr, at which time he told Mohr that Thornburg was ill and
Mohr replied that he had already been notified of that fact by Antle.
Mohr testified that he had not been informed of Thornburg's alleged
illness until Friday, July 16, that he reported Thornburg's absence
to Nolke and Karmire, that Thornburg's record of absences and
tardiness was considered, and his discharge ordered by Karmire.
Mohr also testified that Thornburg had been late or absent without
notice on several occasions and had previously been reprimanded on
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that account. Thornburg testified that he did not recall being fre-
quently absent from work, denied that he had often been tardy, and
also denied that he had been rebuked for absences or lateness. McKee
testified, however, that Thornburg had come late to work about three
times in the period of 2 or 3 weeks preceding July 9, and the respond-
ent's records indicate that from February to July 1937, Thornburg
put in less working time than any of the other Fimmers.
Mohr testified further that subsequent to Thornburg's discharge
he met Thornburg in a tavern and that Thornburg said he had become
intoxicated on Friday night (July 9, 1937), had stayed drunk on
Saturday and Sunday, and then had decided to take the rest of the
week off. This testimony was contradicted by Thornburg.
Without finding it necessary to resolve the conflicts in testimony,
we are of the opinion that the evidence does not support a finding
that Thornburg was discharged on account of his union membership
and activity. The allegations of the complaint to that effect will
be dismissed.
Dorey McKenney was first employed by the respondent in Novem-
ber 1935 and became a member of the Stove Mounters in December
1936. He was one of the 41 employees named in the settlement agree-
ment of July 8, 1937, and returned to work after the 1936 shut-down
on August 9, 1937.
On November 12, 1937, a complaint on a grocery bill was filed
against McKenney in the court of a local Justice of the Peace. A
summons was served, and McKenney appeared for trial of the cause
on November 15. A judgment for $28.95 and costs was rendered for
the plaintiff. A writ of execution was issued on the judgment on
December 14, 1937, but was returned by the constable endorsed that
he had found no property subject to levy. On December 28, 1937,
the judgment creditor filed a complaint in supplementary proceedings
in the nature of an action to garnishee McKenney's wages. Sum-
mons was issued on the complaint but was withdrawn on instruc-
tions from the plaintiff. On January 31, 1938, the complaint was
refiled, and on February 2 summons thereon was served on McKenney
and the respondent. On February 5, 1938, a hearing was held on the
complaint. The respondent appeared by its attorney, but McKenney
did not appear and was defaulted. The court thereupon entered an
order directing the respondent to pay into court 10 per cent of
McKenney's wages in excess of $15 per week, as such excess became
due.
McKenney worked on Friday, February 4, but did not work on
the following Saturday or Sunday. When he returned on Monday,
Superintendent Nolke asked him if he had been notified about the
bill he owed and if he had read the notice on the bulletin board.
e
CHAMBERS CORPORATION 827
McKenney replied that he knew about the bill, but had not read the
notice. They went to the board and McKenney read the notice, which
was to the effect that the service of any action in garnishment would
automatically terminate the employment of the individual whose
wages were being garnisheed. The notice was dated February 4, 1938,
but the time of its posting is uncertain from the record; McKenney
had not previously seen it. Nolke then advised McKenney that his
orders from Karmire were that McKenney should turn his badge in
at noon.' McKenney did so.
The day after his discharge McKenney went back to the plant and
asked Karmire if he could have his job back. Karmire said that
"they" had studied his case, that he had been there a long time and
had been a steady worker and not a trouble maker. Karmire also
said that the plant would be down for a while, and McKenney would
be notified when production improved. Two or three weeks later
operations at the plant were fully resumed, but McKenney was not
asked to return. He than met Karmire on the street and again asked
if he would get his job back. Karmire said no, "simply because
what ... is the use of adopting a policy then tearing it up?"
It may be inferred from the record that the respondent adopted
its policy concerning employees subjected to garnishment actions as
a result of the proceedings involving McKenney. There is, however,
no evidence to indicate that the policy was instituted to discourage
union membership or activity or that it has been applied in a discrim-
inatory fashion. At the hearing the Board's attorney attempted to
show that the respondent had adopted toward George Walker, a mem-
ber of the Association, a policy different from that it had employed
toward McKenney, in that it had not discharged Walker although-it
had been notified by his creditor that Walker's indebtedness was past
due. The claim against Walker, however, was never reduced to judg-
ment, and garnishment proceedings were never instituted. The re-
spondent, therefore, was not inconsistent in discharging McKenney
and retaining Walker.
Under these circumstances, we find that the respondent did not
discriminate against McKenney after February 4, 1938.
William, Handly began to work for the respondent in February
1934 as a stove repairer on the assembly line, and continued at this
employment until the shut-down of December 1936. He was not
thereafter reemployed.- Handly joined the union early in May 1937,
and was named in the settlement agreement of July 8, 1937.
In its original answer the respondent alleged that it had offered
employment to Handly in accordance with the provisions of the set-
tlement agreement and that Handly had rejected the offer and forfeited
any' right to employment by failing to report for duty within the
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time designated in the offer and the settlement agreement. At the
hearing the respondent filed an amendment and supplement to its
answer, in which it added to its original answer the allegation that
Handly "is in such condition as to make him incapable of performing
efficiently, satisfactorily and safely his former duties or any duties
as an employee in the factory of respondent."
On August 7, 1937, Handly received from the respondent an offer
of reinstatement which, both by its terms and those of the settlement
agreement, required acceptance or rejection within 3 days. At the
time Handly was sick with arthritis and gonorrhea. His mother
notified the respondent that he' would be unable to report to work
within the designated period. Within the next 3 months Earl Hurst,
employment manager of the respondent, twice indicated to Handly
that a job would be available for him when he was able to work.
Handly finally reported for work on November 27, 1937, and saw
Karmire, who made no commitment{ as to his employment. On the
following day, Handly saw Nolke, who told him to get a doctor's re-
lease, after which it would be seen whether an opening for him could
be found. Handly obtained a certificate from his physician to the
effect that he could resume work and the next day spoke to Hurst.
Hurst said that Nolke had left word there was no opening. Tom
Butler, president of the Stove Mounters, intervened in the conversa-
tion, and Hurst advised him that Handly would go back to work if
work was available. Hurst then told Handly to return on the follow-
ing Monday. Handly came back to the plant on December 6 and sa"w
Nolke, who told him that there was no opening at the time.
The respondent's contention that Handly was not in such a con-
dition of health in November 1937 as to be entitled to reemployment
is supported by the evidence. His deafness, inability to remember
and nervousness are apparent in the record and were observed at
the hearing by the Trial Examiner, who commented thereon in his
Intermediate Report.
We find that the respondent did not on and after November 27,
1937, discriminate against Handly by its refusal to reemploy him.
Ralph, Yeley began work for the respondent on August 8, 1937, as
a burner's helper, and joined the Stove Mounters in the same month.
He testified that when he was employed, Foreman Woodbury Mohr
and Earl Hurst asked him if he belonged to the Stove Mounters and
that in April 1938 Mohr told him he would be sorry he had joined
the Stove Mounters. Mohr contradicted this testimony. We do not
find it necessary to resolve the conflict.
In the spring and summer of 1938 the respondent operated three
steel furnaces and a cast-iron furnace in three 8-hour shifts. Early
in June there was not sufficient work to keep the third shift busy
CHAMBERS CORPORATION 829
on all three steel furnaces. The respondent decided, therefore, to
shut down the No. 1 steel furnace and keep the remaining two steel
furnaces in continuous operation. There were five men at the time
on the No. 1 steel furnace and these the respondent shifted to other
positions in the plant. Yeley, who had been working on the No. 3
steel furnace, was discharged on July 6, 1938. However, Yeley was
the least experienced of the workers on the furnaces and was re-
placed by Charles Priddy who had previously been working on the
No. 1 furnace. Although the record is not clear as to the identity of
all the men who were employed on the No. 1 furnace when it closed,
the group contained at least two members of the Stove Mounters and,
as already stated, these were transferred to other positions. Fore-
man Mohr testified, also, that Yeley had been talkative and careless
in his work.
We find that the respondent did not discriminate against Yeley
to discourage union membership or activity by discharging him on
July 6, 1938.
E. Discrimination in terms or conditions of employment
The complaint alleges that since August 1937 the respondent dis-
criminated in regard to the hire and tenure of employment of 17
employees "by lay-offs without regard to seniority; by discrimina-
tion in regard to wage rates ; by transfers of said employees to less
desirable positions; and, in various other ways, for the purpose of
discouraging membership" in the Stove Mounters. At the hearing
the Trial Examiner dismissed, on motion of the Board's attorney,
the allegations of the complaint as regards four of the individuals
named, namely, William G. Riggs, Marion Harrell, Amos Kerby,
and Joseph Owens. No evidence of discrimination toward these
four men was introduced. The ruling of the Trial Examiner is
affirmed.
Lucien Arbuckle is a foreiiian in the machine room who also op-
erates a machine on piece work 2 or 3 hours a day. Arbuckle was
62 years old in March 1938 and is the oldest of the respondent's fore-
men in both years and service, having worked for the respondent and
its predecessor corporation since 1915. He testified without con-
tradiction, and we find, that he is as active and alert in shop work as
he was some years ago and has had no impairment of his speed or
skill.
In August or September 1937 Arbuckle attended an open social
meeting of the Stove Mounters, this being the only meeting of that
organization at which Arbuckle was present. Arbuckle became an
honorary member of the Stove Mounters in December 1937. He paid
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an initiation fee but because of his status as an honorary member
was not required to, and did not, pay union dues.
The respondent 's plant is shut down at frequent interval s for lack
of business . During shut -downs the respondent customarily em-
ploys its several foremen for various tasks which frequently involve
manual labor . Up to October 1937 Arbuckle worked during shut-
down periods together with the other foremen. During such, a
period ending October 2, 1937 , Arbuckle worked 50 hours, approxi-
mately the time worked by the other foremen during the same period.
From October 2, 1937, through September 10, 1938, the other fore-
men worked during 20 shut-downs , each foreman putting in between
32 and 50 hours during each shut -down. Arbuckle was given no work
during these periods. Prior to January 1938 Arbuckle had always
helped take the annual inventory . In that month the inventory for
1937 was taken during a plant shut-down , but Arbuckle was not
employed on the inventory.
In August or September 1938 Arbuckle asked Earl Hurst why he
was laid off when the other foremen were working. Hurst replied,
"I can't say very much , but some fellow you thought was a friend
of yours wasn 't. I can't tell you anything else."
The respondent contends that a finding of discrimination on ac-
count of union membership may not properly be made with respect
to a foreman . The contention is without merit. Granted that the
respondent may properly inhibit its foremen from interference with
employee self-organization by adopting a non-discriminatory rule
requiring foremen to refrain from activity in any labor organiza-
tion and from participation in inter-union rivalry, it may not, in
the absence of such a rule and without warning, discriminate against
a foreman for his union membership or interest 10 Particularly is
the case such as regards working foremen , whom we sometimes in-
clude in a unit of production workers for the purposes of collective
bargaining . In the present case , not only was there no expression
of a rule of the nature indicated , but also, as already shown, some
of the respondent 's supervisory employees aided in the organizing
of the Association with the tacit approval of the respondent.
In the absence of any credible explanation for the respondent's
failure to accord Arbuckle equal treatment with the other foremen,
we find that the respondent has discriminated against Arbuckle for
the purpose of discouraging membership and interest in the Stove
Mounters, by refusing to give him employment during shut-down
periods similar to that given to its other foremen.
10 Cf. Matter of Atlantic Greyhound Corpo) at,on and Bi otherhood of Railroad Trainmen,
7 N L. R. B. 1189.
CHAMBERS CORPORATION 831
James A. Cassidy and Raymond R. Cordrey are truck drivers
employed by the respondent, and are both members of the Stove
Mounters. They contend that the respondent has discriminated
against them in favor of William Records, a trucker's helper, by
favoritism in allocating work. Records, who is not a member of
the Stove Mounters, was employed in September 1937 to help load
and unload the trucks and was later made a driver's helper to replace
an employee who quit. As a helper Records was sent on trips with
Cassidy and also handled some short trips alone. In addition
Records continued doing loading and unloading at an hourly rate.
Because of the number of his functions Records earned during 1938
and the last quarter of 1937 considerably more than the truck drivers
and the other helper. Byron Dearing, the third truck driver, was
initiated in the Stove Mounters in October 1937, but paid no dues.
Cordrey testified that so far as he knew Dearing was not a member
of that organization, that he had never heard that Dearing belonged
to it, and that he had never seen Dearing' at union meetings. For
1938 and the last quarter of 1937, Cassidy made $3 less than Dearing,
while Cordrey made $60 more than Dearing.
We find that the respondent has not discriminated against Cassidy
or Cordrey to discourage union membership or activity.
Ary Heck was first employed by the respondent in February 1933
and joined the Stove Mounters in December 1936. He was one of the
41 men named in the settlement agreement and after the 1936 shut-
down returned to work in August 1937, being put in the cast-iron
department of, the enameling plant. In July 1938 he was made a
burner helper on the furnace for a short time. He objected to the
transfer, became ill on account of the nature of his new work, and
was returned to the cast-iron department where he acted as off-bearer,
patched tops, and helped one of the rimmers. During most of 1936
Heck had been receiving a flat rate of 45 cents an hour. Late in 1936
he was given a base rate of 40 cents an hour under a group system,
which resulted in a yield in excess of 45 cents an hour. On his return
in August 1937 his base rate in the group was 45 cents an hour and
his actual earnings exceeded 60 cents per hour. As a burner helper,
Heck received a base rate of 50 cents an hour.
Heck's complaint is that the other seven men in his group receive
a higher base rate than he does and consequently, under the opera-
tions of the group system, greater earnings. Although the other men
in the group occasionally do some off-bearing, their regular tasks are
not comparable to Heck's and require greater skill. Heck receives
the standard base rate paid off-bearers in the plant, although a few
off-bearers imake a higher rate because of the particular nature of
their work.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the respondent has not discriminated against Ai•y
Heck.
Carl Jv/nken is a burner assembler who joined the Stove Mounters
in September 1936. After the 1936 shut-down he returned to work
in February 1937 and was paid a straight hourly rate of 40 cents. In
April or May he was put on individual piece work and averaged about
71 ,cents an hour. He testified that lie knew of no other employee
paid on individual piece work. In June 1938 a general regrouping
was-made in the enamel plant and Junken was put in a group and
paid under the group system. The change resulted in a drop in his
hourly pay to approximately 68 cents. Junken contends that the
change in the method of his compensation was made because of his
union membership or activity. The evidence does not support this
contention. We find that the respondent has not discriminated
against Junken to discourage union membership or activity.
Clellie R. Pendleton does enamel clipping and welding in the sheet-
metal department. He joined the Stove Mounters about December
1, 1936, was laid off when the plant closed in the same month, and
returned to work late in July 1937, being one of the 41 men named
in the settlement agreement. The theory of the alleged discrimina-
tion against Pendleton is based on his testimony that overtime work
was given to his fellow worker, Sarringhaus, and refused to him. In
particular Pendleton referred to extra work given to Sarringhaus
in September 1938. The pay-roll records show, however, that Pendle-
ton worked more hours during that month than did Sarringhaus.
In addition, from the week ending August 20, 1938, through that
ending October 15, 1938, Pendleton's hours totaled 3143/4 and Sarring-
haus' hours totaled 2961/x.
We find that the respondent did not discriminate against Pendle-
ton in and after July 1937.
'Lloyd F. Phares was employed in 1923 by the respondent's prede-
cessor corporation as a crater and continued working in that capacity
for that corporation and for the respondent until July 1938. He
joined the Stove Mounters in July 1937, and was on its grievance
committee. Phares' complaint is that the respondent discriminated
against him by transferring him in July 1938 to a position on the
assembly line, stuffing wool insulation into stoves. His present posi-
tion carries the same base rate and approximate earnings as his
former job but is unpleasant and unhealthful.
The transfer from Phares' former job` as a crater was made when
the respondent stopped building the types of crates on which Phares
had been working and began purchasing factory-made crates instead.
At the time all the men in the crating department were members
of the Stove Mounters and another employee, Earl Eades, was also
CHAMBERS CORPORATION 833
transferred from crating to another position. After his transfer
Phares made repeated requests to be assigned to another position
and several times asked for specific jobs which had been vacated.
His requests were not granted.
Phares also contends that the respondent discriminated, against
him by refusing to give him work in connection with an inventory
taken on December 30, 1938. Phares asked his foreman to be em-
ployed on the inventory but the foreman said that he would not hire
anybody for the task. Phares was, however, given some extra work
sweeping. While at this task he saw 17 or 18 men helping take
inventory. However, the maximum time worked by any of these
men on the inventory was 3 hours and Phares was given 3 hours of
extra work at sweeping in the week ending December 31.
We find that the respondent did not discriminate against Phares
in and after July 1938 to discourage union membership or activity.
Jerry Sliaw was employed by the respondent's predecessor corpo-
ration in 1928 and was working for the respondent at the time of
the 1936 shut-down. He returned to work in August 1937 pursuant
to the terms of the settlement agreement and was placed on operations
of a drill-press in the sheet-metal department. He joined the Stove
Mounters at its inception and was a member of its negotiating
committee.
Shaw contends that the respondent has since August 1937 refused
to give him extra work arising in his department. It is clear from
Shaw's testimony that he was uncertain as to whether or not other
members of the Stove Mounters received such extra work. The pay-
roll records show that of eight drill-press operators, Shaw was third
highest in the number of hours worked during 1938, his total being
exceeded only by that of two operators who are also members of
the Stove Mounters.
We find that the respondent did not in and after August 1937
discriminate against Shaw to discourage union membership or
activity.
Herbert D. Small has been employed by the respondent and its
predecessor since 1928. After the 1936 shut-down he returned ' to
work in August 1937, being one of the 41 men named in the settlement
agreement. He was then placed on the assembly line. Since his
return, Small has received no extra work, which consists, in his
department, of floor sweeping. This fact is the basis for Shaw's
contention of discrimination.
Small joined the Stove Mounters in May 1937 and was a member
of its bargaining and grievance committees.
On direct examination Shaw testified that he "would say" that the-
extra work was done exclusively by Association members. The record
shows, however, that a number of members of the Stove Mounters:
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did floor sweeping during 1938. There is no clear * evidence as to
the amount of sweeping done by members of the Association.
We find that the respondent did not discriminate against Small
in and after August 1937 to discourage union membership or activity.
John Snyder was working for the respondent at the time of the
1936 shut-down, was named in the settlement agreement, and re-
turned to work in August 1937. Prior to his reinstatement, Snyder
had been earning 45 cents an hour. On his return he was put on a
job under the group system at a base rate of 45 cents an hour.
Snyder complains that the respondent discriminated against him by
failing to give him the benefit of a widely applied 10-per cent raise
over the 1936 rate.
In 1936, however, Snyder's rate was 45 cents straight-time. Under
the group system his base rate of 45 cents is used merely to determine
his relative share of the group earnings. In fact, Snyder earns over
60 cents per hour with his present base rate.
We find that the respondent did not discriminate against Snyder
in and since August 1937.
Donald Stulb, a member of the Stove Mounters, returned to work
after the 1936 shut-down in August 1937. He was one of those named
in the settlement agreement.
Stulb was paid 50 cents an hour, straight rate, before the shut-
down. He returned at 45 cents an hour under the group system and
was then raised to 471/2 cents an hour, group system. Stulb claims
discrimination on the basis of the reduction in rate. Under the group
system, however, Stulb in fact earns between 60 and 65 cents an hour.
We find that the respondent did not discriminate against Stulb
in and after August 1937.
Eugene Walker began work for the respondent in November 1935
and voluntarily left its employ on August 24, 1938. Walker was a
member of the Stove Mounters and was named' in the settlement agree-
ment. He was a spot welder on piece work, and complains that he
was assigned those classes of welding work which carried the worst
prices.
The evidence shows, however, that the welding work was regularly
classified and that Walker was assigned the more varied and easier
jobs because of the greater skill of the other welders, some of whom
are are welders. On various occasions, also, Walker was given extra
work and profitable work in positions which had been temporarily
vacated.
We find that the respondent did not discriminate against Walker.
Harold K. Williams, a member of the Stove Mounters, was named
in the settlement agreement and returned to work after the 1936 shut-
down in August 1937. Prior to the shut-down he had worked on the
manifold bench and was returned to the same position. At the time
CHAMBERS CORPORATION 835
of his return, Estol Mahaffey and Chester McKenney, neither of
whom was a member of the Stove Mounters, also were employed on
the manifold bench. Late in September 1938 Williams and McKenney
were transferred to the assembly line, and Jim Mahaffey, who was
not a member of the Stove Mounters, was placed on the manifold
bench. Williams' complaint is that since his transfer McKenney has
been given some extra time building top-burner brackets while
Williams has not.
About a month after Williams' transfer, his foreman, Rapp, asked
him, "Do you think you will ever amount to anything?" Williams
expressed ignorance on the subject and Rapp then said : "All you have
got-is a little bit of money and your job back. At one time I was in
a union and I thought I was really doing something. Then they
went out on strike and all I got out of it was I come mighty near
losing everything I ever got. Maybe you'll be in the same shape."
The respondent's pay-roll records show that from October 1 through
December 3, 1938, Williams worked 2751/4 hours and earned $198.90.
During the same period McKenney worked 3001/4 hours and earned
$217.29. Since Williams' transfer from the manifold bench he has
averaged 6 cents an hour more pay but has worked less hours. Har-
rell, a member of the Stove Mounters, has also helped build the
top-burner brackets.
The evidence does not support a finding of discrimination against
Williams on account of his union membership or activity. The
allegations of the complaint to that effect will be dismissed.
F. Other interference, restraint, and coercion
In January 1937 Harry Lightfoot, an employee of the respondent,
asked one DePrez, a stockholder and director of the respondent, if
he would intercede to obtain employment for Lightfoot in the re-
spondent's plant. DePrez asked Lightfoot if he was a member of
the Stove Mounters. Lightfoot was in fact a member, but replied
in the negative. DePrez then said that he did not know what was
going to be done in the way of operating the plant, and that he had
himself twice met the pay roll in the past. He again asked Light-
foot if he had joined the Stove Mounters, and said: "The reason why
I asked the question was that if you had ever had anything to do
with the union or joined the union, you won't get back to work at
Chambers Corporation and probably you won't have a job anywhere
in Shelbyville."
DePrez's interrogation as to Lightfoot's union membership and
his statement that such membership would be a bar to employment
are attributable to the respondent. We find that by the statements
made by DePrez and the previously described statements made to
Williams by Foreman Rapp, the respondent has interfered with,
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 PRAC T ICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and 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 and is engaging
in unfair labor practices, we shall order it to cease and desist there-
from and to take certain affirmative action designed to effectuate
the policies of the Act.
We have found that the respondent on and after November 23,
1937, refused to bargain with the Stove Mounters, which was and is
the exclusive representative of the employees in the appropriate unit.
L order' to effectuate the policies of the Act, we shall require the
respondent "to ' bargain with the Stove Mounters on its request. Since
we; gave„found that the respondent entered negotiations with a pie-
concei.ved determination not to enter into a contract, we shall order
the respoiic ent,, if an understanding is reached upon matters bar-
gained about by it and the Stove Mounters, to embody such under-
standing in a signed agreement, upon request by the Stove Mounters.
We shall also order the respondent to refuse to recognize the As-
sociation as the representative of any of its employees for the
purposes of collective bargaining, and completely disestablish the
Association as such representative.
We have found that the respondent has discriminated against
Lucien Arbuckle by refusing to give him employment during shut-
down periods substantially equal to that given to its other foremen.
In order to effectuate the policies of the Act, we shall order the re-
spondent to make whole Lucien Arbuckle for any loss of pay he may
have suffered by reason of such discrimination by payment to him
of a sum equal to the amount which he normally would have earned
as wages during such shut-down periods, less his net earnings 11
during said periods.
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-
wwhere than for the respondent , which would not have been incurred but for the unlawful
discrimination and the consequent necessity of the employee ' s seeking employment else-
where See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B 440.
Monies received for work performed upon Federal, State, county, municipal , or other work-
28'l032-41-vol 21--54
CHAMBERS CORPORATION 837
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. Allied Stove Mounters and Stove Processors International
Union, Local No. 36, affiliated with the American Federation of
Labor, and Employees Welfare Association are labor organizations
within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and ad-
ministration of Employees Welfare Association and contributing
support to it, the respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8 (2) of the Act.
3. The employees of the respondent exclusive of supervisory,
clerical, and salaried employees, and employees in the engineering
department, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act.
4. Allied Stove Mounters and Stove Processors International
Union, Local No. 36, was, on October 29, 1937, and at all times
thereafter has been, the exclusive representative of all employees in
such unit for the purposes of collective bargaining, within the
meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with Allied Stove Mounters
and Stove Processors International Union, Local No. 36, as the
exclusive representative of its employees in the appropriate unit, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (5) of the Act.
6. By discriminating in regard to the hire and tenure of employ-
ment of Lucien Arbuckle and thereby discouraging membership in
Allied Stove Mounters and Stove Processors International Union,
Local No. 36, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (3) of the
,Act.
7. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
9. The respondent has not engaged in unfair labor practices with-
in the meaning of Section 8 (3) of the Act as respects Ray Thorn-
burg, Dorey McKenney, William IIandly, Ralph Yeley, William G.
relief projects are not considered as earnings , but, as provided below in the Order, shall
be deducted from the sum due the employee, Lad the amount thereof shall he paid to the
appropriate fiscal agency of the Federal , State , county, municipal , or other government of
governments which supplied the funds for said work -relief projects
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Riggs, Marion Harrell , Amos Kerby, Joseph Owens, James A. Cas-
sidy, Raymond R. Cordrey, Ary Heck, Carl Junken, Clellie 'R:'Pen-
dleton, Lloyd F. Phares , Jerry Shaw, Herbert D. Small, John Sny-
der, Donald Stulb, Eugene Walker, and Harold K. Williams.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the re-
spondent , Chambers Corporation . its officers , agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Dominating and interfering with the administration of Em-
ployees Welfare Association , or with the formation and administra-
tion of any other labor organization of its employees , and contribut-
ing support to Employees Welfare Association or any other labor
organization of its employees;
(b) Discouraging membership in Allied Stove Mounters and Stove
Processors International Union, Local No. 36, or any other labor or-
ganization of its employees , by in any manner discriminating in
regard to the hire, tenure of employment , or terms and conditions
of employment of any of its employees;
(c) Refusing to bargain collectively with Allied Stove Mounters
and Stove Processors International Union, Local No. 36 , as 'the ex-
clusive representative of its employees , exclusive of supervisory , cleri-
cal, and salaried employees , and employees in the engineering
department;
(d) 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 con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Refuse to recognize Employees Welfare Association as repre-
sentative of any of its employees for the purpose of dealing with
the respondent concerning grievances , wages, rates of pay, hours of
employment, or other conditions of employment , and completely dis-
establish Employees Welfare Association as such representative ;
(b) Make whole Lucien Arbuckle for any loss of pay he may
have suffered by reason of the respondent 's discriminatory refusal to
give him employment during shut down periods substantially equal
to that given to its other foremen by payment to him of a sum of
CHAMBERS CORPORATION 839
money- equal to that which .he would--have earned as wages during
such shut-down periods had the respondent refrained from discrimi-
nating against him, less his net earnings during such periods; 12 de-
ducting, however, from the amount otherwise due to said Lucien Ar-
buckle monies received by him during said shut-down 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 governments which supplied the funds for
said work-relief projects ;
(c) Upon request, bargain collectively with Allied Stove Mount-
ers and Stove Processors, International- Union, Local No. 36, as the
exclusive representative ,of "the `employees of the respondent exclu-
sive of supervisory, clerical, and salaried employees and employees
in the engineering department, in respect to. rates of pay, wages,
hours of employment, and other conditions of employment ; and, if
an understanding is reached on such matters, upon request embody
such understanding in a signed agreement;
(d) Post immediately in conspicuous places in its plant, and
maintain for a period of at least sixty (60) consecutive days, notices
to its employees stating (1) that the respondent will cease and de-
sist as provided in paragraph 1 of this Order; (2) that it will take
the-affirmative actions described in paragraph 2 (a), (b), and (c)
of this Order; -arid (3) thitt `the 'respondent's employees are 'free to
become or remain members of Allied Stove Mounters and Stove
Processors International Union, Local No. 36, and that the respond-
ent will not discriminate against any employee because of membership
or activity in that organization;
(e) Notify the Regional Director for the Eleventh Region in
writing within ten (10) days from the date of this Order what-steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (3) of the
Act as respects Ray Thornburg, Dorey McKenney, William Handly,
Ralph Yeley, William G. Riggs, Marion Harrell, Amos Kerby, Joseph
Owens, James A. Cassidy, Raymond R. Cordrey, Ary Heck, Carl
Junken, Clellie R. Pendleton, Lloyd F. Phares, Jerry Shaw, Herbert
D. Small, John Snyder, Donald Stulb, Eugene Walker, and Harold
K. Williams.
'= See footnote 11, supra