Clayton & Lambert Manufacturing Co.

National Labor Relations Board - Board Decisions

Aug 20, 1941

34 N.L.R.B. 502 (N.L.R.B. 1941)

In the Matter of CLAYTON & LAMBERT MANUFACTURING COMPANY and
LOCAL 155, INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF
AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZA-
TIONS
Case No. C-1839.-Decided August 20, 1941
Jurisdiction : metal products manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: charges of, dismissed.
An employer has not engaged in conduct violative of Section 8 (1) of the
Act by demanding as a condition to reopening its plant and entering into a
contract with the union, that the contract provide for the election of new
members to supplant previous members of the shop committee.
Discrimination: discharges of four members of previous shop committee because
of their union militancy ; discharge of one employee because of his union activ
ity ; charges of, dismissed as to two employees.
Remedial Orders: reinstatement and back pay awarded.
Mr. Earl R. Cross, for the Board.
Dykema, Jones & Wheat, by Mr. Elroy O. Jones, and Mr. Nathan B.
Goodnow, of Detroit, Mich., for the respondent.
Mr. Maurice Sugar and Mr. Ernest Goodman, of Detroit, Mich., for
Local 155.
Mr. Eugene R. Thorrens, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Local 155, Inter-
national Union, United Automobile Workers of America, affiliated
with the Congress of Industrial Organizations, herein called Local 155,
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Seventh Region (Detroit, Michigan), issued
its complaint dated September 23, 1940, against Clayton & Lambert
Manufacturing Company, Detroit, Michigan, herein called the re-
spondent, alleging 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 National
04 N. L. R. B., No. 74,
502
CLAYTON & LAMBERT MANUFACTURING CO. 503
Labor. Relations Act, 49 Stat. 449, herein called the Act. Copies of-the
complaint, accompanied by notices of hearing, were duly served upon
the respondent and Local 155.
With respect to the unfair labor practices the complaint alleged in
substance: (1) that from about February 1937 to about January 28,
1938, the respondent engaged in a general course of interference with
the self-organization of its employees by (a) exhorting employees
against organization for the purpose of collective bargaining, particu-
larly in Local 155; (b) engendering fear that membership in and activ-
ity on behalf of Local 155 would cause loss of employment; (c) express-
ing hostility toward labor organizations and toward employees engaged
in activities on behalf of International Union, United Automobile
Workers of America, affiliated with the Congress of Industrial Organi-
zations, herein called the U. A. W. A.; (d) threatening its employees,
after shut-down of its plant on December 23, 1937, that it would not
reopen its plant unless the employees abandoned the right to collective
bargaining through representatives of their own choosing; (e) enter-
ing into an agreement, dated January 28, 1938, by which the employees
"purported to abandon their right to collective bargaining through
representatives of their own choosing"; and (f) deliberately applying
a seniority rule, as a basis for rehiring employees in February 1938, in
a manner inconsistent with the terms of the agreement of January 28,
1938; (2) that the respondent (a) eliminated Mischeff Cross 1 from
membership on the negotiation committee of Local 155, and from em-
ployment after the reopening of the plant about February 1, 1938, by
requiring a complete change in the personnel of the negotiating com-
mittee as a condition precedent to reopening the plant;- (b) failed to
recall to employment Dale Harris, Felix Malotka, William Picken,
Louis Stoeber, and Jacob Snyder,2 because they had joined and assisted
Local 155; and (c) discharged Julius Kantz on April 14, 1938, because
he distributed a publication of Local 155 and because he joined and as-
sisted Local 155; and (3) that by the foregoing acts the respondent in-
terfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act and discriminated against
the employees named above, in order to discourage activity on behalf of
Local 155.
The respondent filed its answer, date October 1, 1940, denying that
it had engaged in the alleged unfair labor practices. Among other
things, the answer set forth that the respondent had bargained in
good faith with Local 155 and had recalled its employees to work
after the shut-down in accordance with the seniority provisions con-
tained in the respondent's contract with the U. A. W. A. and Local
3 Also referred to in the record as Cross Mischeff
2 Also referred to in the record as Jacob Camphouse.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
155, dated January 28, 1938, and that the respondent had discharged
Julius Kantz for cause as hereinafter more fully set forth.
Pursuant to notice, a hearing was held at Detroit, Michigan, from
October 21 to November 9, 1940, before Thomas S. Wilson, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the respondent, and Local 155 were represented by counsel. All par-
ticipated in the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. At the close of the Board's case,
counsel for the Board moved to amend the complaint with respect
to formal matters to conform to the proof, and counsel for the
respondent moved to dismiss the allegations of the complaint with
respect to Felix Malotka. There were no objections to these motions
and the Trial Examiner granted them.3 Counsel for the respondent
also moved that the remainder of the complaint be dismissed on the
ground that the evidence introduced failed to sustain the complaint.
The Trial Examiner denied the motion. During the course of the
hearing the Trial Examiner ruled on other motions and on objec-
tions to the admission of evidence. The Board has reviewed the rul-
ings of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
The Trial Examiner thereafter filed his Intermediate Report, dated
March 14, 1941, copies of which were duly served upon the parties.
He found that the respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the Act. He recommended that the
respondent cease and desist from its unfair labor practices, and re-
instate with back pay the employees named in the complaint, except
Malotka, and that the complaint be dismissed as to Malotka. There-
after the respondent filed exceptions to the Intermediate Report and
submitted a brief in support of the exceptions. Local 155 filed a
reply brief. Pursuant to notice duly served on the parties, a hearing
for the purpose of oral argument was held before the Board in Wash-
ington, D. C., on May 29, 1941. The respondent and Local 155 were
represented by counsel and participated in the argument.
The Board has considered the exceptions to the Intermediate Re-
port and the briefs submitted by the parties and save as the excep-
tions are consistent with the findings of fact, conclusions of law, and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
3 Malotka did not appear as a witness . At the hearing the attorney for Local 155 stated
that efforts to locate Malotka had been unsuccessful. Counsel for the Board did not object
to the respondent 's motion but requested that the allegation of the complaint with respect
to Malotka be dismissed without prejudice . We will, however , dismiss the allegations of
the complaint as to him with prejudice.
CLAYT0I\T & LAMBERT MANUFACTUR1Th G 00. 505
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Clayton & Lambert Manufacturing Company, a
Delaware corporation, having its main office and principal place of
business at Detroit, Michigan, is engaged in the production, assem-
bling, sale, and distribution of gasoline and kerosene fire pots and
torches, sheet-metal stampings, metal tire covers, and other similar
automobile parts. For the year ending September 1, 1940, the re-
spondent purchased for use in its manufacturing process raw ma-
terials consisting of brass, brass castings, brass forgings, sheet steel,
paint, lacquer, solder, and steel tubing having a value of $950,927.14,
of which approximately 80 per cent in value were purchased outside
the State of Michigan. During the same period, the respondent sold
and shipped finished products having a total value of $1,456,858.94.
Of this amount it sold and shipped finished products having a value
of $525,781.70 to customers outside the State of Michigan. The re-
spondent's answer admitted the jurisdictional allegations of the
complaint.
H. THE ORGANIZATION INVOLVED
Local 155, International Union, United Automobile Workers of
America, affiliated with the Congress of Industrial Organizations is a
labor organization admitting to membership employees of the re-
spondent. Local 155, which draws its membership from 60 com-
panies engaged in the manufacture of automobiles or automobile parts
on the east side of Detroit, Michigan, maintains the Clayton & Lam-
bert Division of Local 155 for the respondent's employees.
III. THE UNFAIR LABOR PRACTICES
A. Early collective bargaining; interference, restraint, and coercion
Sometime in 1933 a group of employees in the respondent's tool-
room became members of the Mechanics Educational Society of
America, herein called the M. E. S. A., an independent labor or-
ganization. The record does not disclose the history of M. E. S. A.
in the plant, except that it was inactive by 1937. So far as the
record discloses, there was no other union activity among the re-
spondent's employees until 1937 when Local 155 began organizational
efforts at the respondent's plant.
Sometime in February 1937, John Anderson, a representative of
Local 155, arranged a conference between Charles F. Lambert, the
respondent's president, secretary, treasurer, and general manager,
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and a committee of the respondent's employees. As the result of
bargaining negotiations, in which, among other things, representatives
of Local 155 stated that it represented a majority of the respondent's
employees, the respondent, on February 25, 1937, entered into a writ-
ten contract with Local 155 to become effective March 1, 1937, and
to run for 1 year. In the contract the respondent recognized Local
155 "as a representative of its employees, upon submission of proof
that it represents a majority of the employees in the plant." The
contract provided, inter alia, (1) for plant-wide seniority; 4 (2) for
the elimination of piece work and the substitution of hourly wages; 5
(3) for wage increases and a minimum wage; (4) for an 8-hour day
and a 40-hour week, with time and a half for overtime; and (5) for a
grievance procedure. The contract further provided that "the em-
ployees shall have the right to be represented by a shop committee
who shall be elected in any manner determined by the employees."
During March 1937, at an election conducted by Local 155 and the
respondent, approximately 96 per cent of the employees designated
Local 155 as their representative for the purposes of collective
bargaining.
In the latter part of February 1937, Max Gnadt, foreman of the
pressroom, separated from the pay roll Mischeff Cross, a member of
the temporary organizing committee and of the first negotiating com-
mittee for the Clayton & Lambert division of Local 155, and its chief
membership recruiter among the respondent's employees. This oc-
* The provision for plant-wide seniority was incorporated in the contract at the in-
sistence of President Lambert. The contract also contained the following with respect
to seniority :
Section 1.
Strict plant seniority rights shall prevail from the first date of hiring , provided
the employee appears satisfactory during a period of thirty days .. .
Section 2.
When conditions warrant a decrease of employees , the seniority list shall be strictly
observed .. .
Section 3.
Employees laid off through no fault of their own shall retain seniority . Seniority
rights of those employees who quit shall terminate after a period of six months.
Section 4.
Employees transferred from one department to another shall hold seniority rights
in the department from which such transfer is made.
Section 5.
All members of the shop committee shall bead seniority list during their term of
office and shall be returned to their regular standing on seniority list on termination
of service in said committee.
On February 16, 1937, the day following the appearance of an item in the newspapers
reporting that competitors had set a minimum wage scale of 75 cents an hour for men
and 65 cents for women , the respondent, prior to the union negotiations , had posted in
the plant a notice announcing the institution of day work to supplant the piece-work basis
of pay and setting a minimum wage scale of 75 cents an hour for men and 65 cents for
women.
CLAYTON & LAMBERT M'ANUFACTURIN'G 00. 507
curred about 10 'days after Cross had been hired by the respondent.
According to Cross' testimony, he was told by Gnadt that
There is no more work for you so you better don't come down
tomorrow morning. . . . Cross, I am sorry about having to
fire you out, but you know how these things are. I was told
by Mr. Fred Rueppel 6 to fire you for union activities. . . . I
want to be in the clear with you, because I have been a union
man before and I know all about those things.
In his testimony Gnadt denied telling Cross that he was being dis-
charged for union activities on orders from Rueppel and denied that
Rueppel gave such instructions. Except as to a general denial with
respect to making statements regarding union activities, Rueppel,
although a witness, did not testify concerning the incident. Gnadt
asserted at the hearing that he laid off Cross and five or six other
employees because of lack of work and that Cross was selected because
he had recently been hired. Gnadt did not give the names of the
five or six other employees and Cross testified that he did not know
of any employee other than himself who was separated at the time.
As of February 15, 1937, the respondent employed in the press depart-
ment at least four persons having seniority equal to that of Cross
and seven persons having less seniority. Gnadt recalled Cross to
work, after an absence of 2 days, when Local 155 protested his dis-
missal. Under these circumstances, we do not credit Gnadt's testi-
mony and find that the incident occurred as testified to by Cross.
According to the testimony of Louis Stoeber, toolroom shop com-
mitteeman, in April 1937, on the day of the return to the plant of
Factory Manager Fred Rueppel, after an illness which had kept
him from the plant, he approached Stoeber and intimated that his
[Stoeber's] position in Local 155 might interfere with their personal
friendship and concluded the conversation by stating, "I tell you
this, within a year there is no organization in this place no more."
At the hearing Rueppel denied telling Stoeber in effect that his union
activities and their personal relationship might conflict. Rueppel
further denied that he predicted the end of Local 155 at the expiration
of the year. In his testimony Rueppel admitted, however, that he
questioned Stoeber concerning his position as shop committeeman,
and that when Stoeber asserted that employer and union interests
were opposed to each other, Rueppel stated that he hoped that Stoeber
would be "on the right side."' Dale Harris testified that at a union
picnic in April or May 1937, he and Cross, both shop committeemen,
were told by Leo Williams, the respondent's assistant general man-
ager then in charge of labor relations, whom Harris characterized
6 The respondent 's factory manager.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as an uninvited guest, that they "were on the wrong side of the fence"
and that they "had better get over on the other side." At the hear-
ing Williams asserted that he did not remember making this state-
ment and claimed that he attended the picnic at the invitation of the
then president of the Clayton & Lambert division of Local 155 who
was no longer in the employment of the respondent and who did
not testify. Although Cross appeared as a witness he was not in-
terrogated with respect to this aspect of the case. Jacob Snyder, an
employee and a union leader, testified that sometime in 1937 his fore-
man, Walter Behrens, touched the union button that Snyder was
wearing and called him "a screwball." In his testimony Behrens
stated that he did not remember the alleged incident. We find, as
did the Trial Examiner, that Rueppel, Williams, and Behrens made
the statements substantially as testified to above by Stoeber, Harris,
and Snyder.
In addition, according to Snyder, in 1937 he was told by Rueppel
that he (Snyder) was responsible for "getting the God-damn Com-
munist in there" referring to John Anderson, the union representative
who, on behalf of Local 155, had negotiated the March 1937 contract
with the respondent. Snyder further testified that shortly after the
sit-down strikes in 1936 and 1937,' while at work he was told by
Rueppel, "The first organizer to come on French Road," I will shoot
him." Stoeber testified that in September 1937, in the presence of
Stoeber, Foreman Behrens, and Frank Kopak, an employee, Rueppel
referred to Stoeber's union activities and stated that Stoeber "ought
to be [indecent word] over." Rueppel denied making these statements.
Kopak was not called as a witness and Behrens did not testify con-
cerning the latter incident. Sometime during 1937, according to
Stoeber's further testimony, he was called into the fenced-off portion
of the toolroom where Foreman Behrens had his desk. On this oc-
casion Behrens referred to Cross as a Communist and warned Stoeber,
according to the latter, that "some of these days you are going to
feel sorry that you ever joined a union." Except as related above,
Rueppel denied making these statements. Since the Trial Examiner
discredited Rueppel and Behrens as witnesses in connection with other
testimony and since we have found that they made other coercive
statements, we find that Rueppel and Behrens made the statements
set forth above and attributed to them by Snyder and Stoeber.
We find that by the statements of Rueppel, Williams, and Behrens,
as set forth above, the respondent interfered with, restrained, and
7It is not clear from the record whether Snyder 's reference was to the sit-down strikes
which occurred in the automobile industry generally or to two sit-down strikes which, as
hereinafter appears , took place in the respondent 's plant during 1937.
8 Referring to the location of the respondent 's plant.
CLAYTON & LAMBERT MANUFACTURIN G Co. 509
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.9
B. Relations under the 1937 contract
The administration of the provision in the contract, effective March
1, 1937, calling for plant-wide seniority, caused confusion in the
transfer of employees between departments and jobs. Similarly, the
change from piece work to hourly rates caused complications in the
amount of work to be-done on particular jobs and by particular indi-
viduals. During the first 5 months of the life of the contract, the
respondent and the union shop committee 10 held frequent meetings
of considerable duration both during and outside working hours
in an effort to find a solution for these problems. Also, shop com-
mitteemen and shop stewards instructed employees to lower their
production in cases in which the union representatives felt that those
employees worked at an unreasonably high rate of speed, as part of
a program to induce the respondent to set standard rates of produc-
tion. In addition, in March and again in May 1937, the respondent
granted wage increases, which made its wage rates conform generally
to those paid by competitors in the Detroit area.
Shortly after the hourly wage plan had superseded the piece-work
system, the respondent's direct labor costs 11 began to rise and in June
or July production began to decrease. In the latter part of July
1937, Williams, in his own words, "finally told Cross, who headed
up the committee, that if they did not live up to reasonable standards
or get the production somewhere near normal so that we could
operate the plant I would have to discharge" Cross and Andrew
Lopine, shop committeemen. Later, about July 26, Williams notified
Cross and Lopine that they were discharged, and tendered their pay
checks. About 3:30 or 4:00 o'clock that afternoon the employees
stopped work and a sit-down strike immediately followed. The
strike, however, was settled that afternoon by negotiations between
the respondent and Nat Ganley, business agent of Local 155. At
U The respondent excepted to the Trial Examiner 's finding that the statements of super-
visory employees set forth above constituted unfair labor practices within the meaning
of Section 8 (1) of the Act on the ground , tinter aha, that such statements were not
coercive since Local 155 represented almost 100 per cent of the respondent 's employees at
the time the statements were made and continued to represent an equal number of such
employees at least until January 28 , 1938 . We and not persuaded by this contention. The
Act is preventative in, purpose and the statements set forth above are in themselves
coercive in character without regard to their actual effect upon the employees . See, for
example, National Labor Relations Board v. A. S . Abell Co ., 97 F. (2d ) 951 (C. C. A. 4),
enf'g as mod . 5 N L R. B. 644
'° The shop committee for the Clayton & Lambert Division of Local 155 consisted of 11
members: Mischeff Cross , Dale Harris , Louis Stoeber , William Picken , Felix Malotka,
Charles Miller, Andrew Lopine, Myrl Hall, Joe Bueckl , Jr., Hampton Singletary, and
Arnold Barton.
n Direct labor costs, as used herein and in the record, include only wages paid to pro-
duction employees.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the settlement conference President Lambert stated that Cross and
Lopine had been discharged because of "a slow-down in production."
At the insistence of Local 155, the settlement provided for the rein-
statement of Cross and Lopine and the execution of a supplemental
contract to include terms which, Local 155 claimed, would tend to
reduce confusion and friction in the plant. The supplemental con-
tract, dated August 11, 1937, among other things, provided (1) that
standards of production be set on each job -based upon production
averages of April and May 1937 and that employees not averaging
the standards set be subject to discharge after warning and (2) that
"Seniority shall be by departments or non-interchangeable occupa-
tional groups." 12
Shortly after the execution of this supplemental contract, Williams
proceeded to set standards of production in the plant. In Septem-
ber, 1937, however, the shop committee, at the instance of Cross,
rejected Williams' proposed standards since they had not been deter-
22 Article III of the contract, dated August 11, 1937, also contained the following pro-
visions with respect to seniority:
In order to clarify the provisions regarding seniority as contained in the original
agreement, the following proylsions shall govern the seniority set-up of the Company :
r
Section 5.-The highest seniority will be held by the shop committeemen, eleven in
number and being made up of the president, secretary, recording-secretary, first vice-
president, second vice-president and third vice-president of the Union and five others,
one of whom will serve as head of the Safety Committee.
Section 6.-The next highest seniority will be held by one steward each from the
following departments :
(a) Day Shift: (1) Press operators and die setters; (2) electricians, millwrights,
machine repair and cranemen ; (3) laborers and sweepers ; (4) welders, gas and arc;
(5) inspectors; (6) motor truckers and shippers; (7) screw machine; (8) buffers;
(9) stewardess for women; (10) torch assembly; (11) metal finishing; (12) sheet
metal assembly, power hammer and band saw; (13) square shear and roller leveler;
(14) time checkers; (tool and die 'and try-out department is covered by one of the
committeemen included in the previous section).
(b) Night Shift: (1) Press operators and die setters; (2) motor truckers and
shippers; (3) sheet metal assembly, power hammer and band saw; (4) electricians,
millwrights, machine repair, cranemen, electric truck drivers, laborers and sweepers ;
(5) tool and die, try-out and inspectors; (6) square shear and roller leveler.
Section 10.-When there is an increase in the force in any department or occupa-
tional group, employes shall be returned to work in accordance with their seniority
in the reverse of the order in which they were laid off before any new employes are
hired.
t s r s s r
Section 12.-An employe shall lose seniority for any of the following reasons only :
a. Employe quits.
b. Employe is discharged for cause.
c. Employe is absent from work for three consecutive work days without
notifying the employment office unless the employe shall present a certificate from
a reputable physician to the effect that it was impossible for him to give notice
sooner.
d. Failure to report for work when called by the Company, provided, however,
that no employe shall lose seniority if failure to report for work is caused by sick-
ness or accident and the Company is notified of such condition within three days
after the request to return to work
e. A period of twelve months has elapsed since the employe last worked for
the Company during which time no written leave of absence was granted by
the Company.
CLAYTON & LAMBERT AWTUFACTURMG CO. 511
mined by negotiation with union representatives. During the month
of September a rumor circulated in the plant to the effect that the
respondent planned to close down several departments. About Sep-
tember 15, the respondent advised the shop committee that the
buffing department would be discontinued as of October 1, 1937,
since the respondent had arranged to have the buffing work done
outside the plant at a lower cost. The shop committee protested
the proposed discontinuance at several conferences with the respon-
dent without success. Shortly after October 1, when the buffing
department ceased operations, the shop committee demanded resump-
tion of buffing work. When the respondent refused to accede, the
employees, beginning about October 5 or 6, engaged in another sit-
down strike which lasted 5 or 6 days. In settlement of the strike,
the respondent and Local 155 entered into a memorandum of agree-
ment, dated October 12, 1937. Among other things, the agreement
provided (1) that the respondent would not sublet any work "for
the sole purpose of undermining the union"; (2) that the six former
employees of the buffing department would be transferred to another
department without loss of seniority; and (3) that "the management
and the subcommittee of three members of the shop committee will
proceed without delay to arrive at the figures for the production rate
as provided- for in the supplementary agreement of August 11th."
Immediately after the execution of this agreement, the respondent
and a subcommittee, composed of Cross, Harris, and a third shop
committeeman, proceeded with negotial ions for the purpose of set-
ting standard rates of production. Because of the large number
of operations involved, standards for all operations had not been
completed by December 23, 1937, when the plant shut down as here-
inafter related, but standards for most operations had been estab-
lished and the negotiators were still at work with respect to the
remainder at the time of the shutdown. The respondent's books,
from which its auditor testified during the hearing, show that fol-
lowing the October agreement, the respondent's direct labor costs
began to drop, so that by December 23, 1937, costs and production
rates did not substantially differ from those of March or April
1937.13
C. The shut-down of December 23, 1937, and the events leading to
the contract of January 28, 1938
About November 1, 1937, the respondent began to receive from cus-
tomers a large volume of cancelations of orders and "cutbacks" of
With respect to at least two operations described in the record as among those typical,
costs of production markedly declined after April 30,,1937 , and by December 23, 1937,
production costs for such operations were substantially less than those as of April 30,
1937 . The respondent 's books were not made part of the record.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
releases. 114 On November 15, 1937, the respondent began laying off
employees and continued to do so from time to time thereafter until
December 23, 1937. The lay-offs were made in accordance with the
seniority provisions of the supplemental contract of August 11, 1937.
In making the lay-offs the respondent gave the shop committee either
a list of the names of employees or the number of employees to be
laid off. Thereafter the respondent's employment manager, Hugh C.
Montgomery, and the shop committee determined from seniority lists
the employees having the least seniority who were thereupon selected
for lay-off.15
On December 23, 1937, the respondent closed its plant, retaining,
contrary to its usual practice, only its supervisory force for inventory
purposes, minor assembly work, and shipping. There is a conflict in
the evidence as to the tenor of the respondent's negotiations with the
shop committee just prior to the shut-down. President Lambert testi-
fied that he told the shop committee about December 15, 1937, that
the respondent anticipated an indefinite shut-down and that he would
call the shop committee as soon as he knew that the plant would re-
open. Shop Committeemen Cross, Harris, and Stoeber testified that
Lambert told them that the plant was being shut down for a complete
inventory, that nothing was said about an indefinite shut-down, and
that Lambert told them to return after the New Year to discuss the
reopening of the plant. Factory Manager Rueppel testified that he
was informed by Lambert shortly before the shut-down that the shut-
down was for inventory purposes, that Lambert at that time gave
him no other reason for the shut-down, and that not until mid-January
1938, was he told that the plant would be closed down beyond the
inventory period. Similarly, Max Gnadt, foreman of the pressroom,
and Walter Behrens, foreman of the toolroom, testified that they were
told that the shut-down was for inventory purposes. Employment
Manager Montgomery, who had been in the service of the respondent
for approximately 15 years, testified on cross-examination that he did
not learn the reason for the shut-down prior to its occurrence, that
ordinarily Lambert informed him of the reason for substantial lay-
offs, and that this was the first time to his knowledge that the plant
14 A release "cutback" refers to a direction from a customer to ship at a designated
time an installment of products smaller in quantity than that previously indicated in a
contract schedule or to postpone the shipment of an entire order to a date later than
that previously specified.
16 In April or May 1937 , pursuant to the terms of the contract of March 1 , 1937, pro-
viding for plant-wide seniority , the respondent had issued a seniority list containing the
names of all employees , including those employed in the toolroom , arranged in order of
their seniority based upon original hiring dates . Many toolroom employees complained
of errors in the list and submitted suggestions to the management . Thereupon the re-
spondent issued a separate list with respect to toolroom employees containing corrected
seniority dates. Since the contract of August 11, 1937, provided for seniority rights
based upon departments and non -interchangeable occupational groups , the respondent
issued a third list set up on a departmental basis shortly after the making of that contract.
The lay-offs in November and December 1937 were based upon the third list.
CLAYTON & LAMBERT MANUFACTURE G CO. 513
had ever "completely" closed down. Upon all the circumstances we
find, as did the Trial Examiner, that the respondent told the shop
committee in December 1937 that the shut-down was for inventory
purposes and that they should return to the plant to discuss reopening
after the New Year.
On January 2 or 3, 1938, members of the shop committee visited
the plant. Uncontradicted testimony shows that they found the
windows of the plant painted over and barred, the gates closed, and
the doors barricaded. The shop committeemen asked the respondent's
telephone operator for permission to see Lambert. After the operator
talked to Lambert over the telephone, she informed the committeemen
that Lambert refused to meet with them and that further efforts to
see him would be futile. Thereafter the committeemen went to the
entrance to the employment office, where Montgomery opened it small
window and stated that he had been told by Lambert that there would
be no meeting between the respondent and the committee. During
the week that ensued the shop committee persistently endeavored to
arrange a conference with Lambert at the respondent's plant office but
without success.
On January 10, 1938, however, Ganley, business agent of Local 155,
secured an appointment with Lambert. Lambert gave Ganley a letter
to the effect that the respondent was "unable to discuss any matter
regarding future employment ... until the present written contracts
are terminated" and that "the Company has agreed that it will recog-
nize the U. A. W. A. as the bargaining representative of its mem-
bers." 16 That night, in informing the membership of Local 155 of his
conference with Lambert, Ganley reported that Lambert had said
that the respondent would not enter into a written contract.17 On
January 11, 1938, Charles Miller, a shop committeeman, acting without
union authorization so far as appears, and Sherman Brown, an em-
ployee,18 secured an interview with Lambert. Lambert gave them a
written statement to the effect that the respondent "will bargain col-
lectively with the U. A. W. A. and the Shop Committee . . . as the
representatives of its members upon the termination of the present
existing contracts," and when an understanding is reached, "the Com-
pany will publish all such terms and conditions to its employees in a
written and signed statement." 19
Between January 10 and 17, 1938, representatives of Local 155
met with the respondent, who was represented in the negotiations by
19 Italics supplied
"As hereinafter appears, in subsequent negotiations the respondent took such position
and later withdrew from it
18 As hereinafter appears, Brown was associated with a dissident group within Local 155
for the purpose of unseating certain members of the shop committee.
19 Italics supplied.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Lambert and Elroy O. Jones, an attorney for the respondent
in this proceeding who had participated on behalf of the respondent
in the negotiation of the agreement dated October 12, 1937. About
January 10, 1938, the respondent had completed its inventory and its
supervisory force, as Foreman Behrens testified with respect to him-
self, was "[taking] it pretty easy." During this period the respondent
took the position that it would not sign a written contract. Jones
proposed that if Local 155 signed a document, which he produced,
canceling the existing contracts, the respondent would immediately
reopen the plant and recall 150 to 200 employees. Ganley refused
to cancel the existing contracts but offered to suspend the contracts,
or modify them on terms mutually agreeable. The respondent re-
fused. It represented that it could not operate profitably under the
1937 contracts, principally because these contracts gave top seniority
ratings to about 30 shop committeemen and stewards who, the re-
spondent argued, would have to be' recalled to work regardless of
availability of work for them. Ganley offered to negotiate modifica-
tions in the "top seniority" provisions, but the respondent refused
and insisted upon cancelation of the contracts. Jones stated that
unless Local 155 agreed to cancel the existing contracts, the respondent
would keep the plant closed until March 1, 1938, when by their terms
they would expire. Jones further stated that the respondent would
put its terms for the reopening of the plant in writing provided that
Local 155 call a meeting of the employees at which the respondent
would distribute written copies of its position to the employees. Jones
claimed that in the past the shop committee had misrepresented the
respondent's position to the employees. Local 155 acquiesced in the
procedure suggested by Jones.
On January 17, 1938, Local 155 assembled the employees for the
purpose of receiving the respondent's written statement of position.
At the entrance of the union meeting hall, Jones distributed copies
of a printed statement, bearing the signature of President Lambert
and addressed "To all employees." The document stated that the
respondent was compelled to close its plant because of stoppage of
orders and that "at present no definite statement can be made as to
the date when production can be resumed at the normal rate"; that
"before any progress can be made toward resuming production the
former contracts will have to be terminated and ended." In the
document the respondent further stated that it could not successfully
operate its business and provide steady employment unless 14 condi-
tions set forth were "substantially complied with." Among these
were the following (1) "The Company will negotiate any changes
necessary with your representatives, but the company cannot be suc-
cessfully operated under a written contract between the Company
CLAYTON & LAMBERT MANUFACY URI G CO. 515
and its employees or their representatives or any labor organiza-
tion"; 20 and (2) "a new shop committee, consisting of not more than
five (5) employees, may be chosen by the employees actively em-
ployed by the Company from among their own number, to negotiate
and bargain collectively with the Company. . ." At the meeting the
employees voted to reject the respondent's terms for reopening the
plant.
On the following day, January 18, Local 155 delivered to the re-
spondent a written statement of its position. Among other things,
it demanded (1) exclusive recognition for the purpose of collective
bargaining; (2) recognition of a shop committee composed of regular
employees of the respondent for the purpose of settling grievances;
(3) seniority by departments and non-interchangeable groups; and
(4) continuance of the working conditions in general which prevailed
under the 1937 contracts. • In its statement of position Local 155
expressed a willingness to accept the respondent's proposal for a
reduction of the membership of the shop committee from 11 to 5,
and to negotiate at any time modifications in any agreement reached
in order to allow the respondent "the flexibility of action" which the
respondent had contended made operation under a written contract
impracticable.
On January 24, 1938, the respondent presented to Local 155 a
proposed written contract embodying substantially all 14 conditions
contained in the respondent's above-mentioned statement of position,
except that relating to its refusal to execute a written contract. Rep-
resentatives of Local 155 complained about the proposed limitation
upon its selection of its shop committee. During the course of the
negotiations Jones stated on several occasions that the respondent
would not recognize the old shop committee because it was "full of
Communists" whose purpose it was "to destroy all American insti-
tutions" and that Local 155 would have to abolish it and elect a
new committee because the old committee "were creators of disturb-
ances and lack of discipline," particularly Cross, Harris, Stoeber,
and Picken, whom Jones characterized as "disruptors of production,
Communists." On January- 24, petitions were circulated, apparently
by the dissident group of Local 155, among the employees endorsing
the plan for termination of the existing contracts and for the election
of a new shop committee upon reopening of the plant from em-
ployees actively at work. The petitions were circulated by ordinary
m In this connection the document stated "The National Labor Relations Act does not
require or suggest written agreements ." See, however , H. J. Heinz Co . v. National Labor
Relations Board, 311 U. S. 514, airg 110 F. ( 2d) 843 ( C. C. A. 6 ), enf'g 10 N. L. R. B. 963
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and presented, in completed form, to the management by
Ed Lanstra, an employee, on January 28, 1938.21
On that day, the respondent presented a proposal containing minor
modifications of its former proposed contract. The respondent modi-
fied its position to enable all employees to participate in the selection
of a new shop committee but the respondent remained adamant with
respect to its demand that a new committee be selected. At a union
meeting the same day, the membership voted to authorize the ac-
ceptance of the proposed contract in the event further modifications
could not be obtained. Later the same day, the respondent, the
U. A. W. A., and Local 155 signed a contract, dated January 28,
1938.22 By its terms all prior contracts and agreements, whether
written or oral, were "terminated, cancelled and no longer of any
force and effect . . ." The contract also provided, among other
things, (1) for the recognition of the U. A. W. A. as the exclusive
representative of the employees "unless and until a majority of the
employees of the Company shall designate or select other representa-
tives for such purposes"; (2) that "all employees re-engaged by the
Company . . . shall be chosen from the present employment list .. .
under the seniority provisions contained in this agreement"; 23 (3)
21In this connection two incidents which occurred in October 1937 should be noted in
passing. Shortly after the second sit-down strike, Lanstra and Frank Yates, an employee,
urged John Malofy, a press operator, to go to a certain room in the plant and stated that
if Theodore Pattison, Malofy's foreman,'\as at the door of the room, he should "not worry
but [go] right in." Later, when Malofy went to the designated room, he found Pattison,
Yates, Lanstra, and several other employees, including Shop Committeeman Hampton
Singletary, drinking whiskey during working hours on the night shift. In Pattison's
presence, Yates asked Malofy to sign a petition to remove Cross, Pickens, and other
-unnamed shop committeemen from office and to install "a committee of our own." Malofy
signed a petition produced by Yates and participated with the others, including Pattison,
in the drinking. Pattison made no objection to the discussion of the petition. The
second incident occurred on October 23. On that day, Elroy O. Jones, the respondent's
attorney, attended a meeting of 25 to 30 employees, headed by Shop Committeeman
Hampton Singletary and Sherman Brown, an employee The purpose of the meeting was
to organize sentiment for the removal of the shop committeemen. Jones claimed that
he went to the meeting, which was held at a private home, without knowledge of its
purpose and that he advised the dissident group that he could have nothing to do with it.
Jones, however, told Lambert of the meeting.
22 The shop committee did not execute the contract. Charles Miller signed as an attesting
witness
23 The contract contained the following provision with respect to seniority •
16. Seniority rights shall be effective hereafter only upon the following basis
# S k # n d t
(b) Seniority shall be by departments, or where there are non-interchangeable
occupational groups within departments, then seniority shall be by such groups.
Such groups shall be determined by the Company.
(c) Top seniority in each department or non-interchangeable occupational group
regardless of shift shall be given to any one member of the new Shop Committee
and/or a steward who may be re-engaged and actively working in such department
or group.
(d) Total length of employment by the Company of employees on seniority list
(e) Ability of the employee to do the work available to be determined by the
Company on the basis of employment record of the Company for such employee;
CLAYTON & LAMBERT MANTJFACTUR]ING CO. 517
that "a new Shop Committee to replace the present existing Shop
Committee, consisting of not more than five (5) employees, shall
be chosen by the employees from among the employees re-engaged
and actively employed by the Company, to negotiate and bargain
collectively ..."; and (4) for top seniority ratings with respect to
shop committeemen and stewards as above indicated. The contract
made no substantial changes in existing wage rates or other terms
or conditions of employment relating directly to costs of production.
D. The reopening of the plant and the failure to recall shop
committeemen
On February 1, 1938, the respondent reopened its plant with a
greatly reduced force. Shop Committeemen Cross, Harris, Stoeber,
and Picken were not recalled to work.24 The employees were recalled
in accordance with a revised seniority list which Employment Man-
ager Montgomery had completed during the shut-down.25 Local 155
was not given a copy of this list until about February 2, 1938. Al-
though the list was in existence during the negotiations leading to
provided, however, that this shall not be construed to mean the individual merit of
one employee compared with another, whose employment records with the Company
show that they are listed to do the same work, and that it does mean that for similar
classes of work straight seniority rights shall prevail and, further, provided that
any grievance arising in connection with this clause shall be handled through the
regular grievance procedure provided for herein.
17. An employee shall lose seniority for any of the following reasons only :
(a) Employee quits
(b) Employee is discharged for cause.
(c) Employee is absent from work for three (3) consecutive work days without
notifying the employment office unless the employee shall present a certificate
from a reputable physician to the effect that it was impossible for him to give
notice sooner.
(d) Failure to report for work when called by the Company, provided, how-
ever, that no employee shall lose seniority if failure to report for work is caused
by sickness or accident and the Company is notified of such condition within
three (3) days after the request to return to work.
(e) A period of twelve (12) months has elapsed since the employee last worked
for the Company during which time no written leave of absence was granted
by the Company.
24 Just prior to the execution of the 1938 contract, the shop committee consisted of 11
members. However, for some time prior thereto, Local 155 had employed for negotiation
purposes a 5-man committee, consisting of Cross, Harris, Stoeber, Charles Miller, and
Hampton Singletary. Of the 11, Miller, Lopme, Myrl Hall, and Joe Buechl, Jr, were
recalled to work after the plant reopened Of the remaining seven, five are listed in the
complaint. The complaint was dismissed at the hearing as to one of the five since he
failed to testify. No explanation appears in the record for the omission from the complaint
of the two remaining shop committeemen
^ Prior to 1938, the respondent maintained a personnel file for each employee consisting
of cards showing original hiring date, lay-offs, rehirings, and so forth Under this system
each item of employment data with respect to a single employee was noted on a separate
card Shortly after August 11, 1937, Montgomery began the preparation of a so-called plant
employment history which consisted of a series of loose-leaf sheets each of which contained
the employment history of a single employee. Montgomery completed the plant employment
history late in December 1937 or in January 1938. The revised seniority list was based
upon the plant employment history.
451269-42-vol 34-34
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 1938 contract, no mention of it' was made and Local 155 was
unaware of its existence prior to the execution of the contract. Para-
graph 12 of the 1938 contract provided that all employees recalled
"shall be chosen from the present employment list." There is some
dispute in the evidence as to the list referred to. Ganley testified
that during the negotiations Lambert "definitely agreed that [the
respondent] would use the seniority list of 1937 as a basis for recalling
the people to work." Cross and Harris, who participated in the
negotiations, corroborated Galley's testimony. Jones, while admit-
ting that he himself was unaware of the existence of the revised
1938 seniority list during the negotiations, testified at one point that
no reference was made "to any particular seniority list or employment
list," and that he had never heard of a 1937 seniority list. In other
portions of his testimony, however, Jones recalled that Ganley had
stated that several shop committeemen would not be recalled since
"there was a prospect that the company would not rehire all of the
people on the employment list, that Ganley had "mentioned specifi-
cally that Cross and Singletary, who were way down on the sen-
iority list" would not be recalled, and that his [Jones'] reply was
"Well, you and I understand it perfectly." Lambert testified that
although there was no mention of a seniority list during the negotia-
tions, it was agreed between the negotiators that the respondent
select, as the contract provided, employees from the 1937 "employ-
ment list" under the seniority provisions of the 1938 contract .21
Under the circumstances, we find, as did the Trial Examiner, that
the "present employment list" as used in the 1938 contract, referred
to the 1937 seniority list as of the date of the shut-down and that the
respondent agreed to recall the employees in accordance with such
list.
Although the provisions for loss of seniority in the contract of
August 11, 1937, and in the contract of January 28, 1938, were identi-
cal and although the 1938 contract, as Montgomery admitted, did not
alter the seniority practice previously established, as hereinafter set
forth, the 1938 seniority list contained many changes in individual
seniority dates and in the classification of non-interchangeable occupa-
tional groups.
Pursuant to the application of the new contract together with the
revised seniority list, Harris, Stoeber, Picken, and Cross, all old shop
committeemen, were not recalled to work when the plant reopened.
As more fully discussed below, they had lost their preferred seniority
status.
26 As hereinafter appears, these seniority provisions in essential respects were .identical
to those contained in the August 11, 1937, contract.
CLAYTON & LAMBERT MANUFAG°1`URWG CO. 519
1. Dale Harris
Dale Harris was first employed by the respondent on November
6, 1928. On December 18, 1928, Harris quit and took employment
elsewhere when the respondent sold part of its plant. He returned
to work in the band-saw department 27 at the respondent's plant in
1930 and,' with three exceptions 28 and aside from intermittent lay-
offs, continued to work in that department mainly as a rotary-shear
and band-saw operator until July 1937. At that time the respondent
opened its so-called government tank department to fill government
orders. Employees were selected for work in that department upon
the basis of ability and seniority. The work of that department
required the services of a paint sprayer. Harris, who had previously
done paint spraying, was selected for transfer to the government tank
department as a paint sprayer in preference to two paint sprayers
employed in other departments. As the result of negotiations with
the respondent in the spring of 1937, Harris' seniority date was fixed
as of May 13, 1931. Sometime later during 1937 the respondent
required the services of an additional paint sprayer to meet the needs
of increased production. Upon Harris' recommendation, Factory
Manager Rueppel transferred John Mack,29 who during 1937 had a
seniority rating of November 1, 1932, from another department and
gave him that job. Still later, during 1937, the respondent required
the services of a third employee to substitute for, Harris during periods
when Harris' presence on union business was required in the respond-
ent's office. Upon Harris' recommendation, Rueppel gave Arthur
Wurm that assignment. During 1937 Wurm had a seniority rating
of November 1, 1932. Mack and Wurm had previously worked with
Harris in the sheet-metal department. Neither Mack nor Wurm had
previously had spraying experience , and both required a training
period. At Harris' instance, the respondent paid Wurm sprayers'
rates for such work. However, during 1937, Harris and Mack were
the only employees in the government * tank department who were
classified as sprayers, a non-interchangeable group. Until Febru-
ary 1, 1938, Wurm, who acted as relief sprayer, retained his classifica-
tion as an employee in the sheet-metal department. When the
27 The band -saw department later became a part of the sheet -metal department.
21 In 1934 Harris had a dispute with Gibbs Hilton, his foreman, concerning overtime.
and was discharged . Harris was recalled , however, within 4 or 5 days . At that time
he received a new badge number. On July 12, 1933, Harris left his employment on account
of death in his family and "put in a quit-slip ." He returned to work 5 days later. Begin-
ning in June 1935 Harris took about 3 months ' leave because of illness . When he returned,
work at the plant "was pretty slow ." He received permission from the respondent to take
employment elsewhere until "work would pick up" at the respondent's, and in accordance
with the practice then prevailing at the respondent 's plant, received a "quit slip" on
July 25, 1935. He returned to work on October 7 , 1935, and remained in the respondent's
employment until the shut - down on December 23, 1937.
29 Also referred to in the record as Pietrowski.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent opened its plant in February 1938, or shortly thereafter,
Mack and Wurm were recalled to work as paint sprayers in the gov-
ernment tank department. -On the respondent's 1938 seniority list,
Harris' seniority date was moved back to October 7, 1935, while that
of Mack was moved ahead to June 22, 1928. Although Wurm's sen-
iority date remained the same on the 1938 list, for the first time he was
classified as a sprayer.
The respondent claims that it did not recall Harris because only
two positions as sprayers in the government tank department were
available and that the respondent gave those jobs to employees with
the.greater seniority. The validity of the claim, however, depends
upon the respondent's good faith in changing Harris' and Mack's
seniority dates and in its revision of the non-interchangeable group
to include Wurm. The record reveals no justification for altering
Mack's seniority date. During 1937 his seniority date had twice
been fixed as of November 1, 1932, without complaint from him. In
its brief the respondent contends that it altered Harris' seniority
date on the 1938 list because he had quit his employment on July
25, 1935, and the contract of January 28, 1938, provided for loss
of seniority in the event that an employee quits. As hereinabove
appears, however, the contract of August 11, 1937, contained ' an
identical provision. Yet the respondent did not advise Harris of
any change in his fixed seniority date, reached as a compromise in
settlement of a grievance filed by him during 1937, until the publi-
cation of the 1938 list and then without prior negotiation.30 Indeed,
during the negotiations leading to the execution of the 1938 contract,
in reply to an inquiry from Harris, President Lambert assured
Harris that in view of his long service with the respondent he would
be among the first group of employees recalled to work when the
plant reopened. Besides, since Wurm worked in the sheet-metal
department and acted as a part-time sprayer in the government tank
department during 1937, it seems unusual that the respondent re-
classified Wurm as a sprayer and recalled him in preference to
Harris, a more experienced sprayer, who had occupied that job'full
time. Furthermore, of a total of 23 employees working in the gov-
ernment tank department as of the time of the shut-down on Decem-
ber 23, 1937, Harris was the only employee not recalled after the
reopening of the plant in February 1938. Moreover, upon discon-
tinuance of the government tank department on September 1, 1938,
$0 The respondent did not publish a seniority date for Harris between August 11, 1937,
and February 1, 1938. The respondent claims that there was no necessity for assigning a
seniority date to Harris since he had top seniority as a shop committeeman. While we
accept this explanation as true, we are of the opinion that if the respondent had believed
that the contract of August 11, 1937, required a change in Harris' natural seniority, it
would have published a new seniority date for him.
CLAYTON & LAMBERT MANUFACTURING CO. 521
the 22 other employees were retransferred to their original depart-
ments. In rehiring employees in the sheet-metal department during
1939, the respondent skipped Harris and rehired employees with less
seniority, although his work had never been seriously criticized by
his supervisors during his long service with the respondent in several
capacities.
2. Louis Stoeber
On the respondent's 1937 seniority lists, Louis Stoeber was classi-
fied as a die maker in the toolroom and his seniority date was given
as December 2, 1931. All die makers in the plant made and ordinar-
ily tried out their own dies. In the 1938 seniority list the respondent
reclassified, without negotiation with Local 155, the toolroom em-
ployees into 11 non-interchangeable occupational groups and all die
makers into 3 classifications : die maker, die fitter, and die tryout,
and subclassified the die makers into 3 classes, A, B, and C.31 Stoeber
was designated as a class B die maker and his seniority date was
changed to November 1, 1933, on the 1938 seniority list. After the
reopening of the plant the respondent recalled all class B die makers
who had more seniority under the 1938 list, than Stoeber. The
respondent claims that it changed Stoeber's seniority date pursuant
to the terms of the 1938 contract because he had quit on September
8, 1933, to take employment elsewhere and had returned to work
on November 1, 1933. Stoeber testified, however, that he had been
loaned by the respondent to the Briggs Company, which had business
relations with the respondent, and that he took the employment there
at the request of Factory Manager Rueppel.
About March 3, 1938, Stoeber took the matter of the change in
his seniority date to the respondent as a grievance through Local 155.
At the conference Jones informed the representatives of Local 155
that the determination of seniority dates had been made from the
respondent's records and that this determination was final. Rueppel
made no reply when Stoeber denied that he had quit his employment
in September 1933 and recalled the circumstances of his leaving as
indicated above in Stoeber's testimony. It is clear that the respond-
ent considered the matter of altered seniority dates as a closed matter
and so indicated to Local 155. However, about 1 month later, the
respondent agreed to revise the seniority date of William Roggen-
kamp, a die maker but not a shop committeeman, who, as in the case
of Stoeber, claimed that he had been loaned to the Briggs Company.
and Roggenkamp was later recalled to work. Moreover, inasmuch
u There is no explanation in the record as to the meaning of the subclassifications except
a general statement to the effect that they were based upon the nature of the jobs No
such classifications existed prior to the shut-down , although the contract dated August 11,
1937, provided for seniority by departmental and non-interchangeable occupational groups.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the contract of August 11, 1937, like the January 1938 contract,
provided for loss of seniority in the event that an employee quit,
since the respondent assigned Stoeber his original hiring date as
his seniority date pursuant to the terms of the August 1937 contract,
it obviously did not regard Stoeber's absence from the plant in 1933
as a quitting within the meaning of the contracts. In addition, the
respondent passed over Stoeber in recalling die makers in 1939 and
hired at least three new class B die makers during 1940 without
recalling Stoeber.
3. William Picken
William Picken, a shop committeeman and the chief shop steward
in the toolroom, was also employed as a die maker in the respondent's
toolroom prior to the shut-down. Since Picken was first employed
by the respondent on October 12, 1934, he had relatively low natural
seniority. On the 1938 seniority list Picken was classified as a class
A die maker and no change was made in his seniority date. In
recalling die makers during 1938, the respondent did not reach die
makers having as little natural seniority as Picken. As the result of
the cancelation of the 1937 contracts and the execution of the 1938
contract, Picken lost the top seniority rating which he had held by
virtue of his position as shop committeeman.
In January 1939 the seniority rights of employees who had not
been recalled to work after the shut-down were about to expire under
the terms of the 1938 contract which provided for such expiration
when "a period of twelve (12) months has elapsed since the employee
last worked for the company . . ." About January 1939, Local
155 requested that the 12-month period be extended to 18 months.
The respondent refused the request but agreed that before hiring
new employees it. would recall the employees listed on the 1938
seniority list, except that it would "skip" a few men listed thereon.
The respondent refused to name the employees that it intended
to pass over on the seniority list. At the hearing the respondent's
witnesses admitted that in recalling die makers in 1939 and 1940
it "skipped" Picken although it recalled the other die makers on
the 1938 list who were available. In 1939 and 1940 the respondent
hired approximately 38 new class A die makers without recalling
Picken.
4. Mischeff Cross
Mischeff Cross was first employed by the respondent as a press
operator on February 8, 1937, and consequently had relatively low
natural seniority on the 1937 lists. When he came to the respond-
ent's plant, Local 155 was engaged, in organizing the employees.
Cross became a member of its temporary organizing committee and
CLAYTON & LAMBERT M'ANUFACT'URMT 00. 523
soon became its chief recruiter of members. After Local 155 ob-
taiiied the first contract, the Clayton & Lambert division elected
Cross as its secretary-treasurer and member of the shop committee.
On two occasions during 1937, as hereinabove related, Cross' hire and
tenure of employment were affected by matters relating to union
activities. However, also on two occasions during 1937, Cross took
a major role in the conduct of sit-down strikes in the plant. The
respondent made no change in his seniority date on the 1938 list but,
as the result of the cancelation of the 1937 contracts and the execu-
tion of the 1938 contract, Cross lost the top seniority rating which he
had enjoyed by virtue of his position as shop committeeman. Since
the plant reopened in February 1938, however, the respondent has
neither hired new press operators nor recalled any old employees in
that occupational classification with less seniority than Cross.
E. Conclusions with respect to interference, restraint, and coercion
during the shut-down, and as to discrimination against shop
committeemen
The shut-down of December 23, 1937, although unique in the re-
spondent's history, was occasioned by a substantial decrease in orders
and was for the purpose of taking inventory. During the first week
of January 1938, the respondent had decided not to reopen the plant
under the existing contracts with Local 155. From January 2 to 10,
the respondent refused to meet with the shop committee. Inventory
was completed early in January and by January 10 the respondent
had sufficient orders to reopen the plant with about 150 to 200
employees. However, the respondent conditioned reopening of the
plant before March 1, 1938, when the existing contracts expired, upon
cancelation of the contracts and the election of a new shop committee.
The complaint alleges and the Trial Examiner found, in substance,
that by its conduct in negotiating the 1938 contract, the respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. The Trial
Examiner concluded that the designation of members of a shop com-
mittee was not a lawful subject of collective bargaining and that the
respondent had by unfair labor practices, through the use of its
economic resources, coerced the employees and their representatives
into executing a contract containing a provision which limited the
group from which shop committeemen could be elected in derogation
of the employees' right to representatives of their own choosing. The
respondent excepted to the finding on the ground that it had bar-
gained in good faith with the employees' representatives and that
the provisions of the contract were reached as a result of bona fide
collective bargaining.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint contains no allegation that the respondent locked
out its employees. In any event, the respondent was not precluded,
under the Act, from demanding cancelation of the existing contracts
and from keeping its plant closed if in the exercise of business dis-
cretion it felt that the plant could not be operated profitably in the
absence of the kind of contractual relations which it deemed neces-
sary to the conduct of its business.32 The complaint contained no
allegation that the respondent refused to bargain within the meaning
of Section 8 (5) of the Act nor does the record support a conclusion
that the respondent shut down its plant. to avoid its duty to bargain
with Local 155. The respondent's anterior refusal to meet with the
shop committee, its failure to grant exclusive recognition, and its
refusal to enter into a written contract, lose significance in the face
of the pleadings and in view of the fact that the respondent subse-
quently engaged in collective bargaining negotiations and entered
into a written contract granting the employees' representatives
exclusive recognition.
The Trial Examiner's conclusions with respect to the elimination
of the old shop committee ignore the essential nature and functions
of shop committees in the automobile and other industries. As a
matter of custom and practice, employees, by reason of their fa-
miliarity with conditions in the plant in which they work, are
selected for the purpose of supplementing participation of local
and international representatives in collective bargaining negotia-
tions between employee and management representatives. Shop com-
mittees do not act as representatives of employees within the mean-
ing of Section 7 of the Act, unless selected as such. The respond-
ent's employees had designated Local 155 as their exclusive repre-
sentative for bargaining purposes. The contract of January 28, 1938,
granted Local 155 such recognition and, in accordance with the
custom and practice in the industry'33 provided for a shop com-
mittee of employees at work in the plant. We see no reason why
matters such as the size and general composition of a shop com-
mittee of this character fall outside the realm of collective bargain-
ing negotiations. We find that that portion of paragraph 14 of the
1938 contract respecting the choice of a new shop committee, per se,
32 We do not, of course , pass upon such rights as Local 155 may have had under contract
law or the obligations of the respondent thereunder pursuant to such contracts.
33 Citing one of many possible examples, the agreement of widest embrace in the auto-
mobile industry in 1940 limits the size of the shop committee (approximately one com-
mitteeman for each 250 employees ), limits the time committeemen may devote to handling
grievances and the like as over and against working at their tasks , and provides that "No
one shall be eligible to serve as a committeeman unless be is an employee and until his
name has been placed on the seniority list and he is working in the plant " The agreement
further provides that "while on leave of absence , no employee shall serve as a
committeeman."
CLAYTON & LAMBERT IVtANUFACTURFNCr CO. 525
does not infringe the rights guaranteed under Section 7 of the Act.34
We further find that the old shop committeemen were not unlaw-
fully deprived of top seniority ratings by the cancelation of the old
contracts and the execution of the new.
Since the respondent acted in reliance upon the seniority provisions
contained in the 1938 contract and did not hire new press operators
or recall press operators having less natural seniority than Mischeff
Cross, the respondent did not discriminate with respect to his hire
or tenure of employment. We shall therefore dismiss the allegations
of the complaint with respect to Cross.
As we have noted above, however, the respondent contended that,
in addition to Cross, Harris, Picken, and Stoeber were not recalled
to work after the plant reopened in February 1938 because their
seniority did not entitle them to recall. As we have found above, the
respondent did not engage in unlawful conduct in securing a contract
providing for a new shop committee with the consequent loss of
preferred seniority by the old shop committeemen. It is apparent
however, and we find, as did the Trial Examiner, that the respond-
ent unlawfully utilized the January 1938 contract to rid itself of
Harris, Picken, and Stoeber because of their union militancy. As
described above, the respondent, without prior notice to Local 155,
altered the seniority dates of Harris and Stoeber, old employees.
During 1939 and 1940 the respondent inserted advertisements in the
newspapers for die makers and hired more than 30 new die makers
and others and thereby avoided giving employment to Harris, Stoe-
ber, and Picken, qualified workers.35 Under these circumstances we
find,,as did the Trial Examiner, that the respondent discriminated
with respect to the hire and tenure of employment of Dale Harris,
William Picken, and Louis Stoeber, thereby discouraging member-
ship in Local 155, and interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
24 It is significant, moreover , that in addition to the absence of an 8 ( 5) allegation, the
complaint does not allege the invalidity of the 1938 contract because of the insertion of
paragraph 14 therein.
31 The respondent 's contentions , that it was under no obligation to furnish employment
to Stoeber , Picken, and Harris after the expiration of their seniority rights and that the
respondent passed over them on the seniority list because their work was unsatisfactory,
are without merit . The question of seniority per se is of course not controlling in determin-
ing whether the respondent has engaged in such discrimination as is prohibited by Section
8 (3) of the Act See, for example , Phelps Dodge Corp. V. National Labor Relations
Board, 313 U S 177, mod and iemanding 113 F (2d) 202 (C C A 2), enf'g as mod 19
N. L. R. B. 547; Matter of Waumbec Mills, Inc. and United Textile Workers of America,
15 N. L. It. B. 37, enf'd in N. L. R. B. v. Waumbec Mills Inc ., 114 F. (2d) 226 (C C. A. 1).
Aside fioni little mole than bare assertim.s by the respondent's witnesses to that effect,
these is no convincing eudence in the record that the wmk of these employees had been
unsatisfactory.
526 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The discrimination against Jacob Snyder
Jacob Snyder, along with Picken and Stoeber, was an employee
in the respondent's toolroom. During his employment with the re-
spondent he was laid off a number of times and recalled each time
when fluctuations occurred in the respondent's die work. About
April 1935 Snyder informed Factory Manager Rueppel that he was
leaving to go to Europe. Rueppel replied that Snyder's job would
be open for him when he returned if the respondent had work. When
Snyder returned 15 months later, he notified Rueppel, stating that
if the respondent did not have work for him, he' would take an-
other job. Snyder was rehired 3 days later. Generally, Snyder
worked as -a die leader, the highest type of die-making work, but on
occasion he supervised die-tryout work. Snyder, along with Picken
and Stoeber, was never recalled to- work after the shut-down. Mont-
gomery testified that he was told by Foreman Behrens that Snyder's
work and cooperation were not satisfactory and for that reason
Behrens refused to recall Snyder in 1939 and 1940 when the respond-
ent needed die workers. Behrens, on the other hand, testified that he
had no discussion with Montgomery about recalling Snyder, and
Behrens asserted at the hearing that his only criticism of Snyder
was that "he spent too much time in the washroom."
In 1933 Snyder and his half brother, Camphouse, had called a meet-
ing of the respondent's toolroom employees during the time that the
Al. E. S. A. was organizing the toolroom. The demands framed by
this group were presented to the respondent and led to an increase
in wages and a reduction in working hours. When Local 155 or-
ganized the plant in 1937, Snyder became active in soliciting mem-
berships. He was elected trustee of Local 155 and a member of
its trial board. Although Snyder's union duties did not bring him
into negotiations with the respondent, it is clear that his interest
in and activity on behalf of labor organizations were known to the
respondent. Snyder habitually wore his U. A. W. A. button in the
plant. As we have found above, during 1937 Behrens on one occa-
sion touched Snyder's union button and called him a "screwball,"
and on another occasion Factory Manager Rueppel told Snyder that
he was responsible for bringing to the respondent's plant a repre-
sentative of Local 155 whom Rueppel characterized as a Communist.
Snyder's seniority date on the 1937 lists was February 1, 1931.
On the 1938 seniority list Snyder's seniority date was changed to
July 23, 1936. The respondent contends that this change was re-
quired by the contract of January 28, 1938, which provided, among
other things, that "an employee shall lose seniority" in cases in which
OLAYTON & LAMBERT MANurAOTVRRIM 00. 527
"a period of twelve (12) months has elapsed since the employee last
worked for the Company during which time no written leave of
absence was granted by the Company." However, although the
contract of August 11, 1937, contained an identical provision, the
respondent in assigning seniority dates pursuant to that contract,
fixed Snyder's seniority date as February 1, 193136 'Furthermore,
since the practice of "written" leaves of absence was -not followed
in the respondent's plant prior to 1937, in giving the provision quoted
above retrospective operation the respondent applied the contract
in a manner contrary to its plain intent. Under these circumstances
we find that the respondent changed Snyder's seniority date because
of his union activities.
As' related above, the toolroom employees were divided into 11
non-interchangeable occupational groups and former die makers were
placed into classifications as die-maker, A, B, and C, die fitter, and
die tryout on the 1938 seniority list. Snyder was 1 of 11 employees
classified as a class A die maker. Frank Kopacz, who was also clas-
sified as a class A die maker, was given a seniority date of June 2,
1930, on the 1938 seniority list. On the 1937 seniority list Kopacz,
like Snyder,-was classified as a die leader and his seniority had been
fixed as of February 17, 1931, without complaint from him as far as
the record discloses37 When the plant reopened in February 1938,
Kopacz was recalled to work. Thus the alteration in the seniority
dates of Snyder and Kopacz acted to give Kopacz, and to deny
Snyder, employment upon the reopening of the plant. Moreover,
the respondent recalled fellow employees who did die-making and
(lie-tryout work during 1937 although they were classified as class
B die makers or as tryout men on the 1938 list and had less seniority
than Snyder. While class B die makers could not perform the work
of class A die makers, class A die makers were amply qualified to
act as class B die makers, and Snyder not only had experience in
die-tryout work but also had supervised the work of such employees
while in the service of the respondent. In addition, without recall-
ing Snyder, as hereinabove set forth, during 1939 and 1940 the re-
spondent hired more than 30 new class A die makers. In doing so,
so On the first seniority list issued by the respondent pursuant to the contract effective
March 1, 1937 , Snyder's seniority date was listed as July 23, 1936 , as subsequently given
on the 1938 list. However, as set forth above, the respondent issued a corrected list
shortly after the issuance of the first list when many toolroom employees complained of
errors in the original, and listed Snyder as having a seniority date of April 2, 1931, ap-
parently a mistake except as to the year . The third seniority list issued by the respondent
during, 1937 gave Snyder a seniority date of February 1, 1931.
S' On the first seniority list Kopacz's seniority date was given as November 3, 1933. On
the second , or corrected seniority list , this was changed to February 17, 1931. Kopacz's
seniority date, as thus corrected, was repeated in the respondent 's third list issued during
1937.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent admittedly "skipped' Snyder on the seniority list
without any serious claim that his work had been unsatisfactory.
We find, as did the Trial Examiner, that the respondent failed to
recall Snyder on February 1, 1938, and at all times thereafter, be-
cause of his organizational activity and his membership in and
activity on behalf of Local 155.
We find that the respondent, by failing to recall Jacob' Snyder
when the plant reopened and by refusing to rehire him thereafter,
discriminated in regard to his hire and tenure of employment, thereby
discouraging membership in Local 155, and thereby interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
G. The discharge of Julius Kantz
The complaint alleged that Julius Kantz was discriminatorily
discharged on April 15, 1938, because of his membership in and ac-
tivity on behalf of Local 155. The answer denied these allegations
and affirmatively alleged that Kantz was discharged on April 14,
1938, because he distributed • Communistic pamphlets among the em-
ployees in violation of a so-called "Americanism clause," which had
been made a condition of employment, and also for creating a dis-
turbance interfering with the discipline and efficiency of employees.
Kantz began work for the respondent either in 1933 or 1934. He
joined Local 155 in 1937. He was recalled to work after the shut-
down on February 1, 1938. , Thereafter he was elected a member of
the new shop committee selected from among the employees recalled.
The contract of January 28, 1938, provided that the respondent
and Local 155 negotiate shop rules. In connection with such negotia-
tions, in February and March 1938, Jones proposed the adoption as
a shop rule of a so-called "Americanism" clause which by its terms
would sanction the respondent's dismissal of any employee found
guilty of committing any act or making any statements against the
American constitutional form of government or in favor of Commu-
nism or Fascism. Representatives of the U. A. W. A. International
and of Local 155 objected because the clause made the respondent the
sole judge of guilt and suggested the establishment of a joint board,
composed of management and employee representatives, to exercise
that function. Jones polled the shop committeemen present at the
negotiations as to whether they objected to the clause as proposed by
the respondent. All except Kantz voiced their approval of the clause.
However, because of the protests of the other union representatives,
the clause was not adopted as a shop rule negotiated between the
respondent and employee representatives but the respondent uni-
CLAYTON & LAMBERT MANUFACTURING CEO. 529
laterally made it a condition of employment which it published in
a document and distributed to the employees.33
Thereafter and prior to April 14, 1938, the educational director
of Local,155 prepared a pamphlet for distribution to the members
of the organization. Before -working hours on the morning of
April 14, 1938, Kantz distributed copies of the pamphlet which he
had secured at union headquarters to employees inside and outside
the plant. No rule existed prohibiting the distribution of liter-
ature in the plant. While Kantz was walking to his post inside the
plant, he was approached by Claude Nichols,' an employee, who in
a loud voice accused Kantz of passing out communistic literature and
protested against use of union funds for such purpose. An argu-
ment followed but ended before working hours began. Although
Nichols testified that Kantz "wanted to fight," no violence occurred.
The evidence is clear that Nichols was responsible for whatever dis-
turbance took place. At noon, Nichols, a union member, apologized
for his conduct to Kantz.
As hereinbelow set forth, the pamphlet which Kantz distributed
bore on its first page a notice stating that Local 155 had reprinted the
article contained in the pamphlet for the purpose of informing mem-
bers as to the position of the Catholic Church with respect to the
C. I. O. and union organization.39 The reprint, taken from the
33 The document read in part as folloii s :
CLAYTON & LAMBERT MFG. CO.
I. CONDITION OF EMPLOYMENT
Americanism
This Company believes in the principles of the American form of Constitutional
Government under which the United States of America was founded and in the active
promotion and protection of such government The Company and all of its em-
ployees have the right, privilege and duty to prevent any statements and actions
which will tend to weaken, undermine or destroy such principles. Any employee of
this Company who is proven guilty of making any statement or taking any action
of any kind, contrary to such principles, w-hether on Company time or property, or
otherwise, may be instantly dismissed. It is the duty of every employee of this
Company to immediately report any violation of this rule to the foreman of his
department to the end that Communism, Fascism or any form of government other
than that in force in the United States shall not be permitted to replace the Constitu-
tion which all citizens of this Country are sworn to protect.
11 PERMANENT SHOP RULES
39 The heading and beginning of the pamphelt read as follows :
n
UNITED AUTOMOBILE WORKERS OF AMERICA LOCAL #155
DEAR BROTHERS AND SISTERS: The Educational Department of your local believes
that all members will be interested in reading the Catholic position in regards to
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corpus Christi Chronicle published by the Church of Corpus Christi,
Texas, contained suggestions as to the position which Catholics should
take between Fascism and Communism, stating among other things,
"we must avoid both extremes ," "we can make no compromise with
atheism." It pointed out that there were Communists who supported
the C. I. O. and C. I. O. organizers who were Communists. It
pointed out that the communist program included an endorsement of
labor unions, and advocated eradication of unjust conditions as a point
of departure to attain justice rather than denunciation of Com-
munism. It condemned capitalists who oppose collective bargaining
and gains for labor. In this connection the article stated "that
there is one way to fight a comparatively small group of wealthy
individuals who . . . threaten to plunge the whole world into war,
poverty, and cultural slavery. The common goal demands that they
be halted-by persuasion, if possible, by force, if necessary." The
article concluded with the statement that "Our only weapon is to be
more active than the Communists, to outdo them in the performance
of good works. We must excel them in the fight for every good
cause."
Jones received a copy of the pamphlet on the same morning that
it was circulated. He testified that he determined that the pamphlet
was Communistic by comparing portions of its contents with ad-
mitted "Communistic documents which appeared" in cases before
the Supreme Court of the United States and Michigan courts. Upon
instructions from Jones, the respondent called a meeting in the
plant office that afternoon at . the end of the work day. Jones,
Montgomery, the shop committee, Kantz, Nichols, and several other
employees attended. After questioning and determining that Kantz
had distributed the pamphlets that morning, Jones stated that he
would have to discharge Kantz because of the above-quoted condition
the C. I. O. and unionism . For this purpose we reprint the following articles for
your information.
Fraternally yours,
LOCAL #$155, U. A. W A,
SAN SWEEP, Ed. Director
"A way out"
"Reprinted in full from the 'Corpus Christi Chronicle' published monthly by the
Church of Corpus Christi. February Issue, Vol . 3, No. 6.
"Father Parsons, S. J., last winter in the Commonweal , warned American Catholics
that by our onesided denunciations of Communism we are in danger of allying our-
selves with the Fascist camp. We must avoid both extremes , he explained.
"What we Catholics want is an industrial democracy along the lines laid down in
the papal encyclicals and interpreted for us in America by Fathers McGowan, Ryan,
Haas, etc. Organized capital should bargain with organized labor in accordance
with Christian principles . But for such a program to be put into effect, it is clearly
necessary that labor first be organized ." [ Italics supplied.]
CLAYTON & LAMBERT MANUFACTURING Co. 531
of employment. He thereupon ordered Montgomery to remove
Kautz's name from the pay roll.
The pamphlet contained literature prepared by the educational
director of Local 155 upon a subject about which he thought it im-
portant to give the employees information. Kantz was acting on
behalf of Local 155 in distributing the pamphlet. The respondent's
action against Kantz was not taken because he passed out what the
respondent alleged was Communistic literature. The reprint, as
Jones determined by investigation after discharging Kantz, and as
appears on the face of the documents, was taken from an official
publication of the Catholic Church. It dealt with subjects of com-
mon concern to labor organizations and did not contain any appeal
for the overthrow of the American form of government by force
and violence. Of all the members of the new shop committee, Kantz
alone had joined the U. A. W. A. official and the business agent of
Local 155 in opposing the form of the respondent's proposed "Amer-
icanism clause." Nor was the discharge of Kantz caused by the
disturbance in the plant on April 14, 1938. The respondent took
no action against Nichols, who had created the disturbance. We are
convinced and find, as did the Trial Examiner, that the respondent
discharged Kantz to demonstrate that opposition to the respondent
across the conference table would entail grave consequences and to
discourage the kind of concerted activity in which Kantz had engaged.
We find that by discharging Julius Kantz the respondent dis-
criminated with respect to his hire and tenure of employment, thereby
discouraging membership in Local 155, and interfering with, re-
straining, and coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent as 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 unfair labor
practices, we will order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the purposes of the
Act.
We have found that -the respondent failed to reinstate Dale Harris,
William Picken, Jacob Snyder, and Louis Stoeber upon the reopen-
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing of its plant about February 1, 1938, and thereafter refused to
rehire them, and that it discharged Julius Kantz on April 14, 1938,
because of their leadership in concerted activities among the em-
ployees. In accordance with our usual practice and in order to
effectuate the policies of the Act, we will order the respondent to
offer these employees, immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to
their seniority and other rights and privileges, and to make them
whole for any loss of pay they may have suffered by reason of the
discrimination against them by payment to each of them of a sum
of money equal to the amount each normally would hate earned as
wages 'from the date of the discrimination 4° to the date of the offer
of reinstatement, less his net earnings 41 during said period.
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. Local No. 155, International Union, United Automobile Work-
ers of America, affiliated with the Congress of Industrial Organiza-
tions, is a labor organization, within the meaning of Section 2 (5)
of the Act. -
2. By discriminating in regard to the hire and tenure of employ-
ment of Dale Harris, Julius Kantz, William Picken, Jacob Snyder,
and Louis Stoeber, thereby discouraging membership in a labor or-
ganization, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act. .
90 Discrimination with respect to Dale Harris first occurred on February 28, 1938, when
the respondent recalled John Mack and Arthur Wurm to work as sprayers in the gov-
ernment tank department Discrimination with respect to William Picken, who was listed
as a class A die maker, first occurred on July 19, 1939, when the respondent recalled
several class A die makers who had less seniority than Picken . Discrimination with
respect to Jacob Snyder first occurred on February 1, 1938, when the respondent recalled
Frank Kopacz to work Discrimination with respect to Louis Stoeber, who was listed as
a class B die maker, first occurred on July 12 , 1939, when the respondent recalled to
work class B die makers having less seniority than Stoeber.
41 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 2590, 8 N L. R . B 440. Monies received for
work performed upon Federal , State , county, municipal or other work-relief projects shall
be considered as earnings . See Republic Steel Corporation V. National Labor Relations
Board, 311 U. S. 7.
CLAYTON & LAMBERT MANUFAC` EJR1 G 00. 533
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 Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Clayton & Lambert Manufacturing Company, and
its officers, agents, successors , and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local No. 155, International
Union, United Automobile Workers of America, affiliated with the
Congress of Industrial Organizations, or any other labor organiza-
tion of its employees, by discrimination in regard to hire or tenure
of employment or any term or condition of employment ;
(b) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid or protection.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Dale Harris, Julius Kantz, William Picken, Jacob
Snyder, and Louis Stoeber immediate and full reinstatement to their
former or' substantially equivalent positions, without prejudice to
their seniority and other rights and privileges;
(b) Make whole Dale Harris, Julius Kantz, William Picken, Jacob
Snyder, and Louis Stoeber for any loss of pay they have suffered by
reason of the respondent's discrimination in regard to their hire and
tenure of employment by payment to each of them of a sum of money
equal to that which each would normally have earned as wages dur-
ing the period from the date of the discrimination to the date of the
offer of reinstatement, less his net earnings during said period;
(c) Post immediately in conspicuous places in its plant in Detroit,
Michigan, and maintain for a period of at least sixty (60) consecu-
tive days from the date of the posting, notices to its employees stat-
ing : (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a) and (b) of this Order; and (3) that
the respondent's employees are free to become or remain members of
Local No. 155, International Union, Automobile Workers of America,
affiliated with the Congress of Industrial Organizations, and that
451269-42-vol. 34-35
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent will not discriminate against any employee because
of membership • in or activity on behalf of such labor organization;
(d) Notify the Regional Director for the Seventh Region in writ-
ing 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 the same hereby
is dismissed to the extent that it alleges that the respondent discrimi-
nated against Felix Malotka and Mischeff Cross with respect to the
hire or tenure of their employment.
MR. EDWIN S. SMITH, dissenting in part :
I cannot agree with the conclusion of the majority that the re-
spondent's activities in forcing acceptance of the 1938 agreement
upon its employees was a valid exercise of the respondent's eco-
nomic powers. The respondent's admitted motive in limiting the
field from which shop committeemen might be chosen by the em-
ployees was its desire to rid itself of four militant union leaders
whose activities as representatives too zealously protected the rights
of their fellow employees to the inconvenience of the respondent.
The record in this case shows a flagrant disregard for the rights
of employees under the Act. The decision of the majority, I be-
lieve, engages in specious reasoning and does violence to the plain
words of the Act. It directly overlooks, without specifically revers-
ing, numerous applicable principles enunciated by the Board in
previous cases, many-of which have received approval in the deci-
sions of Circuit Courts of Appeals and the Supreme Court of the
United States.42 The facts in the record are not seriously in dispute.
They reveal plainly a campaign by the respondent to dictate the
choice of employee representatives and to oust from employment
the representatives of the employees' own choosing.
Although the shut-down of December 23, 1937, was occasioned
by a substantial decrease in orders, and was for the purpose of
taking inventory, by January 2, 1938, when the shop committee first
visited the plant to discuss its reopening with President Lambert,
the respondent had prepared the plant to appear in a condition of
indefinite shut-down by painting over and barring the windows,
closing the gates, and barricading the doors. During the first week
of January 1938 the respondent had decided not to reopen the plant
under the existing contracts with Local 155. From January 2
to 10 the respondent refused to meet with the shop committee.
Although inventory was completed early in January, and by January
42 See , for example , International Association of Machinists v National Labor Relations
Board, 311 U. S. 72, aff'g 110 F. (2d) 29 (App. D. C.), enf'g 8 N. L. R. B. 621; National
Licorice Co V. National Labor Relations Board, 309 U. S. 350, aff'g as mod. 104 F. (2d)
655 (C. C. A. 2), enf'g as mod . 7 N L. R B. 537.
CLAYTON & LAMBERT MANUFACTURING CO. 535
10 the respondent had sufficient orders to reopen the plant with
about 150 to 200 employees, th" respondent conditioned reopening
of the plant before March 1, 1938, when the existing contracts
expired, upon cancelation of the contracts, and refused to discuss
such alternatives as the modification of the existing contracts or
the suspension of their operation pending negotiation of a new
contract. While the respondent might lawfully use any economic
advantage at its command in bargaining with Local 155 with respect
to the cancelation of the contracts and other terms and conditions
of employment, the respondent was not justified in using the eco-
nomic situation to violate the Act. Thus, in refusing to meet with
the shop committee '43 by making the cancelation of the existing
contracts a condition to the resumption of bargaining,44 by refusing
to grant Local 155 exclusive recognition 4' and by taking the posi-
tion that it would not enter into a written contract with Local 155,46
the respondent interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed by the Act. In addition, the
respondent's threat to keep the plant closed down despite the com-
pletion of inventory and the availability of work, together with
the ostensible preparation of the plant for an indefinite shut-down,
were part of a preconceived plan by the respondent to intimidate
and coerce the employees from exercising rights guaranteed in Sec-
tion 7 of the Act.
Against this background the respondent on January 17 issued to
its employees a written statement of the conditions upon which
it would reopen the plant. To its prior position the respondent
added the condition that a new shop committee to replace the exist-
ing shop committee be elected by employees reengaged and actively
43 Cf., for example , National Labor Relations Board v. Fainblatt, 306 U. S 601, rev'g
98 F. (2d ) 615 (C. C. A. 3), setting aside 1 N. L. R. B. 864 and 4 N . L. R. B. 596. See
also, Jeffery-DeWitt Insulator Co. v N. L R. B., 91 F ( 2d) 134 (C. C. A. 4), enf'g 1
N. L. R. B 618 , certiorari denied 302 U S 731.
4 In National Labor Relations Board v. Sands Manufacturing Co, 306 U . S. 332, 342,
setting aside on other grounds 1 N. L R B. 546 and aff'g 96 F. ( 2d) 721 (C. C. A. 6),
the Supreme Court of the United States stated :
. . . The Act imposes upon the employer the . . . obligation to meet and bargain
with his employees representatives respecting proposed changes of an existing contract.
See also, National Labor Relations Board v. Newark Morning Ledger Co, decided April 17
1941 (C. C. A. 3), enf'g as mod. 21 N. L. R. B. 988; Matter of Louts Hornick & Co. and
Textile Trimming Workers Union, Local 2440, U. S. Textile Workers of America, 2 N. L.
R. B. 983; Matter of Essex Wire Corporation and United Electrical, Radio and Machine
Workers of America, Local, No. 737, 19 N. L. R. B. 51 ; Matter of Rapid Roller Co. and
Local 120, United Rubber Workers of America, 33 N L R B. 549. Cf Matter of Kueh'nd
Mfg. Co. and Local No. 1791, United Brotherhood of Carpenters and Joiners of America, 7
N. L R B 304
46 National Licorice Co. v N. L. R. B , 309 U. S 350 aff'g as mod. 104 F. (2d) 655
(C. C. A. 2), enf'g as mod. 5 N L R. B 409
46H J. Heinz Co v National Labor Relations Board, 311 U. S. 514, aff'g 110 F (21d)
843 (C. C. A. 6), enf'g 10 N L. R. B. 963,
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed from among their own number upon the reopening of
the plant." The respondent's demand for a new shop committee
became a part of paragraph 14 of the 1938 contract which provided
that ". . . a new Shop Committee to replace the present Shop Co-
mittee . . . shall be chosen by the employees from among the em-
ployees reengaged and actively employed by the Company to nego-
tiate and bargain collectively with the Company . . ." The re-
spondent's insistence upon the inclusion of this provision in the
contract, however, contravenes the right granted employees by
Section 7 of the Act "to bargain collectively through representatives
of their own choosing."
I submit that I am unable to understand the finding of the majority
`that shop committeemen are not representatives of employees for the
purposes of collective bargaining or other mutual aid or protection as
guaranteed by the Act. The record contains no evidence with respect
to the function or nature of shop committees in the automobile or any
other industry. While administrative tribunals within limits may
utilize their own expert knowledge in the disposition of matters com-
ing before them, I am not aware of any custom or usage in industry
which deprives shop committeemen of full stature as collective bar-
gaining representatives. Section 2 (4) of the Act is plain. It defines
"representatives" to include individuals as well as labor organizations.
The shop committeemen acted as the representatives of the respondent's
employees for collective bargaining for they, with the assistance of the
business agent of Local 155, had negotiated and joined in the execution
of the contracts of August 11 and October 12, 1337, and had partici-
pated in the negotiations in January 1938. Moreover, I do not under-
stand that plain statutory language must give way to custom or usage
in industry. The operation of the provision quoted above from para-
graph 14 compelled the employees to change the representatives they
had freely chosen, and limited the field of choice of new representatives
to those employees whom the respondent thereafter employed. By
the terminology of the Act, the right of the employer to interfere with
'the free selection of representatives for collective bargaining is ex-
pressly proscribed.48 The designation of representatives and the
manner and method of their selection clearly are not subject matters of
collective bargaining. The respondent made the determination of
employee representatives a matter of collective bargaining by condi-
tioning both the reopening of the plant and any resumption of bargain-
47 As appears in the majority decision , the respondent later modified this condition to
permit all employees to participate in the selection of the new shop committee.
a See, for example , International Association of Machinists , et al v. National Labor
Relations Board, 311 U. S. 72, aff'g 110 F. ( 2d) 29 (App D. C ), enf'g 8 N. L. R. B. 621,
rehearing denied 311 U. S. 729.
CLAYTON & LAMBERT MANUFACTURING CO. 537
ing upon the consent of Local 155 to contractual provisions limiting
representation. The extent to which such interference with the self-
organization of employees may have effect is illustrated by the agree-
ment of the new shop committee as recorded in the minutes of a meet-
ing with the respondent on February 6, 1940, that "seniority listed
employees only [are] to attend future Union meetings."
By the interference, restraint, and coercion exercised upon the em-
ployees and their representatives during the shut-down, the respond-
ent forced the employees and their representatives to abandon their
right to bargain collectively through representatives of their own
choosing, or to accept a continued shut-down of the plant. The fact
that this coercion took effect partly through a contract with the
U. A. W. A. neither relieves the respondent of responsibility for the
commission of practices proscribed by the Act, nor constitutes a
waiver of the employees' right to a free choice of representatives.4D
Although the respondent hired neither new employees nor old
employees having less seniority than Cross as press operators after the
reopening of-the plant, Cross was, along with Picken, Stoeber, and
Harris, included within the respondent's general scheme to rid itself of
undesirable union leaders. It is immaterial that the respondent found
it unnecessary to alter Cross' seniority rating to accomplish its ends.
Because of the respondent's unfair labor practices in requiring that a
new shop committee succeed the old and that the old contracts be can-
celed before resumption of bargaining negotiations and reopening of
the plant, Cross, as well as other shop committeemen, lost top-seniority
*° Section 10 (a) of the Act provides "The Board is empowered . . . to prevent any
person from engaging in any unfair labor practice (listed in Section 8 ) affecting com-
merce. This power shall be exclusive and shall not be affected by any other means of
adjustment or prevention that has been or may be established by agreement , code, law,
or otherwise " Cf. McQuay-Norris Mfg. Co. v National Labor Relations Board, 116 F. (2d)
748 (C. C. A. 7), enf'g Matter of McQuay-Norris Mfg. Co and United Automobile Workers
of America, Local 226 , 21 N L. R B. 709 where the Board found a refusal to bargain
within the meaning of Section 8 (5) of the Act, although the labor organization entitled
to exclusive recognition had been prevailed upon by the employer 'to accept a contract
providing for limited recognition . In approving the Board 's order, the Court in that case
said i
Nor do we think it is material , under the circumstances of this case , whether the
limited recognition granted by petitioner [ the employer) was, or was not, approved
by members of Local 226 If so, it could mean nothing more than that the Union
after engaging in a controversy for more than a year regarding its right to complete
recognition , consented to accept the most it could obtain of a light to which it was
entitled for the asking. A consent given under such circumstances cannot be utilized
by petitioner to relieve it of its statutory duty to grant complete recognition
See also Matter of Calumet Steel Division of Borg-Warner Corp. and Amalgamated Asso-
ciation of Iron, Steel and Tin Workers of North America , Local 1027, through the SWOC,
affiliated with the C . I. 0., 23 N. L . It. B. 114, enf 'd in National Labor Relations Board
v. Calumet Steel Division of Borg-Warner Corp., decided June 12, 1941 (C. C. A. 7), National
Labor Relations Board v Newark Morning Ledger Co, decided April 17, 1941 (C C. A 3),
enf'g as mod . 21 N. L. R. B. 988.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rating. In the absence of such unfair labor practices Cross and other
shop committeemen would have retained their top-seniority ratings and
would have been the first employees recalled to work in their respective
occupational groups. Under these circumstances, I would find that
the respondent discriminated with respect to the hire and tenure of
employment of Cross, as well as with respect to other shop committee-
men, and include him with the shop committeemen ordered reinstated
with back pay.