Harnischfeger Corp.

National Labor Relations Board - Board Decisions

Feb 27, 1953

103 N.L.R.B. 47 (N.L.R.B. 1953)

HARNISCHFEGER CORPORATION 47
HARNISCHFEGER CORPORATION and AMALGAMATED LOCAL 632, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO. Case No. 18-CA-341. February 07,1953
Decision and Order
On November 12, 1952, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Respondent's request for oral argument is denied as the record,
including the exceptions and brief, adequately presents the issues and
positions of the parties.
The Board 1 has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Harnischfeger Corporation,
Escanaba, Michigan, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Local 632, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, CIO, or in any other labor organization of its employees, by dis-
criminating in regard to their hire or tenure of employment or any
term or condition of their employment.
(b) Discharging or discriminatorily refusing to reinstate employees
for the reason that they engaged in strike or other concerted activities
protected by the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Amalgamated Local 632, United
Automobile, Aircraft and Agricultural Implement Workers of
' Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [ Members Houston, Murdock,
and Styles].
103 NLRB No. 4.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid and protection, or to refrain from any or all of such ac-
tivities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer John Connelly, Austin Ohlen, and Charles Wheatley im-
mediate and full reinstatement to their former or substantially equiva-
lent positions without prejudice to their seniority or other rights and
privileges as provided in the section of the Intermediate Report en-
titled "The Remedy."
(b) Make whole John Connelly, Austin Ohlen, and Charles Wheatley
in the manner set forth in the section of the Intermediate Report en-
titled "The Remedy" for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them.
(c) Upon request make available to the Board or its agents for
examination and copying all payroll records, social-security payment
records, timecards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due under the
terms of this Order.
(d) Post at its plants at Escanaba, Michigan, copies of the notice
attached to the Intermediate Report herein and marked "Appendix
A." 2 Copies of said notice, to be furnished by the Regional Director
for the Eighteenth Region, shall, after being signed by the Respond-
ent's representative, be posted by the Respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places including places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that notices are not altered, defaced, or
covered by other notices.
(e) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of this Order what steps
the Respondent has taken to comply therewith.
2 This notice shall be amneded by substituting for the words "The recommendations of
a Trial Examiner" In the caption thereof the words "A Decision and Order ." In the
event that this Order is enforced by a United States Court of Appeals, there shall be sub-
stituted for the words "Pursuant to Decision and Order" the words "Pursuant to a Decree
of the United States Court of Appeals, Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed by Amalgamated Local 632,
United Automobile, Aircraft and Agricultural Implement Workers of America
HARNISCHFEGER CORPORATION 49
(010) herein called the Union, the General Counsel of the National Labor Re-
lations Board for the Eighteenth Region (Minneapolis, Minnesota), issued his
complaint dated June 17, 1952, against Harnischfeger Corporation, herein called
the Respondent. The complaint alleged that Respondent had engaged in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act. Copies of the charges, complaint, and a notice of hearing were
duly served upon the parties.
Specifically, the complaint as amended at the hearing, alleged that Respond-
ent on or about September 14, 1951, did lay off and discharge and thereafter
refuse to reinstate employees John Connelly, Austin Ohlen, and Charles Wheat-
ley because they joined, assisted, and supported the Union and for the further
reason that they engaged in concerted activities with other employees for the
purpose of collective bargaining and other mutual aid and protection. Re-
spondent's answer admitted the discharge of the men but denied the commission
of any unfair labor practices. It alleged affirmatively that Connelly, Ohlen,
and Wheatley were discharged because they participated in a work-stoppage
during working hours in violation of the labor agreement then in effect between
the Respondent and the Union and in violation of the instructions of the union
officers and further in violation of the Respondent's rules.
Pursuant to notice a hearing was held at Escanaba, Michigan, on July 22, 23,
24, and 25, 1952, before Sidney Lindner, the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. The General Counsel and the Re-
spondent were represented by counsel and the Union by its representative. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence was afforded all parties. At the conclusion of the taking of the
testimony, the General Counsel made a motion to amend the complaint by the
addition of the date on or about September 14, 1951, in paragraph 4. The motion
was granted. The General Counsel's motion to conform the pleadings to the
proof with respect to minor matters was granted over the objection of the
Respondent's counsel. The motion of the Respondent to amend its answer to
specifically set up as a defense the lapse of time on the part of the complaining
Union in bringing the within matter on for hearing was granted without objec-
tion. With respect to the defense of lathes, as the Trial Examiner advised
counsel for the Respondent at the hearing the Board has heretofore held that
the equitable principle of laches does not apply to the Board in its administrative
capacity as an agency of the Government. See Baker Manufacturing Company,
75 NLRB 1012; Gibbs Corporation, 74 NLRB 1182. Ruling was reserved on
Respondent's motion to dismiss the complaint as a whole and is disposed of in
accordance with the findings of fact and conclusions of law made below. Waiving
full oral argument the parties briefly discussed the issues, their respective conten-
tions, and the authorities upon which they relied. Since the conclusion of the
hearing the undersigned has received briefs from the Respondent and the General
Counsel which have been duly considered.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS Or FACT
1. THE BUSINESS OF THE RESPONDENT
Harnischfeger Corporation, a Wisconsin corporation, maintains its principal
office and place of business at Milwaukee, Wisconsin. At Escanaba, Michigan,
the Respondent operates two plants , a welder plant located on Stephenson
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Avenue and a truck-crane plant on the Danford Road. At the truck-crane
plant, the Respondent is engaged in the manufacture and sale of cranes, hoists,
truck cranes, diesel engines, and other products. In the course and conduct of
its business and in the operation of the truck-crane plant, Respondent causes
and has continued to cause large quantities of raw materials to be purchased
and transported in interstate commerce from and through States of the United
States other than the State of Michigan to the truck-crane plant, and causes and
has continuously caused large quantities of finished products manufactured at
the truck-crane plant to be sold and transported in interstate commerce from the
truck-crane plant in Escanaba, Michigan, through and into States of the United
States other than the State of Michigan. During the calendar year 1951, the
Respondent made purchases of raw materials consisting of steel, copper, metal
alloys, automotive parts, motors, and other parts of which in excess of $1,000,000
in value was shipped to the truck-crane plant from points outside of the State
of Michigan. During the same period, the Respondent sold and shipped from
the plants in Escanaba, Michigan, to points outside the State of Michigan,
finished products value in excess of $1,000,000. The Respondent admits, and it
is hereby found, that it is engaged in commerce within the meaning of the Act
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Local 632, United Automobile, Aircraft and Agricultural Im-
plement Workers of America (CIO) is a labor organization admitting to mem-
bership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
Sequence of Events
As noted heretofore, the Respondent operates two plants in Escanaba, Michi-
gan, known respectively as the truck-crane plant and the welder plant, located
about 11 miles from each other.
In October 1947, pursuant to certification of the Michigan Labor Mediation
Board, the Respondent recognized Local 483 of the United Automobile, Air-
craft and Agricultural Implement Workers of America (CIO) for a produc-
tion and maintenance unit of employees at its welder plant.
Following an election conducted pursuant to an order of the Board, the Inter-
national Union was certified in November 1949 and the Respondent recognized
Local 1011 of the said International as the collective-bargaining representative
for a production and maintenance unit of employees at its truck-crane plant.
On May 15, 1950, the Respondent entered into separate contracts with Local
483 and Local 1011, each of which bore a termination date of May 15, 1951, with
a 60-day automatic renewal clause. Both contracts contained the following
provisions under section 2 entitled "Grievance Procedure" :
This agreement provides a method for orderly adjustment of grievances,
therefore it is agreed that there shall be no lockouts or strikes of any kind,
no slowdowns or limitations of work of any kind. Any one or more em-
ployees partaking in any such strikes or activities are subject to discipline
up to and including discharge, and any employee so disciplined shall have
the full rights accorded him under the grievance procedure herein
provided.
In February 1951, Locals 1011 and 483 amalgamated to form Local 632, the
charging Union herein. The Union served a 60-day notice on Respondent under
HARNISCHFEGER CORPORATION 51
date of March 26, 1951, received by the Respondent on March 29, 1951, that it
proposed to modify the collective-bargaining contracts requesting Respondent
at the same time to meet and confer with it for the purposes of negotiating the
terms of a modified contract.
The Respondent raises no issue herein regarding the untimeliness of the 60-
day notice. In any event the subsequent negotiations between the parties is
an indication that the untimeliness of the notice was waived'
On April 12, 1951, the Union notified the Federal Mediation and Concilia-
tion Service of the existence of a dispute between it and the Respondent.
Pursuant to these notices, negotiation meetings between the Union and the
Respondent commenced on or about April 15, 1951. The bargaining committee
representing the Union consisted of its president, Wallace Larson, who acted also
as committee chairman ; Gordon Honeywell, chairman of the truck-crane plant
unit ; Albert Constantineau, chairman of the welder plant unit ; Reginald Bryant,
employee in the truck-crane plant ; and Clifford Dubord, employee in the welder
plant. Acting for the Respondent at different times during the course of the
negotiations were Herman Menck, vice president and general works manager
and in charge of all the negotiations with the various unions in Respondent's
nine different plants ; Howard Timms, general manager of Respondent's Escanaba
plants ; Thomas Swain, personnel director in Milwaukee, Wisconsin ; and Howard
Fontaine, personnel manager in Escanaba.'
On or about May 14, 1951, a committee consisting of the president and record-
ing secretary of Local 632 and the chairman and vice chairman of the truck-crane
plant and welder plant units, respectively, signed a written extension of the May
15 contract for 60 days.' Larson testified that this extension was signed without
the sanction of the membership. On May 16 the membership voted to change the
contract extension from 60 days to a day-to-day basis. It also provided that the
bargaining committee rather than the officers act for the Union in its negotiations
with the Respondent.
At a special membership meeting held on May 27 it was agreed that the con-
tract be extended for a 30-day period from its expiration date and that the
bargaining committee be empowered to make an additional 2-week extension if
it was found necessary. Thus, in accordance with this action of the membership
the union bargaining committee and Timms on May 29 executed a written ex-
tension of the contract which expired on May 15 for a 30-day period thereafter.
On June 13, 1951, a second written extension was executed by the bargaining
committee and Timms whereby the contract was extended for an additional 15
days through June 30, 1951.
The record reveals that there were no further written extensions of the
contract.
Larson, Honeywell, Bryant, and Dubord testified unequivocally that sometime
between the first and middle of July 1951, the parties entered into a "gentlemen's
agreement" to abide by the terms of the old contract only until September 1, 1951.
Timms testified that sometime in the early part of July, while meeting with
the bargaining committee, the problem whether the parties would continue to
handle grievances in accordance with the procedure set up in the old contract
was brought up by Larson and Honeywell. Further, in view of the expiration of
the written extension of the contract, the broad issue of the future conduct be-
tween the parties was raised. Timms stated that the Respondent expressed the
I Cf. Miami Daily News, Inc., 66 NLRB 663; National Gypsum Company, 64 NLRB 559.
8 Fontaine did not arrive in Escanaba until July 1, 1951.
$ It is noted that this committee did not constitute the regular union bargaining com-
mittee.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desire to continue the terms of the old contract in status quo until after the
Milwaukee contract was settled.4 According to Timms, the union bargaining
committee was concerned primarily with the effective date of the money settle-
ment in the new contract. Timms testified further that it was then agreed that
the parties would be bound by the terms of the old contract until after the
Milwaukee contract was settled and in addition the terms of the new contract
whenever settled would become effective September 1, 1951.
On cross-examination, Timms admitted that at a meeting held on or about
July 5 attended by union and respondent representatives as well as Ivan Brown,
regional representative of the International Union, the Union proposed that the
parties agree to all terms of the new contract except for the economic matters but
that it was to be understood the Union would in no way waive its right to strike
on the economic issues until they were concluded by negotiations to the satisfac-
tion of the parties. The Respondent refused to accept any proposal that did not
include agreement on the part of the Union not to strike and nothing further
was accomplished at this meeting. The minutes of the union meeting for July 5
in evidence contain the following notation : "Dist. Rep. Ivan Brown read dis-
crepencies in new contract which Co. won't act on. Motion was made that due
these discripencies (sic), the local continue to work without a contract until
Sept. 1."
Menck testified that in previous years he had attempted to get the contracts
with the Union in Escanaba to expire from 2 weeks to a month after the "main
contract" in Milwaukee so that as he put it "the tail should not wag the dog."5
With this in mind he stated he explained to the union bargaining committee that
"if we dated it [the contract] after the main plant again because I could not really
do a good job particularly on money in bargaining." It was his understanding,
according to Menck, that after the few written extensions the parties orally
agreed to extend the old contract until the Milwaukee agreement was concluded.
In any event, said Menck, there was no objection to such an extension and to the
best of his knowledge it was lived up to on both sides.
On cross-examination Menck testified that it was on his suggestion that no
further written extensions were entered into by the parties because he had no
knowledge of "where we were going in Milwaukee" and there just was no point
in signing extensions all the time. The parties then orally agreed to abide by
the existing contract until a new one was signed. In answer to the question,
"When did you make that statement?" Menck replied, "Way back in May
already. I made that every time our bargaining sessions were in progress."
During August the parties held one negotiation meeting. Although the record
does not reveal precisely the discussions relative to the contract it appears that
there was oral agreement on practically all matters with the exception of seniority,
certain classifications, and wages. Nothing, however, had as of that time been
reduced to writing.
On August 6, 1951, the Respondent filed a representation petition with the Board
docketed under Case No. 18-RM-104. The parties subsequently entered into a
stipulation for certification upon consent election. Prior to the election the
Respondent sent a letter addressed "to all our employees" calling attention to the
forthcoming election which it stated was being held for the purpose of determin-
ing by secret ballot whether or not the employees did or did not wish to be repre•
* The Respondent 's main plant is located in Milwaukee , Wisconsin , where it has some
3,500 employees . Its contract with another international union there was due to expire
August 31, 1951.
It appears from the record that the Respondent was attempting in its negotiations with
unions at its different plants to be guided by the wage pattern arrived at in the "main
contract" in Milwaukee which as noted previously was due to expire August 91, 1951.
HARNISCHFEGER CORPORATION 53
sented by the Union. Among other things the Respondent stated that it felt
"strongly" that a union was not needed at Escanaba. It implored the employees
to vote and asked that they carefully consider their vote, pointing out that if
the Union won the election by the majority of votes cast each employee would be
represented by the Union whether they were members of it or note The election
conducted by the Board on August 30, 1951, resulted in 370 votes for the Union
with 38 votes cast against the Union.
Successive negotiation meetings were held between the parties on September
11 and 12. The issues of wages and seniority were again taken up. Menck told
the union bargaining committee that the Respondent had offered a 5-cent increase
to the Milwaukee employees and while he was unable to make a similar firm offer
at this meeting he would again contact his associates in Milwaukee with a view to
obtaining their consent so that he could make such an offer in the future. Menck
also advised the committee that Wage Stabilization Board approval would have
to be obtained. Menck testified that the meeting closed very cordially and he
promised to be back in 10 days with his answer.
Despite the cordial relations that appeared to exist between the union bargain-
ing committee and the Respondent, the record discloses that because of the lack
of progress in the negotiations there was general unrest among the employees
during this period. Honeywell, in answer to several questions put to him by
Respondent's counsel relative to this situation, testified as follows :
Q. I think you said in answer to Mr. Meter that prior to September 13th,
there was considerable unrest in the plant, is that right?
A. That is true.
Q. By that I mean, there was a lot of dissatisfaction on the part of the
employees with the way in which negotiations were being conducted by the
Union, is that right?
A. That kept on getting hotter and hotter through the whole summer.
Q. It got worse and worse until September 13th it burst out, isn't that about
it?
A. Yes, it really blossomed forth.
On the morning of September 13, Larson reported to the plant shortly before
7 a. in., the regular starting time. He discussed the progress of the previous days'
negotiations with his bargaining committee colleagues and at 7 a. in. started on
his assignment, a patch-up welding job. He testified that he continued to work
at his regular station until shortly after 9 a. in. when employee Robert Tanner
asked if he was going to attend the meeting at the clock. Upon further inquiry by
Larson about the meeting, Tanner said that the employees of the truck-crane plant
were going to meet at the time clock because they wanted to know what went on
at the bargaining sessions and also decide what they were going to do. Larson
stated he told Tanner he would have to confer with Honeywell and other union
officers. At about 9: 15 a. in., Larson talked with Honeywell and Bryant in the
presence of employees Tanner, Robert Swanson, and Austin Ohlen, the latter
alleged in the complaint to have been discriminatorily discharged.
Larson testified he asked Honeywell if he knew anything about the meeting
at the clock, to which Honeywell replied that he heard rumors about it during
the morning and added "the fellows are kind of up in arms, they want to know
what went on at our bargaining sessions."'
e There is no allegation in the complaint nor is it found that the letter violated Section
8 (a) (1) of the Act.
T Honeywell testified that when he arrived at the plant before 7 a. in. on the morning
of September 13, several employees asked him about the progress of the negotiations of
the previous day. It was not until about 8: 50 a . in. that he was told by several employees
on the assembly line that there was to be a meeting at the clock.
257965-54-vol. 103-5
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bryant told Larson upon the latter's inquiry that he did not know who had
originated the meeting.8
It was decided between Larson and Honeywell that if the employees met at
the clock they would attend and make an effort to explain as much as they could
about what took place at the bargaining session.
When the whistle blew for the start of the rest period at 9: 25 a. in. the em-
ployees left their work stations to gather at the time clock. Larson testified
that when he arrived at the clock at 9: 26 a. in. there were about 100 employees
there amidst considerable confusion. Almost immediately the employees started
to fire questions at Larson as to what transpired at the bargaining sessions and
why they were not getting an increase in wages.
In accordance with the decision he and Honeywell had made, Larson got up on
a box, called for order, and asked the employees what their "gripe" was. The
employees replied that they wanted to know what was going on at the bargain-
ing meetings . Larson testified that the remarks came from all directions and
that he could not name any particular employee who directed remarks to him.
Larson told the group that he wanted to talk to them but since there was not
sufficient time ° he suggested a special meeting on an open field across the road
from the plant. Larson called for a show of hands on his suggestion. Larson
then advised the employees, "Well, all right. As soon as the whistle blows we
will punch out and go over there and we will try to settle this across the road, I
will try to explain it to you." Larson testified that all of the employees punched
out their timecards, went to their work stations to obtain their belongings, and
left the plant.
At the field meeting which was held immediately following the walkout, Lar-
son stepped up on a trailer parked in the field (this was off Respondent' s prop-
erty) and took charge of the meeting. There is no evidence that anyone but
Larson spoke to the employees on the field. Larson made an effort to explain
the proposals of both the Respondent and the Union's bargaining committee,
the fact that the parties had fairly well settled the working conditions, and
that Respondent was going to try to give the employees a 5-cent increase in
wages. A suggestion was made by an employee that an attempt be made to get
Respondent's officials to address the employee group on the field.10 A committee
consisting of Larson, Honeywell, Bryant, and Ohlen went to the plant and con-
conferred with Menck, Timms, and Swain. Larson requested them to come
across the road to talk to the employees. Menck refused and stated he would not
speak to anyone until the employees returned to work after which he would
meet with the union bargaining committee to discuss the trouble" Menck asked
Larson who was responsible for the walkout. Although Larson's testimony in
answer to this question is a bit confusing in the record he did state that he did
not know, but if the committee had "concrete proof" it would have cooperated
with Respondent and would have advised it accordingly. Larson also denied
that the union officers had anything to do with the walkout.
The union delegation returned to the field where the weather conditions were
not conducive to holding an orderly meeting. Larson started to explain Menck's
8 Bryant testified that he was in Superintendent Zitner' s office from 7 : 80 a. in. until
9:05 a. in. While walking through the machine shop to return to his work station,
Bryant noticed several groups of employees talking and heard for the first time that there
was to be a meeting at the time clock during the rest period.
0 The rest period was 10 minutes.
10 Menck and Timms were at the Respondent 's welder plant when the walkout in the
truck-crane plant occurred. A telephone call was put through to them advising of the
employees meeting on the field. They returned to the truck -crane plant at about 10 a. in.
and as they drove by the field they saw Larson talking to the employees.
11 This finding is based upon a synthesis of the testimony of Menck , Timms, and Honey-
well.
HARNISCHFEGER CORPORATION 55
position and finding that he could not go on with the field meeting, asked for a
show of hands to continue the meeting at the Legion Hall in downtown Escanaba,
the regular meeting place of the Union. After the vote was taken Larson tele-
phoned Albert Constantineau, chairman of the welder plant employees unit of
the Union and a member of the bargaining committee, advised him of the meet-
ing, and asked him to have the welder plant employees attend. The Legion Hall
meeting chaired by Larson was attended by practically all of the employees of
both the truck-crane and welder plants.
After discussion of the subject at issue, namely the progress of the negotiations,
participated in by the employees, the union officers, and members of the bargain-
ing committee, a strike vote was taken to empower the bargaining committee to
call a strike if the Union's proposals were not granted. The vote was 397 in
favor of a strike to 21 opposed. At Larson's suggestion the employees agreed
to return to work in both plants the following morning.
That afternoon, Fontaine spoke to Larson and told him that Menck would
like to see him at the plant alone. Larson told Fontaine the bargaining committee
would see Menck. At this meeting Menck asked Larson if the union officials
had called the strike, to which Larson replied that he "felt it was the entire
membership and that we as officers of the Local did not agree that it was the
proper thing to do but that we had to go along with it in order to keep some
kind of order. The membership was determined to walk out and we had to go
along with them although we didn't necessarily agree that it was the right
thing to do." Further discussion took place on whether it was a special meeting
as the bargaining committee contended or a strike as Menck argued. When
Larson in answer to another question replied, "Well, we had called a special
meeting across the road and from there down to the Legion club," and Menck
said that was all he wanted to know, the meeting broke up.
Timms testified that throughout the day of September 13, he and Menck talked
with Superintendent Zitner and department foremen to obtain their version of
the "root of the difficulty" and the happenings which precipitated the walkout.
Timms stated that based on Foreman Albert Tebon's report of his observations
that employees Connelly and Ohlen were in an arm-waving, shouting, rough
session with Larson prior to the rest period, he and Menck concluded that the
said employees were leaders in what they termed the illegal walkout of Septem-
ber 13 and should be discharged.'2 Timms also stated that he was convinced
from "things" he learned from his supervisors of goings on around the plant
that Ohlen, Connelly, and Wheatley were a disruptive influence in the orderly
affairs between the Union and the Respondent. As for Wheatley, the decision
to discharge him, Timms testified, was "because of his activities in the past that
were disruptive of our regular business with the Union committee" citing specifi-
cally Wheatley's participation in a walkout on July 27, 1951.13
12 In view of the conclusions regarding the discharges of Connelly, Ohlen, and Wheatley
hereinafter made I find it unnecessary to set forth in detail Tebon's testimony , suffice it
to say that he did not impress me as a credible witness. I note also that during cross-
examination Tebon admitted that he observed nothing extraordinary regarding the actions
of Connelly and Olden in their so-called rough session with Larson.
Is Wheatley admitted his part in the July walkout . He testified that at a meeting of
truck-crane plant employees on the evening before the walkout it was agreed that the
employees would walk out in order to bring to Respondent 's attention a number of
grievances it wanted processed . Wheatley was requested by truck-crane plant steward
Ed O'Leary and grievance committee member Alvin Alberts to act as chairman of the
meeting. The meeting took place at 3 . 30 p. in. ( the regular working hours were until
4. 30 p in .). Wheatley stated he brought the meeting to order , received the employees'
grievances , and then Timms and Zitner came out of the plant to answer the grievances.
He denied that he was reprimanded in any manner for his participation in the walkout.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon reporting for work on the morning of September 14, Connelly, Ohlen,
and Wheatley found that their timecards were missing . Wheatley went to
Superintendent Zither 's office and was told that he was discharged for instigat-
ing an illegal walkout. Connelly and Ohlen were escorted to Zitner's office by
their foremen, Tebon and Nyberg, where they were told they were being dis-
charged for organizing and leading an illegal walkout. Their paychecks
which had been prepared previously were handed to them and they left the
office.
When the employees returned to the production floor to check out their tools
before leaving the plant word spread about that they were discharged and the
employees started to gather in a group." Honeywell testified that he saw the
,congregated employees on the production floor shortly after the whistle blew.
Zitner and Fontaine were in the group. Zitner asked Honeywell what he was
going to do about it and Honeywell replied that he would not make any decision
on his own but would inquire of the membership. He mounted a block and asked
the employees if they were going to walk out in protest of the discharges or
proceed by way of a grievance.36 The employees voted to leave the plant. They
were joined soon after by the welder plant employees.
At a meeting that morning the union bargaining committee met with Menck
and Timms in the latter's office at the truck-crane plant to discuss the dis-
charges. Larson was told by Menck that after investigation through his super-
visors he decided that Ohlen, Connelly, and Wheatley had caused an illegal
walkout. Larson asked Menck to reinstate the three employees. During the
course of the discussion Larson asked how it was possible to have chosen the
three discharged employees as the instigators of an activity that was the re-
sponsibility of the membership.18 Dubord testified that one of the committee
members commented that since employees in departments all over the plant
acted practically simultaneously in walking out it seemed unlikely that Con-
nelly, Ohlen, and Wheatley who were on their jobs during the period preceding
the walkout could have had anything to do with it. According to the commit-
tee members Menck said he would not reinstate the three discharged employees
unless he was "ordered" or "forced" to take them back.
Menck testified that he told the committee "he hardly could" reconsider the
discharges since he "had just done it." He advised the committee that it had
recourse "on the other agreement" if it felt Respondent had dealt unjustly
with the employees and that use could be made of the grievance procedure.
He testified further that the parties "might as well" resort immediately to ap-
pointment of an arbitrator to settle the dispute and that they even talked about
possible choices of an arbitrator whom they could obtain fairly quickly. Timms,
testifying regarding the September 14 meeting, could not recall any discussion
regarding resort to the grievance procedure or the possible appointment of an
arbitrator under the terms of the contract. He testified that "about the only
discussion" was that Menck told the committee he had just made the decision
the night before and nothing in the interim caused him to change his mind.
Neither Dubord nor Bryant who were present at the meeting as committee mem-
14 This finding is based on the credited testimony of Ohlen who stated that he met em-
ployee Tanner as he left Zitner's office Tanner asked what the trouble was and Ohlen
replied that he was discharged "for the trouble yesterday." Tanner told several other
employees, Tebon testified that when Ohlen left Zitner's office he walked out to the assembly
line and called out "come on, boys, we're fired" and a group gathered . I do not credit
Tebon's testimony
15 Honeywell explained that whereas there was no contract in effect at the time it was
his thought that the discharges could be discussed with the Respondent
1" This finding is based on the testimony of Honeywell and Dubord who were present
at the meeting.
HARNISCHFEGER CORPORATION 57
hers recalled any mention of the use of the grievance procedure. I do not credit
Menck's testimony in this regard.
The employees of both plants remained out on strike on September 14. At
a union meeting held on September 15 the membership voted to return to their
jobs on the morning of September 17 and at the same time agreed that Connelly,
Ohlen, and Wheatley be reimbursed by the Union for time lost at their regular
rates of pay until they were reinstated or strike action was taken.
The employees returned to work at both plants on the morning of September 17.
On September 18 the Union's grievance committee met with Timms concern-
ing a grievance of the sandblasters, the subject matter being a request that a
chain hoist be installed at the sandblasting station to alleviate the heavy lifting
problem 17 Honeywell testified that prior to the said meeting he asked Timms
if he would recognize and meet with the grievance committee to process a griev-
ance and Timms unhesitatingly replied that he would. Prior to this occasion,
according to Honeywell, the grievance meetings came up regularly every other
Thursday. Honeywell stated he generally saw Fontaine before meetings to
determine the time of the meeting or if Respondent had some business which
made it impossible to meet, then plans were made to hold the meeting the fol-
lowing day. There is no indication in the record that any discussion relative to
the discharges of the three employees was had at this grievance meeting.
Larson testified that it was discussed at several negotiation meetings subse-
quent to September 18. Larson and Dubord testified that Respondent's answer
to the bargaining committee was that since a charge had been filed with the
Board (September 24, 1951) alleging the discriminatory discharge of the said
three employees the matter was closed and unless ordered to do so by the Board
it would not reinstate them.
On October 2, 1951, Respondent's representatives and the bargaining com-
mittee agreed on the terms of the new contract. Menck testified that the bar-
gaining committee had to seek approval of the membership before it could
finally accept a settlement it reached with Respondent and he was informed that
at a membership meeting held on the night of October 2 the proposals of Respond-
ent to the bargaining committee were accepted. The new contract executed on
October 14 provided in its preamble that it was entered into on October 2, 1951,
and was to be effective as of September 1, 1951.
Conclusions
A. With respect to the contractual relations between the parties
As found hereinabove the contract between the parties which expired on
May 15, 1951, contained in the section "Grievance Procedure," among other
things, a no-strike clause.
The primary issue to be resolved is whether or not there was, in effect, on
September 13, 1951, an oral extension of the written contract whereby the em-
ployees waived their right to strike on that date, a right guaranteed them under
the Act.
It is undisputed that after the expiration date of the contract the union bar-
gaining committee and Respondent's representatives executed two written ex-
tensions on May 29 and June 13, respectively, which extended the contract
17 Grievance meetings prior to this particular one were held regularly every other
Thursday afternoon. This meeting was held on a Tuesday. The record indicates that it
was the only grievance meeting held during September 1951. It is also noted that the
welder plant employees did not process any grievances or resort to the use of grievance
machinery during September.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through June 30, 1951. These extensions were made with the complete ap-
proval of the union membership which placed strict limitations on its bargain-
ing committee regarding the length of time the old contract was to be extended.
It will be recalled also that the membership disapproved the action of its
officers previously taken, extending in writing the old contract for a 60-day
period from May 15.
The testimony of four members of the union bargaining committee is that
shortly after the expiration of the last written extension the parties entered
into an oral agreement to abide by the terms of the old contract only until
September 1, 1951. The testimony of Respondent's representatives, Menck and
Timms, set forth in detail above is to the effect that the parties would be
bound by the terms of the old contract until after the Milwaukee contract was
settled. Menck's testimony in this regard is unconvincing. At one point he
stated "it was my understanding" that the contract would be extended until
the Milwaukee agreement was concluded. At another point he said the Union
orally agreed to the extension but amended his answer by adding "there was
no objection to it."
Menck's testimony as to the time when the Union orally agreed to the exten-
sion is confusing and is at variance with the testimony of other Respondent's
witnesses. He testified that during a bargaining session in May it was his
understanding the parties orally agreed to the extension and it was his sugges-
tion at that time that there be no further written extensions. He also testified
that during a negotiation session in August, Larson orally agreed on behalf
of the Union that the old contract would run until the parties arrived at a new
agreement. Timms, on the other hand, testified that it was at a meeting in the
early part of July that agreement was reached by the parties on this issue.
Timms admitted, however, that at the July meeting the Union, while indicating
its agreement to continue negotiations for a new contract, was insistent upon
its right to strike and it was precisely because of such insistence that the Re-
spondent refused to accept the Union's proffered proposals and nothing further
was accomplished at the said meeting.
Notwithstanding Menck's testimony the record is clear as set forth above that
the parties executed two written extensions of the contract on May 29 and June
13, and that the said extensions were made strictly in accordance with the
authority granted the bargaining committee by the membership which also
placed strict limitations on the length of time the old contract was to be ex-
tended. It is also noted that when the discussions regarding the oral extension
of the contract took place, Respondent's representatives admittedly had no idea
of the possible settlement date of the Milwaukee contract. Thus if Respond-
ent's version of the extension of the oral contract is accepted, the Union bound
itself, among other things, to a no-strike clause for an indefinite and uncertain
period. The record is to the contrary. The minutes of the union membership
meetings in evidence do not disclose any discussion or approval of any action
which would extend the agreement for such an indefinite period. Indeed, the
July 5 minutes indicate the Union's desire to operate without a contract for a
limited period and only until September 1. Further, the statement of Brown
at the July 5 negotiation meeting reveals definitely the Union's position that
its right to strike must be preserved.
The Respondent also contended that the grievance meeting held at the truck-
crane plant on September 18 constitutes evidence that the contract was ex-
tended. As found above this was the only grievance meeting held during Sep-
tember. It was not regularly scheduled and was contrary to the normal pro-
cedure ; it was specifically requested by the Union to clear up a condition which,
HARNISCHFEGER CORPORATION 59
If continued, might have resulted in injury to the employees concerned with it.
I agree with the position of the General Counsel set forth fully in his brief
that the duty to adjust grievances does not depend on the existence of a col-
lective-bargaining contract," and further that the adjustment of grievances does
not provide proof of even the existence of recognition of the Union, much less the
existence of a contract 19
Upon the foregoing and upon the record as a whole I conclude and find, based
on the testimony of Larson, Honeywell, Bryant, and Dubord which I credit,
that the contract which bore the expiration date of May 15, 1951, was extended
until only September 1, 1951.
B. With respect to the walkout on September 13
It is the Respondent's contention raised at the hearing and in its brief that
even if there was no contract in effect between the Respondent and the Union,
the walkout on September 13, 1951, was not legally protected concerted activity
on the part of the employees.
As has been seen, the union bargaining committee and Respondent's repre-
sentatives had been meeting together over a 4-month period on the terms of a
new contract. Their meeting on September 12, while ending on a cordial note,
still left undecided the very vital issues, so far as the employees were concerned,
of wages and seniority.
Unrest among the employees because of lack of decision on these vital issues
had been mounting and as Honeywell testified "it really blossomed forth" on
the morning of September 13. The employees wanted to know what was going
on at the negotiation meetings and why they were not getting a raise.
As has been found, they ceased work, punched out their timecards, and left
Respondent's property only after a vote to take such action had been taken on
the suggestion of the union president who took charge of the meeting. There-
after, the whole plant walked out and requested Respondent's representatives
to speak to them about the issues in which they were primarily interested,
namely, wages and seniority. This request was refused. It is immaterial
whether their purpose was to discuss freely and become informed of the progress
of the negotiations or to exert collective pressure upon the Respondent to obtain
a wage increase. Under either view the action of the employees constituted
a form of concerted activity for mutual aid and protection within the meaning
of Section 7 of the Act.
The Board, with court approval, has consistently held that work stoppages
occurring during working hours to present or to force corrections of alleged
grievances relating to conditions of employment, or as in the instant situation a
demand for increased wages and the settlement of negotiations for a new contract,
constitute not an irresponsible work stoppage as Respondent contends, but pro-
tected concerted activity. This has been so even where it has appeared that the
18 See the first proviso of Section 9 (a), of the Act : "That any individual employee or a
group of employees shall have the right at any time to present grievances to their employer
and to have such grievances adjusted , without the intervention of the bargaining repre-
sentative , as long as the adjustment is not inconsistent with the terms of a collective-
bargaining contract or agreement then in effect ." Senate Report No. 105, 80th Congress,
page 24, commenting on this provision states, "the revised language would make it clear
that the employees right to present grievances exists independently of the right of the
bargaining representative , if the bargaining representative has been given an opportunity
to be present at the adjustment , unless the adjustment is contrary to the terms of the
collective -bargaining agreement , then in effect ." See also Harrison Woodson Company,
Inc., 70 NLRB 956; Phelps Dodge Copper Corporation, 63 NLRB 686.
19 See North Electric Manufacturing Company, 84 NLRB 136.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activity was participated in by only a minority of the employees and
was followed by a refusal to obey an order to return to work. See, e. g., Modern
Motors, Incorporated, 96 NLRB 964, enforced as modified 198 F. 2d 925 (C. A-
8) ; J. I. Case Company, Bettendorf Works, 95 NLRB 47, enforced as modified
198 P. 2d 919 (C. A. 8) ; Aldora Mills, 79 NLRB 1, enforced 180 F. 2d 580 (C. A.
5) ; Kennametal, Inc., 80 NLRB 1481, enforced 182 F. 2d 817 (C. A. 3) ; Gullett
Gin Co., Inc., 83 NLRB 1, enforced as modified 179 F. 2d 499 (C. A. 5) ; Carter
Carburetor Corp., 48 NLRB 354, enforced 140 F. 2d 714 (C. A. 8) ; American Manu-
facturing Company of Texas, 98 NLRB 226; Sunset Minerals, Inc., 100 NLRB
1457; Southern Silk Mills, Inc., 101 NLRB 1.
Respondent's counsel contended in oral argument, and in his brief, that the
actions taken on September 13 were not protected concerted activities because
they come within the purview of the decision of the Court of Appeals for the
Fourth Circuit in the Draper case, 145 F. 2d 199. There, the court found un-
protected a "wild cat strike" by a minority group designed "to interfere with the
collective bargaining by the duly authorized bargaining agents selected by all
the employees" and "to take the bargaining out of the hands of the legally chosen
representatives and proceed with it themselves" "in violation of the purposes of
the Act and of an agreement existing between the employer and employees for
orderly collective bargaining." Such a strike, the court held, was "clearly dis-
tinguishable from a strike which, although not justified, nevertheless accords
with the rights of the parties under the National Labor Relations Act." The
court specifically denied "of course, that a strike can be called only by a bar-
gaining Union, or that less than a majority of the employees will not be pro-
tected when they go on strike in protection of their rights." The vice in Draper,
therefore, was action taken by a minority group in derogation of the stand taken
by the exclusive representative. In this case, as set forth above, the walkout
occurred only after a vote of the employees in the bargaining unit had been taken.
The whole plant walked out. While it is true, as Larson testified, that the
union officers as such did not instigate the meeting at the time clock, neverthe-
less, from the time of the time-clock meeting any action that was taken became
action of the entire union membership. Certainly the action taken on Sep-
tember 13 cannot be characterized as a minority action. I think it is clear that
the Draper doctrine is inapposite to the facts of the instant case and I find no
merit in the Respondent's contention.
The Respondent also contended at the hearing that the activity of the em-
ployees on September 13 was unprotected because it was preceded by neither
notice nor demands. The Board, in its Decision and Direction of Election in
the Liberty Cork Co., Inc., 96 NLRB 372, where it was contended by an employer
that no election should be directed because the action of certain employees in
going on strike without giving prior notice was illegal and unauthorized, stated
"a strike is not illegal or of a `wildcat' nature merely because it was called
without prior notice to the employer." See also J. A. Bentley, 83 NLRB 803, 811,
footnote 13.
Upon the foregoing and the record as a whole I find that the walkout of the
employees on September 13 was a protected concerted activity.
C. With respect to the discharges on September 14
It is undenied that upon reporting for work on the morning of September 14,
Connelly, Ohlen, and Wheatley were told they were discharged for instigating
and leading an illegal walkout.
HARNISCHFEGER CORPORATION 61
It has been found that the activity of September 13 in which Connelly, Ohlen,
and Wheatley were engaged was a protected concerted activity. Thus, we have
here a situation in which Respondent discharged employees because they were
engaged in activities protected by the Act. It is well established that such an
interference with protected rights is, without more, a violation of Section 8 (a)
(1) and (3) of the Act.10 See Republic Aviation Corp. v. N. L. R. B., 324 U. S.
793; Home Beneficial Life Ins. Co. v. N. L. R. B., 159 F. 2d 280 (C. A. 4), cert.
den. 332 U. S. 758; Cusano v. N. L. R. B., 190 F. 2d 898 (C. A. 3) ; N. L. R. B. v.
Arthur J. Wiltse, d/b/a The Ann Arbor Press, 188 F. 2d 917 (C. A. 6), cert. den.
342 U. S. 859. Cf. N. L. R. B. v. J. I. Case Company, Bettendorf Works, and
cases cited therein, supra; Modern Motors, Incorporated v. N. L. R. B., supra.
During the hearing, and in oral argument, counsel for the Respondent advanced
the theory that since the new contract agreed to between the parties on October 2,
1951, was effective retroactively to September 1, 1951, there was no period
between contracts when the parties were not bound by a no-strike clause. It
was pointed out to counsel that if his retroactivity theory was applied to the
facts in the instant situation it would operate in an ex post facto manner. The
right to strike is a fundamental right guaranteed by the Act and the Board will
not limit the exercise of this right by the application of such a theory as proposed
by Respondent's counsel. Furthermore, as the General Counsel sets forth in his
brief in advancing his theory, Respondent's counsel would "have to argue that
an act which is lawful when performed is made unlawful by a subsequent con-
tractual agreement." An analogy can be drawn between this case and the cases
wherein the Board has held that a union-shop provision in a contract may not
be retroactively applied. See The Eclipse Lumber Company, Inc., 95 NLRB 464;
Colonic Fibre Company, Inc., 65 NLRB 589; 71 NLRB 354, enforced with modi-
fications 163 F. 2d 65 (C. A. 2).
Respondent's counsel also argued that since the Union never processed the
discharges of Connelly, Ohlen, and Wheatley through the grievance procedure,
the complaint as, to them should be dismissed. As has been found there was
no contract in effect at the time the discharges took place which provided for
a grievance procedure. Secondly, the record is clear that the union bargaining
committee during negotiation sessions subsequent to the discharges sought the
reinstatement of the three discharged employees and was told by Menck that
unless he was ordered to do so by the Board he would not change his position.
Finally, Section 10 (a) of the amended Act expressly provides that the Board's
power to prevent unfair labor practices "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." See Todd Shipyards Corp., 98 NLRB 814 and cases
cited therein. I find no merit in this contention.
Respondent's counsel cited the Wisconsin Employment Relations Board
(Briggs and Stratton Corp.) case, 336 U. S. 245, as supporting his contention that
the discharges were proper even if no contract was in effect. Counsel admitted
in oral argument at the hearing that we were not here involved with a series of
work stoppages. The Supreme Court in the Wisconsin Employment Relations
Board case held that a series of unannounced "intermittent" work stoppages
10 Whether the discharges be regarded as a violation of either 8 (a) (1)^ or & (a), (3),
or both, it is found necessary in order to effectuate the policies of the Act to order rein-
statement and back pay for the discharged employees as provided in The Remedy section
below.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"to win unstated ends" was not protected by Section 7. In so holding, how-
ever, the Court made it clear that it was not disturbing the settled body of law
pursuant to which "summary discharges attempted in retaliation for isolated
work stoppages reflecting temporary rebellion over rules or conditions of work"
are held unfair labor practices.
In the instant case there is involved neither an attempt by the employees
to fix for themselves terms and conditions of employment contrary to those
fixed by management, nor the use of novel techniques for imposing economic
pressure upon an employer more severe than a strike. The employees refused
to work during the period while they were discussing the progress of the negoti-
ations and their demands for an increased wage. The stoppage was isolated ;
it reflected a "temporary rebellion over conditions of work." The discharges
which resulted from participation in such stoppage were in violation of the Act.
Upon the foregoing and upon all the evidence it is found that by discharging
John Connelly, Austin Ohlen, and Charles Wheatley and by thereafter refusing
to reinstate them for the reason that they engaged in concerted activities for
mutual aid and protection the Respondent interfered with, restrained, and
coerced their employees in the exercise of rights guaranteed in Section 7 of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring
in connection with the operations of the Respondent described 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 burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in and is en-
gaging in certain unfair labor practices it will be recommended that it cease
and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent discriminated in regard to the hire and
tenure of employment of John Connelly, Austin Ohlen, and Charles Wheatley
by discharging them on September 14, 1951, and thereafter refusing to reinstate
them following their participation in a protected concerted activity, it will be
recommended that the Respondent be ordered to offer the said employees full
reinstatement to their former or substantially equivalent positions without prej-
udice to their seniority or other rights and privileges. It will also be rec-
ommended that the Respondent be ordered to make whole John Connelly,
Austin Ohlen, and Charles Wheatley for any loss of pay they may have suffered
as a result of the discrimination against them. Consistent with the policy of the
Board enunciated in F. W. Woolworth Company, 90 NLRB 289, it will be rec-
ommended that losses of pay be computed on the basis of each separate cal-
endar quarter or portion thereof during the appropriate back pay period. The
quarter shall begin with the first day of January, April, July, and October.
Loss of pay shall be determined by deducting from a sum equal to that which
these employees normally would have earned for each quarter or portion
thereof, their net earnings, if any, in other employment during that quarter.
See Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7. Earnings in any one particular quarter shall have no
HARNISCHFEGER CORPORATION 63
effect upon the back-pay liability for any other quarter. It is also recommended
that the Respondent be ordered to make available to the Board upon request pay-
roll and other records to facilitate the checking of the amount of back pay due.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. Amalgamated Local 632, United Automobile, Aircraft and Agricultural
Implement Workers of America (CIO) is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of John
Connelly, Austin Ohlen, and Charles Wheatley, thereby discouraging member-
ship in Amalgated Local 632, United Automobile, Aircraft and Agricultural
Implement Workers of America (CIO), and labor organizations generally,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (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
(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with, restrain, or coerce our employees in the
exercise of their right to engage in or to refrain from engaging in any or
all of the concerted activities guaranteed them by Section 7 of the National
Labor Relations Act, and WE WILL NOT discourage membership in AMAU
GAMATED LOCAL 632, UNITED AUTOMOBILE, AIRCRAFT AND ACRIcu uRAL IM-
PLEMENT WORKERS OF AMERICA (CIO), or in any other labor organization
of our employees, by discriminating against any employees in any manner
with regard to their hire or tenure of employment, except to the extent
permitted by Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed
and we will make them whole for any loss of pay suffered as a result of the
discrimination against them.
John Connelly
Austin Ohlen
Charles Wheatley
All our employees are free to become, remain, or refrain from becoming or
remaining, members of the above -named union or any other labor organization.
We will not discriminate in regard to hire or tenure of employment or any term
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or condition of employment against any employee because of membership in
or activity on behalf of any such labor organization.
HARNISCHFEGER CORPORATION
(Employer)
By ------------------------------
(Representative ) t (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced , or covered by any other material.
AIR REDUCTION COMPANY, INC., AIR REDUCTION SALES COMPANY
DIVISION and JOHN M. O'NEIL 1
LOCAL 375, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and JOHN M.
O'NEIL. Cases Nos. 3-CA-496 and 3-CB-127. February 7,1953
Decision and Order
On July 22, 1952, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and supporting briefs,
and requested oral argument. The General Counsel also filed a brief.
The Respondents' request for oral argument is denied, as the record
and briefs, in our opinion, adequately present the issues and the posi-
tions of the parties.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, but only insofar as they are con-
sistent with our decision herein.
1. The Trial Examiner found that employee O'Neil was not bound
by the union-security provision in the agreementbetween the Respond-
ents, because he had no actual knowledge of such clause. Accordingly,
1 The Intermediate Report contains two typographical errors , which are corrected as
follows : ( 1) The spelling of O'Neil's name is corrected to conform to the spelling on the
charge and complaint ; ( 2) O'Neil 's last payment of dues was on February 26, 1954, not
1952 as stated in the report.
103 NLRB No. S.