Harter Corp.

National Labor Relations Board - Board Decisions

Jul 19, 1938

8 N.L.R.B. 391 (N.L.R.B. 1938)

In the Matter of DARTER CORPORATION and INTERNATIONAL ASSN. of
MACHINISTS
Cases Nos. 0-396 and R-340.-Decided July 19, 1938
Furniture Manufacturing Industry-Interference, Restraint, and Coercion:
expressed opposition to union ; questioning employees concerning membership
in union; persuading employees not to join union; intimidation-Company-
Dominated Union: initiation; domination of and interference with formation and
administration ; soliciting membership in ; support ; disestablished, as agency for
collective bargaining-Discrimination: discharges, for union membership and
activity ; charges of, not sustained as to one person-Strike: result of, and
prolonged by, employer's unfair labor practices-Employee Status: discharged
employees; strikers-Unit Appropriate for Collective Bargaining: production
and maintenance including engineering employees, excluding clerical and super-
visory employees and watchmen-Representatives: proof of choice: comparison
of pay roll with union designation and testimony as to membership-Collective
Bargaining: employer's refusal to bargain collectively with union as exclusive
representative of employees in appropriate unit ; employer's duty : majority
rule, effect upon ; special form of remedial order : recognition as exclusive
representative; negotiation-Reinstatement ordered: discharged employees;
strikers, including discharged employees who refused reinstatement and joined
strike; not ordered, as to one discharged employee who refused reemployment;
dismissal of newly hired employees, if necessary ; preferential list ordered : to
be followed in further reinstatement-Back Pay: awarded ; discharged em-
ployees, from date of discharge to date of offer of reinstatement ; strikers, who
are not reinstated or placed on preferential list within 5 days of application
for reinstatement-Investigation of Representatives: petition for, dismissed, in
view of order to employer to bargain.
0
Mr. Oscar H. Brinkman, for the Board.
Mr. Raymond H. Dresser, of Sturgis, Mich., and Mr. Harry C.
Howard, of Kalamazoo, Mich., for the respondent.
Mr. Paul P. Hutchings, of Washington, D. C., for the I. A. M.
Cowell c Frankhauser, by Mr. W. Glen Cowell, of Coldwater,
Mich., for the Shop Union.
Mr. Victor A. Pascal, of counsel to the Board. -
DECISION
AND
ORDER
STATEMENT OF THE CASE
On May 5, 1937, Lodge No. 1523, International Association of
Machinists, herein called the I. A. M., filed charges and, on Septem-
8 N. L. R . B., No. 43.
391
392 NATIONAL LABOR RELATIONS BOARD
ber 20, 1937 , filed amended and supplemental charges with the Re-
gional Director for the Seventh Region (Detroit, Michigan ), herein
called the Regional Director , alleging that The Harter Corpora-
tion, Sturgis, Michigan , herein called the respondent , had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. On September 22, 1937 , the National Labor
Relations Board, herein called the Board, by the said Regional
Director , issued its complaint against the respondent , alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1),
(2), (3), and ( 5) and Section 2 (6) and (7) of the Act. On Sep-
tember 22 , 1937, the complaint and notice of hearing were duly
served upon the respondent , the I . A. M., and the Employees Shop
Union, which is referred to in the complaint and is herein called the
Shop Union. Thereafter , the respondent filed its answer, verified'
September 27, 1937, in which it denied that it had engaged or was
engaging in unfair labor practices as alleged in the complaint.
On May 5, 1937 , the I . A. M. filed with the Regional Director a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of the respondent and re-
questing an investigation and certification of representatives pur-
suant to Section 9 (c) of the Act . On September 27, 1937, the Board,
acting pursuant to Article III, Section 10 (c) (2 ), and Article IT,
Section 37 ( b), of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended , ordered that the two cases be consoli-
dated for the purposes of hearing and also, acting pursuant to Sec
tion 9 (c) of the Act and Article III, Section 3, of said Rules and
Regulations , ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice . On September 30, 1937, the Regional Director
issued and duly served upon the respondent , the I . A. M., and the
Shop Union a notice of hearing on the question concerning repre-
sentation.
Pursuant to notice , a hearing was held on the consolidated cases in
Sturgis, Michigan , on October 7, 8, 9, 11, 12, 14, 15, and 16, 1937,
before Thomas H. Kennedy, the Trial Examiner duly designated by
the Board . The Board , the respondent , and the Shop Union were
represented by counsel and participated in the hearing. On about
October 11, 1937 , the Shop Union filed with the Regional Director a
petition pursuant to Section 9 (c) of the Act for leave to intervene.
At the hearing, the Trial Examiner granted the Shop Union's mo-
tion to intervene . He also granted the motion , made by counsel for
the Board , to amend the complaint to allege that the I. A, M. was
DECISIONS AND ORDERS 393
the bargaining representative of a majority of the employees in the
appropriate bargaining unit on April 6,,19 ' 37, instead of March 25,
1937, and to allege the discriminatory discharge of Gale Lintemoot
on or about March 11, 1937. These rulings are hereby affirmed. Full
opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
parties. During the course of the hearing, the Trial Examiner made
several rulings on other motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
On February 3, 1938, the Trial Examiner filed an Intermediate
Report in which he found that the respondent had engaged in unfair
labor practices affecting commerce within the meaning of Section
8 (1), (2), and (3) and Section 2 (6) and (7) of the Act, but not
within the meaning of Section 8 (5) of the Act. He recommended
that the respondent cease and desist from engaging in the unfair
labor practices, offer full reinstatement with back pay to the dis-
charged employees named in the complaint, and withdraw all recog-
nition from and disestablish the Shop Union as the bargaining rep-
resentative of its employees. On February 15, 1938, the Trial Ex-
aminer filed a Supplemental Intermediate Report recommending that
the respondent offer those employees who were on strike on August 13,
1937, immediate and full reinstatement to their former positions.
Exceptions to the Intermediate Report were thereafter filed by the
I. A. M., the respondent, and the Shop Union.
Pursuant to notice, a hearing was held before, the Board on
February 24, 1938, in Washington, D. C., for the purpose of oral
argument. Counsel for the respondent appeared, filed briefs, and
participated in the oral argument. In lieu of oral argument, the
I. A. M. filed a brief and the respondent filed a brief in answer
thereto. The Board has considered the briefs which have been filed
herein. The Board has also reviewed the exceptions to the Inter-
mediate Report, and save as they are consistent with the findings,
conclusions, and order set forth below, finds them without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE RESPONDENT
The respondent, a Michigan corporation, has its office and factory
in Sturgis, Michigan, where it is engaged in the business of manu-
facturing and selling upholstered and steel furniture. In its manu-
facturing operations it uses leather, which it receives from Ohio and
394 NATIONAL LABOR RELATIONS BOARD
New Jersey, cartons, mostly from Indiana, steel from New York,
wood, stains, and varnishes from Wisconsin and Michigan, and other
materials. Although the exact quantity of the raw materials ob-
tained by the respondent from sources outside the State of Michigan
is not set forth in the record, in its answer the respondent admits that
it causes large quantities of the raw materials which it uses to be
transported in interstate commerce to the plant in Michigan. Ap-
proximately 85 per cent of the respondent's manufactured products
are shipped to points outside the State of Michigan.
II. THE ORGANIZATIONS INVOLVED
Lodge No. 1523 International Association of Machinists is a labor
organization, affiliated with the American Federation of Labor, here-
in called the A. F. of L., which admits to its membership the respond-
ent's as well as other employees.
Employees Shop Union 1 is an unaffiliated labor organization ad-
mitting to its membership, according to its Articles of Association,
"all employees of the Chair Division of the Harter Corporation of
Sturgis, Michigan; excepting, however, that no officers of the said
Harter Corporation shall be members of or hold any office in this
Association."
III. TIIE UNFAIR LABOR PRACTICES
A. Domination of and interference with the Shop Union and discrimi-
nation against the I. A. M.
About the middle of February 1937, a group of employees in
Sturgis asked L. O. Thomas, grand lodge representative of the
International Association of Machinists, for information concerning
the manner in which they could establish a lodge of that organiza-
tion. About March 1, 1937, an organizational meeting of the I. A. M.
was held, at which 35 of the respondent's employees signed a paper
designating the International Association of Machinists as their bar-
gaining agent and indicating their desire to be members of the
organization. Subsequently Lodge No. 1523 was chartered by Inter-
national Association of Machinists.
On March 4, 1937, the employees in the respondent's upholstery
and welding departments, as well as a few other employees from
other departments, stopped working for a short period in order to
induce the respondent to take some action with reference to their
request for increased wages. The stoppage does not appear to have
been directed by the I. A. M. Frank B. Harman, the respondent's
superintendent, and Lester D. S. Finney, its assistant superintendent
' The Shop Union is also known as "Employees Shop Union of Sturgis, Michigan."
C'
DECISIONS AND ORDERS 395
and foreman of the final-assembly department, instructed the em-
ployees to select a committee to confer with E. C. Harter, the re-
spondent's -president, about their grievances. The committee was
selected and, the same day, met with E. C. Harter, who promised to
give the employees an answer the next day at noon. About 2 o'clock
in the afternoon of the next day work in the factory ceased at the
respondent's direction and the employees assembled in the factory to
listen to E. C. Harter's answer to the committee's request for in-
creased wages. In the course of his speech, E. C. Harter stated that
the hours of work in the factory would be increased from 40 hours
a week to 50 hours a week and that the employees would be paid
one and a half times their usual hourly wages for the extra 10 hours
of work. - He also stated that some of the employees would have to be
laid off because of the increased production which would result from
lengthening the hours. Although E. C. Harter denied that he then
stated that the lay-offs would be governed by seniority, it appears
from testimony of many of the employees that he said that those
employees most recently hired would be the first to be laid off.
On March 27, 1937, Thomas wrote the respondent stating that a
majority of the employees had chosen the I. A. M. as their bargaining
agent and requesting an interview for collective bargaining. On
March 29 or 30, 1937, the employees were again assembled by the
respondent in the factory during working hours and were addressed
by E. C. Harter. According to Arthur B. Persing, one of the em-
ployees, Harter stated that the employees would have to pay smaller
dues in a shop union and that he thought it better for them to have
an organization of their own. Harter admitted that he had told the
employees that he saw no reason for their paying dues to an outside
organization. He asked the employees to indicate by a show of hand
whether or not he should answer Thomas' letter, but at the request
of one of the employees, the vote was taken by written ballot. The
result of the vote appears to have been 28 to answer the letter and
47 not to do so. However, it is apparent that the result did not
reflect the free choice of the employees. No opportunity for voting
in secret was afforded them and no voting booths were provided.
There was ample opportunity for those officials present to observe the
manner in which the ballots were marked, and some of the foremen,
including Edward Persing, foreman of the upholstering department,
participated in the vote. Upon the basis of the vote, Harter an-
swered Thomas' letter on April 1, 1937, stating that there was no
justification for a meeting between them in connection with the
matters referred to in the Union's letter of March 27, 1937.
The first meeting of the Shop Union was held in a building in
Sturgis on April 28, 1937, pursuant to notice given in the ofactory.
Although the respondent disclaims responsibility for the organza=
396 NATIONAL LABOR RELATIONS BOARD
tion of the Shop Union, the respondent's participation in and domi-
nation of it is apparent from its inception. The meeting was at-
tended by Maynard Marker, foreman of the shipping and receiving
department, Noble Taylor, foreman of the machine shop, Ray Booher,
foreman of the finishing department, Edward Persing, foreman of
the upholstering department, and Lester D. S. Finney, the respond-
ent's assistant superintendent and foreman of the final-assembly
department. Marker opened the meeting, stating that he thought
there should be a union limited to the respondent's factory employees,
that the employees would be able to obtain better working conditions
through such a union than through the I. A. M., and that such a
union would be more advantageous because the dues would be small.
Although he testified at the hearing, Marker did not deny these
statements. Finney nominated John Mowry, an employee at the
experimental bench, as chairman, and he was elected by acclamation.
The next day, Finney, the assistant superintendent, had the fol-
lowing heading typed on sheets of the respondent's correspondence
paper : "We, the undersigned Employees of The Harter Corporation,
attach our signatures to the effect we have formulated a Shop Union
to be run and governed by the employees." These sheets were cir-
culated among the employees during working hours by Mowry, Fin-
ney's nominee, and by other employees. Many signatures were se-
cured. The list is headed by the signatures of Booher, Marker, Fin-
ney, Edward Persing, and Taylor. Although Finney testified that
at the time these sheets were circulated Harman was away on a
business trip, Harman testified that he observed Mowry walking
about with the sheets and told him not to do so. It is evident that
the sheets were circulated and signed in the presence of the respond-
ent's supervisory employees and with their assistance. After some
signatures had been secured, Mowry gave the petition to Finney,
who took it to Harter. In marked contrast to his refusal to bargain
with the I. A. M., Harter on the same day signed a statement, which
appears on the first sheet of the petition, reading : "The Harter Corp.
hereby recognizes this association representing a majority of its em-
ployees. The Harter Corp. will bargain with proper committees of
this association regarding all employee-employer relations." Al-
though Harter claimed that a majority of the employees had signed
the petition before Finney gave it to him, all the signatures had not
been affixed to the petition when he recognized the Shop Union as
the employees' bargaining agent.
Throughout the period of organization, the respondent and its
agents openly expressed their hostility to the I. A. M. and preference
for the Shop Union in their contacts with the employees. Accord-
ing to Frank Kenney, one of the employees, the morning after an
- DECISIONS AND ORDERS 397
I. A. M. meeting, Edward Persing said to him, "You fellows want
to look out . I know every one of you that belongs to that Union."
Although Persing testified that he did not know that Kenney was
a member of the Union , he did not deny having made the statement
attributed to him by Kenney. George Brown, who was employed in
the assembling department , testified that his foreman , Noble Taylor,
had asked him to tell him what had transpired at an I. A. M. meet-
ing. When respondent 's counsel questioned him on the stand con-
cerning this testimony , Taylor stated that he did not recall having
asked Brown if he had been to an A. F. of L. meeting . Brown fur-
ther testified that Ray Booher, another foreman, had told him that
he would "get further" with a shop union than with "the A. F. L.,"
and Freeman Yoder, who was employed as a welder, testified that
Booher had told him that "Harter would do more for us in the Shop
Union than the American Federation of Labor would do for us."
In testifying, Booher stated that he did not remember if he had made
this statement to Yoder, but he offered no testimony with reference
to his alleged remarks to Brown. In view of Persing, Taylor, and
Booher's activities in behalf of the Shop Union , we are of the opinion
that they made the above statements attributed to them by Kenney,
Brown, and Yoder respectively.
Donald Marks, another employee, testified that at the meeting of
employees on March 29 or 30, Harter had told them that "he couldn't
see why we should go on and pay $1.20 a month for protection out-
side of town when we could go ahead and organize together" and
that he had told a committee of the employees that "before he would
sell his men out for $1 .20, that he would close up his shop, throw
away his keys and go fishing." Harter admitted that he told the
employees that he saw no reason for their paying dues to an outside
organization but he testified that he told a Shop Union committee
that "if any time the wage question went entirely out of reason, it
would necessitate such high costs that our prices would be too high
and we could not meet competition , and regardless of what organiza-
tion, whether it was the A. F. of L . or shop organization or what-
ever the organization might be, it would be necessary for them to
close up and we might just as well put the key in the door, throw it
away , and go fishing ." We are inclined to accept Marks ' version
of the incident, as it is consonant with Harter's repeated acts of
hostility to the I. A. M.
Other employees testified that they were questioned by supervisory
employees regarding their membership in the I. A. M. and were
otherwise discouraged from joining or continuing their membership
in the I. A. M. These statements, made to employees by the re-
spondent 's officials and supervisory employees , lead us to the conclu-
398 NATIONAL LABOR RELATIONS BOARD
lion that the respondent carried on a persistent campaign in the
factory to restrain the employees from joining or continuing their
membership in the I. A. M. and to foster the growth of the Shop
Union.
The Strike
On August 11, 1937, the respondent discharged 14 employees, 11
of whom were affiliated with the I. A. M.2 On the evening of August
12, 1937, the respondent's employees who were members of the
I. A. M. voted to strike in protest against the respondent's alleged
unfair labor practices. On August 13, 1937, the strike became effec-
tive, when picket lines were established, and the respondent's fac-
tory was unable to operate. Commencing August 14, 1937, a number
of conferences were held between Harter and a committee of the
I. A. M. at which the parties sought to resolve their differences, but
without success.
About August 26, 1937, a suit was brought by members of the
Shop Union for an injunction to restrain the pickets from alleged
actual or threatened acts of violence against employees who desired
to return to work. While this proceeding was instituted nominally
by the Shop Union on behalf of its members, there are indications
that it was actually directed by the respondent. A group of em-
ployees who desired to return to work secured an attorney in Cold-
water, Michigan, to institute the injunction action. They rode to the
attorney's office in an automobile owned and driven by Wyatt Mick,
one of the respondent's clerical employees, who was the leader of
the group. The attorney requested a written authorization to com-
mence the injunction action. This authorization was prepared and
was subsequently signed by members of the Shop Union, including
supervisory employees. When the application for a temporary in-
junction came on for hearing, the Court refused to allow the attorney
for the plaintiffs to withdraw it and, after testimony was taken,
the bill was dismissed.
The factory reopened on September 7, 1937, and the respondent
resumed its operations when some of the strikers returned to work.
The strike continued.
From the facts set forth above it is apparent that the Shop Union
was initiated and used by the respondent to restrain the employees
in their efforts to organize. After the I. A. M. had commenced its
activities, the respondent created the Shop Union and diverted the
employees to it and away from membership in the I. A. M. The
2 The respondent claims that the 14 employees were not discharged but were temporarily
laid off due to a decrease in business. These and the other discharges will be discussed
below.
DECISIONS AND ORDERS 399
notice of its first meeting was given in the respondent's factory. The
meeting was opened by Marker and its proceedings were conducted
under I he observation and with the assistance of the respondent's
supervisory employees. In fact Finney, the assistant superintendent,
nominated Mowry who was elected president. The next day the
signatures of the respondent's foremen headed a petition prepared
by Finney designating the Shop Union as the employees' bargain-
ing agent. The petition was then circulated by Mowry and others
during working hours among the employees for their signature with
the knowledge, acquiescence, and sanction of the respondent. As soon
as the petition was presented to him, Harter recognized the Shop
Union as the employees' exclusive bargaining agent. As noted above,
in conjunction with the Shop Union's campaign, the respondent re-
fused recognition to the I. A. M., and its supervisory employees dis-
couraged membership in the I. A. M. by hostile statements and criti-
cisms of the organization. Having served its purpose in diverting
many of the employees from the I. A. M. to the Shop Union, it
appears that after meeting in the spring of 1937, the Shop Union
did not meet again until after the service of the complaint herein.
We find that the respondent has participated in, dominated, and
interfered with the formation and administration of the Shop Union,
and has contributed support to it, and has thereby interfered with
and coerced its employees in the exercise of their rights guaranteed
in Section 7 of the Act.
B. The discharges
The respondent contends that many of the discharges referred to
in the complaint were occasioned by a decrease in the volume of its
orders. No direct testimony as to the actual amount of the respond-
ent's orders on hand is contained in the record. However, it appears
that, from January through July 1937, the value of the respondent's
monthly shipments were approximately 37.5 per cent to 133 per cent
greater than during the corresponding months in 1936 and that the
value of its total sales during the first 8 months of 1937 was greater
than its sales during the entire year of 1936. Harter testified that
the respondent's sales from January 1 to October 1, 1937, were
greater in both volume and value than during 1936. The record
fails to sustain the respondent's contention, that a decrease in the
amount of its business coupled with an increase in the employees'
working hours necessitated its reduction in force.
In spite of E. C. Harter's assurance to the employees on March 5,
1937, that in any lay-off, employees hired last would be the first to be
laid off, the respondent admitted that none of the lay-offs or dis-
charges in issue had been made on the basis of seniority. Moreover,
many of the laid-off or discharged employees under consideration had
400 NATIONAL LABOR RELATIONS BOARD
been retained in the respondent's employ during 1936, when the
amount of the respondent's sales was substantially less than at the
time such employees were laid off or discharged in 1937.
Don Brew 3
Brew entered the respondent's employ in its upholstering depart-
ment in about 1932. After working for about 2 years and 2 months,
he was discharged. The respondent claimed that he was discharged
on that occasion because he had been away from his bench for too
long a period. Brew admitted the absence from his bench but main-
tained that he had been looking for wood which he needed in his
work. In any event the respondent sent for Brew and he was
rehired approximately 10 months later and thereafter worked for
the respondent until his discharge on March 4, 1937. On that day,
according to Brew, he was given six pieces of leather and was di-
rected to use them in covering the seats of the chairs upon which he
was working. Brew testified that he selected one of the pieces of
leather and told his foreman, Edward Persing, that it was too poor
in quality to be used; that Persing directed him to use the leather,
and after the chair was completed passed it as satisfactory; that after
Harman saw the chair he complained to Persing and Brew about it,
and that Edward Persing's answer to Harman, who asked what
would be done about it, was "You either get his (Brew's) check or
get mine;" and that Harman thereupon discharged Brew before the
stoppage on March 4, 1937.
Arthur B. Persing, a cousin of Edward Persing and an employee
in the finishing department, testified that at his home Edward Pers-
ing told him that he and Harman had planned Brew's discharge be-
cause Brew was "always keeping things stirred up." Edna Persing,
who worked in the sewing room and was Arthur B. Persing's wife,
testified that Edward Persing told her that the circumstances sur-
rounding Brew's discharge had been planned in advance because he
was "agitating the first strike." She further testified that Edward
Persing, in accordance with his usual practice, had selected the
leather that morning during which time she had not seen Brew select
any leather. Clyde Harter, another employee, testified that Edward
Persing told him that he and Harman had "framed" Brew in order
to get rid of him because he was "agitating these strikes."
The respondent's witnesses substantially denied these assertions as
to planning Brew's discharge. Edward Persing testified that many
times before the discharge he had complained to Brew about his
poor work, that he had never told Arthur B. Persing or his wife
that Brew had been "framed," that he had not selected the leather
for Brew, and that Brew had not complained about the quality of
In the record , his name also appears as "Donald Brew."
DECISIONS AND ORDERS 401
the leather before he used it. Edward Persing further testified that
Brew had not been "framed," that he had not seen the seat after it
had been finished until Harman called it to his attention, and that,
after Brew's discharge, the seat was covered satisfactorily with the
same piece of leather. Harman also testified that Brew's work had
been unsatisfactory, that he had spoken to Brew twice about it, and
that he had not planned the circumstances surrounding Brew's dis-
charge. Burnice White, one of the respondent's witnesses, testified
that, while she was working on cutting leather, Brew told her that
the piece of leather in question was "all right for a seat."
It is clear from the testimony of Arthur and Edna Persing and
Clyde Harter, which we credit, that Brew was an active participant
with the other upholsterers in the concerted activity which culmi-
nated in the stoppage of March 4, 1937. It is equally clear, from
their testimony, that Edward Persing and Harman knew of this ac-
tivity and resented it. There is a conflict in the evidence as to
whether or not Brew made application for membership in the I. A. M.
before or after his discharge, but in our view the date is immaterial
since the basis of the respondent's objection to this employee was
his concerted activity with other employees which resulted in the
organization of the I. A. M.
The respondent's contention that Brew was habitually inefficient is
not persuasive since the respondent voluntarily rehired him after his
original discharge and retained him in its employ for more than a
year thereafter, during which period he received two increases in
salary. In view of the evidence that Edward Persing and Harman
"framed" the incident which precipitated his discharge, we find that
Brew's allegedly faulty workmanship on the chair was no more than
a pretext for his discharge.
In our opinion, the weight of the evidence establishes that, in dis-
charging Brew, the respondent discriminated against him because of
his concerted activity with other employees for their mutual aid and
protection.
Clyde Harter, Virgil Harter, and Frank Kenney
Clyde Harter was hired by the respondent as an upholsterer on
July 2, 1936, at a wage of 35 cents an hour. He was receiving 421/.2
cents an hour at the time of his discharge. Clyde Harter was an
active participant in the stoppage which occurred on March 4, 1937,
and served as spokesman for the upholsterers on the committee which
met with E. C. Harter on that day to discuss the employees' griev-
ances. Apparently, E. C. Harter resented this activity as, subse-
quently, he addressed Clyde Harter as "the committeeman." Clyde
Harter made application for membership in the I. A. M. on April
6, 1937.
402 NATIONAL LABOR RELATIONS BOARD
On March 19, 1937, Clyde Harter was discharged by his foreman,
Edward Persing, although eight or nine employees in the upholstery
department were his juniors in service. Clyde Harter testified that,
after Edward Persing discharged him, Persing informed him that he
had been instructed to do so because of his connection with the strike.
Edward Persing denied this statement and asserted that he had
simply told Clyde Harter that he was going to lay him off. How-
ever, Edward Persing's denial is negated by other evidence in con-
nection with Clyde Harter's discharge. Sargent testified that he had
overhead Ed-ward Persing tell Marker that Harman had instructed
him to discharge Clyde Harter because of his activity in connection
with representing the employees, which he feared would result in
another strike. Frank Kenney testified that when Clyde Harter re-
turned for his tools, he had heard E. C. Harter say to Edward
Persing, who had been in the stockroom, "Why in hell don't you get
out and watch that fellow? You know he is a labor organizer."
Although Edward Persing denied in general terms that he had stated
to any employees or in their presence that anyone would be laid off
for union activities, neither he nor E. C. Harter denied these specific
statements attributed to them, which we believe.
The respondent's witnesses denied that Clyde Harter's activity in
connection with the stoppage on March 4, 1937, had motivated his
discharge but testified that he had been laid off at a time when the
respondent was reducing the number of its employees because he was
less efficient than other employees. We cannot accept this explana-
tion of his discharge since he had greater seniority than eight or nine
other employees and his work had apparently been satisfactory, as
is evidenced by the fact that he had received two increases in pay.
It is also significant that the respondent did not deem Clyde Harter's
alleged failings to be of sufficient importance to warrant his dis-
charge until shortly after he had conspicuously participated in the
stoppage on March 4, 1937. We find that the respondent discharged
Clyde Harter because he engaged in concerted activity with other
employees and was an active participant in the March, 4, 1937,
stoppage.
Virgil Harter, a brother of Clyde Harter, was hired by the re-
spondent as an upholsterer in January 1937. He performed some
of the work on the respondent's samples and Edward Persing, his
foreman, complimented him upon his work. Virgil Harter made
application for membership in the I. A. M. on approximately March
1, 1937, and was discharged at the same time as his brother, Clyde,
on March 19, 1937. He was in the upholstery department when that
entire department stopped work on March 4, 1937. Although Virgil
Harter was one of the recently hired employees in the upholstery
department, he had more seniority than several other employees in
DECISIONS AND ORDERS 403
the department at the time of his discharge. The respondent main-
tained that he had been discharged because of his inefficiency. There
was no showing to support the testimony concerning his alleged
inefficiency. Under the circumstances, we conclude that his affilia-
tion with the I. A. M., his concerted activities with other employees,
and his relationship to Clyde Harter, another active participant in
such activity, caused the respondent to discharge him simultaneously
with his brother.
Kenney, who is related to Clyde and Virgil Harter, was hired by
the respondent in January 1937, as a retoucher of leather. During
the course of his employment, Kenney's initial salary of 25 cents an
hour was increased by 5 cents and he was promised a further in-
crease. Kenney applied for membership in the I. A. M. on March 1,
1937. In February 1937, he asked his foreman, Edward Persing, to
be transferred to upholstering work in order to earn more money,
and subsequently he was so transferred. Kenney testified that he
received no instruction in connection with his new work; that, after
he had been working for an hour or two, Edward Persing com-
plained to him that he was not working with sufficient speed; and
that the next morning, April 17, 1937, Harman discharged him, stat-
ing that he had been working too slowly. Edward Persing testi-
fied that Kenney had 'worked at upholstering for 2 or 3 weeks before
his discharge, that he had received instruction in his new work, and
that he was unable to handle it. He further stated that he had no
knowledge of Kenney's union membership or that he was related
to Clyde and Virgil Harter.
Persing's explanation does not convince us. In the first place,
Persing on cross-examination stated that he thought Clyde Harter
had helped Kenney on the upholstering work and presumably fur-
nished the instruction. When confronted with the fact that Clyde
Harter had been discharged before Kenney had been assigned to
upholstery work, he admitted his uncertainty. In the second place,
as noted in Section A, Persing had warned Kenney concerning his
I. A. M. membership about 3 weeks before Kenney was discharged.
Under all the circumstances we find that the respondent did not
give Kenney an adequate opportunity to learn the new and un-
familiar work to which he was transferred in an effort to be rid of
him because of his activity in connection with the I. A. M.
S. E. Mitch,} J. G. Pickles, and L. A. Sargent 5
S. E. Mitch had been employed by the respondent since about July
1935. His initial salary of 40 cents an hour was subsequently in-
creased to 45 cents an hour. At the time of his discharge, he worked
' In the record , his name also appears as " Sherman E . Mitch."
5In the record, his name also appears as "Lester Sargent."
117213-39-vol. 8-27
404 NATIONAL LABOR RELATIONS BOARD
as a millwright and fireman . About March 1, 1937, Mitch applied
for membership in the I. A. M. and, at the time of the hearing, was
its financial secretary.
About 11 : 20 p. m. on April 7, 1937, Mitch, accompanied by Pickles
and Sargent , endeavored to see LeRoy Van Zile at the factory to let
him know what had happened at an I. A. M. meeting held that night.
'Apart from Orcie L. Bolley, the night watchman, Van Zile was the
only employee working in the factory that night. Although Mitch
had keys to all parts of the factory , he rang the outer bell and asked
Bolley for permission to see Van Zile, whereupon Bolley escorted
them to the paint room, where Van Zile was working. The evidence
as to the conversation after they met Van Zile is conflicting, but
apparently they recounted the events at the I. A. M. meeting and
sought to induce Bolley and Van Zile to join the I. A. M., as the two
latter testified . However, it is uncontradicted that they created no
disturbance and that they did not remain in the factory for a long
period.
The next morning E. C. Harter discharged Mitch, Pickles, and
Sargent. Before Mitch started to work, he was discharged and di-
rected to return later for his tools and check . Mitch testified that
when he returned that day as directed , "Mr. Marker said to me, he
said, `Mr. Harter wants to see you in his office .' So I went to Mr.
Harter's office and we set there and we talked and he asked me why
the hell I was out trying to organize the employees in his business,
that they 're getting along good enough the way things were going,
and I told him that I didn't organize them, but I told him that the
employees were organized, the biggest majority of them, and he told
me that I wasn't nothing but a damn back -stabber." Harter insisted
that in his conversation with Mitch he had assured him that the dis-
charge should not be construed as having anything to do with his
union activities , but • he did not deny Mitch's version of the conver-
sation.
Pickles was hired by the respondent in January 1936, as a polisher
and was subsequently transferred to upholstering work. He applied
for membership in the I. A. M. on March 1, 1937, and subsequently
served as one of its officers. Pickles and Sargent were discharged
by Harter at the same time. Pickles testified that Harter told them
on that occasion that they were being discharged for "slipping into
the factory at night and talking about him the way we did." Since
Sargent corroborated this testimony , in substance , and Harter did
not deny it, we find that the statement was made.
During the latter part of April 1937 , Pickles was offered reem-
ployment but not back pay by the respondent and he refused to re-
turn to work because he had placed his case in the hands of the
Shop Union for adjustment,
d
DECISIONS AND ORDERS 405
Sargent was employed by the respondent in its upholstering de-
partment from January 1936 until April 8, 1937, except for a 2-
week interval in the fall of 1936. He was hired at the salary of
40 cents an hour and was earning 471/2 cents an hour at the time of
his discharge. Sargent applied for membership in the I. A. M.
on March 1, 1937, and solicited members for it.
The answer alleges, and the respondent's witnesses testified, that
Mitch, Pickles, and Sargent had been discharged "for trespassing on
the respondent's property and for interfering with other employees
in their work . . . against the rules and regulations of the respond-
ent's factory." There is no contention that these men were in any
manner unsatisfactory in their work. E. C. Harter maintained that
he told Mitch, Pickles, and Sargent that he had not discharged
them because of their union activity, but rather for the alleged in-
fractions of the rules. The evidence shows that Mitch, Pickles, and
Sargent entered the factory with the permission of the night watch-
man in charge. It appears that, in so doing, they violated none of
the respondent's rules or regulations and that it was not unusual for
employees to enter the factory at night for purposes which were
unrelated to their work. Apparently Bolley, the night watchman,
neither interpreted their conduct as improper nor as against instruc-
tions. There is no showing that the respondent had disciplined or
reprimanded Bolley for neglect of duty in permitting them to enter.
Under these circumstances, we are impelled to conclude that the
respondent's actual reason for' discharging Mitch, Pickles, and Sar-
gent is because of their suspected activity in soliciting membership
for the I. A. M.
Gale Lintemoot
Lintemoot was hired by the respondent in January 1937. He was
the only employee in the polishing department , where he was then
employed , who participated in the stoppage of work on March 4,
1937. He was appointed to the committee which met with E. C.
Harter on March 4, 1937, although another employee served in his
stead. On March 11 , 1937 , Lintemoot was discharged by his fore-
man, Taylor, who told him that he was being laid off temporarily
at Harman's direction "until we get more work ." When Lintemoot
complained that another employee, who was his junior in service, had
not been laid off before him , Taylor answered , "Well , I don't know
why they didn't lay him off first. " Lintemoot asked the respondent
for reinstatement several times thereafter but Harman refused to
rehire him.
The respondent maintained that Lintemoot had been discharged
because he worked too slowly and was irregular in his attendance
406 NATIONAL LABOR RELATIONS BOARD
but it failed to produce its attendance or other written records to
substantiate these general contentions. We cannot give credence
to these excuses as it appears that the respondent did not deem
Lintemoot's alleged deficiencies to be of sufficient moment to warrant
his discharge until he had participated in the stoppage of work
on March 4, 1937.
Upon the entire record in this case, we find that Lintemoot was
discharged and refused reinstatement because he engaged in con-
certed activity with his fellow employees for the purpose of collec-
tive bargaining and other mutual aid and protection.
Edna Persing
Edna Persing, the wife of Arthur B. Persing, was employed by
the respondent in August 1936 in the sewing room of the upholster-
ing department and continued in this position until she was dis-
charged on June 21, 1937. Mrs. Persing became a member of the
I. A. M. about April 8, 1937, as did Sarah Linkhauer, who was em-
ployed in the same department and performed the same type of work.
Mrs. Persing and Mrs. Linkhauer appear to have been the only two
doing this particular type of work. Stanton Harter, E. C. Harter's
son, asked Mrs. Persing if she was a member of the I. A. M. but
told her that she was not obliged to answer his question. Edward
Persing told her that Harman knew of her interest in the I. A. M.
On June 21, 1937, she was discharged by her foreman who told
her that work was slack, that it would be necessary for each em-
ployee to be laid off one day a week, that she would be the first to
be laid off because her machine was broken, and that he would let
her husband know when her machine was repaired so that she could
return to work.
In an effort to secure reemployment, Mrs. Persing saw Harman
about a month after her discharge and he told her that she had been
discharged because she talked too much, because she did not work
with sufficient speed, and because the respondent's interests de-
manded that Mrs. Linkhauer, who was Mrs. Persing's junior in
service, be retained because she was earning less money than Mrs.
Persing. She told Harman that the poor condition of her machine
had slowed down her work and that her discharge had been in dis-
regard of E. C. Harter's assurance that seniority would govern the
lay-offs. However, upon cross-examination, Mrs. Persing testified
that the whole department had "slowed down" and that there was
not sufficient work to keep her and Mrs. Linkhauer busy.
Harman testified that Mrs. Persing was laid off while her sewing
machine was being repaired, that "when we did get it fixed, the work
was slack we didn't need anybody else, so we didn't call her," and
DECISIONS AND ORDERS 407
that the respondent hired no one to replace her until after the strike
of August 13, 1937. He further testified that Mrs. Linkhauer was
retained because she was a "faster woman and did less talking,
stayed at her job more steady." Edward Persing testified that, after
Mrs. Persing was laid off, Mrs. Linkhauer performed all the sewing
work which formerly had been done by both women.
While the case is not free from doubt, since there was admittedly
a curtailment in her type of work, and since Mrs. Linklauer, another
union member, earning 'less money was retained to do the work of
both women, we find that the respondent discharged Mrs. Persing
for legitimate business reasons and not because of her union member-
-ship and activity.
D. H. Mitch, Arnold Whistler,° Fern Wygant, Carl Jordan, Elmer
Randol,7 Freeman Yoder, Walter Jacobs, Arthur B. Persing, Tyrus
Hostetler, Laban Hayes, and Clayton Busz
D. H. Mitch was hired by the respondent in January 1936, and
was employed in its final-assembly department at the time of his
discharge. He applied for membership in the I. A. M. on March 1,
1937. On August 11, 1937, he was discharged by Marker, who told
him that he would have to take a vacation for an indefinite period.
Mitch was not the junior in his department in point of service.'
Whistler was first hired by the respondent in November 1936, in
its final-assembly department. About March 30, 1937, he was laid
off until about May 6, 1937, at which time he was reinstated. Whistler
applied for membership in the I. A. M. on March 1, 1937. He was
discharged by the respondent on August 11, 1937, although he had
more seniority than other employees in his department. In addition
to claiming that the discharge was due to a necessity for a reduction
in force, the respondent asserted that Whistler was less efficient than
the employees who were retained, but presented no convincing proof
in support of the assertion.
Wygant was hired by the respondent about August 7, 1936, and
applied for membership in the I. A. M. on March 1, 1937. His fore-
man, Taylor, discharged Wygant on August 11, 1937, at which time
he was operating a punch press. The respondent retained two or
three employees in his department who were not members of the
I. A. M. although they had less seniority than Wygant had. Harman
claimed that Wygant had been laid off because he was sick occa-
sionally, was irregular in his attendance, and was "antagonistic with
the foremen." Taylor simply asserted that Wygant was laid off be-
cause of "slack of orders." In spite of Taylor's opportunity to
observe Wygant more closely than Harman, it appears that the
O In the record , his name also appears as "Arnold Whisler."
7In the record, his name also appears as "Elmer Randall."
40S NATIONAL LABOR RELATIONS BOARD
alleged deficiencies assigned by Harman created little or no impres
sion upon Taylor.
Jordan was hired by the respondent about May 1, 1937, and was
employed in its polishing room. He was laid off in June 1937, and
rehired about July 11, 1937. Jordan became a member of the I. A. M.
on June 14, 1937. Jordan testified that he was discharged by his
foreman, Taylor, on August 11, 1937, although he had greater sen-
iority than others in his department. The respondent contended that
it laid off Jordan because he was inefficient. However, this conten-
tion does not persuade us since the respondent had rehired Jordan
after it had laid him off on a prior occasion.
I?andol was hired by the respondent on February 22, 1937, and was
employed in its welding department. He applied for membership
in the I. A. M. on March 1, 1937. Randol was discharged by his fore-
man, Taylor, on August 11, 1937, who told him that he was being
laid off for 2 or 3 weeks because "work was slack." Randol testified
that other employees in his department with less seniority who were
not members of the I. A. M. were not laid off at that time. Harman
and Taylor testified that Randol had been laid off because he was
inefficient.
Yoder was hired by the respondent in February or March 1935, and
was employed in its welding department. He applied for member-
ship in the I. A. M. on March 1, 1937. On August 11, 1937, Yoder
was discharged by his foreman, Taylor, who first told him that he was
being laid off because he needed a rest and, later, that he was being
laid off because he had been late a few times. Yoder was the senior
employee in his department. Harman. testified that Yoder had been
laid off because "He was tardy quite a little bit, wasn't dependable,
and we was way ahead on his particular line of work." It appears,
however, that shortly before the respondent reopened its factory on
September 7, 1937, Taylor requested Yoder to return to work. Yoder
refused to return because the strike was still in'progress.
Jacobs was hired by the respondent as a metal polisher in July
1936. He applied for membership in the I. A. M. in April 1937, and
subsequently served as chairman of its bargaining committee. On
August 10, 1937, Jacobs asked his foreman, Taylor, for permission to
be away for 2 days in order to make a report for the Church of the
Nazarene of which he was a minister. According to Jacobs, Taylor
answered that he could have only 1 day off as the respondent was too
busy to allow him to leave and that a night force might have to be
put on in his department.. The next day, Taylor discharged Jacobs
stating that the "work was falling off." At the hearing, the re-
spondent contended that Jacobs had been laid off for a short period
so as to give him the vacation he had requested.
DECISIONS AND ORDERS 409
Harman testified that he believed Jacobs to be a "man who tells
the truth" and we credit Jacobs' testimony. We are not persuaded
that the reduction in work was the reason for Jacobs' lay-off as it is
wholly inconsistent with Taylor's statement to him on the preceding
day that a night force might have to be added to his department.
Arthur B. Persing, a cousin of Edward Persing, was hired by the
respondent on September 18, 1935, in its finishing department at a
salary of 40 cents an hour and subsequently received two increases.
He applied for membership in the I. A. M. on April 6, 1937. There
was only one man with more seniority than Arthur B. Persing and at
least five or six employees in his department with less seniority. On
August 11, 1937, he was discharged by his foreman, Booher, who
informed him that "there was no more graining to be done" and that
"they were pretty well caught up with the staining and filling." No
other employee in this department was laid off at that time.
Hostetler was hired by the respondent as a receiving clerk in Janu-
ary 1937. He applied for membership in the I. A. M. on March 1,
1937, and was laid off by the respondent on March 19, 1937. Hostet-
ler was rehired in April and served as a general utility man, working
at various jobs in the respondent's factory. He was discharged by
Marker on August 11, 1937, at which time he was engaged in packing
chairs. Harman testified that Hostetler was "laid off because he was
less efficient and wasn't as capable of handling some of the jobs and
put out as much work," but adduced no convincing proof in support
of this testimony. About 10 or 15 employees were hired by the re-
spondent in the factory after he had been hired. On October 1, 1937,
of its own volition, the respondent sent him a letter asking him to
return to work. He refused to return as the strike was still in
progress.
Hayes was hired by the respondent in its upholstering department
on January 11, 1937, after having worked for the respondent on
prior occasions. He applied for membership in the I. A. M. on
March 1, 1937. On August 11, 1937, Hayes was discharged by his
foreman, Edward Persing, who told him that he was being laid off
because "orders were getting kind of low." In testifying as to the
cause of Hayes' discharge, Harman stated that "he was a very slow
worker; he was a fairly good worker but lie didn't produce the
amount of work the average man should." However, Edward Pers-
ing had told Hayes that his work was good and assigned him to do
different jobs including assisting some new men.
Busz was hired by the respondent in 1933 and was employed in its
upholstering department. He applied for membership in the I. A. M.
on March 1, 1937. On August 11, 1937, Busz was discharged by his
foreman, Edward Persing, who told him that he could stand a vaQa-
410 NATIONAL LABOR RELATIONS BOARD
tion and he hoped that the vacation would not be permanent. At
the hearing, Harman stated that, in laying off Busz, he was acting
pursuant to E. C. Harter's instructions to lay off the less-efficient
men. Busz assisted other employees with their work and, when
Edward Persing was away on his vacation during part of the sum-
mer, he acted as foreman of the department. At the time of his
discharge, Busz was the senior employee in the department.
Conclusions with respect to the discharges of August 11, 1937
The respondent maintained that, except in the case of Walter
Jacobs, efficiency was the criterion applied to determine the em-
ployees to be laid off on August 11, 1937, and, in some instances,
prior to that date. However, Harman stated that, at the time these
employees were discharged, the respondent had no written records
from which it could accurately ascertain their efficiency and that he
relied largely upon the recommendations of the foremen in deter-
mining the employees to be laid off.
By August 11, 1937, substantial inroads in the I. A. M. member-
ship had been effected through the company-sponsored Shop Union,
which' we have discussed above. By the end of April 1937, the Shop
Union claimed that its membership included most of the employees
in the factory. Presumably, the same proportion of Shop Union
members was at least retained with the respondent's-aid and support
during the successive months. Yet, on August 11, 1937, when the
respondent claims it became necessary to reduce the force, 11 of the
14 employees laid off were members of the I. A. M. The three non-
I. A. M. members included in the lay-off were E. C. Harter's and
Harman's sons and a friend of theirs. The great proportion of
I A. M. members laid off under the circumstances which we have
discussed, makes it plain to us that their selection was not fortuitous,
but was rather an unjust discrimination against them because of
their union affiliation.
As noted above, the discharges on August 11, 1937, precipitated a
strike by the I. A. M. which became effective on August 13, 1937.
Between August 14 and 17, 1937, conferences were held between E. C.
Harter and an I. A. M. committee at which the I. A. M. sought ex-
clusive recognition and the parties sought to resolve their differences.
On August 17, 1937, E. C. Harter, in the presence of the committee,
prepared a letter which he delivered to the committee for submission
to the union members. In the letter he offered to grant the em-
ployees seniority rights after four months' employment, offered re-
instatement to the 14 employees discharged on August 11, 1937, and
stated that any future lay-off of the 14 employees or "their sympa-
thizers" would be subject to the approval of himself and a com-
DECISIONS AND ORDERS - 411
mlttee of the I. A. M. members, but he failed to grant the I. A. M.
exclusive recognition as the bargaining representative of the em-
ployees. The committee caused the letter to be read at the picket
line and deliberated over its contents. Subsequently, a vote was
taken by the I. A. M. and the respondent's offer was rejected, al-
though it does not appear that the respondent was informed of the
result of the vote. It does not appear that any of the striking or
discharged employees returned to work pursuant to this letter be-
cause of the respondent's refusal to accede to the I. A. M.'s request
to recognize it as the exclusive bargaining representative of all the
employees in the appropriate unit. After delivering the letter to
the strike committee, E. C. Harter spoke on the telephone with
Jacobs, one of the I. A. M. members, and told him that he "was
agreeing as far as I possibly could to every request that had been
made and we just couldn't carry it on any farther . . ." Not re-
ceiving a definite acceptance or rejection of his proposal, E. C. Harter
sent the strike committee another letter on August 18, 1937, in which
he revoked his prior proposals. The strike continued.
Although the respondent was under a duty to accord the I. A. M.
exclusive recognition at this time, as is hereinafter discussed, its
refusal to fulfill that duty did not operate to invalidate its offer of
reinstatement to the 11 discharged I. A. M. employees, who could
have returned to work and sought an adjudication of their rights
through the medium of the 'Act but who elected to remain away
from work with the strikers in protest against the respondent's
refusal of exclusive union recognition. By reason of their election
to continue on strike rather than return to work in accordance with
the respondent's offer of August 17, their status changed after that
date from discharged employees to strikers.
Upon the entire record in the case, we find that the respondent
discharged S. E. Mitch, Whistler, Wygant, Jordan, Randol, Yoder,
Jacobs, Arthur B. Persing, Hostetler, Hayes, and Busz on August 11,
1937, because of their affiliation with the I. A. M.
We find that, by discharging Don Brew, Gale Lintemoot, Clyde
Harter, Virgil Harter, S. E. Mitch, J. G. Pickles, L. A. Sargent,
Frank Kenney, D. H. Mitch, Arnold Whistler, Fern Wygant, Carl
Jordan, Elmer Randol, Freeman Yoder, Walter Jacobs, Arthur B.
Persing, Tyrus Hostetler, Laban Hayes, and Clayton Busz, the re-
spondent has discriminated against its employees with respect to hire
and tenure of employment for the purpose of discouraging mem-
bership in the I. A. M. and that by such acts the respondent has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
412 NATIONAL LABOR RELATIONS BOARD
C. Refusal to bargain collectively
1. The appropriate unit
In its petition for investigation and certification of representatives
the I. A. M. stated that the appropriate unit was "the plant unit
excluding clerical, engineering, and supervisory forces." The Shop
Union maintained the appropriate unit to be the "plant unit, exclud-
ing only office, managerial, and supervisory forces." The essential
difference between these claims appears to be that the I. A. M. desires
to exclude from the unit the employees engaged in engineering work
and the Shop Union wants them to be included. The record does not
clearly indicate the duties of the employees engaged in engineering
work and none of the employees on the respondent's April 6-8, 1937,
pay roll were identified as performing this type of work. The com-
t.laint alleged that the appropriate bargaining unit consisted of all
the production and other workers at the respondent's plant, exclusive
of maintenance, engineering, supervisory, and managerial employees.
As the record fails to indicate either that a substantial number of
the employees are engaged in maintenance work, including engineer-
ing employees, or that there is in the plant any other bona fide union
to which those employees are eligible to membership, we shall include
such employees, if any, within the bargaining unit so as not to de-
prive them of the right to bargain collectively with their fellow
employees. In accordance with our usual practice, we shall exclude
clerical and supervisory employees and the watchmen from the unit.
We find that the production and maintenance including engineer-
ing employees of the respondent, excluding clerical and supervisory
employees and watchmen, constitute a unit appropriate for the pur-
poses of collective bargaining and that said unit will insure to em-
ployees of the respondent the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate
the policies of the Act.
2. Representation by the I. A. M. of the majority in the appropriate
unit
The complaint alleges that on or about April 6, 1937, the I. A. M.
had been designated as their bargaining representative by a majority
of the employees in the bargaining unit therein stated to be appro-
priate, and that between March 27, 1937, and August 13, 1937, the
I. A. M. had informed the respondent of its majority and attempted
to bargain with it without success. The respondent's factory pay
roll for April 6-8, 1937, was introduced into evidence. The pay roll
lists the names of 87 employees, 5 of whom have been identified as
foremen, 5 as assistant foremen or strawbosses, and 1 as a watchman.
DECISIONS AND ORDERS 413
In the appropriate unit there were, therefore, 76 employees whose
names appear on the pay roll. However, the names of the four
employees who we have found had been discharged in violation of
the provisions of the Act prior to April 8, 1937, do not appear on the
pay roll. After their discriminatory discharge these employees re-
tained their status as employees of the respondent. On April 6-8,
1937, therefore, there were 80 employees within the unit which we have
found to be appropriate for the purposes of collective bargaining.
On March 1, 1937, 35 of the employees signed a. paper designating
the I. A. M. as their bargaining agent. The financial secretary of
the I. A. M., testifying from his records, read off the names of eight
additional employees who had applied for membership in the I. A. M.
on or before April 8, 1937. In addition, four other employees testi-
fied that they had applied for membership in the I. A. M. on or
before that date, making a total of 47. The names of 6 of these
employees do not appear on the April 6-8 pay roll but 4 of the 6
retained their status as employees of the respondent because of their
discriminatory discharge, making a total of 45. It appears, there-
fore, that 45 of the 80 employees in the appropriate unit had desig-
nated the I. A. M. as their bargaining agent on or before April 8,
1937.
Some of the employees testified that, after affiliating with the
I. A. M. they became members of the Shop Union and that they
desired it as their bargaining agent. In fact, the Shop Union's mem-
bership includes employees who had previously applied for mem-
bership in the I. A. M. As the Shop Union was organized about
April 28, 1937, it is apparent that none of the employees had altered
their designation of the I. A. M. as their bargaining agent on April 8,
1937, which we find below is the date when the respondent first re-
fused to bargain with the I. A. M. Since we have found that the
Shop Union was created and administered under the domination of
the respondent and that it obtained its membership as a result of
the respondent's coercive acts, we cannot give any effect to member-
ship in the Shop Union."
We find that on April 8, 1937, the I. A. M. had been designated and
selected by a majority of the employees in the appropriate unit as
their agent for the purposes of collective bargaining and it was,
therefore, on said date and hereafter, the exclusive representative of
all employees in such unit for the purposes of collective bargaining.
3. The refusal to bargain
Between March and July 1937, Thomas wrote to E. C. Harter and
met with him in an effort to induce him to recognize the I. A. M. as
8
See Matter of Bradford Dyeing Association (U. S. A.) (a Corporation) and Textile
Workers' Organizing Committee of the C. I. 0., 4 N. L. R B. 604.
414 NATIONAL LABOR RELATIONS BOARD
the employees' exclusive bargaining representative or to consent that
the Regional Director conduct an election among the employees to
determine their bargaining representative. E. C. Harter refused to
consent to either request. As noted above, after the strike of August
13, 1937, conferences were held between E. C. Harter and an I. A. M.
committee. Although the respondent offered on August 17, 1937, to
reinstate the employees who had been discharged on August 11, 1937,
it refused to accede to the I. A. M.'s request to recognize it as the
exclusive bargaining representative of all the employees in the appro-
priate unit. The respondent's proposal was rejected by the I. A. M.
because of its refusal to accord-the I. A. M. the exclusive recognition
to which it was entitled as representative of a majority of the em-
ployees within an appropriate bargaining unit. At the hearing
E. C. Harter stated, as he had stated in the past, that he was willing
to recognize the I. A. M. as the bargaining representative of its
members. This qualified offer of recognition did not satisfy the
respondent's duty under the statute. We have consistently held that
exclusive recognition of the representative selected by the majority of
the employees in an appropriate bargaining unit is an indispensable
prerequisite to, genuine collective bargaining and that such recogni-
tion cannot be withheld as the respondent sought to do in this case.9
Accordingly, we find that the respondent at all times since April 8,
1937, has refused to bargain collectively with the I. A. M. as the
exclusive representative of the employees in an appropriate unit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and affecting commerce
and the free flow of commerce.
THE REMEDY
As we have found that the respondent has dominated and inter-
fered with the formation and administration of the Shop Union and
has contributed support to it, we shall order the respondent to with-
draw recognition from the Shop Union, to disestablish it as repre-
sentative of its employees for the purposes of collective bargaining,
and to cease contributing support to it.
We shall order the respondent to offer to reinstate to their former
positions Don Brew, Gale Lintemoot, Clyde Harter, Virgil Harter,
ofs See Matter of The Griswold Manufacturing Company and Amalgamated Association
Iron, Steel and Tin Workers of North America, Local No. 1197, 6 N. L. R . B. 298.
DECISIONS AND ORDERS 415
S. E. Mitch, L. A. Sargent, and Frank Kenney, and to pay to each of
them a sum of money equal to that which he would have received as
wages from the date of his discharge to the date of such offer of
reinstatement, less any amount'earned by him during said period.
J. G. Pickles, who was discriminatorily discharged on April 8, 1937,
rejected the respondent's offer of reinstatement about April 30, 1937,
although he was not then on strike. We shall therefore order the
respondent to pay him a sum of money equal to that which he would
have received as wages from April 8, 1937, to April 30, 1937, but we
shall not order the respondent again to offer to reinstate him.
As we have found that D. H. Mitch, Arnold Whistler, Fern
Wygant, Carl Jordan, Elmer Randol, Freeman Yoder, Walter Jacobs,
Arthur B. Persing, Tyrus Hostetler, Laban Hayes, and Clayton Busz.
were discriminatorily discharged on August 11, 1937, and that they
rejected the respondent's offer of reinstatement on August 17, 1937,
because they were then striking against the respondent's unfair labor
practices, we shall order the respondent to pay them back wages for
the period between the date of their respective discharges and the
aforesaid offer of reinstatement.
Since the strike was both caused and prolonged by the -respondent's
unfair labor practices we shall, in accordance with our usual custom,
order the respondent, upon application, to offer reinstatement to their
former or substantially equivalent positions to D. H. Mitch, Arnold
Whistler, Fern Wygant, Carl Jordan, Elmer Randol, Freeman
Yoder, Walter Jacobs, Arthur B. Persing, Tyrus Hostetler, Laban
Hayes, and Clayton Busz, who rejected the respondent's previous
offers of reinstatement and to those employees who went out on strike
and have not since been fully reinstated. Such reinstatement shall
be effected in the following manner: All employees hired after the
commencement of the strike shall, if necessary to provide employment
for those to be offered reinstatement, be dismissed. If, thereupon, by
reason of a reduction in force there is not sufficient employment im-
mediately available for the remaining employees, including those to
be offered reinstatement, all available positions shall be distributed
among such remaining employees in accordance with the respondent's
usual method of reducing its force, without discrimination against
any employee because of his union affiliation or activities, following
a system of-seniority to such extent as has heretofore been applied
in the conduct of the respondent's business. Those employees re-
maining after such distribution for whom no employment is immedi-
ately available, shall be placed upon a preferential list prepared in
accordance with the principles set forth in the previous sentence, and
shall thereafter, in accordance with such list, be offered employment
in their former or in substantially equivalent positions, as such em-
416 NATIONAL-LABOR RELATIONS BOARD
ployment becomes available and before other persons are hired for
such work.
As we found that it has been designated as such, we shall order the
respondent to recognize the I. A. M. as the exclusive bargaining rep-
resentative of the respondent's production and maintenance em-
ployees, except clerical and supervisory employees, and to bargain
with it as such representative.
We shall also order the respondent to cease and desist from the
unfair labor practices in which it has engaged.
THE PETITION
We have determined the appropriate bargaining unit and found
that a majority of the respondent's employees within that unit had
designated the I. A. M. to be their representative for the purposes of
collective bargaining. Accordingly, we shall dismiss the I. A. M.'s
petition for certification.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following:
6 CONCLUSIONS OF LAW
1. Lodge No. 1523 International Association of Machinists and
Employees Shop Union are labor organizations within the meaning
of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and- admin-
istration of Employees Shop Union and by contributing support to
it, the respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to hire and tenure of employment
and thereby discouraging membership in a labor organization, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
4. The production and maintenance including engineering em-
ployees of the respondent, but excluding clerical and supervisory
employees and watchmen, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
5. Lodge No. 1523 International Association of Machinists is and
has been at all times since April 8, 1937, the exclusive representative
of all employees in such unit for the purposes of collective bargain-
ing, within the meaning of Section 9 (a) of the Act.
6. By refusing to bargain collectively with Lodge No. 1523 Inter-
national Association of Machinists as the exclusive representative of
all its employees in such unit, the respondent has engaged in and is
DECISIONS AND ORDERS 417
engaging in unfair labor practices within the meaning of Section
8 (5) of the Act.
7. By interfering with, restraining, aid coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
8. The aforesaid 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 findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
The Harter Corporation, and its officers, agents, successors, and
assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Lodge No. 1523 International
Association of Machinists or any other labor organization of its em-
ployees by discriminating in regard to hire or tenure of employment
or any terms or conditions of employment;
(b) Dominating or interfering with the administration of" Em-
ployees Shop Union or dominating of interfering with the formation
or administration of any other labor organization of its employees or
contributing support to Employees Shop Union or to any other labor
organization of its employees;
(c) Recognizing Employee Shop Union as representative of its
employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, rates of pay, wages, hours of employment,
or other conditions of employment;
(d) Refusing to bargain collectively with Lodge No. 1523 Inter-
national Association of Machinists as the exclusive representative of
its production and maintenance. including engineering employees,
excluding clerical and supervisory employees and watchmen, in re-
spect to rates of pay, wages, hours of employment, and other con-
ditions of employment;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining and other
mutual aid and protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
418 NATIONAL LABOR RELATIONS BOARD
(a) Offer Don Brew, Gale Lintemoot, Clyde Harter, Virgil Harter,
S. E. Mitch, L. A. Sargent, and Frank Kenney, immediate and full
reinstatement to their former positions, without prejudice to their
seniority and other rights and privileges ;
(b) Make whole Don Brew, Gale Lintemoot, Clyde Harter, Virgil
Harter, S. E. Mitch, L. A. Sargent, and Frank Kenney, for any loss
of pay they will have suffered by reason of their discharge, by pay-
ment to them, respectively, of a sum of money equal to that which
each would normally have earned as wages during the period from
the date of his discharge to the date of the respondent's offer of rein-
statement, less the amount, if any, which each has earned during
said period;
(c) Upon application, offer to D. H. Mitch, Arnold Whistler, Fern
Wygant, Carl Jordan, Elmer Randol, Freeman Yoder, Walter
Jacobs, Arthur B. Persing, Tyrus Hostetler, Laban Hayes, and Clay-
ton Busz and to those employees who went out on strike on August
13, 1937, and thereafter, immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, in the manner set
forth in the section entitled "The Remedy" above, placing those em-
ployees for whom employment is not immediately available upon a
preferential list in the manner set forth in said section ;
(d) Make whole J. G. Pickles for any loss of pay he will have
suffered by reason of his discharge, by payment to him of a sum of
money equal to that which he would normally have earned as wages
during the period from April 8, 1937, the date of his discharge, to
April 30, 1937, less the amount, if any, which he has earned during
said period, and make whole D. H. Mitch, Arnold Whistler, Fern
Wygant, Carl Jordan, Elmer Randol, Freeman Yoder, Walter Jacobs,
Arthur B. Persing, Tyrus Hostetler, Laban Hayes, and Clayton Busz
for any loss of pay they will have suffered by reason of their dis-
charge, by payment to them, respectively, of a sum of money equal
to that which each would normally have earned as wages during the
period from August 11, 1937, the date of his discharge, to August
17, 1937, less the amount, if any, which he had earned during said
period ; •
(e) Make whole the employees ordered to be offered reinstate-
ment, as set forth in paragraph 2 (c) above for any loss of pay they
will have suffered by reason of the respondent's refusal to reinstate
them, upon application, following the issuance of this order, by pay-
ment to them, respectively, of a sum of money equal to that which
each would normally have earned as wages during the period from
five (5) days after the date of such application for reinstatement to
the date of the offer of employment or placement upon the prefer-
DECISIONS AND ORDERS 419
ential list required by paragraph (c) above, less the amount, if any,
which each will have earned,during that period;
(f) Withdraw all recognition from Employees Shop Union as
representative of its employees for the purpose of dealing with the
respondent in respect to labor disputes, grievances, rates of pay,
wages, hours of employment, and other conditions of employment,
and completely disestablish Employees Shop Union as such repre-
sentative;
(g) Upon request, bargain collectively with Lodge No. 1523 Inter-
national Association of Machinists as the exclusive bargaining repre-
sentative of its production and maintenance including engineering
employees, excluding clerical and supervisory employees and watch-
men, in respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(h) Immediately post notices to its employees in conspicuous
places throughout its factory stating that the respondent will cease
and desist in the manner aforesaid, and maintain said notices for a
period of at least thirty (30) consecutive days;
(i) 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.
It is further ordered that the complaint be, and it hereby is, dis-
missed, to the extent that it concerns the discharge of Edna Persing.
And it is further ordered that the petition for certification of
representatives, filed by Lodge No. 1523 International Association
of Machinists be, and it hereby is, dismissed.
[SAD1E TITLE]
SUPPLEMENTAL DECISION
AND
ORDER
August 12, 1938
On July 19, 1938, the National Labor Relations Board, herein
called the Board, issued its Decision and Order-in the above-entitled
proceeding in which the Board ordered the Harter Corporation,
Sturgis, Michigan, herein called the respondent, to cease and desist
from certain unfair labor practices and to take certain affirmative
action.
On August 1, 1938, Lodge No. 1523 International Association
of Machinists, herein called the I. A. M., filed a protest to the
Board's Decision and moved for amendment of the Board's Deci-
117213-39-vol. 8-28
420 NATIONAL LABOR RELATIONS BOARD
sion and Order. On August 9, the respondent filed a reply in oppo-
sition to the I. A. M.'s protest and, motion for amendment of the
Decision and Order.
In its decision the Board found, inter alia, that the respondent had
discriminatorily discharged D. H. Mitch, Arnold Whistler, Fern
Wygant, Carl Jordan, Elmer Randol, Freeman Yoder, Walter
Jacobs, Arthur B. Persing, Tyrus Hostetler, Laban Hayes, and Clay-
ton Busz on August 11, 1937; that a strike was caused on August
13, 1937, by the respondent's unfair labor practices including the dis-
criminatory discharges; that on August 17, 1937, the respondent
made a valid offer of reinstatement to the afore-mentioned 11 em-
ployees, which offer was rejected by them because the respondent
would not grant the I. A. M. exclusive recognition as the employees'
bargaining agent, to which the I. A. M. was entitled and that by re-
jecting the offer and electing to continue on strike the status of these
employees changed from discharged employees to strikers. The
Board further found that J. G. Pickles, S. E. Mitch, and L. A. Sar-
gent were discriminatorily discharged on April 8, 1937, and that dur-
ing the latter part of April, the respondent offered Pickles reinstate-
ment which he refused. On the basis of its findings the Board
ordered the respondent to pay back pay to the, afore-mentioned 11
employees and J. G. Pickles from the date of the respective dis-
criminatory discharges to the date of the respective offers of rein-
statement.
In its protest the I. A. M. urges that the Board erred in treating
the respondent's offer of reinstatement to the 11 employees as valid
during the pendency of the strike, in treating the offer to Pickles as
valid in the absence of a similar offer to Sargent and Mitch, in limit-
ing back pay awarded to such employees to the period from the date
of discharge to the date of the respective offers of reinstatement and
in failing to order the respondent again to offer reinstatement to
Pickles.
The Board has considered the I. A. M.'s protest, motion and argu-
ments in support thereof and finds no reason to alter its Decision
and Order.
IT IS HEREBY ORDERED that the I. A. M.'s motion for amendment
of the Decision and Order be, and it hereby is, denied.
8 N. L. R. B., No. 43a.