Hoosier Veneer Co.

National Labor Relations Board - Board Decisions

Mar 22, 1940

21 N.L.R.B. 907 (N.L.R.B. 1940)

In the Matter of HOOSIER VENEER COMPANY, A CORPORATION AND
FRANK F. WOOLLING, RECEIVER FOR HOOSIER VENEER COMPANY and
UNITED VENEER AND LUMBER WORKERS LOCAL INDUSTRIAL UNION
No. 607, AFFILIATED WITH THE C. I. O.
Case No. C-1094.-Decided March 22, 1940
Veneer _Manufacturing Industry-Employer: receiver in charge of business,
held to be-Interference, Restraint, and Coercion: questioning employees re-
garding union affiliation ; threats to close plant because of union activity ;
blacklisting laid-off employee because of union activity--Discrimination: re-
fusal to reinstate following temporary shut-down ; in selection of reduced staff
upon resuming operations ; contention that employees discharged rather than
laid off, denied-Reinstatement Ordered: of 12 employees ; displacement of em-
ployees hired after shut-down ; preferential list to be followed in reinstatement
of those for whom no work available-Back Pay: awarded : to 14 employees
discriminated against-Unfit Appropriate for Collective Bargaining: production
and maintenance employees, excluding clerical and supervisory employees-
Representatives: proof of choice : application cards-Collective Bargaining: re-
fusal to recognize Union as exclusive bargaining agent; refusal to bargain with
purpose of reaching an agreement ; refusal to bargain as to reinstatement of laid-
off employees-Order: to bargain ; runs against receiver and, in the event the
receivership is discharged, against the corporation.
Mr. Walter B. Chelf, for the Board.
Mr. H. K. Bachelder and Mr. W. C. Bachelder, of Indianapolis,
Ind., for the respondents.
Mr. Frank P. Baker, of Indianapolis, Ind., for W. C. Bachelder.
Miss Marcia Hertzmark and Mr. Francis V. Paone, of counsel to
the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Veneer
and Lumber Workers Local Industrial Union, No. 607, affiliated
with the C. I. 0., herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for
the Eleventh Region (Indianapolis, Indiana), issued its complaint
dated September 26, 1938, against Hoosier Veneer Company, a Cor-
21 N. L. R. B., No. 91..
907
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poration, and Frank F. Woolling, Receiver for Hoosier Veener Com-
pany, Indianapolis, Indiana, sometimes herein respectively called the
respondent corporation and the respondent receiver and sometimes
collectively called the respondents, alleging that the respondents had
engaged in and were engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1), (3), and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint and accom-
panying notice of hearing were duly served upon the respondents
and the Union.
Concerning the unfair labor practices, the complaint alleged in
substance (1) that on or about October 1, 1937, and at all times
thereafter, the respondents refused to bargain collectively with the
Union although that organization represented a majority of the
employees within an appropriate unit; (2) that on or about Novem-
ber 15, 1937, after a temporary shut-down of the plant, the respond-
ents refused to reinstate certain named employees for the reason that
they had joined and assisted the Union and engaged in concerted
activities for the purpose of collective bargaining and other mutual
aid and protection; (3) that the respondents kept under surveillance
the meeting places of the Union, made derogatory statements to the
employees concerning the Union, and conducted an open poll for the
purpose of ascertaining the desires of employees as to union
membership.
On September 30, 1938, the respondent corporation filed with the
Regional Director a special appearance and a motion to dismiss the
complaint on the ground that the respondent corporation was and
had been in receivership at all times covered by the allegations of the
complaint, that the corporation was legally incapable of being an
employer under the Act, and that it was incapable of being served
with process without formal consent of the receivership court.
Pursuant to notice, a hearing was held at Indianapolis, Indiana,
on October 6, 7, 10, 11, and 12, 1938, before Earl S. Bellman, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent corporation were represented by counsel and participated
in the hearing. The respondent receiver appeared specially and filed
a motion to dismiss the complaint as to him on the ground that the
Board had no jurisdiction over him. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties.
At the commencement of the hearing the respondents renewed
their motions to dismiss the complaint. The Trial Examiner denied
the motions. During the course of the hearing, counsel for the re-
spondent corporation entered orally a general denial to the complaint
and was granted permission by the Trial Examiner to file a written
HOOSIER VENEER COMPANY 909
answer to the complaint. On October 12, 1938, the respondent cor-
poration filed its answer to the complaint, denying the jurisdiction
of the Board and denying that it had engaged in the unfair labor
practices alleged. The Trial Examiner granted a motion of counsel
for the Board to dismiss the complaint without prejudice as to Roy
Grider and B. B. Quillen. At the conclusion of the hearing, counsel
for the Board moved to amend the complaint to conform to the
proof. The motion was granted. During the course of the hearing
the Trial Examiner made a number of other rulings on motions and
on objections to the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.' The respondent
corporation, pursuant to permission granted, submitted a brief to the
Trial Examiner.
On December 15, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon all the parties, finding
that the respondent receiver had engaged in and was engaging in
unfair labor practices, within the meaning of Section 8 (1), (3), and
(5) of the Act. He recommended that the respondent receiver cease
and desist from his unfair labor practices; that he offer reinstate-
ment with back pay to 13 employees named in the complaint who were
found to have been refused reinstatement because of their union
membership and activity, but that the complaint be dismissed as to
William Coffey ; and that he bargain collectively with the Union as
the exclusive representative of the employees in the appropriate unit.
He also recommended that the complaint be dismissed as to the
respondent corporation.
The Union thereafter filed exceptions to the Intermediate Report,
protesting the action of the Trial Examiner in recommending the dis-
missal of the charges against the respondent corporation on the
ground that it would relieve the corporation of the fulfillment of the
obligation created by our order in the event that the receivership
should be terminated. The Board has considered the exceptions to,
the Intermediate Report. As set forth below we shall provide in our
order that the respondent corporation be responsible under our order
in the event that the receivership is terminated and the receiver
discharged.
The Board, having been informed that Frank F. Woolling, the
respondent receiver, had died on January 15, 1939, thereafter issued
an order pursuant to Article II, Section 36, of National Labor Rela-
' The ruling of the Trial Examiner , denying the motion of the respondent corporation
to dismiss the complaint as to it , was in effect reversed by the Trial Examiner in his
Intermediate Report. We affirm the ultimate ruling of the Trial Examiner as contained
in the Intermediate Report.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Board Rules and Regulations-Series 1, as amended , reopening
the record and authorizing the Regional Director to accept a supple-
ment to the charge and to the complaint for the purpose of making
W. C. Bachelder, the successor' to Frank F. Woolling, a party to the
proceedings . Thereafter , upon a supplemental charge duly , filed by
the Union, the Board , by the Regional Director , issued a supplemen-
tal complaint , dated May 3, 1939, against Hoosier Veneer Company, a
corporation , and W. C. Bachelder , Receiver for the Hoosier Veneer
Company. On May 9, 1939, W. C. Bachelder filed with the Regional
Director a motion to dismiss the complaint as to him on the ground
that the Board had no jurisdiction over him.
Pursuant to notice , a hearing was held at Indianapolis , Indiana,
on May 18, 1939 , before James C. Paradise , the Trial Examiner duly
designated by the Board. The Board and W. C. Bachelder, who
appeared specially , were represented by counsel . Full opportunity
to be heard, to examine and cross -examine witnesses , and to introduce
evidence bearing on the issues was afforded all parties . At the com-
mencement of the hearing W. C. Bachelder renewed his motion to dis-
miss the complaint . The Trial Examiner reserved ruling on the
motion. The Board hereby denies the motion . On May 29, 1939, the
Board issued an order directing that no Intermediate Report be
issued by the Trial Examiner in the further hearing.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT CORPORATION
The respondent corporation , Hoosier Veneer Company , was incor-
porated under the laws of the State of Indiana in about 1903. Its
office and plant are located in Indianapolis , Indiana. The operations
of the respondent corporation , consisting of the manufacture, sale,
and distribution of veneer and related products , were continuous from
its incorporation until January 17, 1933. On that date, its entire
business was placed in charge of the respondent receiver by the
Marion County Circuit Court, Marion County, Indiana. The re-
spondent receiver continued in full charge of the business from that
time until his death on January 15, 1939. On January 17, 1939,
W. C. Bachelder succeeded him as receiver.
Upon entering his duties as receiver in 1933, Woolling apparently
made no changes in foremen or in the supervisory set-up at the plant.
H. E. Daugherty , former president of the corporation , was retained
in a role apparently equivalent to that of general manager of the
plant, under the direction of the respondent receiver . James C.
Daugherty, secretary-treasurer of the respondent corporation, was also
HOOSIER VENEER COMPANY 911
retained by the respondent receiver in a capacity substantially equiv-
alent to that of sales manager. It is apparent that the respondent
receiver delegated routine responsibilities for production, sales, and
personnel, including hiring and discharging of employees, during the
period of the receivership, to H. E. Daugherty and James C.
Daugherty and to the various foremen at the plant.
The respondent corporation's operations require the use of such
raw materials as logs, stumps, and burls. During 1937, 73 carloads
of logs were shipped to the respondent corporation's plant from
points outside the State of Indiana, including one carload from
British Columbia and five from West Africa.2
From 1933 to 1937 the sales of the respondent corporation have
ranged from approximately one-quarter million to over one-half
million dollars per year. The major portion of the products sold
were shipped to States other than Indiana. The respondent cor-
poration maintains salesmen in each of the principal furniture
manufacturing areas in the United States including Rockford and
Chicago, Illinois; Grand Rapids, Michigan; Jamestown, New York;
Virginia; North Carolina; and Oregon.
II. THE ORGANIZATION INVOLVED
United Veneer and Lumber Workers Local Industrial Union
No. 607 is a labor organization affiliated with the Committee for
Industrial Organization,3 admitting to membership persons employed
at the respondent corporation's plant at Indianapolis, Indiana, except
clerical and supervisory employees.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The Union commenced organizational activities among the re-
spondent receiver's employees in July 1937. Beginning about the
latter part of August, the respondent receiver, Frank F. Woolling,
various agents of the respondent receiver, including H. E. Daugh-
erty, president of the respondent corporation, James C. Daugherty,
secretary and treasurer of the respondent corporation, and Plant
Superintendents Connor and Randall, interrogated individual em-
ployees concerning their membership in the Union and inquired
whether other employees had joined. Often coupled with such,ques-
tions were anti-union remarks and statements concerning the C. I. O.
On or about October 5 James C. Daugherty asked Frank Scott, a
fireman, if he had joined the C. I. O. and if other firemen had
2 The total number of carloads shipped to the respondent corporation does not appear
8 Now the Congress of Industrial Organizations.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"signed up." When Scott replied that he had joined, Daugherty
said, "Well, Scotty, I hate that. I think the old man [H. E. Daugh-
erty] will shut the plant down." On October 11, 1937, the day of
the shut-down, which we shall discuss hereinafter, H. E. Daugherty
called on Scott in the cutting room of the plant and said, "Scotty,
when 4 o'clock comes this evening and you punch the clock your
working here is over. You are permanently away from here. I
want to tell you myself so you can damn well understand and there
will be no misunderstanding in any way. Scotty, one time you
stood mighty well with me, but that is all over now."
During the same period Superintendent Connor on various oc-
casions asked Scott about his union affiliation. In the course of these
conversations Connor told Scott, in substance, that the Union was
bad; that if the Union got into the plant it would shut down; and
that they had "plenty of veneers to run for two or three years with-
out any production in the cutting room." Connor also inquired of
Charles Arthur, Hayden Arthur, and B. M. Wasson, three employees,
whether they had joined the Union. Upon receiving an affirmative
reply from Hayden Arthur, Connor told him, "Well, it looks like
jobs is going to be kind of scarce here now. It looks like the old
man will shut down now." Omer Lee Cookenour was also ap-
proached by Connor and queried as to whether he had joined the
Union. Cookenour replied that he had joined. Connor thereupon
inquired why he had joined and expressed the opinion that the men
had treated H. E. Daugherty "wrong" by signing up with the Union.
Connor also asked William Maynard if he had joined the C. I. O.
and when Maynard replied that he had and was "damn proud of it,"
Connor said, "You may be sorry and might lose your job."
On another occasion Connor questioned James Short as to whether
he was a member of the Union. Short replied that he had joined.
Connor who was carrying a day book in his hand, stated that he
was taking the names of those who had joined the Union, that "old
man" Daugherty would not recognize the Union, and that the men
would all be laid off, except Connor, and a few others, who would
be there "reading a newspaper and drawing his money just the
same." Connor also told Frank Toler, on October 7, 1937, that the
plant would shut down, after Toler admitted having joined the
Union. On the following day Connor told Toler, "I have got as
many names or more that hasn 't joined them than you have that
have."
Prior to the shut-down, Myrna Heady, an employee, carrying a
veneer tape , approached Jesse Holyfield, the president of the Union,
while at work and said that Randall, a superintendent , wanted those
who had joined the C. I. O. to mark an "X" on the tape and those
HOOSIER VENEER COMPANY 913
who had not joined to mark an "0" on it. Holyfield took the tape,
wet the glue on the reverse side, affixed it to the table, and told
Heady that if Randall wanted to know about the membership of
the Union he could ask Holyfield. Several days later Randall met
Holyfield at the plant and said to him, "I figured you would try
to block Myrna." On about October 7, while Holyfield was at work
at his inspection table, Woolling, the respondent receiver, approached
him and started a conversation about unions. Woolling stated that
"he didn't see why we had to join up with this outfit when we could
have a shop union."
O. W. Humrichouse testified that prior to the shut-down Connor
asked him if he had signed up with the Union. Humrichouse replied
that he did not feel that his union affiliation was any of Connor's
business. Connor stated that he would take it for granted that Hum-
richouse had signed, and added that H. E. Daugherty wanted to
know who had signed up and who had not. During the latter part
of October Humrichouse applied for a job with a manufacturer of
veneer machinery in Indianapolis. The official of that company who
interviewed Humrichouse told him that he understood Humrichouse
was a member of the C. I. O. and stated, "I don't know as it is going
to do you any good. You- will get a lot of 'publicity from that from
Mr. Daugherty." Shortly thereafter Humrichouse returned to the
respondents' plant and talked to Daugherty about getting work.
Daugherty told him he could never be employed at the plant under
any consideration. Humrichouse requested that Daugherty "come
out and make it straight" with the veneer manufacturing company
"how I was as a workman" and, after refusing, Daugherty told
him "that the veneer employers had had meetings as well as the
union had had meetings," and that if he ever got a job elsewhere
Daugherty would do his utmost to have him discharged. Daugherty
also told him "he would blacklist . . . (him) so that ... (he)
wouldn't be able to work anywhere." In May 1938, Humrichouse
applied for work with a veneer company in Maryland. The reply
Humrichouse received contained the following paragraph:
In the meantime, we have been looking you up from our own
angle and the most disturbing thing is that it was mentioned
you were the C. I. O. representative in the Hoosier Veneer
Company strike. Have you anything to say about this report?
It is apparent, and we find, that Daugherty carried out his threat
to blacklist Humrichouse.
About 2 weeks after the shut-down, Harold Peters, who had been
employed as a sawyer, returned to the plant and talked to H. E.
Daugherty about returning to work. Daugherty asked him if he had
joined the C. I. O. and, upon Peters' acknowledgment that he had,
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daugherty said, "Well, there will never be a job here for you. I
am organizing this plant. I am doing all the hiring and firing.
I am boss around here and intend to continue to be boss."
King Beatty, who was employed on the stump deck and who was
reinstated about 3 weeks after the shut-down, recounted on the witness
stand a conversation he had with Connor a short time after he returned
to work. Connor asked Beatty if he had joined the Union. Beatty
replied that he had. Connor stated "he didn't think the damn thing
didn't amount to much anyway.... You are a good worker, but
just forget about it." Shortly thereafter Beatty went to the office
of H. E. Daugherty to make certain arrangements with regard to
securing unemployment insurance. Daugherty inquired of Beatty
what he was going to do when his insurance ran out and told him,
"You are even lucky you have got a job here. You are fooling around
with this union."
Woolling, H. E. Daugherty, James C. Daugherty, Connor, and
Randall were not called to testify at the hearing. The statements
attributed to them are not denied and we find that they were made.
There can be no doubt that the course pursued by the respondent re-
ceiver immediately following the commencement of the organizational
movement among the employees was designed to prevent, if possible,
any organization of the employees. The statements of agents and
supervisory employees of the respondent receiver must be regarded as
attempts to impede the Union's efforts to secure members. We have
frequently held that such interference by an employer, or by those
responsible for expressions of his policy, contravenes the Act 4 Such
interrogation constitutes an implied threat that the employer's eco-
nomic power may be used to the disadvantage of the individual
employees who are active in the Union.
We find that the respondent receiver, by the statements and actions
described above, has interfered with, restrained, and coerced the
employees in the exercise of the rights guaranteed by Section 7 of
the Act.
B. The discriminatory refusals to reinstate
On or about October 10 or 11, 1937, the respondent receiver filed
with the Circuit Court of Marion County, Indiana, a Petition for
Instructions. The petition began with a recital of the relations be-
tween the respondent receiver and the Union up to that time and
continued with a statement that business had been declining for some
time, that an excess amount of finished products was on hand, and
'Matter of Trenton Garment Company and International Ladies ' Gai meat Workers
Union, Local 278, 4 N. L. R. B. 1186; Matter of Commonwealth Telephone Company and
Theodore It. Siplon, Walter F. Seidler and International Brotherhood of Electrical ii of tiers,
13 N. L. R. B. 317, and cases cited therein.
HOOSIER VENEER COMPANY 915
that during the week immediately preceding the petition evidence of
sabotage had been discovered in the plant. On October 11 the court
issued its order on the respondent receiver's petition providing, among
other things :
that the receiver terminate all manufacturing operations of said
plant, excepting only such as are necessary for the fulfillment of
orders after the same have been received or to prevent unusual
depreciation ; .. .
The Court further instructs the receiver that he has authority
to enter into discussion, at any time, with those then in his em-
ploy, with regard to the rate of wages, hours of labor, or condi-
tions of employment; and that, if the receiver as a result of such
discussions is of the opinion that any material change relating to
any of said above mentioned subjects should be made that he
report his recommendations to the Court for further instruc-
tions thereon.
Upon receipt of the court's order, the respondent receiver immedi-
ately notified the foremen and superintendents that the plant would
shut down at the end of the working day. A copy of the order was
posted on the clock and the plant closed at the appointed time.
Two or three days after the shut-down, the respondent receiver
reopened the plant and started limited operations to fill current
orders. Prior to the shut-down the respondent receiver had in his
employ between 125 and 135 production and maintenance employees.
On November 1, 1937, approximately one-half of the number pre-
viously employed were working. Thereafter, the number fluctuated
but apparently averaged about 60 production and maintenance em-
ployees. Among those who were not reinstated were the 14,1 com-
plainants herein, Frank Toler, Eugene Montgomery, Frank Scott,
Jesse Holyfield, Eugene Brummett,6 O. W. Humrichouse, Hayden
Arthur, Charles Arthur, James Short, Harold Peters, Omer Lee
Cookenour, William Maynard, William Coffey, and B. M. Wasson.
We shall consider here the work histories and union activities of
these men in so far as it appears from the record before us.
Jesse Holy field had been employed for about 6 years and, at the
time of the shut-down, was working as an inspector in the dimen-
sions department. He had experience in practically every operation
in the plant and had acted as assistant to Superintendent Randall,
having taken the latter's place during his absence from the plant for
2 months during 1935. Holyfield had been praised for the manner
5 At the hearing the allegations of the complaint as to Roy Grider and B B Quillen
Here dismissed without prejudice upon motion of counsel for the Board
OIncorrectly designated Brunimitt in the complaint The complaint was amended to
correct the error
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in which he performed his work and was given a bonus for the extra
work he did during Randall's absence. His earnings had averaged $28
per week. Holyfield was president of the Union, was a member of
the committee which attempted to negotiate a contract with the
respondent receiver, and had secured about 30 signatures on applica-
tions for membership in the Union.
Eugene Montgomery had been employed for 17 years, during the
last 8 years in drying, measuring, and sampling flitch stock veneer.
During part of this time he was in charge of these operations. He
had received no complaints on his work. His earnings averaged
about $22 a week. He was vice president of the Union, a member
of its negotiating committee and had secured 13 signatures on appli-
cations for membership in the Union.
0. W. Humrichouse had worked for the respondent receiver for
about 4 years, during which time he had operated a slicer, the most
highly skilled job in the plant. He had been complimented on his
work by Superintendent Randall and by H. E. Daugherty and had
received two pay increases which brought his hourly earnings from
55 cents to $1.00 an hour. He had earned on the average $46 a week.
Humrichouse was treasurer of the Union, a member of the negotia-
ting committee, and at the hearing, identified the signatures on six
union membership applications which had been signed in his presence.
Eugene Brummett was employed about 4 years before the shut-
down. He had experience as off-bearer on a slicer, in addition to the
work he had done the past 3 years on the drier. At the time of the
shut-down he was lead man on the day shift, had received no com-
plaints on his work, and was earning about $23 or $24 a week.
Brummett was a member of the Union's negotiating committee and
had secured the signatures of 13 employees upon union membership
cards.
Harold Peters began working for the respondent receiver in
February 1937. He worked on the hot plate press drier, served as
an off-bearer on machines, ran a clipper and a saw on dimension
veneer. His work had been continuous and there had been no com-
plaints as to the manner in which he performed it. His weekly
earnings averaged $20. At the hearing Peters identified the signa-
tures of eight persons on union cards and testified that he had per-
sonally "signed up" five of them. He was one of the leaders in the
organizing campaign of the Union.
Hayden Arthur, Frank Toler, James Short, and O'iner Lee
Cookenour were employed on the stump deck under Foreman Bolles.
Arthur had worked for about 21/2 years as a chopper ; Toler had been
employed for 20 years and was head sawyer; Short had worked for
about 2 years breaking root wads on the stump deck; and Cookenour
HOOSIER VENEER COMPANY 917
had worked in the log yard during his 13 months' employment. Each
had earned about $18 a week and had received no complaints as to
his work. Toler's hourly wage had increased from 25 cents to 45
cents an hour. On October 8, 3 days before the plant was shut
down, these employees were notified that they were being laid off
because of a shortage of stumps and that they would be recalled
when the stumps were obtained. They were not called back to work.
All were members of the Union and had solicited others to join.
Arthur had also served on the negotiating committee of the Union
which met with the respondent receiver.
William Maynard and William Coffey worked on the stump vats
under Superintendent Connor. Maynard had been employed for
about a year and Coffey for 10 months. Each was earning approxi-
mately $16 a week at the time of the shut-down and neither had re-
ceived any complaints as to his work. Both were members of the
Union and had solicited others to join.
Charles Arthur and Frank Scott had been employed prior to the
shut-down as boiler firemen and night watchmen. Arthur had
worked for the respondent receiver for about 2 years and was earn-
ing an average of about $22 a week. Scott had worked for almost
8 years and his average weekly earnings were about $21. No com-
plaints had been made concerning their work during the time each
was employed. Arthur and Scott belonged to the Union and
solicited members among the employees at the plant.
B. M. Wasson had been employed as a common laborer on a
variety of operations for 10 months preceding the shut-down, at
which time he was earning about $16 a week. There were no com-
plaints made as to his work. He had joined the Union prior to the
shut-down and had solicited others to join.
The Union contends that, in the reinstatement of employees when
the plant began to operate after the shut-down, union members were
discriminated against. It points to the fact that several new em-
ployees were hired after the reopening of the plant, and charges
that the respondent receiver has violated Section 8 (3) of the Act
by refusing to reinstate the complainants because they were mem-
bers of and active in the Union.
In conferences between the respondent receiver and the Union after
the plant reopened, the respondent receiver took the position that
the persons who ceased work as a result of the court order had been
discharged and that only those employed thereafter were his em-
ployees. The Union, on the other hand, contended that when the
plant shut down the employees had merely been laid off, that they
retained their status as employees within the meaning of the Act,
and that they were entitled to reinstatement.
2530 32-41-vol 21-,9
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The order of the Circuit Court of Marion County clearly did not
contemplate a complete and permanent cessation of operations, as
appears from the wording of the order.7 The fact that the respond-
ent receiver resumed operations in certain parts of the plant within
a few days after the shut-down indicates that he did not construe
the court's order as requiring such cessation and that he had no in-
tention of stopping operations for more than a temporary period.
Indeed, the circumstances under which the petition of the respondent
receiver was presented to the court show that the respondent receiver
had no desire to secure a complete stoppage of work and that, at the
time, he had no intention of discharging the men whose services
would not be required for a short period. Also, the men laid off
at the time of the shut-down could reasonably expect to be called
back to work upon the resumption of operations. They were not
informed that they were being discharged but were merely given an
opportunity to read the court's order when it was posted on the
clock. The plant had previously been closed down in some or all
departments on occasions for periods varying from a few hours to
several weeks and the men had always been called back to work upon
the resumption of operations. King Beatty, who was reinstated
about 3 weeks after the shut-down, was not required to execute a
new employment application at the time he went back to work,
which further indicates that the respondent receiver did not con-
sider the employees discharged.
We find that the persons laid off at the time of the shut-down re-
tained their status as employees of the respondent."
Although it is admitted that the plant has not operated at full
capacity since the shut-down, and we do not find that the respondent
receiver engaged in discrimination by employing fewer persons upon
the plant's reopening, we must consider further whether the respond-
ent receiver's method of selecting employees to be given work upon
the resumption of operations involved discrimination against the
union members and in favor of non-union employees.e
'The order directs, in part, "that the receiver terminate all manufacturing operations
of said plant , excepting only such as are necessary for the fulfillment of orders after the
same have been received or to prevent unusual depreciation , . . .
B See North Whittier Heights Citrus Association v N L R B , 109 F (2) 76
(C C A. 9), enf'g Matter of North Whittier Heights Citrus Association and Citrus
Packing House Workers Union, Local No. 21091 , 10 N. L R. B. 1269, Matter of American
Radiator Company, a corporation, and Local Lodge No 1770, Amalgamated Association of
Iron, Steel and Tin Workers of North America, affiliated with the Committee for Industrial
Organization , 7 N. L. R. B. 1127 ; N. L R B v. Waterman Steamship Corporation,
309 U S . 696 (U S S . Ct ), rev'g Waterman Steamship Corporation v N L R, B .
103 F. ( 2d) 157 (C. C. A. 5), and enf 'g Matter of Waterman Steanzslnp Corporation and
National Maritime Union of America, Engine Division , Mobile Branch , Mobile, Alabama,
7 N. L. R B. 237.
e Cf. Matter of West Oregon Lumber Company and Lumber and Sawmill Workers
Local Union No. 3, International Woodworkers of America , 20 N L R B 1.
HOOSIER VENEER COMPANY 919
On November 3,1937, there were 57 persons working in the plant. Of
the 57 there were 29 union members, or a fraction more than 50 per
cent, and 28 non-union members. Prior to the shut-down the respond-
ent receiver employed 96 union members who constituted almost 76
per cent of the total number of employees, and 31 non-union members,
constituting approximately 24 per cent of the total. Only 3 non-union
employees were not reinstated, whereas 67 union members were not
taken back. As to the non-union men who had not been reemployed,
Whitman, the union organizer, testified, "It was explained in a meet-
ing why these three or four wasn't working. One of them was work-
ing on his house, another fellow had some other excuse but every one of
the non-union employees that wanted to work at that time was work-
ing ... " It is apparent, therefore, that the non-union employees
received about twice as many jobs as their former representation in
the plant would have led them to expect, while the union employees
received only about two-thirds as many jobs as they might have
expected. The disparity between a 76-per cent expectancy and a
50-per cent realization by the union employees, and a 24-per cent ex-
pectancy and 50-per cent realization by non-union employees can
only be explained on the ground that the respondent receiver dis-
criminated against the members of the Union in favor of the non-
union employees.10 Moreover, although 29 union members were re-
instated by the respondent receiver after the shut-down, among those
who were refused reinstatement were the president, vice president, and
secretary-treasurer of the Union, two leaders of the organizing cam-
paign, and employees who were active in soliciting membership in the
plant-and who were on the negotiating committee of the Union.
We have already found that James C. Daugherty, secretary and
treasurer of the respondent corporation, and Superintendents Connor
and Randall questioned the men concerning their union membership.
We have also found that some of the men had been warned that if
union activity continued the plant would shut down and that they
would all lose their jobs except a few who would be "sitting around,"
reading a newspaper and drawing their pay. Superintendent Randall
had sent a tape through the plant with a request that employees
identify themselves as union or non-union members. H. E. Daugh-
erty indicated his reaction to the activity of the Union by telling
Hulnrichouse, "by the Union coming in at this particular time that
it would save him the embarrassment of going to the court and slow-
ing down production ... He would just stop all operations." Super-
10 Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local
Union No 3, International Woodworkers of America, 20 N L R B 1 It should be noted
that if the 14 complainants were reinstated, and 14 non-union employees dismissed, the
Union and non-union employees then working in the plant would be in the same proportion
as existed prior to the shut-down
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intendent Connor told William Coffey, about a week before the shut-
down, that he "should have considered" before he went into the Union,
and warned Maynard that he might regret the fact that he had joined
and that he might lose his job.
When the plant reopened subsequent to the shut-down, the mem-
bers of the Union who applied for reinstatement were given a clear
indication of the real reason for the respondent receiver's refusal to re-
instate them. Omer Lee Cookenour was told by H. E. Daugherty
that he understood Cookenour had been one of the "head leaders"
of the C. I. O. and was told to leave the plant and to "stay outside."
Harold Peters, who applied for reinstatement about 2 weeks after
the shut-down, was asked by Daugherty whether he belonged to the
C. I. O. When Peters replied affirmatively, Daughtery said, "Well,
there will never be a job here for you," although Peters' foreman,
Pogue, had told Peters a few minutes before that he could be used
at any time if he had Daugherty's approval. George Woods, a night
-watchman at the plant who was kept on after the shut-down, testified
that, about November 15, 1937, he was called to Daugherty's office and
instructed that he was not to permit certain people in the plant.
Daugherty inquired if Woods "had any affairs" with the Union and
explained that he had worked Jesse Holyfield and Eugene Montgom-
ery "a good while, paid them good money, they had went and signed
up in a union and was causing trouble amongst the shop, that he let
them out. As far as he was concerned Mr. Holyfield would never
work there any more, and the rest. He says those that is in the union,
mixed up in the affairs, if he found them out he would drop them out
one and two at a time, and he went on to talk about what he wanted
me to do over there every night, different kinds of work." It was not
denied that Woods was given the instructions about which he testified
and we find that the statements attributed to Daugherty were made.
During the latter part of October Humrichouse applied for a job
with a manufacturer of veener machinery. An official of that com-
pany told Humrichouse that he understood he was a member of the
C. I. O. and "I don't know as it is going to do you any good. You will
get a lot of publicity from that from Mr. Daugherty." Soon there-
after Humrichouse applied to Daugherty for reinstatement and was
told, "Well, to my estimation you are lower than a snake," and that he
could never obtain work for Daugherty "under any consideration."
Daugherty continued, ". . . if you get a job anywhere else, I will do
my very utmost to have you discharged." The evidence disclosed no
occasion for such expressions by Daugherty except the union activity
of Humrichouse. We have already found that Daugherty carried
out his threat to blacklist Humrichouse and that on two occasions
when he applied for work his union activity was called to his attention
by prospective employers.
HOOSIER VENEER COMPANY 921
Daugherty told King Beatty, after his reinstatement, "You are even
lucky you have got a job here. You are fooling around with this
union.'' About 3 weeks after the shut-down, Maynard, who had ad-
mitted to Superintendent Connor that he belonged to the Union,
inquired of Connor as to conditions in the plant. Connor replied,
"Your damn C. I. 0. shut the plant down, you get the hell out of here."
In view of the anti-union attitude demonstrated by the respondent
receiver and his agents prior to the shut-doivn of the plant, the unmis-
takable antagonism to union members who applied for reinstatement
thereafter, the large percentage of non-union men reinstated in com-
parison with the unusually small number of union men, and the fact
that those refused reinstatement included the officers and most active
members of the Union, we believe that the selection of employees
when the plant reopened was made on a discriminatory basis. The
evidence does not disclose that a fair comparison was made between
the abilities of the Union and non-union men or that the former were
given an opportunity of being judged upon the basis of merit.
The principle applicable here was expressed by the United States
Circuit Court of Appeals in the Kentucky Fire Brick Company case
as follows :
We think that the attitude of respondent toward its Union
employees both before, during and after the strike of June 18,
1935, carries a substantial inference that these 30 men were re-
fused reinstatement because of their union activities. This in-
ference is sufficient to support the order unless it is destroyed and
refuted by other evidence now to be considered.,,
We shall consider the evidence introduced to rebut the inference
that the complaintants herein were refused reinstatement because of
their union activities.12
The respondents deny that they practiced discrimination in the
reinstatement of employees when the plant resumed operations. They
contend (1) that they reemployed the men best qualified for the posi-
tions available; and (2) that they are now engaged in an entirely new
operation, the manufacture of venetian blind slats, that the method
of operating on this article is different from the work previously done
by their employees, and that these employees are not capable of doing
u N. L. R B. v. The Kentucky Fsi e Thick Company. 99 F (2d) 89 (C. C A 6), rehear-
lag denied October 12, 1938 aff'g Matter of Kentucky Firebrick Company and United
Brick and Clay Workers of America, Local Union No. 510, 3 N L R. B 455.
12 Although only the respondent corporation took part in the hearing the respondent
receiver appealing specially, in view of the fact that one individual, H K Bachelder,
served as counsel for both the respondent corporation and the respondent receiver and
since the respondent corporation was incapable of acting during the receivership, we
shall consider the defenses raised by the respondent corporation as equally applicable to
the respondent receiver At the supplemental hearing W C Bachelder, successor to the
respondent receiver, was represented by other counsel
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the new work. It is admitted that two new men, Joseph Donoghue
and Frank Fuhrmann, were hired to inspect and grade the slats.
In addition to their contention that they reemployed the men best
qualified for the positions available, the respondents sought to jus-
tify their refusal to reinstate certain employees upon more specific
grounds. Jesse Holyfield was accused of sabotage, through negli-
gence in inspecting stock, which caused a substantial financial loss to
the respondents. The evidence disclosed that there was no certainty
that either batch of veneer which Holyfield is alleged to have inade-
quately inspected ever crossed his inspection table. Some of the ve-
neer had come from stock in the warehouse and may have become
warped through standing. John Proctor, who was final inspector at
the plant at the time of the discovery of the second allegedly im-
proper inspection, stated that lie worked in a different part of the
plant and could not be sure that Holyfield had inspected the veneer
in question. The only thing about which Proctor was certain was
that if the veneer had been inspected, the inspector had been care-
less in his work. Holyfield denied having inspected the order in
question. We cannot base a finding that Holyfield was guilty of
sabotage upon such meager evidence thereof. Moreover, Holyfield
was not notified of the alleged sabotage until he and other members
of the Union's committee sought the reinstatement of the complain-
ants herein. On November 19 Holyfield received permission to visit
the plant to investigate the charge of sabotage. When he arrived at
the plant the respondent receiver told him the stock had already been
shipped out and he could not see it.
The respondent corporation attempted to prove at the hearing,
and argues in its brief to the Trial Examiner, that Humrichouse had
engaged in sabotage at the plant where he was employed prior to the
time that he worked for the respondent receiver. We cannot find, on
the record before us, that Humrichouse had engaged in sabotage
prior to his employment by the respondent receiver. Nor can we find
that the respondent receiver had any belief that Humrichouse had
previously engaged in such activities at the time that he refused to
reinstate him. The evidence on this question does not, therefore,
alter our conclusion as to the reason why Humrichouse was refused
reinstatement.
Eugene Montgomery, who had worked for the respondents for
17 years and whose foreman, Pogue, admitted that he would have
been capable of inspecting other types of work than that which he
had previously done, was replaced by Campbell allegedly because
Campbell was a "better and older man" and Pogue "preferred him."
The respondent made no effort to indicate in what respect, if any,
Campbell was more capable than Montgomery or why the former
HOOSIER VENEER COMPANY 923
should have been preferred. The same situation exists in the case of
Humrichouse, who was replaced by Dillard Walker. No showing is
made as to the comparative qualifications of these men.
Eugene Brummett's place as lead man on the day shift of the drier
was filled by Sam Woods who, the respondents contend, is "a better
workman" and "more physically fit" than Brummett. There is no
proof on the subject but, even if we were to assume that such is the
case, the respondents have not explained why Denzel Collins, who
had not previously been employed by the respondent receiver, was
hired to work on the drier while Brummett was refused reinstatement.
With reference to Hayden Arthur, Frank Toler, James Short, and
Omer Lee Cookenour, the respondents stated that the work on the
stump deck in which they had engaged was not being done regu-
larly; that these men had not been replaced; and that on occasions
when work was done on the stump deck they called in men from
other departments to fill the temporary assignments on the stump
deck. Among the men who have at times been called in to work on
the stump deck are King Beatty, who runs a drag saw and is a util-
ity man, Jack Smith, a sawmill man who sometimes worked in con-
nection with the vats, the maintenance man, and two night watch-
men. The duties of these men are not made clear by the record, but
they do not appear to require a high degree of skill. Certainly the
night watchmen, at least, were not highly skilled laborers and their
work could have been performed by any of the four complainants
under discussion. Although Foreman Bolles stated that Toler was
not sufficiently versatile to be shifted to other employment and was
too old, no attempt was made to show that the other three men could
not have done other work. Furthermore, there is no evidence to sub-
stantiate Bolles' statement as to Toler.
Charles Arthur and Frank Scott were said to be undependable as
night watchmen and boilermen. There was no evidence to substan-
tiate the claim, however, and without such evidence we cannot say,
in view of our finding of discrimination generally, that the reasons
given by the respondents are valid.
The record does not support the respondents' contention that new
men were required for the manufacture of venetian blind slats and
that the men refused reinstatement were not qualified to perform the
duties in connection therewith. A description of the process involved
indicates that the skill required in making the slats is not essentially
different from that necessary in the manufacture and inspection of
veneer, and, in fact, is less for the former industry than for the lat-
ter. Most of the employees who were refused reinstatement had been
employed by the respondents for many years and were experienced
in a variety of operations. Undoubtedly the period necessary for
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them to adjust themselves to the new work would not have been
unduly long. The respondents failed to point out in what respect
the laid-off employees lacked ability to perform the new type of work
and we cannot find that they lacked the necessary skill.
A review of the explanations offered by the respondents for the
failure to reinstate the complainants convinces us that some of them
are invalid on their face and that others are not sufficiently proved to
sustain the defense stated. On the whole we think that the evidence
does not refute the substantial inference that the respondent receiver
refused to reinstate the employees in question because they had joined
the Union and had become active members thereof."
It is clear that the respondent receiver followed a formulated plan
to rid the plant of the most active union members in an effort to evade
the duty to deal with the Union. The respondent receiver availed
himself of the opportunity presented by the shut-down pursuant to
the court's order and, in reinstating employees upon the reopening
of the plant, systematically weeded out the Union's officers and most
active members. Thus he hoped to put an end to the problems pre-
sented by the Union's organization and its request for recognition and
collective bargaining which we shall discuss hereinafter. The dis-
crimination against union members inherent in such procedure is ob-
vious. Instead of choosing for reinstatement the men best qualified
for the positions available, the respondent receiver has taken back the
men he believed least likely to interfere with his plans for stamping
out union activities. The Act prohibits the respondent receiver from
making reinstatement upon such a discriminatory basis and protects
employees so discriminated against 14
We find that on November 1, 1937, the respondent receiver, by re-
fusing them reinstatement, discriminated in regard to the hire and
tenure of employment of Frank Toler, Eugene Montgomery, Frank
Scott, Jesse Holyfield, Eugene Brummett, O. W. Humrichouse, Hay-
13 N. L. R. B Y. The Kentucky Fire Brick Company, 99 F. (2d) 89 ( C. C. A. 6),
rehearing denied October 12, 1938, aff'g Matter of Kentucky Firebrick Company and
United Brick and Clay Workers of America , Local Union No. 510, 3 N L R. B. 455;
Matter of Harry Schwartz Yarn Co, Inc. and Textile Workers Organizing Committee,
12 N. L. R. B. 1139.
11 Cf. North Whittier Heights Citrus Association v. N. L R . B., January 12, 1940
(C. C. A. 9 ), enf'g Matter of North Whittier Heights Citrus Association and Citrus
Packing House Workers Union , Local No. 21091, 10 N L R B 1261) ; West Oregon Lumber
Company and Lumber and Sawmill Workers Local Union No 3, International Woodworkers
of America, 20 N L R B 1, Hamilton-Brown Shoe Company, a corporation v. N L
R. B, 104 F (2d) 49 (C C A 8), enf'g as mod Matter of Hamilton-Brown Shoe
Company, a corporation and Local No. 125 United Shoe Workers of America , affiliated
with the Committee for Industrial Organization , 9 N L. R. B. 1073; Montgomery Ward
d Co., Inc. v. N. L. R. B, 107 F. (2d) 555 (C. C. A 7), enf'g as mod Matter of
Montgomery Ward t Company and Reuben Litzenberger , et al, 9 N. L R B 538;
N L R B v The Louisinlle Reflnting Company, 102 F (2d) 678 (C C A 6), cert denied,
308 U . S 568 , enf'g as mod Matter of The Lousiville Refining Company and Interna-
tional Association, Oil Field, Gas Well and Refinery Workers of Amaitea, 4 N. L. R. B 844.
HOOSIER VENEER COMPANY 925
den Arthur, Charles Arthur, James Short, Harold Peters, Omer Lee
Cookenour, William Maynard, William Coffey, and B. M. Wasson,
thereby discouraging membership in the Union, and has thereby in-
terfered with, restrained, and coerced the employees in the exercise
of the rights guaranteed in Section 7 of the Act. We further find that
the respondent receiver, by refusing to employ the above-named indi-
viduals on November 1, 1937, has discriminated against them in regard
to their hire and tenure of employment, thereby discouraging member-
ship in the Union, and has interfered with, restrained, and coerced
the employees in the exercise of the rights guaranteed in Section 7
of the Act.
After the respondent receiver discriminated against the complain-
ants herein by refusing them reinstatement, and prior to the hearing,
the complainants obtained other employment as indicated below. All
of them desire reinstatement except Peters, who has been reinstated,
and Coffey.
Holyfield worked at a lumber yard for 5 days and earned $16.40;
he earned $5.50 working for a trucking company, and did odd jobs
which brought his total earnings up to the time of the hearing to
about $60.
Montgomery had 5 weeks work with the Veterans of Foreign Wars
and earned $75; he was on W. P. A. from February 7 to September 23,
1938, at $15 a week, and on the latter date obtained employment with
Switzer-Cummins Corporation where he was working at the time
of the hearing and in which employment he was earning $24 a -week.
Humrichouse was employed by W. P. A. on April 6, 1938, Brummett
on January 14, 1938, Maynard on December 28, 1937, Hayden Arthur
on December 27, 1937, and Toler on December 21, 1937. All earned
$60 a month and were doing this work at the time of the hearing.
Wasson earned $87.58 working for a construction company ; $7.13
with Hill Fence Company; $152.06 with Ostrom Realty Company;
and, on April 6, 1938, went to work on W. P. A., where he has earned
$65 a month.
Scott earned $4.25 while working for a hospital ; $16.80 working
for Ostrom Realty Company; $266.50 while employed by W. P. A.
from April 6 to August 14, 1938. On August 20 he moved on a farm
where he earns $30 a month and obtains garden products, wood, and
milk without cost. He pays no rent on the farm.
Charles Arthur worked for International Harvester Company for 4
weeks, earning $4 a day. On March 1, 1938, he went to work for
W. P. A. at $60 a month and staved 3 months. Five weeks before the
hearing he was employed by Richardson Company at 60 cents an hour.
Coffey had intermittent employment with a contractor which
totaled about 6 months and in which he earned 40 cents an hour.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Four weeks prior to the hearing he was employed by the Richardson
Company at 55 cents an hour.
Short was employed by Mid-West Construction Company for about
4 months at an average of $32 a week ; worked on a pipe line for 3
or 4 weeks at about $16 a week, and since the spring of 1938 has been
working for Tom McQueen Construction Company at $28.80 a week.
Cookenour earned $41 working for Ermit Products Company for
3 weeks. From February 7, 1938, to the date of the hearing he had
worked on W. P. A. and was earning $60 a month.
Peters worked for an interior decorator from the latter part of
May 1938 until 2 weeks before the hearing. He averaged $18 a week
in this employment. He then secured a position with Richardson
Rubber Company where his salary averaged $26 a week.
C. The refusal to bargain
1. The appropriate unit
The Union contends that the production and maintenance em-
ployees of the respondent receiver, exclusive of clerical and super-
visory employees, constitute a unit appropriate for the purpose of
collective bargaining. The Union organized the employees of the
respondent receiver upon that basis and, in its attempts to bargain
with the respondent receiver, claimed to represent production and
maintenance employees. The respondent corporation denied that the
unit alleged is appropriate, but neither it nor the respondent receiver
introduced any evidence at the hearing to support the denial or to
assist the Board in determining the question. The record discloses
that the work in the plant constitutes a continuous operation and that
men are frequently shifted from one department to another as the
need arises. The production and maintenance employees compose
an integrated unit.
We find that the production and maintenance employees of the
respondent receiver, exclusive of clerical and supervisory employees,
constitute a unit appropriate for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, and other
conditions of employment, and that said unit insures to employees of
the respondent receiver the full benefit of their right to self=organiza-
tion and to collective bargaining and otherwise effectuates the policies
of the Act.
2. Representation by the Union of the majority in the appropriate unit
Prior to the shut-down on October 11, 1937, the respondent receiver
employed between 125 and 135 employees in the unit herein found
appropriate for purposes of collective bargaining. There were intro-.
HOOSIER VENEER COMPANY 927
duced in evidence at the hearing 92 cards, signed by employees within
the appropriate unit; aitfhorizing the C. I. O. to represent the signers
for the purposes of collective bargaining. Each of the signatures on
the cards was authenticated. All of the cards bear dates prior to
October 1, 1937. On October 11, 1937, the Union was chartered as an
affiliate of the C. 1. 0.
The respondents objected to the admission of the cards in evidence
upon the ground that they did not show the name of a labor organi-
zation. We have held that the Committee for Industrial Organi-
zation is a labor organization, within the meaning of the Act."
The representatives of the Union first attempted to bargain collec-
tively with the respondent receiver on September 30, 1937. A further
conference was held on October 6. While the respondent receiver
did not contest the fact that the Union represented a majority of the
employees for the purposes of collective bargaining at either of these
conferences, he contended, after the shut-down of October 11, that
the employees whose work was terminated on that date had been dis-
charged, and that they lost their status as employees. We have
already found that the employees who ceased work on October 11
were only laid off and that they retained their status as employees
of the respondent. It is clear, therefore, that they may be counted
in computing the Union's majority. Even were this not so, the Union
represented 29 of the 57 employees reinstated by November 3. In
addition it represented 14 employees whom we have found the re-
spondent receiver discriminatorily refused to hire on November 1,
1937. In view of these facts it is clear that the Union represented a
majority of the respondent receiver's employees irrespective of
whether or not the persons laid off retained their status as employees.
We find that on September 30, 1937, and at all times thereafter,
the Union was the duly designated representative of a majority of
the respondent receiver's employees in the appropriate unit and that
by virtue of Section 9 (a) of the Act it was the exclusive represent-
ative of all the employees in said unit for the purposes of collective
bargaining.
3. The refusal to bargain
(a) The bargaining negotiations
On September 30, 1937, Elmer Whitman, an organizer of the Union,
called on Frank F. Woolling, the respondent receiver, and told him
that the Union represented a majority of his employees. Whitman
presented a proposed agreement as a basis for negotiations, and asked
15 Matter of Fanny Farmer Candy Shops , Inc. and Committee for Industrial Organtiza-
tion, 10 N L . R. B. 288. The cards signed by employees authorized the C I. O. to act
as a collective bargaining agency in all matters pertaining to pay rates, wages , hours of
employment , and other conditions of employment
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woolling to confer with the bargaining committee of the Union.
Woolling asked the organizer why he had come to the plant to start
trouble and inquired why an attempt had not been made to organize
other veneer plants in the city. Whitman informed Woolling that
the Union had more than a majority of the employees signed up in
the other three veneer plants in the city and that it had done so
without trouble. The conference closed with an agreement to meet
again on October 6.
On October 6 Woolling, H. K. Bachelder, attorney for the respond-
ents, and Carl Daugherty, secretary-treasurer of the respondent cor-
poration, met with Whitman and a committee of the Union composed
of eight of the respondent receiver's employees. The Union requested
that the respondent receiver enter into negotiations on the basis of
the proposed agreement previously submitted, but Woolling stated
that since he was an officer of the court which had appointed him,
he could do nothing without specific instructions from the court.
Although the representatives of the Union contended that the receiv-
ership was not a bar to working out a tentative agreement for pres-
entation to the court, the respondent receiver refused to proceed on
that basis.
On October 9 Whitman consulted with Circuit Court Judge Earl
R. Cox, who had appointed the receiver, and pointed out to him
the extent of the Union's membership at the plant and what had
previously taken place in the attempt to negotiate with the respond-
ent receiver. Judge Cox suggested that Whitman consult with
Thomas Hudson, chairman of the State Division of Labor, and
attempt to arrange for a meeting between Hudson, the respondent
receiver, and the Union at which a satisfactory settlement might
be worked out. On the same day Whitman went to see Hudson
who agreed that a date be set for a conference as suggested by
Judge Cox. Thereafter Whitman informed Woolling of arrange-
ments for a meeting on October 13. Woolling stated in response
that he had procured a court order shutting down the plant because
of sabotage and a decline in business. On October 11, after the
respondent receiver had notified the superintendents and foremen
at the plant to shut down at the end of the workday, the plant
closed.
Following the shut-down, several conferences were held between
the respondent receiver and the Union. At two of the conferences
representatives of the State Division of Labor participated. On
October 13, 1937, the union committee, H. K. Bachelder and Emmett
Cox, a State Labor Conciliator, met in accordance with arrangements
previously made at the suggestion of Judge Cox. Whitman opened
the conference with an attempt to discuss the proposed agreement.
HOOSIER VENEER COMPANY 929
Bachelder pointed out that because of the receivership the Union
"didn't have jurisdiction ." Whitman argued that if this were true
any one could go into receivership and thereby defeat the aims
of the Act . Thereupon , Bachelder read excerpts from the court
order and informed Whitman that under the respondent receiver's
interpretation of the order the respondent receiver could deal only
for those persons then employed at the plant. He stated that those
who had been laid off at the time of the shut -dawn had ceased to
be employees . The conference adjourned after considerable argu-
ment over what interpretation should be placed on the court order.
The next conference was held on about October 20 and arrange-
ments were then made for Holyfield, president of the Union, to
visit the plant and attempt to discover whether there had actually
been any sabotage.
On November 19 another conference was held at which Bachelder,.
Whitman, and two members of the Union's committee were present.
Again the question arose as to who were employees and who were
not. In the meantime the plant had begun to operate as to some
phases of the work and a number of employees had been taken back,
including some members of the Union . The Union 's committee,
however, contended in the conferences with Bachelder that the re-
spondent receiver was rehiring a larger proportion of non-union
raen than union men and was thus discriminating against the union
men.
At a conference held on November 22 there was some discussion
of the terms of the proposed contract and Whitman furnished
Bachelder with a list of employees who were members of the Union
and who were not working , together with a statement of the length
of time each had worked for the respondents and whether there had
ever been complaints against his work. At the next conference, on
November 26 , the Union continued to request some concession with ref-
erence to wages and working conditions and again urged that the
employees be reinstated . Bachelder presented to the representatives
of the Union a list of the employees belonging to the Union who had
not been rehired and under each name was stated the reason for the
failure to reinstate the employee . The most prevalent reasons given
were that the job had been discontinued or that there was not enough
work for all and that those taken back were more capable workers
than the members of the Union . When requested to discuss these
matters more fully Bachelder stated "that he couldn't put in all- his
time; that he had made an investigation , that that was the fact, if
we wanted to believe it all right; if we didn 't, why let it alone."
Further meetings between representatives of the Union and
Bachelder were held on December 6 and December 29, but the
Union's attempts to secure its demands for bargaining continued to
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be unsuccessful . On January 31, 1938, Bachelder , Woolling, and
Herman Brunka, a representative of the Indiana State Labor Divi-
sion, met and conferred without the representatives of the Union.
At the conclusion of the conference Woolling left and Whitman and
the committee of the Union were called in. The discussion once
more centered around the question of whether persons laid off when
the plant was shut down should be considered employees , and around
the Union 's efforts . to have members taken back to work.
The last conference between the respondents and the Union oc-
curred on June 2, 1938. The record contains a copy of the transcript
of the conversations at the meeting and discloses clearly the attitude
of Bachelder in dealing with the representatives of the Union. In
answer to practically every question put to him by Whitman or by
Cox and Arthur Viatt, conciliators from the State Division of Labor,
as to his intentions with relation to negotiations with the Union,
Bachelder stated that they would have to draw their own conclusions
from the order of the court . The following excerpt is enlightening :
Mr. WHITMAN . Would you tell me as a representative of the
company what the situation is and what you can do?
Mr. BATCHELOR .16 That I could not do. The court did not
empower the Receiver or me to bind him as you see by the con-
struction of his own language . I have the right to discuss with
you regal'ding the-persons who are employees of the receiver.
Mr. WHITMAN . What do you mean by "discussing." Does
that mean you have the right to enter into an agreement with us?
Mr. BATCHELOR . By discussing , I mean "talk."
After some discussion as to the status of the men who had been
laid off at the time of the shut-down, Bachelder inquired , "Does the
State Labor Board take the position that the Court can not hire new
employees ?" Thereafter , the following conversation took place:
Mr. VIAT. The State Board does take the position that if
any employees have been discharged because of union activities,
they have been discriminated against.
Mr. BATCHHELOR . T hat has no part of negotiating . The ques-
tion of negotiation relates to hours, wages , and working condi-
tions and one question is not included in the other.
Mr. VIAT. Well, I think you are wrong , because it is a part
of negotiation ; negotiating for those employees who have been
discriminated against.
Mr. BATCHELOR . That is not a part of negotiation . Negotia-
tion contemplates an agreement for future activities but does not
contemplate a settlement of past grievances . It involves future
"This is a reference to H K Bachelder Flis name is incorrectly spelled throughout
the following excerpts
HOOSIER VENEER COMPANY 931
relationships for employer and employees. It is toward the future
and not toward the past. They are two distinct and separate
situations and the law recognizes them. It would be a waste of
time to say whether this man ought to be working in place of
some body else or anything with reference to that. If you go
ahead on the question of working conditions, that is alright.
Mr. WHITMAN. Well, let me see what we can do. The first
paragraph of the proposal is the recognition clause of our
organization as sole collective bargaining agent.
Mr. BATCHELOR. Oh, no; nothing of that kind.
Mr. VIAT. I understand Judge Cox has agreed to that.
Mr. WHITMAN. For the purpose of this record, I want to say
that I talked to Judge Cox about our rights under the law and
I told him how many members we had. I offered to show Judge
Cox our membership lists. I showed him my credentials when
he asked me who I represented. I told him about bringing in
the committee and he told me to see the Receiver.
Mr. BATCHELOR. If you think the court has recognized your
organization, you will have to take that matter up with the
court. I don't know. He has never told me. The law de-
termines who is the sole collective bargaining agency. As to
your right, I don't know how many you represent, whether one
or all. The law settles that question.
Mr. VIAT. If that question stands in your way, I would sug-
gest that you pass on for Judge Cox is going to pass on that.
The conferees then took up the question of the wage increases
proposed in the contract submitted by the Union. Bachelder stated,
"You know that I can't make such a recommendation." When
Whitman inquired, "Are you in a position to offer anything?"
Bachelder replied, "I have told you many times that I am only the
attorney for the receiver. The difficulty is that we are involved in
a legal position here and you have always needed and still need a
lawyer to advise you." Whitman, however, made another attempt
to secure some commitment from Bachelder and asked, "Can you
recommend or indicate some kind of increase which, we believe, these
men are entitled to?" Bachelder's answer was, "I don't see how I
can recommend any increase in wages at this plant. The plant is
losing money." The meeting adjourned when Whitman stated that
he saw no possibility of reaching any agreement. We find that the
negotiations were terminated because the respondent receiver refused
to bargain with the Union with a bonafide purpose of reaching an
agreement.17
17 The respondent corporation contends that Whitman terminated the negotiations on
June 2, 1938 , because the respondent receiver would not agree to negotiate with the
932 DECISIONS OF NATIONAL LABOR RELAT[ONS BOARD
(b) Conclusions as to the refusal to recognize
The first question presented by the foregoing facts is whether or
not the respondent receiver at any time during the negotiations
recognized the Union as the exclusive representative of the em-
ployees for the purpose of collective bargaining. The obligation
of an employer to bargain collectively under Section 8 (5) of the
Act entails, as an essential element thereof, the duty to recognize
the representative chosen by a majority of the employees as exclusive
bargaining agency.-
At no time during the conference with the Union did the respond-
ent receiver agree to recognize the Union or to recommend to the
court that the Union be recognized. At the conference on June 2,
8 months after negotiations began, the Union once again requested
Bachelder to agree to the provision in the proposed contract deal-
ing with recognition of the Union. His answer was, "Oh, no, noth-
ing of that kind." He could hardly have expressed his refusal to
recognize the Union in plainer terms. As upon each previous oc-
casion, when an attempt was made to discuss the recognition clause
along with other terms of the proposed contract, he set up the re-
ceivership as a reason for his refusal to discuss the proposals.19 The
respondent receiver may not evade his obligation to recognize the
Union by setting up the receivership as a bar. Not only does the
language of the Act specifically refute this contention, but, m addi-
tion, the court which appointed the receiver instructed him that he
had authority to enter into discussion with regard to labor problems
and to recommend to the court suggested action. Moreover, the judge
had urged that the problems confronting the receiver be settled
Union as the representative of the employees who ceased work as a result of the shut-down
on October 11, 1937 ; that, as the respondent receiver was justified in his position, the
responsibility for the failure of the negotiations rests with the Union We do not accept
this contention It is evident from the entire record, and «e find, that the disagree-
ment between the Union and the respondent receiver on the limited question of the
Union's right to represent the employees who had been laid off was not the effective cause
of the termination of negotiations
1BMatter of The Griswold Manufacturing Company and Amalgamated Association of
Lion, Steel and Ten War hers of North America, Lodge No. 1196, 6 N. L. R. B 298, enf'd
N L R. B v The Griswold Manufacturing Company , 106 F. (2d) 713 (C. C. A 3) ;
Matter of McNeely d Price Company and National Leather Workers Association, Local
No 30, of the C 1 0., 6 N. L R. B 800, enf'd as mod , N L R B. v. McNeely d Price
Company, 106 F. (2d) 878 (C C A 3)
39 Bachelder also stated at the conference on June 2, and at other meetings prior to that
time , that he did not know whether the Union represented a majority, or any of the em-
ployees. It is clear from his remarks and their context, that Bachelder, rather than
excusing his failure to recognize the Union on the ground that it did not represent a
majority, was merely informing the Union that he was not concerned with the extent of
its representation The Union claimed to represent a majority of the employees at its
first conference with the respondent receiver and Whitman had offered to show the Union's
membeiship cards to Judge Cox in support of its claim Bachelder never requested that
the Union prove its representation claim or indicated in any way that he was genuinely
doubtful as to its validity. We have already found that the Union represented a majority
of the employees on and after September 30, 1937.
HOOSIER VENEER COMPANY 933
promptly and he must have contemplated that the receiver recognize
the Union or recommend its recognition to the court.
Accordingly, we find that the respondent receiver, by refusing to
recognize the Union as exclusive bargaining representative and by
failing to recommend to the receivership court that the Union be
so recognized, has refused to bargain collectively, within the meaning
of Section 8 (5) of the Act.
(c) Conclusions as to the refusal to bargain with the purpose of
reaching an agreement
The second issue raised by the facts heretofore related is whether
or not the respondent receiver has bargained with the Union in good
faith in an honest endeavor to reach an agreement. The Act con-
templates that such an effort be made. As we said in Matter of
Globe Cotton Mills:
The term collective bargaining denotes in common usage,
as well as in legal terminology, negotiations looking toward a
collective agreement. If the employer adheres to a preconceived
determination not to enter into any agreement with the repre-
sentatives of his employees, as we have found here, then his
meeting and discussing issues with them, however frequently,
does not fulfill his obligations under the Act.20
WWTe cannot find, from a review of the negotiations, that the
respondent receiver made a genuine effort to reach an agreement
with the Union.
Emmett Cox, the State Division of Labor Conciliator who was
present at two of the conferences between Bachelder and the
union representatives, described the actions of the respondent re-
ceiver as evasive and stated that each time the Union sought to
consider the proposed agreement Bachelder raised the question of
the receivership and contended that only Judge Cox could make
any decision in the matter. He also testified that he had personally
talked to Judge Cox several times and that on each occasion he
was urged to bring the parties together and arrange a satisfactory
settlement of the dispute. He further testified that, upon the basis
of his attempts at conciliation in the case, he was convinced that
the respondent receiver at no time had been attempting to bargain
in good faith with the Union.
The record shows that at almost every conference between repre-
sentatives of the Union and Bachelder there was some discussion
of the terms of the proposed contract. The record does not dis-
close all of the terms that were considered, but at least the questions
-Matte) of Globe Cotton Mills and Text,le Workers Organizing Committee, 6 N L, R B
461, enf 'd as mod. , Globe Cotton Mills v N. L. R . B., 103 F ( 2d) 91 (C C. A 5)
28503 2-41-vof 21-60
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of wages and hours were discussed. However, other than a refusal
to grant the Union's demands as to wages and hours, Bachelder's
reply on each occasion was that he was unable to do anything
because of the receivership. Emmett Cox testified with reference
to the conference on October 13, 1937, "However, in bringing up
the different subjects of the different paragraphs of the agree-
ment . . . we did not seem to be able to get any place with
the discussion and the meeting was finally adjourned." Cox also
attended the last conference between the parties on June 2, 1938,
and his testimony as to what transpired is, in part, as follows :
"In other words, I mean by that that when . . . some one particular
thing would be brought up for discussion there would always be the
fact that the company was in receivership and the Judge was the
only man that could do or say anything."
Moreover, the respondent receiver did not, by counterproposal or
otherwise, make any sincere effort to find a basis for agreement
with the Union.21 While the respondent receiver discussed the
terms of the proposed contract at various times, throughout the
entire series of conferences he adopted the position that nothing
could be done without the permission of the State court. That such
it position was unjustified is evidenced by the fact that the judge
of that court had urged that the labor problems of the respondents
be adjusted speedily and that he had instructed the respondent
receiver that he was authorized to discuss wages, hours of labor,
and conditions of employment and report his recommendations to
the court for further instructions. In view of these instructions
from the court, it is obvious that Bachelder adopted the attitude
described for the purpose of preventing further discussion of the
Union's demands and in order to evade the duty to bargain
collectively with the Union.
The question which arose as to who were employees of the re-
spondent receiver after the shut-down of the plant was answered by
the respondent receiver, at a conference on November 26, 1937, with
a list giving reasons why old employees were not reinstated but with
a refusal to discuss the merits of the question. Whether they should
have been reinstated to their positions was obviously a proper subject
for collective bargaining and the respondent receiver's refusal to dis-
cuss the problem was a violation of Section 8 (5) of the Act.
We find that the respondent receiver, on October 6, 1937, and at
all times thereafter, has refused to bargain collectively with the
Union as the representative of his employees in respect to rates of
pay, wages, hours of employment, and other conditions of employ-
21 See Globe Cotton Mills v X. L R. B, 103 F (2d) 91 (C C A 5 ) enf'g as mod.
Matte) of Globe Cotton Mills and Textile wo,ke)s 0rgaruzsngComm , ttee, 6 N L It. B. 461.
HOOSIER VENEER COMPANY 935
ment. We further find that the respondent receiver, by the conduct
set forth above, has interfered with, restrained, and coerced the em-
ployees in the exercise of their rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the purposes of collective bargaining and other mutual aid
and protection as guaranteed in Section 7 of the Act.
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 re-
spondent 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 burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
As we have noted above, the respondent receiver appeared specially,
denied the jurisdiction of the Board, and moved for dismissal of the
proceeding as to him for the reason that the court which appointed
him had not consented to the institution of the proceeding, and for
the further reason that he was not an employer, within the meaning
of the Act.
The Act defines an "employer" as "any person acting in the interest
of an employer, directly or indirectly ..." 22 The term "person" is
defined to include "one or more individuals, partnerships, associations,
legal representatives, trustees, trustees in bankruptcy, or receivers." 23
Section 10 (a) of the Act provides :
The Board is empowered, as hereinafter provided, to prevent
any person from engaging in any unfair labor practice (listed
in Section 8) affecting commerce. This power shall be exclusive,
and shall not be affected by any other means of adjustment or
prevention that has been or may be established by agreement,
code, law, or otherwise.
The contentions of the respondent receiver that the Board does not
have jurisdiction of him under the circumstances herein existing are
without merit. The Act specifically provides that receivers shall come
within its purview as "persons" whom the Board is empowered to
prevent from engaging in unfair labor practices. It also provides
that the power granted to the Board shall be exclusive. The present
Za Section 2 (2) of the Act.
23 Section 2 (1) of the Act.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case illustrates one of the situations in which these provisions are
applicable.
The respondent corporation also filed a special appearance and
motion to dismiss, alleging that the Board did not have jurisdiction
over it because of the receivership and that it has at all times herein
involved been legally incapable in its corporate entity of being an
employer, within the meaning of the Act. The Trial Examiner
denied the motion at the hearing, but, in his Intermediate Report,
recommended that the complaint against the respondent corporation
be dismissed. We are likewise of the opinion that the complaint
against the respondent corporation should be dismissed. The re-
spondent corporation was legally incapable of taking any action
during the period of the receivership. The respondent receiver was
in sole charge of the business subject to the instructions of the
receivership court. While the officers of the respondent corporation
continued in a managerial capacity throughout the period of the
receivership, they were at all times acting as agents for the respond-
ent receiver.
The existence of the receivership, however, resulted in no material
change in the employer-employee relationship. This relationship
is our chief consideration here, since it is all important in effectuat-
ing the purposes and policies of the Act.24 As stated by the United
States Circuit Court of Appeals in N. L. R. B. v. Arthur L. Colten
and Abe J. Colman, Co-Partners doing business as Kiddie Kover
Manufacturing Company:
It is the employing industry that is sought to be regulated
and brought within the corrective and remedial provisions of the
Act in the interest of industrial peace . . . It needs no demon-
stration that the strife which is sought to be averted is no less
an object of legislative solicitude when contract, death, or opera-
tion of law brings about change of ownership in the employing
agency.25
It is apparent that the purposes and policies of the Act may be
effectuated during the existence of the receivership by holding the
respondent receiver responsible for his unfair labor practices., Since
the receivership had not been terminated at the close of the supple-
mental hearing, we shall not issue a separate order against the
'Cf Matter of Weinberger Banana Co , Inc and/or Weinbe ) ger Sales Co, The, and/or
their Successors , Assigns, Receivers , Trustees, Trustees in Bank,Uptci,, Creditors' Com-
mittee , or other Representatii,es acting in behalf of either or both and United Dock and
Fruit Workers' Union, 18 N 7. R B 786: Matter of the Baldwin Locomotive Work, and
Steel Workers Organizing Committee _, 20 N L R B 1100
n105 P (2d) 179 (C C A 6), enf'g Mattes of Arthur L Colten and A J Colman,
co-partne ) s, doing business as Kiddie Kovc) Manufacturing Company/ and Amalgamated
Clothing Workers of America, 6 N L R B 555
HOOSIER VENEER COMPANY 937
respondent corporation. In the event that the receivership termi-
nates, however, it will be necessary, as the Union urges, to hold
the respondent corporation responsible for the unfair labor practices
of the respondent receiver if we are to effectuate the policies of the
Act. Our order shall specifically provide, therefore, that, in the
event the receivership is terminated, the respondent corporation shall
be liable thereunder.
Having found that the respondent receiver has engaged in unfair
labor practices, we shall order him to cease and desist therefrom
and to take certain affirmative action which we find necessary to
effectuate the policies of the Act.
We have found that the respondent receiver interfered with,
restrained, and coerced, the employees in the exercise of the rights
guaranteed in Section 7 of the Act. We shall order him to cease
and desist from such practices.
We have also found that the respondent receiver has refused to
bargain collectively with the Union as the exclusive representative
of his employees within the appropriate unit. We shall order the
respondent receiver, upon request, to bargain collectively with the
Union.
We have further found that the respondent receiver has discrimi-
nated in regard to the hire and tenure of employment of Frank Toler,
Eugene Montgomery, Frank Scott, Jesse Holyfield, Eugene Brum-
mett, O. W. Humrichouse, Hayden Arthur, Charles Arthur, James
Short, Harold Peters, Omer Lee Cookenour, William Maynard, Wil-
liam Coffey, and B. M. Wasson, by refusing to reinstate them upon
the reopening of the plant. It appears that employees were rein-
stated at various times within a few days following the shut-down
of the plant. The record does not indicate the exact dates upon
which each of the above-named complainants requested reinstatement.
However, it does appear that on November 1, 1937, the respondents
had taken back to work approximately 60 employees, that the num-
ber employed since that time has remained at about that figure, and
that the Union had requested reinstatement of all of the complain-
ants prior to that date. We shall order the respondent receiver to
cffer immediate reinstatement to the above-named persons to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights or privileges, except Harold Peters,
who was reinstated prior to the supplemental hearing in this case,
and William Coffey, who, having obtained another job on or about
September 6, 1938, testified that he did not desire reinstatement. All
of the employees presently working for the respondents who have
been hired since October 11, 1937, shall, if necessary, be dismissed
by the respondent receiver to provide employment for the above
employees to be offered and who shall accept reinstatement. If
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
despite and after a dismissal of all such employees there is not
sufficient employment immediately available for the employees
presently working for the respondent receiver, excluding those dis-
missed, and for the employees to be offered and who shall accept
reinstatement, then all positions of employment shall be distributed
by the respondent receiver among the employees presently working,
excluding those dismissed, and the employees to be offered and who
shall accept reinstatement, in accordance with the respondent receiv-
er's usual method of reducing his force, without discrimination
against any employee because of his or her union affiliation and
activities, following such a system of seniority or other nondiscrimi-
natory procedure as has been heretofore applied by the respondent
receiver in the conduct of the business. Those employees remaining
after such distribution for whom no employment is immediately
available shall be placed by the respondent receiver on a preferential
list, with priority determined among them in accordance with such
system of seniority or other non-discriminatory procedure as has
been heretofore applied by the respondent receiver in the conduct
of the business, and, thereafter, in accordance with such list, shall
be offered reinstatement by the respondent receiver in their former
or. substantially equivalent positions, as such employment becomes
available and before other persons are hired for such work.
We shall also order the respondent receiver to make each of said
employees whole for any loss of pay he may have suffered by reason
of the discrimination against him by payment to each of them, except
Harold Peters and William Coffey, of a sum equal to the amount
which he would normally have earned as wages from November 1,
1937, to the date of the offer of reinstatement less his net earnings 26
during said period. We shall order the respondent receiver to give
Harold Peters back pay from November 1, 1937, to the date of his
reinstatement less his net earnings'-" during said period; and to give
William Coffey back pay from November 1, 1937, to September 6,
1938, less his net earnings 26 during said period.
20 By "net earnings " is meant earnings less expenses , such as for tianhpoitation, room,
and board , . incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent receiver , which would not have been incurred but for
the discrimination aeainst him and the consequent necessity of his seeking employment
elsewhere . See Matter of Crossett Lumber Company and United Biotheihood of Car-
penters and Joiners of America, Lumber and Sawmill Workers Unwn , Local 2590, 8
N. L R. B. 440. Monies received for work performed upon Federal, State, county,
municipal , or other work-relief projects are not considered as earnings , but as provided
below in the Order, shall be deducted from the sum due the employee, and the amount
thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county,
municipal , or other government or governments which supplied the funds for said work-
relief projects ; Matter of Republic Steel Corporation and Steel Workers Organizing
Committee, 9 N. L. R B . 219, enf'd , as modified as to other issues, Republic Steel
Corporation v A. L. R. B, 107 F (2d) 472 (C C. A. 3)
HOOSIER VENEER COMPANY 939
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. United Veneer and Lumber Workers Local Industrial Union
No. 607, affiliated with the C. I. 0., is a labor organization, within the
meaning of Section 2 (5) of the Act.
2. The receiver Frank F. Woolliiig was, and the receiver W. C.
Bachelder is, an employer, within the meaning of Section 2 (2) of
the Act.
3. The production and maintenance employees of the respondent
receiver, exclusive of clerical and supervisory employees, constitute
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act.
4. United Veneer and Lumber Workers Local Industrial Union,
No. 607, affiliated with the C. I. O. was on September 30, 1937, and
at all times thereafter has been, the exclusive representative of all the
employees in such unit for the purpose of collective bargaining, with-
in the meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with United Veneer and
Lumber Workers Local Industrial Union, No. 607, affiliated with the
C. I. 0., as the exclusive representative of his employees in an appro-
priate unit, the respondent receiver has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (5) of the Act.
6. By discriminating in regard to the hire and tenure of employ-
ment of Frank Toler, Eugene Montgomery, Frank Scott, Jesse Holy-
field, Eugene Brummett, O. W. Humrichouse, Hayden Arthur, Charles
Arthur, James Short, Harold Peters, Omer Lee Cookenour, William
Maynard, William Coffey, and B. M. Wasson, thereby discouraging
membership in the Union, the respondent receiver has engaged in and
is engaging in unfair labor practices, within the meaning of Section
8 (3) of the Act.
7. By interfering with, restraining, and coercing his employees in
the exercise of their rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through respresentatives
of their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid and protection
as guaranteed in Section 7 of the Act, the respondent receiver has
engaged in and is engaging in unfair labor practices, within the mean-
ing of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board herelby orders that the respondent receiver, W. C. Bachelder,
his agents, successors, and assigns, including Hoosier Veneer Com-
pany, in the event the receivership is discharged, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Veneer and Lum-
ber Workers Local Industrial Union No. 607, affiliated with the
C. I. O. as the exclusive representative of the production and main-
tenance employees, exclusive of clerical and supervisory employees,
employed at the plant in Indianapolis, Indiana;
(b) Discouraging membership in United Veneer and Lumber
Workers Local Industrial Union No. 607, affiliated with the C. I. O.,
or in any other labor organization of the employees, by discharging
or refusing to reinstate any of the employees or in any other manner
discriminating in regard to their hire or tenure of employment or
any term or condition of their employment;
(c) In any other manner interfering with, restraining, and coercing
the employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities, for the purposes of collective bargaining or 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 ww ill
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Veneer and
Lumber Workers Local Industrial Union No. 607, affiliated with
the C. I. O. as the exclusive representative of the production and
maintenance employees, excluding clerical and supervisory employees,
employed at the plant in Indianapolis, Indiana, in respect to rates
of pay, wages, hours of work, and other conditions of employment ;
(b) Offer to Frank Toler, Eugene Montgomery, Frank Scott, Jesse
Holyfield, Eugene Brummett, O. W. Humrichouse, Hayden Arthur,
Charles Arthur, James Short, Omer Lee Cookenour, William May-
nard, and B. M. Wasson immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to
their seniority and other rights and privileges, dismissing if neces-
sary all employees hired since October 11, 1937, in the manner set
forth in the section entitled "Remedy," above, and place those for
whom employment is not immediately available upon a preferential
HOOSIER VENEER COMPANY 941
list and offer them employment as it becomes available, in the manner
set forth in said section;
(c) Make whole Frank Toler, Eugene Montgomery, Frank Scott,
Jesse Holyfield, Eugene Brummett, O. W. Humrichouse, Hayden
Arthur, Charles Arthur, James Short, Omer Lee Cookenour, William
Maynard, and B. M. Wasson for any loss of pay they have suffered
by reason of the discrimination against them, by payment to each of
them of a sum of money equal to that which each would normally
have earned as wages during the period from November 1, 1937, to the
date of the offer of reinstatement, less his net earnings 27 during said
period; deducting, however, from the amount otherwise due to each
of said employees, monies received by said employees during said
period for work performed upon Federal, State, county, municipal,
or other work-relief projects; and pay over the amount so deducted
to the appropriate fiscal agency of the Federal, State, county, munici-
pal, or other government or governments which supplied the funds
for said work-relief projects;
(d) Make whole Harold Peters by payment to him of a sum of
money equal to that which he would normally have earned as wages
during the period from November 1, 1937, to the date of his reinstate-
ment, less his net earnings 27 during said period; deducting, however,
from the amount otherwise due to him, monies received by him during
said period for work performed upon Federal, State, county, munici-
pal, or other work-relief projects; and pay over the amount so de-
ducted to the appropriate fiscal agency of the Federal, State, county,
municipal, or other government or governments which supplied the
funds for said work-relief projects;
(e) Make whole William Coffey by payment to him of a sum of
money equal to that which he would normally have earned as wages
during the period from November 1, 1937, to on or about September
6, 1938, less his net earnings 27 during said period; deducting, however,
from the amount otherwise due to him, monies received by him during
said period for work performed upon Federal, State, county, munici-
pal, or other work-relief projects; and pay over the amount so deducted
to the appropriate fiscal agency of the Federal, State, county, munici-
pal, or other government or governments which supplied the funds foi
said work-relief projects;
(f) Immediately post notices in conspicuous places throughout the
Indianapolis, Indiana, plant, stating that the respondent receiver
will cease and desist in the manner set forth in paragraphs 1 (a),
(b), and (c) of this Order, that he will take the affirmative action
27 See footnote 26
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
set forth in paragraphs 2 (a) through (e), inclusive, of this Order;
that the respondent receiver's employees are free to become or remain
members of the United Veneer and Lumber Workers Local Industrial
Union No. 607; and that the respondent receiver will not discriminate
against any employee because of membership or activity in that or-
ganization; and maintain such notices for a period of at least sixty
(60) consecutive days from the date of posting;
(g) Notify the Regional Director for the Eleventh Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent receiver has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent corporation,
Hoosier Veneer Company, has engaged in or is engaging in unfair
labor practices, within the meaning of the Act.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Order.