Kuehne Manufacturing Co.

National Labor Relations Board - Board Decisions

May 20, 1938

7 N.L.R.B. 304 (N.L.R.B. 1938)

In the Matter of KUEHNE MANUFACTURING COMPANY and LOCAL No.
1791, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA
Case No. C-369.-Decided May 20, 1938
Furniture Manufacturing Industry-Employer: corporation, owning and oper-
ating plants in two cities-Interference, Restraint, and Coercion: expressed op-
position to labor organization ; threats of retaliatory action ; discrediting union
leader ; warning to employees not to circulate petitions among themselves, but
report grievances to management-Discrimination: closing plant, discharge of
employees : for union membership and activity ; discharges: for union activity ;
charges of, not sustained as to two employees-Strike: sit-down-Lock-Out-
Picketing-Violence-Conciliation: efforts at, by U. S. Department of Labor
and local Chamber of Commerce-Substantially Equivalent Employment: offer
of reemployment in plant 60 miles distant, not considered as-Unit Appropriate
for Collective Bargaining: production and maintenance employees in one plant,
except foremen, and office and salaried employees ; eligibility for membership
in only organization among employees ; no controversy as to-Representatives:
proof of choice: joint application for union membership-Collective Bargaining:
employer's duty : shut-down, effect upon ; strike, effect upon, when new issues,
have arisen ; breach of alleged agreement, effect upon ; special form of remedial
order : recognition as exclusive representative, if operations are resumed-Re-
instatement Ordered: discharged employees, dismissing employees hired since
lock-out, if necessary ; employee temporarily laid off at, time of strike ; to plant
where previously employed, if operations are resumed ; preferential list ordered :
to be followed in further reinstatement-Back Pay: awarded : discharged em-
ployees, from date of lock-out, discharge, or refusal to reinstate, to date of offer
of reinstatement or placement on preferential list ; not to include period between
service of Intermediate Report and date of Decision in case of employees as
to whom Trial Examiner recommended dismissal of complaint.
Mr. Jack Davis, for the Board.
Craig cC Craig, by Mr. Craig Tian Meter, of Mattoon, Ill., for the
respondent.
Mr. Eugene R. Thorrens, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by E. P. Theiss, a
representative of the American Federation of Labor, and by Local
304
DECISIONS AND ORDERS 305
No. 1791, United Brotherhood of Carpenters and Joiners of America,
herein called the Union, respectively, the National Labor Relations
Board, herein called the Board, by Dorothea de Schweinitz, Regional
Director for the Fourteenth Region (St. Louis, Missouri), issiled its
complaint, dated June 30, 1937, against Kuehne Manufacturing Com-
pany, Mattoon, Illinois, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1), (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,
accompanied by notices of hearing were duly served upon the respond-
ent and the Union.
The complaint, as amended,' alleged in substance (1) that on
April 1, 1937, the respondent closed its Flora, Illinois, plant, dis-
charged its employees at the Flora plant for the reason that they
joined the Union and engaged in concerted activities for the purposes
of collective bargaining and other mutual aid and protection, and
moved its operations to its Mattoon, Illinois, plant to avoid its obli-
gation "to bargain collectively with the Union; (2) that the respond-
ent discharged Harry Dean, William Loveland, Walter Barnett, and
Garland Gibson, four employees at its Mattoon plant, for their
sympathy with the respondent's Flora plant employees and interest
in the formation of a labor organization at the respondent's Mattoon
plant; (3) that the respondent persuaded and encouraged certain of
its employees at its Mattoon plant and others, including public ' of-
ficials of the city of Mattoon, to assault and beat its Flora employees
and that the Flora employees were so assaulted and beaten to dis-
courage their activity in urging the Mattoon employees to join and
assist the Union for the purposes of collective bargaining and other
mutual aid and protection; and (4) that the respondent had refused
to bargain collectively with the Union as the duly authorized repre-
sentative of the production and maintenance employees of the re-
spondent at its Flora plant, exclusive of clerical and supervisory em-
ployees, said production and maintenance employees constituting an
appropriate bargaining unit.
On July 10, 1937, the respondent filed a motion to dismiss the
complaint and also an answer to the complaint.
The motion to dismiss was based (1) on an alleged insufficiency of
the allegations of the complaint; (2) upon the ground that the Board
had no jurisdiction over the respondent or the subject matter of the
' At the hearing the complaint was amended to include an allegation that the respondent
discriminatorily discharged Garland Gibson The respondent, accordingly, amended its
answer, denying the allegation.
q.
306 NATIONAL LABOR RELATIONS BOARD
complaint ; and (3 ) on a plea that the persons referred to in the com-
plaint were lawfully discharged inasmuch as the Act does not inter-
fere with the normal exercise of the right of an employer to select
or discharge his employees.
The answer of the respondent repeated the allegations contained
in its motion to dismiss and admitted the allegations of the com-
plaint with respect to the nature of its business . Concerning the
unfair labor practice charges, the respondent alleged in its answer
that it closed the Flora plant and discharged its employees at that
factory ( 1) because they participated in a sit-down strike, damaged
company property and engaged in illegal picketing ; and (2) for
financial reasons wholly disconnected with the membership of the
Flora employees in the Union. In addition , the answer , as amended,
denied that the employment of Harry Dean, William Loveland,
'Palter Barnett , and Garland Gibson was terminated for the rea-
sons stated in the amended complaint and averred that they were
not discharged , but voluntarily quit work. The respondent denied
the allegations of the complaint with respect to the assault and bat-
tery of the Flora employees and the refusal of the respondent to
bargain collectively with the Union.
Pursuant to notice , a hearing was held on August 3, 4, 5, 6, and 9
in Flora, Illinois , before Henry J. Kent, the Trial Examiner duly
designated by the Board . The Board and the respondent appeared
by counsel and participated in the hearing . On motion of the re-
spondent the hearing was adjourned when the Board rested its case
and reconvened in Mattoon , Illinois , on August 10, 11 , 12, and 13,
1937, to facilitate presentation of the respondent 's evidence. Full
opportunity to be heard , to examine and cross -examine witnesses,
and to produce evidence bearing upon the issues was afforded all
parties.
At the opening of the hearing counsel for the respondent pressed
its motion to dismiss the complaint upon the grounds set forth in
the written motion. The Trial Examiner reserved his ruling on
the motion . At the close of all the testimony the respondent re-
newed its request that the complaint be dismissed , pleading, in addi-
tion to the original grounds set forth in its written motion , reasons
embodied in an amended written motion to dismiss, which the
Trial Examiner permitted it to file. In the amended motion the
respondent urged, as grounds for dismissal of the complaint, that
the provisions of the Act violate Article 3 of the Constitution of the
United States and the Fifth Amendment thereto, and that the em-
ployees at the respondent 's Mattoon plant and the Mattoon Asso-
DECISIONS AND ORDERS 307
ciation of Commerce were not made parties to the proceeding.2
The Trial Examiner denied the motion to dismiss, as amended, in
so far as it related to the question of the sufficiency of the allega-
tions of the complaint, the constitutionality of the Act,3 and the
claimed absence of the necessary parties to the proceeding, and re-
served his ruling on the motion, in so far as it related to the question
of the Board's jurisdiction and the merits of the complaint in respect
to the alleged discharges, until the issuance of his Intermediate
Report.
Subsequently the Trial Examiner filed his Intermediate Report,
finding that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
Section 8 (1), (3), and (5), of the Act and recommending reinstate-
ment, with back pay, for Harry Dean, Walter Barnett, and William
Loveland and for the respondent's employees listed in appendix A,
other than those persons named below, as to whom lie recommended
that the complaint be dismissed. The Trial Examiner in his Inter-
mediate Report further recommended that the complaint be dis-
missed as to (1) Garland Gibson and 16 persons listed in appendix
B, on the ground that no testimony was offered in the proceeding
with respect to them; (2) 15 employees listed in appendix C, on the
ground that they were not discharged but were retained in the re-
spondent's employ at its Mattoon plant; (3) Carmon De Weese, for
the reason that he refused to accept the respondent's offer of employ-
ment at its Mattoon plant; and (4) Peter Orschell, since his employ-
ment with the respondent terminated on March 15, 1937, which was
prior to the inception of the strike and mass discharge of the Flora
employees. In his Intermediate Report, the Trial Examiner denied
the pending motion to dismiss the complaint. This ruling and the
ruling of the Trial Examiner at the hearing upon the motion to
dismiss are hereby affirmed.
Thereafter the respondent filed numerous exceptions to the find-
ings and recommendations of the Intermediate Report. The Union
also filed exceptions to certain portions of the Intermediate Report.
2 An existing contract, dated December 2, 1931, between the respondent and the Mat-
toon Association of Commerce required the respondent to employ only bona fide Mattoon
residents in its Mattoon plant. Since April 1, 1937, the respondent has hired at its Mat-
toon plant approximately 127 additional employees. Inasmuch as, under the Act, the
Board's orddrs run only against employers, neither the employees at the Mattoon plant nor
the Mattoon Association of Commerce need be made parties to complaint proceedings to
enable the Board to determine whether the respondent has violated the Act or to make
an appropriate order against it. National Labor Relations Board v. Pennsylvania Grey-
hound Lines, Inc., and Greyhound Management Company, 303 U. S. 261.
3 National Labor Relations Board V. Jones cl Laughlin Steel Corp., 301 U. S. 1, 57
S. Ct.' 615 ; National Labor Relations Board v. Friedman-harry Marks Clothing Co., 301
U. S. 58, 57 S. Ct. 645 ; Associated Press v. National Labor Relations Board, 301 U. S.
103, 57 S. Ct. 650; National Labor Relations Board V. Fruehauf Trailer Co., 301 U. S.
49, 57 S. Ct. 642.
308 NATIONAL LABOR RELATIONS BOARD
Pursuant to notice duly served upon the parties, a hearing for
the purpose of oral argument on the exceptions was held before the
Board in Washington, D. C., on February 25, 1938. The respondent
was represented by counsel who participated in the argument. The
Union did not appear. The respondent also filed a brief to which
we have given due consideration.
The Board has reviewed the rulings of the Trial Examiner on mo-
tions and on objections to the admission of evidence and finds that no
prejudicial errors have been committed. The rulings are hereby
affirmed.
The Board has fully considered the exceptions to the Trial Examin-
er's findings in the Intermediate Report, and, save as they are con-
sistent with the findings, conclusions and order hereinafter set forth,
finds them to be without merit.
Since the 15 persons listed in appendix C were voluntarily rein-
stated in the respondent's employ at its Mattoon plant upon the closing
of the Flora plant, we will dismiss the allegations of the complaint in
respect to them. We will also dismiss the allegations of the complaint,
as amended, in respect to the alleged discharge of Garland Gibson, in-
asmuch as there is no evidence in the record to support a finding as to
him.
The Trial Examiner made no finding or recommendation in his In-
termediate Report in reference to the allegations of the complaint
which charge that the respondent persuaded its Mattoon employees to
assault and beat its Flora employees. Since the evidence is insuffi-
cient to warrant the conclusion that the respondent instigated the
beating of the strikers, we will dismiss those allegations of the com-
plaint.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT'
The respondent is an Illinois corporation engaged in the manufac-
ture and sale of kitchen and dinette furniture. At the time of the
outbreak of the labor dispute involved in this proceeding in March
1937, it owned and operated plants in Flora and Mattoon, Illinois, a
distance of approximately 60 miles apart, employing 180 and 219
employees at each plant, respectively.
The raw materials, consisting of lumber,4 hardware, glass, stains and
varnishes, cartons and other packing materials, purchased by the re-
a
4 The lumber is chiefly oak, southern gum, northern hard maple, western fir, and
southern soft maple. Oak and southern gum are purchased from lumber companies lo-
cated in Tennessee, Arkansas, Louisiana, and Mississippi. Northern hard maple origi-
nates in Wisconsin and Michigan Western fir is obtained in Oregon, and southern soft
maple comes from Indiana, Kentucky, and Illinois.
DECISIONS AND ORDERS 309
spondent in 1936 for use in its manufacturing process in both plants
amounted to $594,941 .33, of which more than 60 per cent represented
purchases of materials in States other than Illinois.
During 1936 the respondent sold and shipped finished products
from both plants in the amount of $952,547.28, of which in excess of
75 per cent represented shipments into States other than Illinois.
H. THE UNION
Local No. 1791, United Brotherhood of Carpenters and Joiners of
America, affiliated with the American Federation of Labor, is a labor
organization which admits to membership the production and main-
tenance employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The lock-out of April 1, 1937
1. The background
Shortly prior to the passage of the National Industrial Recovery
Act, the respondent prevented a strike in its Flora plant after it
learned that the employees contemplated a walk -out in an effort to
obtain higher wages . The plant superintendent and foremen threat-
ened the employees with loss of their jobs if they left their machines.
Two or three participants in the strike movement were discharged.
Foreman Delbert Bratton instructed a trusted employee in the mill
room to report any future rumors of organizational activity among
the employees in that department to him, stating : ". . , they sure
didn't want any union in that plant."
According to Delbert Hardy, an employee , Walter Goebel, then a
foreman, approached him on several occasions about 21/2 to 3 years
before the hearing, inquiring whether the employees were talking
"strike. " We quote from Hardy's testimony :
Well, he asked me if they had been talking it. I told him no,
not that I had heard , and he said to keep listening , if I heard
anybody talking it, let him know , and I asked him why. He
said they wanted no labor trouble here, and if I heard it let him
know, he would fire them right now. [Italics supplied.]
Neither Bratton nor Goebel denied this testimony.
In the fall of 1936 the employees at the Flora plant circulated a
petition for higher wages inside the factory . An employee , Richey,
when questioned by the supervisory staff , confessed his participation
in the preparation and distribution of the petition . Two weeks later
he was discharged . The respondent claimed that it dismissed , Richey
310 -NATIONAL LABOR RELATIONS BOARD
because he looked at employees' time cards.5 Superintendent Goebel
instructed the employees to report grievances to him and warned
them not to circulate petitions among themselves.
2. The lock-out
Fred Kuehne, Jr., the president and- majority stockholder of the
respondent, addressed an assembly of the employees at the Flora
plant during the 1936 Christmas season. He told them that the re-
spondent had experienced a profitable year and that he intended to
grant a general wage increase to the employees shortly after the first
of the coming year. However, the promise did not materialize for
most of the 180 Flora employees. During the first 3 months of 1937
many of them made individual applications for pay increases to the
foremen in the plant, without results. The employees were instructed
by the supervisory staff not to disturb Kuehne concerning wage
adjustments. -
The crystallization of months of dissatisfaction with this vexed
condition resulted in a sit-down strike of the Flora employees on the
morning of March 22, 1937. They stopped their machines and re-
fused to work unless they obtained the promised wage increase. The
demands of the employees varied in the different departments of the
plant but, in general, they included the 8-hour day, 45-hour week, time
and one-half for overtime, and a 40-cent hourly minimum. The plant
had previously operated on a 9-hour daily basis. with pay rates rang-
ing from 25 cents to 45 cents per hour. During that day Kuehne
negotiated with departmental committeemen chosen by the employees.
He acceded to their demands for the 8-hour day and 45-hour week,
offered individual 10 to 12 per cent increases, refused to pay time and
one-half for overtime, refused to establish a 40-cent hourly minimum,
and announced that if necessary, the respondent might reduce the
working day to 6 hours, add a night force and operate the plant with
a double shift. Kuehne admitted to the committeemen that an
acceptance of his counterproposals would have resulted in a net
weekly wage lower than the prevailing scale of payment. The com-
mitteemen referred to the employees for instructions. They rejected
the counterproposals and the committeemen so reported to Kuehne.
Kuehne promptly halted further negotiations: "Well, just call it a
strike and I will sit it out with you . . . I will go on a vacation . . .
You can sit here if you want, or you can go home . . . we will keep
the plant open in the morning." About 95 per cent of the employees
remained in the plant.until March 31.
I Inasmuch as the Union filed no charges and the complaint contains no allegation
with reference to Richey's dismissal, we make no finding with respect thereto
DECISIONS AND ORDERS 311
When word of the sit-down reached the supervisory staff at the
Mattoon plant on March 22, Superintendent Emig called an assem-
bly of the Mattoon employees in the respondent's lumber yard adja-
cent to the plant. He told them that the plant was shutting down
because "work was falling off a little, conditions were so that the
factory had to shut for a while." When the employees sought en-
trance to the plant, they found the doors barred. Foreman White
explained to a group of Mattoon employees that, in order to avoid
"labor trouble" in the Mattoon plant, the Mattoon employees would
not be recalled to work until settlement of the strike at the Flora
plant.
On March 24 President Kuehne distributed a mimeographed letter
to the Flora employees, enclosing checks for accrued wages, in
`which he expressed his assurance that he held no grievance against
them by reason of the sit-down strike and promised that he would
bear no resentment in the future because of the action they had
taken; however he urged the employees to evacuate the plant. In the
letter he also thanked the strikers for their care of plant property
and expressed the hope that work might soon be resumed.
On March 23 or 24 the Flora employees made a joint application
to the American Federation of Labor for membership, and on April
13 the United Brotherhood of Carpenters and Joiners of America
chartered the newly organized Union.
Kuehne departed from Flora on March 25, leaving H. C. Schultz,
a director and the sales manager of the respondent, in charge of
affairs with authority to settle the labor dispute. Schultz directed
Riley Clifton, the respondent's timekeeper, to ascertain from the em-
ployees whether they desired a conference to discuss settlement of the
strike, stating to him that if they did, Schultz would meet with them,
or, if they preferred, he would arrange for the employees to meet with
Kuehne on the following morning. Clifton approached a group of
employees, represented to them that Kuehne contemplated taking a
trip, but that a meeting could be arranged with Kuehne if they de-
sired to confer with him. The employees agreed to meet' with
Kuehne, stating to Clifton that they desired to communicate with
their Union representative, E. P. Theiss, an organizer for the
American Federation of Labor, to enable him to be present to repre-
sent the employees at the proposed conference. Thereupon, Clifton
promptly answered that he did not know whether Kuehne could be
reached. No arrangements were made to hold the meeting. Clifton
reported what had transpired to Schultz. Schultz curtly instructed
Clifton : "There is nothing more we can do."
Schultz thereupon talked to Kuehne by long-distance telephone.
Among other things, he advised Kuehne that "no agreement could be
106791-38-vol . VII-21
312 NATIONAL LABOR RELATIONS BOARD
arranged" with the employees, that outsiders were visiting the strik-
ers at the plant, and urged him to return to Flora to oust the sit-
downers.
The respondent introduced in evidence the minutes of a directors'
meeting, dated March 27, which purport to show the passage of res-
olutions authorizing Kuehne to discontinue operations at the Flora
plant when "inventory and production conditions would best permit
such change," and to dispose of the Flora plant and equipment to
raise "much needed additional working capital." a
On March 29 the respondent filed a complaint in the Circuit Court
of Clay County, Illinois, in which it sought a mandatory injunction-
to oust the sit-downers from the plant. The strikers voluntarily
evacuated the plant on March 31, prior to the issuance of a tempo-
rary writ of injunction on the same day, and promptly formed a
picket line at the plant, which they maintained for a period of 4 to
5 weeks thereafter.
On the following day, April 1, Kuehne notified all the Flora em-
ployees, by letter, that the respondent had abandoned its Flora op-
erations, advised them to seek employment elsewhere, and served
notice of cancellation of their group-insurance policies.7
The record clearly indicates that the respondent knew of the forma-
tion of the Union by its employees. Director Schultz and Time-
keeper Clifton, through conversations with the employees, knew of
the Union prior to March 27, and Kuehne saw Nelson, an organizer
for the American Federation of Labor, in court on the day the tem-
porary injunction issued, March 31.
During the first few days of the picket line, Leon J. Newton, an
employee, approached Kuehne in reference to settlement of the con-
troversy. Kuehne stated : "You just went too far, there is no use
talking . . . the boys had a picket line, and there was absolutely
nothing doing . . . going to move to Mattoon .. . closing the Flora,
plant permanently." Kuehne pointed to Theiss, the Union organizer,
who was standing in the road : "You see that fellow out there . . . he
is just leading those fellows to their ruin ... he can just say `baa'
and every one of them will follow him . . . I will get even with,
them." Newton also testified that Kuehne referred to Theiss as an,
"outlaw." Kuehne failed to deny Newton's testimony.
6It is peculiar that Director L M. Wood , who attended the meeting , testified that no,
proposal concerning the permanent shut-down of the Flora plant was ever submitted to-
the Board of Directors
'' The letter stated : "This is to serve as a formal notice that the Flora plant has dis-
continued operations We felt as though it was only fair to advise you of this fact for-
mally by letter , so you can look elsewhere for work, as we have definitely taken this-
action We might state that we are also canceling your Prudential Group Life Insur-
ance , being that you are no longer an employee of our company."
DECISIONS AND ORDERS 313
About the middle of April, Walter Goebel, superintendent of the
Flora plant, told Loren Mitchell, an employee, that he did not be-
lieve that the strikers would be reinstated so long as they belonged
to the Union. Goebel admitted to Mitchell that "Kuehne wouldn't
consider recognizing the Union."
In a conference on or about April 18 with Newton J. Branson,
president of the Flora Chamber of Commerce, who interceded in
the labor dispute as mediator at the request of both the respondent
and the Union, Kuehne stated : "I am not recognizing the Union
and their demands with the price furniture I can make." It is sig-
nificant that the respondent at no time discussed wages, hours, or
other conditions of employment with a Union representative. More-
over, Kuehne agreed to a proposal by Branson that, the respondent
deal with an unaffiliated union of its employees. Thus it is ap-
parent that the respondent's basic objection to the continuance of
normal relations with its Flora employees lay in the presence of the
Union in the plant, rather than differences over substantive issues
concerning wages, hours, or other conditions of employment.
At the time of the hearing the Flora plant was still closed. The
respondent had moved part of the machinery to its Mattoon plant,
which it reopened on April 6, following the presentation of a peti-
tion signed by Mattoon employees, pledging their allegiance to the
respondent;" the sale of another portion of the machinery netted the
respondent $22,000 in cash, but the Flora plant had not been sold.
When the Flora employees went out on strike, the respondent had
approximately 219 employees on its pay roll at its Mattoon plant.
Prior to the reopening of the Matoon plant, the respondent had op-
erated only a day shift at that plant. When the Mattoon plant
reopened the respondent instituted and has since operated a steady
day and night shift with an augmented force. In its brief, filed
February 24, 1938, the respondent estimated that it employs 300 to
400 persons at the Mattoon plant.
The respondent advances two reasons for the closing of the Flora.
plant and the discharge of the employees of that plant: first, the sit-
down strike engaged in by the employees, accompanied by damage
to company property and followed by illegal picketing and acts of
violence by the strikers; and, secondly, the desire of the respondent to
reduce its fixed operating expenses and to raise cash by the sale of
the Flora plant and equipment for use as working capital to finance
its business at the Mattoon plant.
I In a statement to the press, which appealed in the Flora Daily News-Record of April,
5, 1937 , Puehne announced , in part : "The company decided to abandon the Flora plant
after receiving evidence of the loyalty of the men employed in the Mattoon plant and
after being assured that the company ' s pay roll in the community is appreciated . . .'-
314 NATIONAL LABOR RELATIONS BOARD-
As to the first defense, it appears that the strikers committed no
deliberate acts of sabotage during the sit-down. Such negligible dam-
age as resulted to company property was incidental to plant occupa-
tion. Thus, the strikers ate their meals on tables which they obtained
from inventory, taking care, however, not to place hot foods on them
to prevent unnecessary injury; they used company chairs for sitting
purposes and slept on lumber stock. Moreover, the sit-downers took
affirmative steps to care for plant property. They swept the floors at
regular intervals, set pails filled with sawdust for use as cuspidors
and maintained heat in the plant whenever needed to protect stored
lumber. The respondent's defense on this score must be directed to
the conduct of the strikers after March 24 for on that date Kuehne
expressed his gratitude to the strikers for their exemplary behavior
in the plant. However, the record clearly shows that their subse-
quent conduct during the period of plant occupancy did not vary
from the standard which the strikers had previously set.
The respondent also points to alleged acts of violence and illegal
picketing as justification for the wholesale discharge of its Flora
employees. John Welde, a striker, blackened an eye of Foreman John
Billington, when the latter furtively emerged from the side entrance
of the plant on April 12. The Circuit Court imposed a fine of 10
dollars and costs, each, upon Welde and others for violation of the
injunction. Further, the respondent claims that strikers fired at
Kuehne when he drove over the railroad tracks near the plant on the
night of April 13. Police officers in the vicinity, hearing noise which
sounded like gun fire, arrested three men, who were not employees of
the Flora plant. Kuehne admitted to the police officers that a tire
on his automobile "blew out." He testified that, later, the police
officers found evidences of gun shot on the hub-cap and fender.
However, there is no proof in the record identifying Flora strikers as
participants in the alleged shooting. Also, the respondent introduced
evidence tending to show that the strikers refused to permit the
removal of a truckload of lumber from the Flora plant on April 8.
and interfered with certain supervisory employees who sought to
enter the plant on April 4 and during the period from April 7 to 10.
Plainly, however, the strikers' conduct after April 1 could not have
influenced the respondent in its decision to abandon the Flora plant
and discharge all its Flora employees. It is a complete answer to
that part of the respondent's claimed justification which is based on
charges of illegal picketing and acts of violence, that they occurred.
so far as they did, after the respondent had definitely announced its
course of action. On April 1 the plant shut-down and mass dismissal
of the Flora employees constituted an accomplished fact.
DECISIONS AND ORDERS 315
It is also significant to note that the respondent furnished work
to 15 Flora employees at the Mattoon plant after the lock-out.9 ' In
its permanent injunction decree the Circuit Court of Clay County
found that 7 of the 15 reinstated employees had participated in the
sit 'down and in illegal picketing. Nevertheless, the respondent did
not consider their conduct as a real objection to reinstatement.
Moreover,- at its own expense, the respondent brought back three
Flora strikers from West Virginia to resume employment at Mattoon.
Yet the respondent failed to offer to Flora employees, generally, an
opportunity to accept available employment at its Mattoon plant.
Instead of fulfilling its obligation, which is hereinafter discussed, to
treat with its newly organized employees to resolve the pending
controversy, the respondent discharged them and increased its un-
organized Mattoon force by the addition of more than 100 nonunion
workers. The contention that the sit-down motivated the mass dis-
missal impresses us as a pretext to cover the respondent's real objec-
tion to the employees' concerted stoppage of work and their forma-
tion and affiliation with the Union as aids to reinforce their demands
for higher wages.
We now consider the respondent's second defense. The evidence
discloses that David Jones, a certified public accountant, suggested
to Kuehne on three occasions, in March, August, and September, 1936,
that the respondent close its Flora plant and consolidate its activities
at the Mattoon plant as a means of improving the financial condition
of the company. However, the idea was not seriously considered,
for it was neither discussed thereafter at board of directors' meetings,
nor at the annual stockholders' meeting in February 1937, nor else-
where by anyone ; nor did the respondent take any action with respect
to Jones' suggestion until the happening of the labor dispute in March
1937. Kuehne admitted on the witness stand that at Christmas, 1936,
he had no intention of closing the Flora plant. In reviewing 1936
operations, the respondent, in its annual report to stockholders, dated
January 30, 1937, indicated its need for the facilities which the
Flora plant afforded : "We have operated a good part of the time
with both a day and night shift, and have added an addition to
both plants to cope with this increase (in business) . . ." Moreover,
at the oral argument, counsel for respondent conceded that the re-
spondent did not formulate its intention to abandon the Flora plant
until some time after the occurrence of the sit-down strike.
During the summer of 1936 the respondent had undertaken exten-
sive improvements in the Flora plant and thereafter added expensive
equipment. Thus the respondent built a 60-foot concrete and steel
s Although they signed applications for membership in the Union, these 15 Flora em-
ployees gained no prominence in Union activities as leaders , or otherwise.
316 NATIONAL LABOR RELATIONS BOARD
addition to the shipping department at a cost of approximately
$3,000; constructed a 40-foot by 40-foot boiler room and installed a.
250-horsepower boiler at a total estimated outlay of $6,000 to $8,000;
and erected a frame warehouse, costing about $1,500. The respondent
also installed a $3,000 "double entennor" machine after August 1936,
two spray booths in the paint room during 1936-1937, and two boring
machines in the fall of 1936 at a cost of $900. In the light of its
business history, hereinafter set forth, it does not appear convincing
that after these extensive improvements and substantial additions
of equipment, the respondent should suddenly, decide that further
operations at the Flora plant were economically impracticable.
Jones further testified that in his opinion the ratio of the respond-
ent's current assets to its current liabilities as of December 31, 1936,
namely about 1.5 to 1, indicated that it was not in a "healthy" finan-
cial condition.1° However, the respondent made a net profit of $73,-
804.86 for 1936; 11 increased its sales during the first 3 months of 1937
over the corresponding period in 1936, by approximately $100,000,
being an increase of about 85 per cent ; advanced its prices in January
1937, from 10 to 15 per cent to cover additional taxes and increased
costs of materials and labor; and, enjoyed a Dun and Bradstreet net
worth rating of $200,000 to $300,000, "B" credit. On cross-examina-
tion, Jones conceded the Dun and Bradstreet rating to be inconsistent
with his own opinion as to the respondent's financial condition. Fur-
thermore, according to Jones' testimony, the respondent's books
reflected a net worth of over $600,000 as of December 31, 1936.
In December 1936, the respondent declared a 4-dollar dividend,
payable 1 dollar in cash and 3 dollars in notes, and distributed
bonuses of $3,000 each to Kuehne and Schultz, in addition to smaller
bonuses to other supervisory employees. Although, in the opinion
of Jones, the respondent's 1936 financial statement did not warrant
the extension of bank credit, the respondent succeeded in borrowing
$20,000, which it used for the payment of the cash dividend to stock-
holders. Kuehne claims that his was a paper bonus, that he drew no.
salary in 1936 and that the respondent was indebted to him for cash
advances, salary, bonus, and interest in the sum of approximately
$120,000. However, he received his proportionate share of the above-
mentioned cash dividend and held the notes of the respondent, a
financially responsible and solvent company, as evidence of his claims.
In 1935 the respondent had paid in full, 100 cents on the dollar, its
obligations under a creditors' agreement made in 1932. As of March
1° Excluding the respondent ' s special liabilities to Kuehne , representing cash advances,
earned and undrawn salary, interest, etc , the ratio closely approaches 2 5 to 1.
11 Net sales for 1936 almost doubled 1935 figures, mounting from $530,789 99 to
$952 547.28.
DECISIONS AND ORDERS 317
1, 1937, the respondent had on hand and in banks over $5,000 in
.cash and, excluding uncollectible items, more than $150,000 in ac-
-counts receivable. As of December 31, 1936, it carried an inventory
valued in excess of $240,000. While the respondent claims that its
current bills were approximately 90 days past due and it was not
able to take discounts regularly during the first 3 months of 1937,
the record does not disclose that the respondent had any pressing
financial obligations.
The fact that prior to March 22, 1937, the respondent intended to
institute a general wage increase for the employees at the Flora
plant,12 and granted wage increases to Mattoon employees upon the
reopening of the Mattoon plant on April 6, is plainly inconsistent
with the respondent's claim that it lacked capital to finance its
business.
In his testimony Kuehne placed a valuation of $320,000 upon the
Flora land, plant, and equipment, and admitted that its permanent
abandonment would entail a loss of approximately $220,000. Consid-
ering that the respondent made no attempt to secure a purchaser for
the property prior, to the closing of the Flora plant, the possibility of
raising cash by its disposal cannot seriously be regarded as a factor
motivating its course of action.
Under all the circumstances of the case, and especially in view of
the respondent's rapidly expanding business, its need for additional
factory space to cope with increasing sales of its product, and the
absence of a serious intention, prior to the occurrence of the labor dis-
pute, to abandon its Flora operations, we are led to conclude that
the closing of the Flora plant, coming upon the heels of successful or-
ganization of the employees at that plant by a national independent
union, was not induced by financial and economic considerations un-
connected with the union activities of its Flora employees. We are
convinced that the respondent would not have shut down the Flora
plant had it not been actuated by a desire to crush the new union.
On the basis of all the afore-mentioned considerations, we find that
the respondent closed its Flora plant on April 1, 1937, and discharged
all its employees at that plant because they joined the Union and
engaged-iii union activities, and has refused to reopen its Flora plant
thereafter and to reinstate its Flora employees in order to discour-
age their membership in the Union and to avoid its obligation to bar-
gain collectively with the Union. By its conduct the respondent has
discriminated in regard to the hire and tenure of employment of.its
Flora employees within the meaning of Section 8 (3),. of the Act, and
11 Kuehne testified that before the outbreak of the sit-down strike he planned to an-
nounce wage increases for employees at both plants about April 1.
318 NATIONAL LABOR RELATIONS BOARD
has thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
B. The alleged discharges of Harry Dean, Walter Barnett, and
William Loveland
1. Harry Dean
Harry Dean, a Mattoon employee for more than 6 years, was active -
in attempts to organize the Mattoon employees. He visited the strikers
at the Flora plant during the sit-down and counseled with them.
Upon learning from Walter Barnett, a fellow employee at the Mat-
toon plant, on March 29 or 30, prior to the plant's reopening, that
Barnett and he had been discharged by Foreman White, on March 30
Harry Dean called at the plant for his tools. White pushed Dean
out of the plant, returned his tools, and took his receipt for them,
stating : "You know those boys in Flora are on strike, you shouldn't
have went. You are no better off than those boys at Flora. They
have got no job, nor you haven't either." Superintendent Emig of
the Mattoon plant had observed` Dean fraternizing with the Flora
strikers. White also had knowledge of Dean's sympathetic conduct-
No doubt exists that the respondent discharged Dean because of his
activities on behalf of the Flora strikers and his efforts to organize
a union at the Mattoon plant.
The respondent relies upon the fact that Dean ignored a letter from
Kuehne dated April 2, requesting Dean to call upon Kuehne for a
personal interview, as evidence of the respondent's willingness to em-
ploy Dean and of Dean's voluntary severance of his employment. In
view of the fact that the respondent's letter does not constitute an
unequivocal offer' of reinstatement, we cannot regard it as such a
bona fide offer. I '
We find that Harry Dean was discharged because he assisted the
Union and engaged in union activities among the employees at the
Mattoon plant.
2. Walter Barnett
Walter Barnett was similarly active in support of the Union. On
March 28 Barnett called at the home of Foreman White. When he
met Barnett at the door, White exclaimed : " . . . I hear you have
been sitting down with them at Flora." Barnett answered : " . .. I
don't know as I have been sitting down, but I have been down there."
In reply to an inquiry as to his status, White informed Barnett : "I
don't know that you will ever get back to work." Barnett likewise
disregarded Kuehne's letter of April 2, similar to the one sent to
DECISIONS AND ORDERS 319
Dean, inviting Barnett to call upon Kuehne for a personal interview.
Barnett never applied for reinstatement. Inasmuch as White merely
expressed his opinion as to Barnett's chances for reinstatement and
did not sever his employment, we find that Barnett was not dis-
charged. The evidence does not sustain the allegation that the
respondent discharged or refused to reinstate Barnett because of
his activities on behalf of the Union. ' Accordingly, we reverse the
finding of the Trial Examiner with respect to Barnett's alleged
discharge, and shall order that the allegations of the complaint, so
far as they pertain to Barnett, be dismissed.
3. William Loveland
Although William Loveland, a Mattoon employee, denied any
activity by way of cooperation with the Flora strikers, nevertheless
it is clear that the respondent suspected him. During the shut-down
at the Mattoon plant, the respondent intercepted a telegram addressed
to Loveland, urging him to organize the Mattoon employees. The
respondent also had information that Loveland participated in con-
ferences with Union committees. Despite the fact that statements
are attributed to Loveland to the effect that he was not interested
in his job, Loveland responded to Kuehne's letter of April 2, inviting
him to a personal conference. On April 7 Kuehne told Loveland :
"Just let it go for a few months and I will see if I can get you back
on after this is settled." About May 10 Loveland approached
Superintendent Emig of the Mattoon plant for work. Emig stated
that he could not help Loveland "until after this Flora strike was
settled." To Loveland's inquiry as to whether he was let out because
of his work or because of the strike, Emig replied simply that Love,
land's work was satisfactory. We find that William Loveland was
discharged and refused reinstatement because the respondent believed
that he assisted the Union and engaged in labor organization activi-
ties among the employees at, the Mattoon plant.
C. The refusal to bargain' collectively
1. The appropriate unit
The complaint alleges that the production and maintenance em-
ployees, exclusive of all foremen, • office and salaried employees,
employed by the respondent at the Flora plant constitute a unit
appropriate for the purposes of collective bargaining. In its answer,
the respondent does not admit or deny the above allegation and
does not assert that any other unit is the proper one. At the hearing
the respondent offered no evidence showing that any other unit is
320 NATIONAL LABOR RELATIONS BOARD
the appropriate one. The production and maintenance employees
are eligible to membership in the Union. -
Accordingly, we find that the production and maintenance em-
ployees of the respondent in the Flora plant, except foremen, office and
salaried employees, constitute a unit appropriate for the purposes of
collective bargaining, and that said unit will insure to the employees
the full benefit of their right to self-organization and to collective bar-
gaining and otherwise effectuate the policies of the Act.
2. The representation by the Union of a majority in the appropriate
unit
The respondent employed approximately 180 production and main-
tenance workers at its Flora plant in March 1937. On March 23 or
24, 179 of these employees signed a joint application for membership
in the Union.121 It is clear that the Union represented a majority of
the production and maintenance employees at the Flora plant prior
to March 25. The respondent does not contend otherwise.
We find that on March 24, 1937, and at all times thereafter, the
Union was the duly designated representative of the majority of the
employees in the appropriate unit, and pursuant to Section 9 (a) of
the Act, was the exclusive representative of all the employees in such
unit for purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of employment.
3. The refusal to bargain
Theiss, a representative of the American Federation of Labor, ar-
irived in Flora on April 2 to negotiate a settlement of the strike. His
efforts to reach Kuehne at the plant or at the latter's home on that
day were unavailing. At Theiss' suggestion, Madding, president of
the local Union, by letter dated April 2, requested the respondent to,
recognize the Union and to set a date for a conference. Kuehne replied
by letter, dated Saturday, April 3, stating that the respondent saw no
need for bargaining negotiations inasmuch as it had definitely ceased
operations at the Flora plant, but that Kuehne would meet with Mad-
ding in Mattoon on Monday, April 5, at 2 o'clock in the afternoon, if
Madding desired. Kuehne refused the Union's request, made by tele-
phone, to postpone the meeting tQ a later hour to enable Theiss to travel
from East St. Louis, his headquartets, to Mattoon for the conference,
and the meeting was not held.
"' It should be noted that the Union was the same entity throughout the period under
consideration although it received its formal designation as used in this decision when.
it was chartered by the United Brotherhood of Carpenters and Joiners of America.
DECISIONS AND ORDERS 321
Branson, president of the Flora Chamber of Commerce, prevailed
upon Kuehne to accept an invitation to meet with a committee of em-
ployees at the Chamber of Commerce headquarters on the evening of
April 8. Kuehne and Branson made it clear to Theiss that his attend-
ance was not desired. Kuehne testified that he agreed to participate
in the meeting, provided the strikers would permit the respondent to
move a truckload of lumber out of the Flora plant. Kuehne, how-
ever, failed to attend the Chamber of Commerce conference , claiming
a breach of the alleged agreement.
In our view of the case it is unnecessary to decide whether or not
there was a breach of the alleged agreement. The Act imposes an
unconditional duty upon an employer to bargain collectively with the
representatives designated by a majority of his employees in an appro-
priate unit. If we assume that the strikers interfered with the move-
ment of the respondent's property, their misconduct, for which
appropriate remedies exist under State laws, does not justify the
respondent in ignoring Federal law by its refusal to bargain collec-
tively with the Union.
On April 10, in a conference with a United States Department of
Labor conciliator and Theiss, Kuehne reiterated the respondent's
position that there was no occasion for collective bargaining negotia-
tions with the Union , since the respondent had permanently closed
the Flora plant. -
Branson, however , continued his efforts toward reopening the plant.
Having failed to bring the respondent and the Union together in a
meeting, he proposed to Kuehne on or about April 18, that the respond-
ent bargain with an "inside " union of its employees at the Flora
plant. Kuehne readily agreed to act favorably upon the suggestion,
if the strikers would organize a union of that type.
Since we have found that the closing of the Flora plant involved a
discriminatory lock-out, the shut-down did not relieve the respondent
of its obligation under the Act to bargain with its employees or their
duly chosen representatives . Obviously , the respondent can neither
rely upon its own wrongful "abandonment" of the plant as an excuse
for its refusal to bargain collectively with the Union, nor argue with
good grace that such bargaining would have been fruitless . Had the
respondent met with the Union, the labor dispute might have been
adjusted. By the course of action it took on April 1 and thereafter,
the respondent has disqualified itself to contend otherwise.
The respondent contended that it had bargained collectively with
the employees on March 22 , the day of the beginning of the strike.
But where in the course of a strike , supervening events, such as the
organization of a union, which demands recognition, or the discharge
of strikers, introduce new issues , the employer must meet with the
322 NATIONAL LABOR RELATIONS BOARD
representatives of its employees in order to realize the full benefits of
collective bargaining.13 This the respondent refused to do.
We accordingly find that on April 5, 1937, and thereafter, the re-
spondent refused to bargain collectively with the Union as the repre-
sentative of its employees at its Flora plant in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
We also find that by such refusal the respondent interfered with,
restrained, and coerced its employees in the exercise of their right to
self-organization and collective bargaining through representatives-of
their own choosing as guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, oc-
curring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and have led,
and tend to lead, to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
As we have seen, the respondent locked out its Flora employees on
April 1, 1937, to discourage membership in the newly formed Union.
At the same time, the respondent expanded its operations at the
Mattoon plant by the addition of a number of new employees, who
in actuality replaced the employees of the closed Flora plant. The
appropriate remedy is plainly the reinstatement of the employees
of the Flora plant with back pay from the date of the lock-out to
the date of the offer of reinstatement. d
The remedy with respect to the cases of Carmon De Weese, Roy E.
Karraker, and Peter Orschell requires separate consideration.
Shortly after the closing of the Flora plant the respondent offered
employment at the Mattoon plant to Carmon De Weese, a Union
striker. De Weese declined the proposal for the reason that his
mother's illness rendered moving to Mattoon inadvisable at the time.
De Weese is temporarily employed elsewhere at a substantial reduc-
tion in wages and desires to return to his former employment with
the respondent. Reemployment at Mattoon, 60 miles away, falls
short of substantially equivalent employment. Therefore, as in the
ISMatter of Jeffery-De Witt Insulator Company and Local No. 455 , United Brick and
Clay Workers of America, '1 N. L. R B. 618; Matter of Carlisle Lumber Company and
Lumber and Sawmill Workers Union, Local 2511, Onalaska, Washington, and Associated
Employees of Onalaska , Inc, Intervenor , 2 N. L R. B 248; Matter of S. L. Allen & Com-
pany, Inc and Federal Labor Union, Local No. 15526, 1 N. L. R. B. 714.
DECISIONS AND ORDERS 323
case of the other locked-out employees, De Weese is entitled to
reinstatement and back pay.
The respondent contends, and the Trial Examiner found and rec-
ommended, that Peter Orschell should not be reinstated because he
was not an employee on March 22. From sworn affidavits made by
Orschell, it appears that he had worked for the respondent for more
than 31/2 years prior to the closing of the Flora plant; that he was
employed by the respondent on March 15, 1937; that on that date he
was temporarily laid off and instructed to report for work on March
22; that when he reported for work on March 22, the respondent's
agents informed him that he was not needed that day and instructed
him to return to the *plant on the following day. Later that day,
March 22, the strike occurred. It appears that Orschell received
his last pay check from the respondent on March 15 and that he
was not working at the Flora plant on March 22. The respondent,
however, does not show that it discharged Orschell on March 15 or
on March 22. The mere circumstance that he was not physically
engaged in work at the time of the strike does not affect his employ-
ment status under the Act.
At the time of the hearing Orschell was employed on a W. P. A.
project in Flora.
Since Peter Orschell did not lose his status as an employee, by
reason of his temporary lay-off, we shall require the respondent to
reinstate him with back pay.
The Trial Examiner made no finding or recommendation as to
Roy E. Karraker. His name is not listed in the Union's charge.
Karraker, however, filed an affidavit, requesting relief.14 The re-
spondent filed a counter-affidavit from which it appears that Kar-
raker was employed as a foreman. at the lumber yard at the Flora
plant at the time of the strike on March 22, and continued to work
for the respondent during the sit-down and until April 1. Kar-
raker did not join the Union; nor does it appear that he was eligible
for membership. Inasmuch as Karraker occupied a supervisory posi-
tion and did not participate in collective action, we shall not require
the respondent to reemploy Karraker or pay him back pay.
The Trial Examiner, in his Intermediate Report, recommended
that no relief be afforded to the 16 persons listed in appendix B for
the reason that they did not testify in the proceeding and failed
to file affidavits. The record sufficiently discloses, however, that the
16 named individuals were members of the Union in the employ of
the respondent at its Flora plant and were locked out on April 1,
1937, and we shall order them reinstated with back pay.
14 To facilitate presentation of evidence the parties stipulated that affidavits might be
filed by complaining witnesses in lieu of their oral testimony.
324 NATIONAL LABOR RELATIONS BOARD
At the termination of the hearing in this proceeding the Flora
plant was still closed. Since the respondent hired only about 127
additional employees at its Mattoon plant after the lock-out of the
180 Flora employees, it was operating its business with a reduced
force. In order to effectuate the policies of the Act we shall order
the respondent to offer to the Flora employees, who are listed in
appendix A, immediate reinstatement to their former, employment
either at the Flora plant, if that plant is now operating, or resumes
operation upon the issuance of this order, or, if not, at the Mattoon
plant; dismissing, if necessary, employees hired since the lock-out.
Such reinstatement, at either the Flora or Mattoon plants, shall
be effected in the following manner : All employees hired 14' since
the lock-out at either the Flora or Mattoon plants shall, if necessary
to provide employment for those to be offered reinstatement, be
dismissed. If, thereupon, by reason of a reduction in force there
is not sufficient employment immediately available for the employees
to be offered reinstatement, all available positions shall be distributed
among such employees and the 15 employees named in appendix C
annexed hereto, who were heretofore reinstated at the Mattoon plant,
in accordance with the respondent's usual method of reducing its
force, without discrimination against any employee because of his
union affiliation or activities, following a system of seniority to such
extent as has heretofore been applied in the conduct of the re-
spondent's business. Those employees remaining after such dis-
tribution, for whom no employment is immediately available, shall
be placed upon a preferential list prepared in accordance with the
principles set forth in the previous sentence, and shall thereafter,
in accordance with such list, be offered employment in their former
or in substantially equivalent positions, as such employment becomes
available and before other persons are hired for such work.
Furthermore, we shall order that all the Flora employees, who
are listed in appendix A, be made whole for any losses of pay
that they have suffered by reason of the respondent's wrongful
conduct in discharging them in closing down the Flora plant.
Having found that the respondent discriminated in regard to the
hire and tenure of employment of Harry Dean and William Loveland
at its Mattoon plant, we shall order the respondent to offer reinstate-
ment to them. We shall award back pay to Harry Dean from March
30, 1937, the date of his discharge, to the date on which the re-
spondent offers him reinstatement. We shall likewise award back
pay to William Loveland from April 7, 1937, the date of the re-
14a This does not include employees, who were working at the Mattoon plant on March
22, when that plant shut down, and who since may have been reinstated there.
DECISIONS AND ORDERS 325
spondent's discriminatory refusal to reinstate him, to the date on
which the respondent offers him reinstatement.
In all cases in which back pay is awarded, we will, in accordance
with our customary procedure, order the deduction of all sums
earned since the commission of the unfair labor practices which
would not have been earned if the employee had been working for the
respondent.
Inasmuch as the Trial Examiner recommended the dismissal of
the complaint as to Carmon De Weese, Peter Orschell, and the 16
employees listed in appendix B, the respondent shall not be required
to pay them back pay from January 11, 1938, when it received the
Intermediate Report, to the date of this decision.15
We shall order the respondent to bargain collectively with the
Union as the representative of all the production and maintenance
employees at its Flora plant, if the respondent has reopened the
Flora. plant or if the respondent shall hereafter, reopen that plant.
If, in compliance with our directions, the respondent reinstates the
discharged. Flora employees at its Mattoon plant, our order shall
not be construed to require the respondent to bargain collectively
with the Union as the representative of the employees at the Mattoon
plant, since it is now uncertain as to whether the Union will at
that time represent a majority of the employees in an appropriate
unit.
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 Brotherhood of Carpenters and Joiners of America,
Local 1791, is a labor organization, within the meaning of Section 2
(5), of the Act.
2. The respondent, by discriminating in regard to the hire and
tenure of employment of its employees at its Flora plant and thereby
discouraging membership in the Union, has engaged in and is engag-
ing in unfair labor practices, within the meaning of Section 8 (3),
of the Act.
3. The respondent, by discriminating in regard to the hire and
tenure of employment of Harry Dean and William Loveland, two
employees at its Mattoon plant, in order to discourage membership
in labor organizations, has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (3), of the Act.
15 Matter of E. R. Haffelfinger Co., Inc. and United Wall Paper Crafs of North America,
Local No. 6, 1 N. L. R. B. 760; Matter of Cherry Cotton Mills and Local No. 1824, United
Textile Workers of America, 4 N. L. R. B. 731.
326 NATIONAL LABOR RELATIONS BOARD
4. The production and maintenance employees at the respondent's
Flora, Illinois, plant, excluding foremen, office and salaried employees,
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the Act.
5. United Brotherhood of Carpenters and Joiners of America,
Local No. 1791, was on March 24, 1937, and at all times thereafter has
been, the exclusive representative of all employees in such unit for
the purposes of collective bargaining, within the meaning of Section
9 (a) of the Act.
6. By refusing to bargain collectively with United Brotherhood of
Carpenters and Joiners of America, Local 1791, as the exclusive
representative of its employees in the appropriate unit, the respond-
ent,has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (5), of the Act.
7. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1), of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7), of
the Act.
9. The respondent has not discriminated in regard to the hire and
tenure of employment of Walter Barnett, Garland Gibson, or the 15
employees listed in appendix C because of their membership in a
labor organization and thereby discouraged membership in a labor
organization, within the meaning of Section 8 (3), of the Act.
10. The respondent has not persuaded its Mattoon employees or
others to assault its Flora employees because of their activities in a
labor organization and thereby discouraged membership in a labor
organization, within the meaning of Section 8 (3), of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
Kuehne Manufacturing Company, its officers, agents, successors, and
assigns shall :
1. Cease and desist :
(a) From discouraging membership in United Brotherhood of
Carpenters and Joiners of America, Local 1791, or any other labor
organization of its employees by locking out, discharging, or refusing
to reinstate any of its employees or by discriminating in any other
manner in regard to their hire and tenure of employment or any term
DECISIONS AND ORDERS 327
or condition of employment of any of its employees by reason of their
membership in United Brotherhood of Carpenters and Joiners of
America, Local 1791, or any other labor organization of its employees,
or by threats of such discrimination;
(b) From refusing to bargain collectively with United Brother-
hood of Carpenters and Joiners of America, Local 1791, as the exclu-
sive representative of the production and maintenance employees in
its employ at its Flora plant, in respect to rates of pay, wages, hours
of employment and other conditions of employment; -
(c) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self -organiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purpose 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 will
effectuate the policies of the Act :
(a) If the respondent has resumed operations at the Flora plant
since the date of the hearing, or should the- respondent reopen its
Flora plant upon issuance of this order, bargain collectively with
United Brotherhood of Carpenters and Joiners of America, Local
1791, as the exclusive representative of the production and mainte-
nance employees in its employ at the Flora plant, in respect to rates
of pay, wages, hours of employment, and other conditions of
employment ;
(b) If the respondent has resumed operations at the Flora plant
since the date of the hearing, or should" the respondent reopen its
Flora plant upon the issuance of this order, offer to the employees
listed in appendix A, immediate and full reinstatement, respectively,
to their former or substantially equivalent positions at the Flora
plant, without prejudice to their seniority and other rights or privi-
leges, in the manner set forth in the section entitled "Remedy" above,
placing those employees for whom employment is not immediately
available upon a preferential list in the manner set forth in said
section ;
(c) If the Flora plant has not reopened or does not reopen upon
the issuance of this order, offer to the employees listed in appendix A,
immediate and full reinstatement, respectively, to positions at the
Mattoon plant, substantially equivalent to their former positions,
without prejudice to their seniority and other rights or privileges, in
the manner set forth in the section entitled "Remedy" above, placing
those employees for whom employment is not immediately available
upon a preferential list in the manner set forth in said section ;
106791-38-vol. vii 22
328 NATIONAL LABOR RELATIONS BOARD
(d) Offer to Harry Dean and William Loveland immediate and
full reinstatement, respectively, to their former positions without
prejudice to their seniority and other rights or privileges;
(e) Make whole the employees listed in appendix A, who were
locked out on April 1, 1937, for any losses of pay they will have
suffered by reason of their lock-out by payment to each of them,
respectively, of a sum of money equal to that which he would nor-
mally have earned as wages during the period from April 1, 1937,
the date of the lock-out, to the date of the offer of reinstatement or
placement upon the preferential list required by paragraphs (b) or
(c) above, less any amount earned by him during such period; ex-
cept that Carmon De Weese, Peter Orschell, and the 16 employees
listed in appendix B shall not be compensated as aforesaid for the
period from January 11, 1938, to the date of this order;
(f) Make whole Harry Dean for any loss of pay he has suffered by
reason of the respondent's discriminatory conduct, by payment to
him of a sum of money equal to that which he would normally have
earned as wages from the date of his discharge, March 30, 1937, to
the date of the respondent's offer of reinstatement, less any amount
earned by him during that period ;
(g) Make whole William Loveland for any loss of pay he has
suffered by reason of the respondent's discriminatory conduct, by
payment to him of a sum of money equal to that which he would
normally have earned as wages from the date of the respondent's
refusal to reinstate him, April 7, 1937, to the date of the respond-
ent's offer of reinstatement, less any amount earned by him during
that period;
(h) Post immediately notices to its employees in conspicuous
places, within and without its Mattoon plant, stating (1) that the
respondent will cease and desist in the manner aforesaid; and (2)
that it will take the afore-mentioned affirmative action;
(i) Post, if it has resumed operations at its Flora plant or if it
resumes operations at that plant upon issuance of this order, imme-
diately, similar notices to its employees in conspicuous places, within
and without the Flora plant;
(j) Maintain such notices for a period of thirty (30) consecutive
days from the date of posting;
(k) Notify the Regional Director for the Fourteenth Region in
writing within ten (10) days from the date of this order what steps
the respondent has taken to comply herewith.
And it is further ordered that the complaint, as amended, be, and
it hereby is, dismissed in so far as it alleges that the respondent has
engaged in unfair labor practices, within the meaning of Section 8
(3), of the Act, with respect to Walter Barnett, Garland Gibson,
and the 15 employees listed in appendix C.
DECISIONS AND ORDERS 329
And it is further ordered that the complaint, as amended, be, and
it hereby is, dismissed in so far as it alleges that the respondent has
engaged in unfair labor practices, within the meaning of Section 8
(1), of the Act, by persuading its Mattoon employees and others to
assault and beat its Flora employees in order to discourage their
membership in a labor organization.
APPENDIX A
Armstrong, J. K.
Ayers, Resler
Aldrich, Carl
Akers, Frank
Altvater, Kerron
Bendorf, Ivan
Boyd, Volney H.
Bullard, Everett
Bice, Clinton
Britton, Burl
Bakel, Wilfred
Bay, Maurice
Beasley, Floyd
Bowen, Robert L.
Bauliart, Ray F.
Boose, Raymond
Boyd, James
Beard, Harold
Billington, Wallace
Bay, Sylvester
Bullard, Leonard
Barnes, Murl
Billingsley, William H.
Cross, Russell
Crum, Earl L.
Campbell, Kenneth
Carter, Emanuel
Cooper, Delbert
Crooks, Ivan
Cunningham, Robert
Carter, Leland
Cash, Dana
Crown, Elmer
Colelasure, Bert
Carter, Rolla '
Chapman, Eldon
Craig, Frank
Dennis, Loren L.
Demeike, Aloysius
Delaney, E. H.
Ellis, Raymond
Erwin, Opal
Easton, Jack
Edminston, Glen
Easton, Dale
Erdman, William
Elston, Myrel
Frank, Robert
Farileigh, Perl
Fellows, Pearl
Fatheree, Henry, Jr.
Finney, John,
Furry, Cecil
Fellows, Thomas E.
Franklin, Orris
Freeze, Clarence
Franklin, Roy
Goings, Chas.
Greenwood, Alto
Greenwood, Leonard
Golden, Cecil
Golden, L. J.
Griffith, Raymond
Gaskin, Carol
Greenwood, Miles
Goff, Theodore
Goff, Elza.
Gibson, Wayne
Guinn, Norton
Guinn, Lyman
Hower, George, Sr.
Harper, Glen E.
330 NATIONAL LABOR RELATIONS BOARD
Hower, George, Jr.
Hall, Rolla R.
Hackney, Arlie
Hardy, Delbert
Hardy, Henry R.
Hardy, Charles
Hardy, Herman F.
Hinman, C. F.
Hower, Walter
Hackney, Edward
Harrison, Enoch
Jones, Ernest E.
Jones, Ivan N.
Jones, Elden
Jones, Thomas
Jones, Bernard
Jackson, Frank
Johnson, Pearl
Keller, Edmund L.
Klein, David
Krutsinger, Lloyd
Karlee, Virgil
Lagle, William
Lambrich, Cecil
Lewis, Arvel
Madding, Earl
Murphy, George
Mann, Karl
Miller, William
Milner, Olin
Martin, William
Martin, Lester
McClure, Sherman
McConnel, Laclair
McGrew, Daley
McCracken, J. A.
McDaniel , Robert
Mitchell, Ted B.
Mitchell, Loren
Nelson, John W.
Newton, Leon J.
O'Shatz, Frank
Orschell, Peter
Pitchford, Frank
Payne, George C.
Powless, Alex
Pierson, W. B.
Pitchford, Leland
Rush, Garvin
Railey, Melvin
Rouchelle, Everest
Roberts, Arthur
Rudisill, Wilbert
Shuler, Everett
Strange, Forrest
Slover, Earl
Schroder, Francis
Sturner, Chester
Smith, Isaac
Strange, Delbert
Spitzner, Virgil
Staley, Carl
Smith, Leslie
Stopher, Frank
Shohorn, W. C.
Stopher, L. K.
Sinclair, Gordon
Smith, Lyman B.
Tooley, John T.
Trage, Charles
Tenney, Lewis I.
Trotter, Harold
Tibbs, Everett
Uebinger, Joe
Vaughn, Raymond
Whitt, Fred
Windle, Everett T.
Walker, Donald
Warren, Russell
Welty, Albert
Welty, John
Whitson, Glen
Walker, Arthur
Winchester, Earl
White, Ed C.
Wickiser, C. E.
Wickiser, Max D.
Young, Donald
DECISIONS AND ORDERS
Young, Delbert
Zimmerman , Clarence
Zimmerman, Ned E.
De Weese, Carmon
APPENDIX B
J. K. Armstrong
Wilfred Bakel
Wallace Billington
Robert Cunningham
Leland Carter
Glen Edminston
Perl Farileigh
Glen E. Harper
APPENDIX C
Dale Courtney
C. F. Courtney
Geo. E. Cooper
Junior Courtney
L. D. Etchison
Hayward Farileigh
Orville Hardy
Ellsworth Hardy
David Klein
Lloyd Krutsinger
Cecil Lambrich
J. A. McCracken
W. B: Pierson
Leslie Smith
Joe Uebinger
Earl Winchester
Perry Hargrave
Carl C. Jones
Milton M. Roe
L. D. Spender
H. S. Stanford
Donald Turner
Roscoe Woods
331