Lansing Co.

National Labor Relations Board - Board Decisions

Feb 14, 1940

20 N.L.R.B. 434 (N.L.R.B. 1940)

In the Matter of LANSING COMPANY and INTERNATIONAL UNION,
UNITED AUTOMOBILE WORKERS OF AMERICA LOCAL No. 182
Case No. C-1037.-Decided February 14, 1940
Wheelbarrow , Warehouse and Industrial Truck, Concrete Mixer, Truck Wheel,
Caster, Industrial Tractor, Coal Dealers' Supplies , and Contractors ' Equipment
Industry-Interference , Restraint , and Coercion : anti-union speech by president;
anti-union statements by supervisory employees-Company-Dominated Union:
domination of and interference with formation and administration ; activities on
employer 's time and property ; supervisory cooperation and participation in
solicitation of membership ; employer ordered to refuse to recognize , as agency
for collective bargaining -Collective Bargaining : charges of refusal to bargain
collectively, dismissed-Discrimination : charges of, dismissed where ( 1) some
strikers engaged in sit-down strike , and (2 ) others were refused reinstatement
because employer ^ had hired new employees during strike not caused by em-
ployer's unfair labor practices ; discharge ; sustained - as, to , one, employee-Re-
instatement Ordered: discharged employee-Back Pay: ordered from filing of
charge to offer of reinstatement.
Mr. Earl R. Cross, for the Board.
Cummins d Cummins; by Mr. Charles F. Cummins and Mr. A. M.
Cummins, of Lansing, Mich., for the respondent.
Mr. Robert D. Allen, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Local 182, Inter-
national Union, United Automobile Workers of America, herein called
the U. A. W. A., the National Labor Relations Board, herein called the
Board, by the Regional Director for the Seventh Region (Detroit,
Michigan) issued its complaint, dated June 9, 1938, against Lansing
Company, Lansing, Michigan, 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),
(2), (3), and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. The complaint and
accompanying notice of hearing were duly served upon the respondent
20 N. L. R. B., No. 41.
434
LANS'IN'G OOMPANT 435
and upon the U. A. W. A. An unsuccessful attempt was also made to
obtain service upon Lansing Company Employees' Association, herein
called the Association, a labor organization alleged in the complaint to
be dominated and supported by the respondent. With respect to the
unfair labor practices the complaint alleged in substance (1) that the
respondent expressed opposition to the U. A. W. A. and engendered
among its employees fear of loss of employment for activity and mem-
bership therein; (2) that the respondent, beginning on or about April
20,1937, dominated and interfered with the formation and administra-
tion of the Association, and contributed financial and other support
thereto; (3) that on or about July 19, 1937, after a sit-down strike
called by the U. A. W. A. because of the respondent's refusal to bargain
collectively with the U. A. W. A. as the representative of the respond-
ent's employees in an appropriate unit, the respondent evicted certain
named employees from the plant, and locked out and thereafter refused
to reinstate them for the reason that they joined and assisted the
U. A. W. A. and engaged in concerted activities with other employees
for' the purpose of collective bargaining and other mutual aid and
protection; (4) that at the time of the sit-down strike above mentioned,
the respondent manifested an intention not to rehire and did not there-
after rehire certain named employees, for the reason that they joined
and assisted the U. A. W. A. and engaged in concerted activities for
the purposes of collective bargaining and other mutual aid and pro-
tection; (5)' that on or about July `6, 1937, and at all times thereafter,
the respondent refused to bargain collectively with the U. A. W. A.
as the exclusive bargaining representative of a majority of the re-
spondent's employees within an appropriate unit consisting of all
production and maintenance employees, exclusive of office and clerical
employees and those engaged in a supervisory capacity; and (6) that
by said acts and other acts, the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
The respondent filed its answer to the complaint, admitting, the
facts alleged with reference to the character of its business, but deny-
ing that it had engaged in or was engaging in the unfair labor prac-
tices alleged, and setting forth a number of affirmative defenses.
Pursuant to notice a hearing was held in Lansing, Michigan, on
June 30, and July 1, 5, 6, 7, and 8, 1938, before Webster Powell, the
Trial Examiner duly designated by the Board. The Board and the
respondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was
afforded all parties. On July 18, 1938, pursuant to leave granted by
the Trial Examiner at the close of the hearing, the respondent filed
a brief.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. On November 9, 1938, the Trial Examiner issued his Intermediate
Report wherein he found that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7)
of the Act. He recommended that the respondent cease and desist
from interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, cease and
desist from discouraging membership in the U. A. W. A. or any. .
other labor organization, by discriminating in regard to employment,
cease and desist from dominating or interfering with the formation
or administration of the Association, or any other labor organization,
and that the respondent take certain affirmative action in order to
effectuate the policies of the Act. He recommended the dismissal of
that portion of the complaint charging a violation of Section 8. (5)
of the Act. After the issuance of the Intermediate Report the
U. A. W. A. filed a motion to reopen the case and receive further
evidence, which motion the Board denied. Both. the respondent and
the U. A. W. A. filed exceptions to the Intermediate Report. The
Board has considered the exceptions to the Intermediate Report and,
except to the extent that they are consistent with the findings, conclu-
siolis; and order set forth below, finds no merit in them.. At the
hearing and in his Intermediate Report the Trial Examiner made
rulings on numerous motions and on objections to the admission of
evidence. The Board has reviewed these rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rulings
are hereby affirmed. . .
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a Michigan corporation having its office and prin-
cipal place of business at Lansing, Michigan, is engaged in the manu-
facture and sale of wheelbarrows, warehouse and industrial trucks,
concrete mixers, truck wheels, casters, gasoline industrial tractors,
coal dealers' supplies, and contractors' equipment. The respondent is
one of the largest manufacturers of wheelbarrows and trucks in the
United States. In addition to its plant at Lansing, the part of the
respondent's operations herein involved, it has an assembly plant at
Poughkeepsie, New York, and maintains sales offices in eight prin-
cipal cities throughout the United States.' The principal raw mate-
rials purchased by the respondent for use at the Lansing plant are
' Boston, Chicago , Kansas City , Minneapolis , New York, Philadelphia , San Francisco, and
Los Angeles.
LANSING COMPANY 437
steel; bolts -and-=nuts, pig-.iron, lumber, paint; and scrap iron, at an
approximate annual cost of $285,000.00. The respondent purchases
about 38 per cent of these materials outside the State of Michigan.
Approximately 90 per cent of its sales of finished products are to
purchasers outside the State of Michigan. '
II. THE LABOR ORGANIZATIONS INVOLVED
Local 182, International Union, United Automobile Workers of
America, is a labor organization, affiliated at the time of the hearing
with the Committee for Industrial Organization, admitting to mem-
bership the. production and maintenance employees of the respondent
and of other employers situated in and near Lansing, Michigan. Per-
sons having authority to hire and discharge are excluded from
membership.
Lansing Company Employees' Association is an unaffiliated labor
organization admitting to membership the respondent's employees at
its Lansing, Michigan, plant.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Prior to March 1937 there had been no union activity in the respond-
ent's plant. - At :that•time-the U. A. W. A. began to organize the re-
spondent's employees. By April 8, 1937, the organization campaign
had progressed to a point where a shop bargaining committee had been
set up and the first conference with the respondent, relative to a
grievance, was held. As soon as the respondent's officers became aware
of the existence of the U. A. W. A. among its employees it made known
its hostility thereto. On March 26, 1937, Harry E. Moore, the re-
spondent's president, caused work in the plant to be stopped shortly
before closing time and assembled the employees to speak to them.
Although, at the date of this meeting, no action had been taken by
the U. A. W. A. or any of its members to indicate that a strike was
proposed, Moore told the employees that "I have heard that there is
some agitation in the shops as to your wanting to strike, and I thought
that I would put these matters before you so that you could see just
exactly where you stand and where we stand."
According to the testimony of Basil Green, an employee who was
present, Moore stated that the respondent could not stop the men from
joining any church or lodge but that it did not want any union in
the plant. Moore denied making this statement attributed to him by
Green, but admitted that he spoke about labor organizations at the
meeting. Green's testimony concerning the speech was corroborated
by several other witnesses who, had attended the meeting. We accept
283031-41-vol. 20-29
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Green's version of the incident and find that Moore made the statement
attributed to him.
At the meeting, Moore singled out some of the older employees and
asked them whether they wanted to strike. He proposed that a vote
on the question be taken, stating, "You can go the front way, out the
front door, and we will have sombody there at a desk and you can
give your vote as to whether or not you wish to strike, or whether
you don't wish to strike. We will take a vote on this thing right here
and now." The employees, however, "were so overwhelmingly in favor
of not voting" that the proposal was withdrawn. At the conclusion
of the meeting William Himelberger, the respondent's superintendent,
stated to the assembled employees that the respondent "positively
would have no outsiders coming in telling them how to run their busi-
ness" and that "We don't want you to join no union," and William
Sheathelm, foreman of the shipping department and general manager
of production, stated that the men were being forced to join the
U. A. W. A.
On several other occasions after the U. A. W. A. became active in
the plant and before the strike, which started on July 15, 1937, persons
having official or supervisory capacity made statements to employees
showing the respondent's disapproval of the U. A. W. A. On April 8,
1937, a union bargaining committee, consisting entirely of employees
of the respondent, met with the management to confer respecting
the discharge of an employee. In a discussion after the conclusion
of this meeting Himelberger said to Moore and Clare Johnson, an
employee and union member, that "they would have to break up that
union" and Moore made the statement that he "was going to hire and
fire who he pleased, regardless of any outside. interference."
Following are other incidents that occurred on the respondent's time
and property during the early part of the U. A. W. A.'s membership
campaign. Himelberger, after asking- Walter Drews, an employee;
whether he was going to join the U. A. W. A. said, "You better not."
John Voss, foreman of the mixing department, advised Ed Warner, an
employee and union member, that "the union that they were trying
to organize wasn't going to get anywhere," that at "another shop here
in town where they tried to organize ... after the boys had signed
up they threw their buttons out of the window and quit, and it won't
be very long before it won't amount to anything here."
Ed Fell, manager of the respondent's real-estate operations,' after
having questioned Lyman Goodwin, an employee, as to whether he
had been asked to join the U. A. W. A. and having received a nega-
tive answer, said "Well, you haven't been working here very long,
so don't have anything to do with it. You want to keep on working."
'The respondent owns a number of private dwellings in Lansing most of which are
occupied by its employees at a monthly rental.
LANSING COMPANY 439
Fell also admonished Kenneth Goodwin, an employee, not to have
anything to do with the U. A. W. A. Milo Ingersoll, foreman in
the woodshop, in a talk with Bigio Lucian, an employee and union
member, said "Do you get any benefit if you join the U. A. W. - . .
Yes, you can join a club or church any place, except the U. A. W.
If you go on strike what are you going to live on; who is going to
feed your family." With the exception of Moore's denial of the
statement attributed to him, as noted above, there was no denial of
this activity by the respondent's officers and supervisory employees.
It is apparent that at the inception of union activity in the plant
and at a time when self-organization, among its employees was in the
formative stage, the respondent's attitude of hostility and antagonism
toward the U. A. W. A. and the union activity of its employees was
clearly manifested. The, respondent's officials and supervisory em-
ployees indicated their displeasure with the formation of the
U. A. W. A., disparaged it, threatened those who joined with loss of
their jobs, and discouraged membership therein and activity on its
behalf.
We find that, by the acts above set forth, the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. Domination of and interference with the formation, and adminis-
tration of the Association and contribution of support thereto
In March 1937, during the early stages of the U. A: W. A.'s or-
ganization campaign, there were rumors among the employees that
an inside union was being formed. Petitions requesting membership
in such an organization were circulated throughout the plant during
working hours by employees. Several of the respondent's super-
visory employees were particularly active in the movement to organ-
ize an inside union and solicited membership in the organization on
the respondent's property during working hours. Sheathelm told
Warner that "We want to get the boys organized in a company
union." One or two nights after making this statement Sheathelm
mentioned a petition which was being circulated through .the plant
at the time, told Warner that it was "for that company union," and
asked him whether he would sign it. Warner agreed to sign "if it
will do any good." Again, at about the same time, Sheathelm di-
rected Lyman Goodwin, an employee, to see Al Druitt, a foreman,
"about a petition he had." Druitt told Goodwin "that the boys were
getting together" and that Goodwin "had better sign" the petition.
Goodwin refused to do so at the time. However, he consulted Fell,
his superior, regarding the matter. Fell told him that "it was just
a few of the boys there getting together" and that Goodwin "had
'better go down and sign it." Goodwin then signed the petition.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although it does not appear who arranged for or called it, a meet-
ing for the purpose of organizing the' Association was held during
the latter part of March or early in April 1937, in a building located
across the street from the respondent's plant. This meeting was at-
tended by supervisory as well as other employees of the respondent,
and the Association was there formed. Officers of the Association
were elected by acclamation at the meeting. However, no constitu-
tion or bylaws were adopted and no meetings of the Association were
thereafter held. Aside from solicitation of membership, which con-
tinued thereafter, and one contact with the respondent's president,
hereinafter mentioned, there was no activity among the employees
on behalf of the`' Association subsequent to this organization meeting.
The respondent offered no evidence to deny or explain the activity
of its supervisory employees in the formation and administration of
the Association. It contends, however, that it was not responsible
therefor. Moore testified that until one of the Association's mem-
bership petitions was brought to him, apparently by its representa-
tives, at which time Moore said he "would have nothing to do" with
the Association, he was unaware that it existed. However, Moore's
lack of actual knowledge of the Association is immaterial. It is
sufficient that other individuals holding positions of authority in the
respondent's plant dominated and interfered with the formation of
the Association and contributed support to it.
The respondent further contends that the activities of the above-
mentioned supervisory employees cannot be imputed to the respondent
for the reason that they do not have the authority to hire or discharge
employees. Final authority in this connection appears to have been
vested in Himelberger, the plant superintendent. However, as stated
above, Fell is in charge of the respondent's real-estate operations, a
capacity which obviously identifies him with the management, and
Sheathelm, in addition to being foreman of the shipping department,
is, under Himelberger's. supervision, in general charge of production.
The other supervisory employees mentioned are foremen, each in
charge of a department and authorized to recommend to the plant
superintendent the`hiring and discharging of employees. All these
supervisory employees are thus held out by the respondent to its
employees as part of the management. We find that in their conduct
with relation to the Association these supervisory employees were
acting for and on behalf of the respondent and that the respondent
is responsible therefor.'
8 See International Association of Machinists, Tool and Die Makers Lodge No. 35, affiliated
with the International Association of Machinists, and Production Lodge No. 1200. affiliated
with the International Association of Machinists v. N. L. P. B.. 110 F. (2d) 29 (C. A.
for D . C.), aff'g Matter of The Serrick Corporation and International Union , United.4uto-
mobile Workers of America, Local No. 1,59, 8 N. L. R . B. 621.
. LANSING GOMIPAN'Y 441
To show the Association's independence of it, the respondent relies
upon the fact that Moore refused to confer with the Association's
representatives on the occasion, mentioned above.. In ruling on this
same argument previously we have said that "where the Board finds
interference, domination, and support of the character set forth above
. .. the refusal of an employer to bargain with that organization
upon request cannot constitute a complete defense to an allegation
under Section 8 (2) of the Act." 4
Finally it is contended by the respondent that a finding of violation
of Section 8 (2) of the Act is unwarranted because the Association
was never formally organized, has issued no membership cards, col-
lected no dues, and has been inactive since its first organizational
meeting, with the exception of the one attempt to meet with the re-
spondent, mentioned above. We think these latter facts are relevant
only in determining whether the respondent shall be ordered to dis-
establish the Association.' We find no merit in the respondent's
contentions.
We find that by the acts of its officers and supervisory employees
in circulating among the employees petitions for membership in the
Association in openly encouraging membership therein, in partici-
pating' in' the,'organization meeting thereof, `and`•in advising the-em-
ployees that no outside union would be permitted in the plant, the
respondent has dominated and interfered with the formation and ad-
ministration of the Association, and has contributed support thereto,
and that the respondent has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
C. The alleged refusal to bargain
The complaint alleges that the appropriate unit for the purposes
of collective bargaining with the respondent consists of all production
and maintenance employees of the Lansing plant, exclusive of those
engaged in a supervisory capacity and office and clerical employees.
It is alleged that on or about July 6, 1937, and at all times thereafter,
the respondent refused to bargain with the U. A. W. A. as the repre-
sentative of a majority of the employees in the unit- claimed to be
appropriate. At the hearing it was stipulated that on said date there
were 210 production and maintenance employees on the respondent's
pay roll, exclusive of clerical workers and those having supervisory
*Matter of Ingram Manufacturing Company and Textile Workers Organizing Committee,
5 N. L. R. B. 908.
5 Matter o f Swift and Company, a corporation and Local No. 530, United Packing House
Workers Industrial Union, affiliated with the Committee for Industrial Organization, 11
N. L. R. B. 809.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
positions. It was further stipulated that the Board had present at
the hearing only 97 membership cards or applications for membership
in the U. A. W. A., 27 of which were challenged by the respondent
for various reasons. There is no other evidence tending to show that
the U. A. W. A. represented a majority of the respondent's employees
in an appropriate unit at any time. Since the evidence does'not suffi-
ciently establish that the U. A. W. A. had a majority status on July 6,
1937, or at any other time, it is not necessary to discuss the appropriate-
ness of the unit alleged in the complaint to be appropriate ; 6 nor do
we find that the respondent refused to bargain collectively with the
U. A. W. A. as the representative of its employees in an appropriate
unit.7
D. The stake
Prior to July 15, 1937, there were several conferences between
representatives of the respondent and the U. A. W. A. At such
conferences, on June 28 and July 6, the U. A. W. A. presented to
and discussed with the respondent a proposed contract. A provision
therein calling for a wage increase proved to be a stumbling block
in the negotiations and on July 9 the respondent's attorneys wrote
to the officers of the. U. A. W. A. informing them that, unless this
provision could be deleted, further negotiations relative to the pro-
posed contract would be useless. Negotiations thereupon ceased.
At membership meetings on July 11 and July 13 the U. A. W. A.
authorized the calling of a sit-down strike. Shortly after the open-
ing of the plant on the morning of July 15, 1937, the strike was called.
The striking employees shut off the power for the machinery, advised
non-strikers to leave the plant, locked the gates, and took possession
of the entire plant, with the exception of the clerical and executive
offices. A request by the respondent for surrender of the plant hav-
ing been refused by the strikers, the respondent commenced proceed-
ings in the Circuit Court for Ingham County, Michigan,. to obtain
possession. thereof. The occupation of the plant continued until' the
afternoon of July 19 when, the strikers having refused to comply with
an injunction requiring surrender of the premises, police authorities
forcibly broke into the plant and the strikers thereupon withdrew.
While it is probably true that the acts of the respondent's officers
and agents in promoting the formation of the Association and in
discouraging membership in and activity on behalf of the U. &W 'A.
e See Matter of Luckenbach .. Steamship Company , Inc. and Maritime Office Employees
Association, International Longshoremen's and Warehousemen's Union, Local 1- 4, 12
N. L. R. B. 1333.
P Matter of Continental' Oil Company and Oil Workers International Union, 12 N. L.
R. B. 789.
LANSING COMPANY 443
served to increase the antagonism attendant upon the negotiations
leading up to the strike, the evidence concerning the cause of the
strike constrains us to find that the strike resulted, not from any
unfair labor practices by the respondent, but from its refusal to
agree to the terms of the contract proposed by the U. A. W. A. Since
the U. A. W. A. did not represent a majority of the respondent's
employees in the unit claimed to be appropriate for the purposes of
collective bargaining and since the strike was called in an effort by
the U. A. W. A.'' to bring about compliance with the demands set
forth in its proposed contract, we find that the strike was not caused
by the unfair labor practices of the respondent.
The respondent reopened the plant within 4 days after the evacua-
tion of the strikers but it was about 2 weeks thereafter before full
operations were resumed. The strikers picketed the plant until
August 12, 1937, and the strike continued in effect for some time
thereafter, as a result of which the respondent hired many new em-
ployees. No action had been taken by the U. A. W. A. at the time
of the hearing to call off the strike. However, by that time many
old employees, including some who had participated in the strike,
had returned to work. All those who had. not participated in the
sit-down strike and who applied for reinstatement after operations
had been resumed, were reinstated or told that they would be given
work as soon as openings should occur.
E. The discriminatory discharge and alleged lock-out and refusal
to reinstate
1. The sit-down strikers
At meetings between the respondent and the U. A. W. A. following
the eviction of the strikers, the principal issue was the reinstatement
of the sit-down strikers. The U. A. W. A. insisted upon their rein-
statement in a group as a condition precedent to settlement of the
strike. This the respondent refused upon the ground that their con-
duct in occupying the plant and refusing to vacate it in response to
the injunction deprived the sit-down strikers of the right to reinstate-
ment. The respondent, however, did offer to reinstate in a group all
its former employees, with the exception of those who had actually
participated in the occupation of the plant. It further expressed its
willingness to reinstate those in the latter group upon the individual
application of each sit-down striker and his apology for his conduct
during the occupation of the plant. ' The evidence clearly establishes
that the respondent refused the U. A. W. A.'s demand to reinstate the
sit-down strikers solely because of their action in occupying the re=
spondent's plant and refusing to vacate it pursuant to legal process.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under these circumstances we find that the respondent 's action in
refusing to reinstate the sit-down strikers does not constitute an unfair
labor practice within the meaning of the Act.8
2. Other strikers_
The complaint alleges that at the time of the strike the respondent
locked out and thereafter refused to reinstate or manifested an inten-
tion not to and did not thereafter rehire certain employees who, it
appears, participated in the strike but as to whom there was no proof
of participation in the sit-down feature thereof. As stated above, the
respondent has reinstated some of these employees and has offered
reinstatement to all who have applied therefor as soon as openings
should occur. Since, as we have found above, the strike was not
caused by the respondent's unfair labor practices, it "is not bound
to discharge those hired to fill the places of strikers, upon the election
of the latter to resume their employment, in order to create places
for them." 9 At the hearing no evidence was offered to.prove that the
respondent had in any manner discriminated against these strikers,
upon their request for reinstatement, because of their membership in
or activity on behalf of the Union.
We find that the.respondent.has not discriminated: in regard to,the
hire and tenure of employment of its striking employees to discourage
membership in a labor organization.
3. The discriminatory discharge of Ed Warner
Ed Warner was a night watchman in the respondent's plant. He
was a member of the U. A. W. A. at the time the strike was called,
but, due to the nature of his work, was granted permission by the
U. A. W. A. to continue to perform his duties for the respondent dur-
ing the period when the plant was occupied by the strikers. On July
19, 1937, Warner was discharged by Himelberger. The reason for
his discharge is apparent from Himelberger's statement made at the
time : "Well, Ed, I guess we won't need you night-watching any more.
If you are going to belong to that thing, we will get somebody else
to do the night-watching." Himelberger did not deny 'making., :this
statement. Warner testified that some days later,Himelberger told
him that he had not been discharged and that he would be back at
work in a few days. Since Warner's request for reinstatement was
8 See N. L. R. B. v. Fansteel Metallurgical Corporation , 306 U. S. 240, mod'g and aff'g
as mod . 98 F. (2d) 375 (C. C. A. 7), setting aside Matter of Fansteel Metallurgical Cor-
poration and A malgamated Association of Iron, Steeb and Tin Workers of North America,
Local 66, 5 N. L R. B. 930.
9N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333, rev'g 92 F. (2d) 761
(C. C. A. 9), and enf'g Matter of Mackay Radio & Telegraph Company , a Corporation and
American Radio Telegraphists ' Association, San Francisco Local No. 3, 1 N. L. R. B. 201.
LANSING COMPANY 445
thereafter refused by the respondent, we do not attach any significance
to the later statement by Himelberger.
The respondent contends that, Warner was relieved of his duties in
an effort to safeguard and protect the respondent's plant during the
strike. Without passing upon the question whether the removal of
Warner as night watchman during the strike would have constituted
an unfair labor practice, it is clear that Warner was discharged per-
manently by the respondent for the reason that he was a member of
the U. A. W. A. We find that the respondent, in thus discharging
and thereafter refusing to reinstate Ed Warner, discriminated in
regard to his hire and tenure of employment, thereby discouraging
membership in the U. A. W. A., and interfering with, restraining,
and coercing its employees in the exercise of the rights 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, described in Section
III Al B, and E 3 above, occurring in connection with the operations
of the respondent described in Section I above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has committed certain unfair
labor practices. We shall order it to cease and desist therefrom and
to take certain affirmative action which we find will effectuate the
policies of the Act.
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed support to it. Inasmuch as formal organization of the
Association has never been perfected and all activity in its behalf
has ceased, we shall not order the respondent to disestablish it. How-
ever, since the Association is subject to the possibility of revival by
the respondent at any future time when that course of action might
appear desirable to the respondent, we shall order the respondent
to refuse to give the Association any recognition as a collective bar-
gaining agency if it should ever become active under its present name
and form or any other."
Having found that the evidence fails to sustain the allegation of
the complaint that the respondent refused to bargain with the
10 See Matter of Yates-American Machine Company and Amalgamated Association of Iron.
Steel and Tin Workers of North America, Lodge 1787, 7 N. L. R. B. 627.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U. A. W. A. as the representative of a majority, of its employees, in
a unit appropriate for the purposes of collective bargaining we shall
order that allegation of the complaint dismissed.
Since we have found that the employees . of the respondent who
went on strike were not discriminated against by the respondent in
regard to their hire and tenure of employment, we shall order the
complaint, except with respect to Warner, dismissed in so far as it
alleges such discrimination.
We have found that on July 19, 1937, because of his union mem-
bership, the respondent discriminatorily 'discharged and thereafter
refused to reinstate Ed Warner and that the respondent thereby dis-
couraged membership in the U. A. W. A. and interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act. To remedy this so as to effectuate
the policies of the Act, we shall order the respondent to offer to Warner
immediate and full reinstatement to his former or to a substantially
equivalent position without prejudice to his seniority and other rights
and privileges. We will further order the respondent, subject to one
qualification, to make Warner whole for any loss of pay he has suf-
fered by reason of his discharge. The record shows that the amended
charge, in which Warner was first named as having been discrimi-
natorily discharged, was filed on April 13, 1938, almost 9 months after,
his discharge. It does not appear that prior to that time Warner had
been named in the negotiations between the respondent and the
U. A. W. A. looking to the reinstatement of employees. Under these
circumstances , we are of the opinion that back. pay to Warner should,
not be directed, as is our usual practice, from the time of his dis-
charge 11 We shall order that Warner be made whole for any loss
of pay he may have suffered by payment to him of a sum of money
equal to that which he normally would have earned as wages from
April 13, 1938, to the date of the offer of reinstatement less his net
earnings 12 during said period.
"See Matter of Inland Lime and Stone Company and . Quarry Workers International
Union of North America, Branch No. 259, 8 N . L. R. B. 944; Matter of Crowe Coal Company
and United Mine Workers of America, District No. 14 , 9 N. L. R . B. 1149, enf 'd, N. L. R. B.
v. Crowe Coal Co., 104 F. ( 2d) 633 (C. C. A. 8), cert . denied 308 U. S. 584.
12 By "net earnings" is meant earnings , less expenses , such as for transportation, room,
and board , incurred by warner in connection with obtaining work and working elsewhere
than for the respondent , which would not have been incurred but for his unlawful dis-
charge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R . B. 440. Monies re-
ceived 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 de-
ducted from the sum due to Warner 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.
LANSENG COMPANY 447
Upon the basis of the foregoing findings. of fact and upon the.eiitire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Local 182, International Union, United Automobile Workers of
America, is a labor organization, within the meaning of Section 2 (5)
of the Act.
2. Lansing Company Employees' Association is a labor organization,
within the meaning of Section 2 (5) of the Act.
3. By dominating and interfering with the formation and adminis-
tration of Lansing Company Employees' Association and contributing
support thereto, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (2) of the Act.
4. By discriminating in regard to the hire and tenure of employment
of Ed Warner and thereby discouraging membership in Local 182,
International, Union, United Automobile Workers. of America, the
respondent has engaged in and is engaging in an unfair labor practice,
within the meaning of Section 8 (3) of the Act..
5. By interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, the respond-
ent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act. -
7. Except with respect to Ed Warner, the respondent has not en-
gaged in unfair labor practices within the meaning of Section 8 (3)
of the Act.
8. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (5) of the Act.
ORDER
Upon the basis of the above 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,
Lansing Company, Lansing, Michigan , and its officers , agents, suc-
cessors, and assigns shall :
1. Cease and desist from :
(a) Dominating or interfering with the formation or administration
of Lansing Company Employees ' Association or with the formation or
administration of any other labor organization of its employees, and
from contributing support to Lansing Company Employees' Asso-
ciation, or any other labor organization of its employees;
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Discouraging membership in Local 182 , International Union,
United Automobile Workers of America, or any other labor organiza-
tion of its employees , by discharging or refusing to reinstate any of its
employees , or in any other manner discriminating in regard to their
hire or tenure of employment or any term or condition of employment;
(c) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their right 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 activities
for the purposes of collective bargaining or other mutual aid or
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) Refuse to recognize Lansing Company Employees ' Association
under its present name and form or any other , as a representative of
any of its employees for the purpose of dealing with the respondent
concerning grievances , labor disputes , wages, rates of pay, hours of
employment, or other conditions of employment;
(b) Offer to Ed Warner immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to
his seniority and other rights and privileges;
(c) Make whole the said Ed Warner for any loss of pay that he
may have suffered by reason of the respondent 's discrimination in
regard to his hire and tenure of employment , by payment to him of a
sum of money equal to that which he normally would have earned as
wages during the period from April 13, 1938, to the date of the offer of
reinstatement less his net earnings 13 during said period , deducting,
however , from the amount otherwise due to said Warner, monies re-
ceived by him 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, municipal , or other government or governments which
supplied the funds for said work -relief projects;
(d) Immediately post in conspicuous places throughout its plant
and maintain for a period of at least sixty ( 60) consecutive days,
notices stating that the respondent will cease and desist in the manner
set forth in paragraphs 1 (a), (b), and ( c), and that it will take the
affirmative action set forth in paragraphs 2 (a), (b), and ( c) of this
Order ; that the respondent's employees are free to become or remain
members of Local 182, International Union , United Automobile Work-
ers of America ; and that the respondent will not discriminate against
23 See footnote 12, supra.
LANSING G0'MPANT 449
any employee because of membership or activity in that organization ;
(e) Notify the Regional Director for the Seventh Region, in writ-
ing, within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint in so far as it alleges
(1) that the respondent refused to bargain with Local 182, Inter.
national Union, United Automobile Workers of America, as the repre-
sentative of a majority of its employees in a unit appropriate for the
purposes of collective bargaining, and (2) that the respondent has
discriminated in regard to the hire and tenure of certain employees,
other than Ed Warner, be, and it hereby is, dismissed.