A. G. Schmidt Farm Equipment

National Labor Relations Board - Board Decisions

Aug 24, 1950

90 N.L.R.B. 2152 (N.L.R.B. 1950)

In the Matter of A. G . SCHMIDT, A. G. SCHMIDT , JR., AND FLOYD
SCHMIDT, CO -PARTNERS , D/B/A A. G. SCHMIDT FARM EQUIPMENT
and INTERNATIONAL ASSOCIATION OF MACHINISTS , DISTRICT No. 9
Case No. 14-CA-160.Decided August 24, 1950
DECISION AND ORDER
On March 28, 1950, Trial Examiner Charles L. Ferguson issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices within the meaning of Section 8 (a) (1) and (3)
of the Act, and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. The Trial Examiner also found
that the Respondents had not engaged in certain other alleged unfair
labor practices, and recommended dismissal of these allegations of the
complaint. Thereafter, the Respondents filed exceptions to the In-
termediate Report and a supporting brief, and National Retail Farm
Equipment Association filed a brief amicus curiae.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
the case, and finds merit in the Repsondents' exceptions in the respects
indicated below.
The record shows, as set forth in detail in the Intermediate Report,
that the Respondents are engaged, at Belleville, Illinois, and Water-
loo, Illinois, in the retail sale of farm machinery, farming tools, and
parts and accessories, and in the repair and servicing of such equip-
ment. Their total complement of employees, for both shops, consists
of five or six servicemen and a bookkeeper. During 1948, the Re-
spondents purchased farm equipment and supplies valued at approx-
imately $130,000, about 65 percent of which was purchased or shipped
from outside the State of Illinois. The remainder was purchased lo-
cally and was shipped to the Respondents by manufacturers or jobbers
90 NLRB No. 292.
2152
A. G. SCHMIDT FARM EQUIPMENT 2153
located within the State., During the same year, the Respondents
made no sales or shipments and furnished no services to persons located
outside the State.
In the course of their business, the Respondents purchase machinery
and parts manufactured by Allis-Chalmers Manufacturing Company ;
Babsom Bros. Milker Company; New Idea, Incorporated; Gehl Manu-
' facturing Company; and the Dunham Company. Pursuant to their
agreements with those companies or with the jobbers through whom
they purchase such equipment, the Respondents are the only dealers
for these products in Belleville and Waterloo, Illinois. Except for
their contract with the Babsom Company, however, from whom they
purchased only $4,000 to $5,000 worth of equipment in 1948, these
agreements do not grant the Respondents exclusive territorial rights 2
nor do any of them prohibit the Respondents from selling competing
products manufactured by other companies.
Upon these facts, the Trial Examiner concluded that the Respond-
ents are engaged in commerce within the meaning of the Act and that
it would effectuate the policies of the Act to assert jurisdiction in this
case. It is clear, however, that the Respondents' business is essentially
local in character and relatively small in size. Without deciding
whether or not the Respondents are engaged in commerce within the
meaning of the Act, we find that it would not effectuate the policies of
the Act to assert jurisdiction in this procpeding.3 We shall therefore,
dismiss the complaint in its entirety.
ORDER
Upon the entire record in the case, and pursuant to Section 10. (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein be,
and it hereby is, dismissed.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
I As stated by the Trial Examiner , the Respondents purchased Dunham products through
a jobber in Bloomington , Illinois. Although the Trial Examiner found that the Dunham
products purchased were shipped to the Respondents directly from that company's Ohio
plant , there is nothing in the record to support this conclusion.
2 We disagree with the Trial Examiner ' s finding that these contracts grant the Re-
spondents exclusive dealerships for such products . Although , as stated above, the Re-
spondents are the only dealers for Allis -Chalmers , New Idea , Gehl , and Dunham products
in Belleville and Waterloo , the Respondents do sell such products outside these areas and
dealers in neighboring communities do sell in Belleville and Waterloo . Moreover, the
Respondents ' agreement with Allis-Chalmers provides no restriction on that company's
right to sell at wholesale to other dealers in the same area.
I Insofar as it is inconsistent herewith , Dome Tractor Company, 80 NLRB 24, is hereby
overruled.
2154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Messrs. Harry G. Carlson and Milton C. Talent, for the General Counsel.
Mr. Harold Baltz, of Belleville, Ill., for the Respondents.
Mr. Fred Carstens, of St. Louis, Mo., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed August 19, 1949, by International Association
of Machinists, District No. 9, herein called the Union, the General Counsel for
the National Labor Relations Board,' by the Regional Director for the Fourteenth
Region (St. Louis, Missouri), issued his complaint dated August 24, 1949, against
A. G. Schmidt, A. G. Schmidt, Jr., and Floyd Schmidt, co-partners, d/b/a A. G.
Schmidt Farm Equipment, herein called Respondents, alleging that Respondents
had engaged in and were engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. Copies of the charge and the complaint and a notice of hearing were
duly served upon the appropriate parties.'
With respect to unfair labor practices, the complaint alleged in substance that
Respondents: (1) "On or about December 22, 1948, and thereafter warned and
threatened their employees with discharge if they joined or assisted the Union" ;
(2) "on or about December 21, 1948," discharged employee Erwin Heberer and
has since failed and refused to reinstate him "because he joined and assisted the
union and engaged in concerted activity for the purposes of collective bargaining
or other mutual aid or protection"; and (3) from "on or. about December 22,
1949, to the date of the complaint, have refused to bargain collectively with the
union as the exclusive representative of their employees in an appropriate unit."
Respondents' answer, filed August 30, 1949, denied generally the commission of
each and all of the unfair labor practices alleged in the complaint. The answer
admitted that, on the date alleged in the complaint, Respondents discharged
employee Erwin Heberer but averred that he "was discharged for cause."
Both by their answer and a motion to dismiss the complaint filed simultane-
ously therewith, Respondents took the position that their business "is that of a
small and local enterprise" and is not such as comes within the meaning of the
term "commerce" as same is defined in the Act ; that, therefore, "the matters
alleged in the complaint, even if true," do not "burden and obstruct commerce
or the free flow of commerce" and that the Act is not applicable.
Pursuant to notice, a hearing was held at Belleville, . Illinois, on September
12, .13, and 14, 1949, before the undersigned Trial Examiner, Charles L. Ferguson,
who had been duly designated by the Chief Trial Examiner to conduct the hearing.
The General Counsel and the Respondents were represented by counsel who par-
ticipated in the hearing throughout. All parties were afforded full opportunity
'The term General Counsel includes counsel appearing at the hearing on behalf of and
representing the General Counsel. The. National Labor Relations Board is referred to
herein as the Board.
'The original charge was filed by the Union on December 22, 1948, and was served
upon the Respondents on December 28, 1948; a first amended charge filed January 4,
1949, was served upon Respondents January 10, 1949; a second amended charge charging
the same unfair'labor practices set forth in the first amended charge was filed on January
26 and served upon Respondents on January 27, 1949 ; and a third amended charge,
upon which the complaint herein was based, erroneously denominated "fourth amended
charge," and charging the same unfair labor practices set forth in the first and second
amended charges, was filed on August 19, 1949, and served upon Respondents, together
with a copy of the complaint and notice of hearing, on August 24, 1949.
A. G. SCHMIDT FARM EQUIPMENT 2155
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing upon the Issues. ,
Before proceeding to the reception of evidence, I considered Respondents' mo-
tion to dismiss the complaint and also a motion by the General Counsel to require
that Respondents' answer be made more definite and certain in certain respects.
Respondents' motion directed to the applicability of the Act and the jurisdiction
of the Board under the facts with respect to commerce was renewed at the con-
clusion of the evidence. I reserved the determination. of Respondents' conten-
tion as to jurisdiction and took same under advisement. The question raised
thereby is hereinafter disposed of by my discussion and ruling as to the assump-
tion of jurisdiction in this instance. I overruled the General Counsel's motion
to require that the answer be made more definite and certain.
At the close of all the evidence, a motion by the General Counsel to conform
the pleadings to the proof in matters not affecting the substance of the issues
was granted without objection. Both the General Counsel and counsel for
Respondents waived oral argument. Leave was granted the parties to file briefs
or proposed findings of fact and conclusions of law, or both, within 15 days after
the close of the hearing. Subsequently, upon separate applications of respective
counsel, extensions of time for filing same were granted. The General Counsel
and counsel for Respondents each timely filed a brief and same have been
-examined and considered.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
A. Nature and extent of Respondents' business
The Respondents, A. G. Schmidt, Sr., and his sons, A. G. Schmidt, Jr., and
Floyd Schmidt, are, and at all times material herein were, co-partners doing
business under the firm name of A. G. Schmidt Farm Equipment. They are
engaged in the retail sale of farm machinery, farming tools and equipment, and
parts and accessories, and the repair and servicing of farm, machinery and tools.
Schmidt, Sr., stated that he was the manager of the business and that they
"handle practically everything that a farmer uses for producing crops," in-
eluding tractors, plows, combines, tractor tires, and "parts for all machines we
sell." They operate at two places of business, one at Belleville and the other
at Waterloo, Illinois. Waterloo is approximately 20 miles from Belleville. A
combined store and repair shop is maintained at each place. The larger and
principal store and repair shop is at Belleville.
The events giving rise to the alleged unfair labor practices occurred in De-
cember 1948. It was stipulated that during the year 1948, Respondents purchased
farm machinery, equipment, and parts and accessories in the amount of $130,000
and "that more than 50 percent" thereof was "purchased or shipped from points
outside the State of Illinois." The stipulation shows that approximately 60
percent of the $130,000 of stock and materials purchased during the year 1948,
amounting to $78,000, was purchased from A11is-Chalmers Manufacturing Com-
pany and that fifteen-sixteenths of the purchases from Allis-Chalmers, amounting
to $73,125, were shipped from Allis-Chalmers plants at La Porte, Indiana, and
Milwaukee and La Crosse, Wisconsin, and the remaining one-sixteenth from
that company's plant at Springfield, Illinois. Farm machinery, such as corn
pickers, mowers, and manure spreaders, of an approximate value of $6,000 was
2156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchased from New Idea , Inc., Coldwater , Ohio, and silo fillers, in the amount
of approximately $5,000, were purchased from Gehl Manufacturing Company, of
West Bend, Wisconsin , during the year 1948 . Thus, it appears that of the
.$130,000 in purchases made during the year 1948 , stock and materials of the
approximate . value of $84 , 125, considerably more than one-half and nearer two-
thirds, were purchased and shipped from points outside the State of Illinois.
In addition , tillage tools of an approximate value of $15 ,000 were purchased
from the Dunham Company of Berea, Ohio , "through a jobber handling Dunham
products located at Bloomington , Illinois." It is not clear from the record
whether these tillage tools were shipped directly to Respondents from the Dun-
ham plant at Berea, Ohio , or were reshipped by the jobber at Bloomington.
Assuming the latter , nonetheless the tillage tools manufactured by the Dunham
Company at its Ohio plant originated outside the State. However, it is my
impression from the . testimony of Schmidt, Sr., that, while the orders for these
tools were made through the jobber , the shipments to Respondents were made
directly from the Berea , Ohio , plant. Including this item, $99,125, or more
than three-fourths of the $130,000 , in purchases made in 1948 , was expended
for machinery , tools, parts , and accessories shipped to Respondents from, or
originated , outside the State of Illinois.
Respondents handle the Allis-Chalmers products under a "Dealers Sales and
Service Agreement " with that company, which has continued in effect over a
long period of years. This agreement, which was put in evidence by the General
Counsel , grants Respondents "the non-exclusive right to sell the machinery of
the company" in "Belleville ( Illinois ) and vicinity" and "Waterloo and vicinity."
However , the company "agrees that it will not make retail sales within the terri-
tory mentioned except" to the United States Government , State Government or
departments thereof , "municipalities and industrial corporations ." Respondents
had the only Allis-Chalmers dealership in the Belleville-Waterloo areas and
apparently the agreement , as construed and applied by the parties , operated
effectively to secure the Respondents the exclusive Allis-Chalmers retail dealer-
ship in.those areas . The contract "covers wheel tractors , harvesting machinery,
implements , power units and crawler type tractors " and "accessories and repair
parts therefor" produced by the Allis -Chalmers Company . As has been noted,
60 percent of the purchases in the year 1948 was from the Allis-Chalmers Com-
pany under the terms of this agreement.
During 1948 , purchases of $4,000 to $5,000 in value were made from the Babsom
Milking Machine Company of Chicago , Illinois ; with which company Respondents
had an exclusive dealership contract for the Belleville and Waterloo vicinities.
Presumably the milking machines manufactured and distributed by this com-
pany are nationally advertised and distributed products . It has been noted
that farm machinery amounting in value to approximately $6,000 was purchased
from New Idea , Inc., and shipped to Respondents from that company 's Coldwater,
Ohio, plant . In addition , farm machinery of approximately the same value was
shipped to Respondents from a Sandwich , Illinois , plant of New, Idea, Inc.
Schmidt, Sr ., testified that Respondents operated under a contract with New
.Idea granting them the privilege of selling New Idea products in Belleville and
Waterloo and providing that no other dealer "would be given the agency" for
such products" in those locations ." He further said that Respondents purchased
the Dunham tools through the Bloomington , Illinois , jobber under an' "oral
agreement" : that no other dealer at either Belleville or Waterloo would be per-,
,mitted to handle Dunham tools and that their firm was the only dealer that did
handle same.
A. G. SCHMIDT FARM EQUIPMENT 2157
It was further stipulated, and evidence was offered to the same effect, that "all
sales made by respondents during 1948 were made to persons living within the
State of Illinois" and that Respondents make no sales or shipments to points
outside the State of Illinois, and do no repair work upon farm machinery or
equipment outside that State.
B. Discussion of jurisdiction
It appears from the facts stated concerning Respondents' business that there
has been and is a substantial inflow from without the State of farm machinery,
tools, and equipment, and accessories and repair parts therefor, which Respond-
ents sell, use, and must have in carrying on their business, and that Respondents'
firm as an outlet for the sale and distribution of Allis-Chalmers, Babsom, New
Idea, and Dunham products, was a part of the distribution system of said com-
panies respectively which, if not Nation-wide in all cases, at least extended
across State lines into many States other than those where their respective
manufacturing plants are located.
Clearly, Respondents were and are engaged in "commerce" within the meaning
of that term as it is defined in the Act and, therefore, this proceeding comes within
the scope of the Board's authority. N. L. R. B. v. Fainblatt, et at., 306 U. S. 601;
N. L. R. B. v. Suburban Lumber Company, 121 F. 2d 829 (C. A. 3, 1941) ; N. L. R. B.
v. Robert S. Green, Inc., 125 F. 2d 485 (C. A. 4) ; N. L. R. B. v. Kudile, 130 F. 2d 615
(C. A. 3) ; Williams v. N. L. R. B., 128 F. 2d 960 (C. A. 8) ; Coopersville Cooperative
Elevator Co., 77 NLRB 1083. The only question having to do with jurisdiction is
whether on the facts concerning Respondents' business and specifically that all
sales are made to, and repair work done for, customers within the State, to wit:
Farmers residing in the immediate vicinity of Respondents' places of business at
Belleville and Waterloo, Illinois, and that no sales, deliveries, or shipments are
made or work done without the State of Illinois, Respondents' business is of such-
a local character that it would not effectuate the policies of the Act to assert the
Board's authority.
Upon an examination of Board decisions as to the propriety of exercising its
jurisdiction in cases involving substantially the same, or a closely similar, type
of business and sources of supply wherein the sales were wholly. to local cus-
tomers or, as in some instances, only a very small or inconsequential part of the
sales were to outstate customers, and it was contended the business was so essen-
tially local as not to warrant the exercise of jurisdiction, I have concluded that
in the instant case the situation made out by the jurisdictional facts brings this
proceeding within the class of cases in which the Board deems it would best
effectuate the policies of the Act to assert its jurisdiction.
In Dome Tractor Company, 80 NLRB 24, the employer was engaged, as in the
instant case, in the business of selling and servicing farm implements and ma-
chinery. Employer's business was located at Sacramento, California. During the
year to which the evidence concerning employer's business related, employer's
purchases amounted to $223,000, of which less than 2 percent was shipped di-
rectly to the employer from outside the State of California. The remainder was
purchased from two distributors in California and shipped to the employer
from points within the State. All sales were made to customers within the
State. The Board held that the employer was "engaged in commerce within the
meaning of the Act" and asserted jurisdiction.
The employer in Valley Truck and Tractor Company, 80 NLRB 444, had its only
place of business at Marysville, California, where it was "engaged in the sale
and servicing of farm machinery and motor trucks and the sale of parts and
2158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accessories therefor." It handled "tractors, mowers, plows and other farm
equipment, and parts and accessories for such machines." Approximately 95
percent of the farm machinery and over 75 percent of the parts and accessories
were purchased from the International Harvester Company plant at Oakland,
California, which in turn obtained 69 percent of the completed machines from
plants located outside that State. All sales were "to customers within the
State." Here, too, the Board held the employer was engaged in commerce
within the meaning of the Act and asserted its jurisdiction.
The respondent and employer in a complaint case, Coopersville Cooperative
Elevator Company, 77 NLRB 1083, had its place of business at Coopersville,
Michigan, where it engaged in buying, processing, and selling farmers' sup-
plies. Slightly more than three-eighths in value of the company's total annual
purchases of supplies, feeds, seeds, fertilizer, farm machinery, oil, and sundry
hardware items, which it sold at retail to local farmers, was shipped directly
to the company from points outside the State of Michigan, and approximately
one-sixth in value of such stock was purchased through a Michigan dealer but
originated outside that State. All sales were local and made within the State.
In ruling exceptions to the Trial Examiner's Intermediate Report, the Board
held, "Respondent's. operations affect commerce within the meaning of the Act"
and asserted jurisdiction.
In Zumwalt Tractor and Equipment Company, 7S NLRB 431, where the Board
took jurisdiction, the employer was engaged in "selling at retail and servicing
Caterpillar, John Deere, and similar equipment" in the State of California.
Less than 5 percent of the company's total purchases of such equipment and
materials were orders placed direct to the factory in another State; the re-
mainder was purchased through a California distributor. All sales were made
within the State of California "largely to farmers." To the same effect is
Weaver Tractor Company also found at 78 NLRB 431.
In this connection, I consider applicable those cases wherein the Board has
assumed jurisdiction over the business of an employer engaged in the purchase
and sale of new and used automobiles, parts, and accessories, and the operation
of an automobile maintenance and repair shop in conjunction therewith with all
sales being made within the State in which the business is located. See the
eight cases of this type at 81 NLRB 1, the first case listed being Harry's Cadillac-
Pontiac Company. Also see B. B. Burns Company, 85 NLRB 1025.
While all of Respondents' sales are made within the State to local cus-
tomers and a part of their stock of farm machinery, equipment, and parts and
accessories is purchased from plants located within the State or a representa-
tive or distributor within the State of plants located outside the State, sub-
stantially all of the farm machinery, equipment, tools, and parts which Re-
spondents sell and use in their business is manufactured and marketed by one
of the five manufacturers of farm machinery mentioned, Allis-Chalmers, Gehl,
Babsom, New Idea, and Dunham. These companies are engaged, some of them
extensively, in interstate commerce. - The distribution of their products through
authorized local sales agencies, such as Respondents' firm, affects their opera-
tions and the interruption or breakdown in any part of their widespread
distribution system would have an effect on interstate commerce. Johns Brothers
Inc., 84 NLRB 294.
C. Assumption of jurisdiction
Under the facts in relation to Respondents' sources of supply, and machinery,
and materials purchased, sold, and used in their business , I deem the policy
A. G. SCHMIDT FARM EQUIPMENT 2159
of the Board to assert jurisdiction in the type of cases cited and reviewed to
be controlling in the instant case and, therefore, find that it would effectuate
the policies of the Act to assert jurisdiction in this proceeding. It follows that
Respondents' motion to dismiss the complaint directed to jurisdiction should be,
and same hereby is, denied.
II. THE LABOR ORGANIZATION INVOLVED
Upon the proof relating to that phase of the case, I find that International
Association of Machinists, District No. 9, herein called the Union, is a labor
organization within the meaning of Section 2 (5) of the Act, admitting to mem-
bership employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Background
As has been noted, Respondents are engaged in the business of selling, at retail,
farm machinery, tools, and equipment, such as, wheel tractors, crawler tractors,
mowers, harvesting machinery, manure spreaders, silo fillers, tillage tools, milk-
ing machines, and "practically everything a farmer uses for producing crops."
and parts and accessories therefor, and in the servicing and repair thereof.
They carry on their business at two places, Belleville and Waterloo, Illinois,
approximately 20 miles apart, maintaining a combined retail store and repair
shop at each place.
It is my impression from certain incidental references appearing in the testi-
mony that prior to 1938 Schmidt, Sr., was engaged alone in this line of business
at Waterloo. In that year he purchased the Belleville farm machinery store
and repair shop from the then owner and thereafter operated the two places as
one business under the trade name of A. G. Schmidt Farm Equipment. Schmidt,
Sr., said that when he purchased the Belleville store and shop he bought the
stock of parts on hand and the trucks "and got the employees in the bargain."
Later the two sons, Schmidt, Jr., and Floyd became associated with their father
as copartners in the business.
One of the employees acquired in the 1938 deal was Erwin J. Heberer, who, the
complaint alleges, was discriminatorily discharged on December 21, 1948.
Heberer was an employee in the Belleville repair shop at the time Schmidt, Sr.,
purchased that business and for several years thereafter was the only employee
the Schmidts had at the Belleville repair shop "doing mechanical work."
Heberer was continuously employed by Schmidt Farm Equipment in repair,
servicing, and "set up" work from the time he commenced working for Schmidt,
Sr., in "February or March" 1938, until his discharge on December 21, 1948.
It seems that the three Schmidts did the selling and had no employees assigned
to or doing sales work. Their business expanded and during the month of
December 1948, when the events giving rise to the alleged unfair labor practices
occurred, Respondents had a total of six employees, Erwin J. Heberer, Theophil
Keck, Tom Leutkemeyer, Paul Riebling, Gerard Riebling, and Leo Lentz, all
engaged in repair and servicing work or in set-up work, and deliveries. Schmidt,
Jr., and Floyd supervised and also did some repair and servicing work. Heberer
and Keck were mechanics doing principally repair and servicing work on ma-
chinery. Keck commenced working for Respondents in June 1946. The two
Rieblings and Lentz "did mostly assembly work, assembling new machinery,"
unloaded shipments of machinery, and worked as helpers on repair and service
jobs. Leutkemeyer did "mostly delivery" but also "helped set up machinery"
2160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and at times went along as a mechanic's helper on repair jobs. If the repair
could be made on the farm a mechanic with necessary parts and tools, accom-
panied by a helper, if the job was such as required the assistance of a helper,
went by one of Respondents' trucks to the farm and did the work there. In
some instances it was necessary to "haul or bring" the machine from the farm.
to one of the repair shops.
Floyd Schmidt was in charge of the Waterloo store and shop and spent a major
portion of his time there, although the testimony indicates that he made frequent
trips to the Belleville place of business and often spent the "full day" or most
of the day there. Schmidt, Sr., kept in touch with Floyd by telephone and
the Schmidts often got together evenings to discuss business affairs. Floyd and
his wife lived on the second floor, "upstairs over the Waterloo shop." Paul
Riebling lived in Waterloo and for "more than a year" prior to December 1948
had reported regularly for work at that shop. In December 1948 the other five
employees were reporting for work at the Belleville shop. This situation will
be further developed in the section of this Report dealing with the appropriate
unit. Schmidt, Sr., general manager of the business, had his office at Belleville
and the firm's business office was located there in charge of an "office girl," who
served as bookkeeper and looked after the files, records, and accounts of the
business. Schmidt, Jr., worked as a salesman and in the repair shop at Belle-
ville and both Schmidt, Jr., and Floyd, as and when it was deemed necessary,
supervised or did repair jobs at farms.
B. The union commences organizational activity
On Monday, December 13, 1948, William J. Black, assistant business representa-
tive, and Stanley Sprague, an organizer for the Union, contacted Heberer at
Respondents' Belleville place of business. Heberer had not previously been ac-
quainted with either. Black testified, and I accept his testimony as a sub-
stantially correct recital of the incident, that he and Sprague first introduced'
themselves to Heberer as representatives of the Union and then, "I told him
[Heberer] that I had heard the fellows there wanted to join the union and
asked him what he thought about it and he said he had been considering it for
some time. I told him we were having a meeting [the following] Friday night
[December 17] and asked him to come and try to get the rest of the fellows along
with him and he [Heberer] said that he would and that even if the rest of
them wouldn't come with him he would come by himself. He assured us he
would talk to the rest of the fellows." Heberer and Sprague corroborated this
statement of the interview. Heberer thereupon talked to Gerard Riebling,
Leutkemeyer, and Keck about the matter, told them of the union meeting to
be held on Friday night, December 17,.and invited and urged each of them to
attend. He did not notify either Lentz or Paul Riebling of the meeting. He said
he did not tell Lentz about the union meeting because lie considered Lentz, who
had commenced working for Respondents during December, shortly before this
time, to be a salesman. It suffices, at this point, to note that the evidence does
not support Heberer's observation concerning Lentz's work status. I shall have
occasion to go into that matter later in connection with my discussion of the
appropriate unit.
Heberer, Gerard Riebling, and Leutkemeyer attended the union meeting, on
Friday night, December 17 (1948), and each signed an application-for-member-
ship card and paid a membership fee of $5. Gerard Riebling did not have the
amount of the membership fee at hand and Heberer loaned him $5 to cover same,
A. G. SCHMIDT FARM EQUIPMENT 2161
paying the money directly to Black, the union representative in charge of the
meeting. Riebling afterwards repaid the loan. Keck did not attend the meeting
or join the Union.
At the time of the meeting at which he and the others joined the Union, Gerard
Riebling had been working for the Respondents as a GI trainee for approxi-
mately 2 months. He was employed there at the time of the hearing, and had been
so employed continuously since sometime in October 1948. He was 23. years
of age at the time. Admittedly he signed the application for membership with-
out reservation or question and with full knowledge and understanding of its
purpose and import, and accepted the membership fee from Heberer as a loan
which he repaid. He was called as a witness by the General Counsel and in
the course of his testimony revealed a well nigh complete about face in his
attitude, which, for some not fully disclosed reason, occurred shortly after the
union meeting. Although inconsistent with his acts and conduct at the union
meeting, admitted in other portions of his testimony, he at times seemed to
advance some kind of a claim that he was somehow misled into joining the
Union by Heberer's misrepresentations. He testified that Heberer told him
"everybody [reference is to all Schmidt employees] would be there," that he
told Heberer "if the others joined the union," he "would join too," that he
"didn't go to the meeting to join the union," that he "thought we were going
there to listen to what it was about," and that the membership fee "was loaned
to me against my will." He knew of course, at the time he joined the Union,
that Keck, Lentz, and Paul Riebling were not present. Later, the time was
not fixed nor was the motivation prompting his sudden change of attitude
directly revealed, Gerard Riebling went to Black, the Union's representative,
and told Black that he (Riebling) "wasn't being in no union or anything like
that" and "didn't feel it was right for me to pay union dues." He admitted that
Schmidt, Jr., had approached him and interrogated him about joining the Union
and had discussed the Union with him. However, the only part of the first
conversation with Schmidt, Jr., which he said he could recall was that Schmidt,
Jr., referring to the union activity, "asked me if I joined and I told him I did,
and he said, well that's okay, if I want to join the union I can." He said this
first conversation occurred "about the same week Heberer was discharged" but,
that he could not remember, and would not say "whether it was before or after"
Heberer was discharged. I have gone into this matter in detail as the Schmidts'
claim they had no knowledge or information of any kind, not even an intima-
tion, that Heberer or any of their employees had joined the Union, or of any
union activity in their shop or among their employees prior to or preceding the
discharge of Heberer. If certain testimony of witnesses for the General Counsel,
bearing on that issue and hereafter set out, is credited, it would tend very strongly
to indicate, and warrant the inference, that the first conversation between
Schmidt, Jr., and Gerard Riebling about the Union must have occurred prior
to Heberer's discharge, that it covered more than the mere interrogation of
Riebling as to whether he had joined the Union and constituted one source of
information the Schmidts had as to what was going on, and that it also con-
tributed to Gerard Riebling's sudden change of attitude toward the Union. By
the same token, the inference would arise that prior to the discharge of Heberer
the Schmidts had talked with Keck. and Leutkemeyer about the union activity
in the shop in which Heberer was recognized as a promoter or leader, and
received from them information about the invitation to attend the union meet-
903 $ 47-51-vol. 90-137
2162 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
ing extended to them by Heberer, and the fact that Leutkemeyer had attended
the meeting and joined the Union and that Keck had refused. to attend.
C. The discharge of Heberer
On Tuesday, December 21, Heberer was assigned to deliver a combine and a
"deep-freeze" to one farm and get a check for $1,400 in payment therefor and
then go to another farm and change a milking machine from one barn to another.
Lentz accompanied Heberer as an assistant or helper. The assignment was
completed about 4 p. in. and Heberer and Lentz got back to the Belleville shop
at about 4: 30 p. in. Heberer first delivered the check to the office girl and then
set about unloading his tools and storing same and while thus engaged Schmidt,
Jr., came to him (Heberer) and told him that Schmidt, Sr., wanted to see him in
the office. It was then "around 5 p. in." Heberer's regular quitting time was
5: 30 p. in. I now set out, largely in Heberer's language, his statement of what
occurred.
Heberer testified that lie "immediately went into the office," that the only
persons present in the office during the ensuing conversation were Schmidt, Sr.,
Schmidt, Jr., and himself ; that Schmidt, Sr., after asking him "to take a seat,"
said, "we have gotten along nicely all these years that you have worked for
me . . . and now you are throwing it all away by joining the union" ; that
Schmidt, Sr., then "asked me if I did join the union and I said, 'I did' and that
'I didn't think it made any difference for me joining the union' "; that Schmidt,
Sr., "replied that lie did not want a union in the shop and that I had forced the
other two men into joining" ; that at about this point. Schmidt, Jr., interposed
the declaration that Heberer had "forced (Gerard) Riebling and Leutkemeyer,
to join the union" and "had even loaned Gerard Riebling the $5.00 to sign up,"
and that with Heberer in the shop "it was just like having a fifth columnist in
the place" ; that Schmidt, Jr., further said, that "Keck had more sense than to
join the union because he knew what they (unions) were" ; that at this juncture
Schmidt, Jr., handed Heberer his pay envelope, ,vhich had been prepared in
advance, with the amount of money inclosed and the word "final" written on the
outside, and told Heberer to take his tools and go. Heberer further testified,
that "nothing at all" was said, at any time during this conversation, about the
manner in which he had done his work, or about any complaints by customers
concerning his work, and that when he asked the two Schmidts specifically,
"why I was being fired . . . they said . . . because I joined the union and they
did not want a union. in the shop." Heberer said that prior to this conference at
which he was "fired" lie had not told any of the Schmidts that he had joined the
Union or discussed the Union in any way with them, the implication being that
the information about the Union. Heberer's connection therewith, that Gerard
Riebling and Leutkemeyer had also joined, that Heberer had loaned Riebling the
membership fee, and that Keck had refused to have anything to do with the
Union, which the two Schmidts possessed, had come from another source or
other sources.
Immediately following his discharge in the late afternoon of Tuesday, Dece;n-
ber 21, Heberer got in touch with Black and Sprague, union representative and
organizer respectively, and at about 9: 30 a. in. the next morning, Wednesday,
December 22, the three, Heberer, Black, and Sprague,. went to the Belleville place
of business and talked with Schmidt, Sr. Sclnnidt, Jr., was not present at this
conference. After Black and Sprague introduced themselves and stated in a
general way the purpose of their visit, Schmidt, Sr., who was "out in the store
at the time" invited the three of them to his office. The testimony of Black and
A. G. SCHMIDT FARM EQUIPMENT 2163
Sprague, confirmed by Heberer, as to what Schmidt, Sr., said on this occasion
about the discharge of Heberer corroborates Heberer's testimony about what
had occurred and been said the previous evening in connection with his discharge
and supports his claim that lie was discharged because of his union activity and
membership.
The following is a composite of the testimony of Black and Sprague about this
conference with Schmidt, Sr. After a statement by Black that a majority of the
employees "there" had joined the Union the preceding Friday night, preliminary
to a demand that the Schmidts recognize and bargain with the Union as the
collective bargaining representative of all the employees, Schmidt, Sr., said
"Yes, I know the fellows joined the Union but I don't want no damn union in my
shop." Black then told Schmidt, Sr., that under the Act the employees had a
right to join, form, or assist in the organization of, a union, but Schmidt, Sr.,
asserted that "he didn't believe there was such a law," in which position he per-
sisted even after Black produced and read and cited the provisions of the Act to
that effect. Black then "went into the subject of Heberer's discharge" and asked
Schmidt, Sr., why he discharged Heberer. Schmidt, Sr., replied: "Because he
joined the Union." Black then informed Schmidt, Sr., that under the Act such a
discharge constituted an unfair labor practice. Schmidt, Sr., again insisted
"that there was no such Iaw," that the Mississippi Valley Farm Association
represented them and "their lawyer" had advised him "that if he didn't want
a union there he should fire Heberer." Black then told Schmidt, Sr., that if he
persisted in that position the Union "would have to file an unfair labor practice
charge for discharging an employee for joining a labor organization" and it was
at this point that Black said to Schmidt, Sr., "Erwin (Heberer) has been working
here for quite a few years; is there anything wrong with his work." In reply
Schmidt, Sr., said "there's nothing wrong with his work" but that he (Schmidt,
Sr.) "just didn't want a damn union in the place," and that "he wasn't going to
have a union tell him how to run his business."
Floyd Schmidt, contradicting Heberer's testimony that only Schmidt, Sr., and
Schmidt, Jr., were present at the conference at which Heberer was discharged,
testified that he was also present on that occasion as were his father and brother,
and that he heard all that was said. The Schmidts agree with the testimony of
Heberer that he was discharged on December 21, but with that exception the
testimony of Heberer and that of the Schmidts about what was said at that time
is wholly irreconcilable. The Schmidts denied Heberer's testimony about that
,in, toto, line by line, and specifically. They said, that on that occasion neither
Schmidt, Sr., nor Schmidt, Jr., (it was not claimed that Floyd participated in
the conversation) made any reference of any kind whatsoever to the Union or a
union, or mentioned a union in any way, that at that time none of them had any
knowledge of, or information about, Heberer's union activity or membership or
that he, or any of their employees, had attended the union meeting or joined the
Union, or that any union activity had occurred among their employees, that none
of the statements about a union attributed to Schmidt, Sr., and Schmidt, Jr., by
Heberer were made, that Heberer was discharged because of their dissatisfaction
with his work, and that that was the sole ground or reason assigned at the time
thereof for the discharge. Likewise, Schmidt, Sr., denied in toto and specifically
the testimony of Heberer, Black, and Sprague attributing to him statements
and admissions, at the conference on the morning of December 22, that he had
discharged Heberer because he joined the Union, that he wouldn't have a union
in his shop, and that Heberer's work had been satisfactory. The effect of these
denials of the Schmidts was to brand Heberer's entire testimony about what was.
2164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said at the time he was discharged as being made of the whole cloth, a figment of
Ileberer's imagination, and without any foundation in fact or truth and the
testimony of Black and Sprague was likewise branded.
I shall endeavor to relate, in substance, the testimony of the Schmidts about,
what occurred immediately preceding, and what was done and said at the time
of, Heberer's discharge.
Floyd Schmidt said he left Waterloo for Belleville "right after" 8 a. in., the
morning of December 21, and spent the entire day at Belleville and was present
there at the conference when Heberer was discharged. He said he could not
remember the occasion for going to Belleville and spending the entire day there
but that his "father may have called" him over that day "to discuss something."
Floyd said, that sometime during that day the three Schmidts "had a meeting and
decided to fire Heberer," that, at this meeting, the three of them discussed "the
way Heberer had been loafing on the job continuously," that they "had often
talked about that," and that the "Wittlich job" was specifically referred to on
this occasion. The Respondents claim the Wittlich job was the culminating
incident in a series of recurring complaints by customers involving Heberer
which prompted their decision at this time to discharge him. The testimony
concerning the Wittlich job will be set out later herein. Schmidt, Sr., said the
Wittlich job "brought the discharge of Heberer to a head" and that, referring
to the Wittlich complaint he told the "boys," at this meeting, "I have told you
often enough, we're going to have to get rid of Heberer, now this ought to be
enough to settle the job."
The following is the version of what was said and done at the time Heberer was
discharged as related by the Schmidts. About 5 p. in., the afternoon of December
21, Schmidt, Sr., told Schmidt, Jr., to call Heberer in "and let's get it over with."
At the request of Schmidt, Jr., Heberer went into the private office of Schmidt,
Sr., Heberer and Schmidt, Sr., were seated. Floyd and Schmidt, Jr., stood in
the doorway. Schmidt, Sr., "did the talking." Schmidt, Sr., testified that he
commenced the conversation with the statement, "Erwin, it can't go on any longer
like this. We are getting too many complaints, we are just going to have to
call it quits. I'll have to let you go"; that Heberer then said: "you can't fire
me I have joined the Union"; and that he (Schmidt, Sr.) said, "I don't know
anything about that." According to Schmidt, Sr., the foregoing is all that was
said. Schmidt, Jr., gave a fuller version of the purported conversation. He
testified, on direct examination, that Schmidt„ Sr., told Heberer "from com-
plaints we had from customers and from shirking work and' not doing jobs
right, we had finally reached the end of our rope and would have to, let him
go" and that Heberer retorted that "we could not fire him, he had joined the
Union," which brought from Schmidt, Sr., the statement, "that didn't make any
difference on firing him because we were firing him for these particular reasons
and his joining the Union was news to him (Schmidt, Sr.) and that he had no
knowledge of it at all." On cross-examination, Schmidt, Jr., testified that in
discharging Heberer, "Dad told him that due to his indifference to the jobs
and loafing and the way he handled the customers in his work that we could
absolutely not tolerate him any more and would have to discharge him."
Floyd's version of Heberer's declaration concerning membership in the Union
as affecting the right to discharge him was different, and perhaps significantly
so, from that stated by his father and brother. It was that Heberer told Schmidt,
Sr., that "you can't fire me because I belong to the Union." (Emphasis sup-
plied.) Schmidt, Sr., said Heberer "didn't ask what the complaints were that
we had been getting" and "did not make any claim or statement that he had
A. G. SCHMIDT FARM EQUIPMENT 2165
been doing his work properly." On the other hand Schmidt, Jr., said that "Dad
never mentioned any particular job" in his statement to Heberer immediately
preceding the discharge, and Floyd said his father didn't tell Heberer what
the "loafing on the job" consisted of nor "what the complaints ," to which
Schmidt, Sr., referred, were.
The workday commenced at 8 a.m. The employees reporting at the Belleville
store generally arrived a little before that time. On the morning of December
22, the day following the discharge of Heberer, Schmidt, Jr., arrived at the
shop about "a quarter to eight." He said that as he was collecting invoices
and other items to take to Waterloo whither he was bound, he "heard the men
in the shop talking about the union" during the course of which Leutkemeyer
was complaining about being misled into attending the union meeting and
"raising cane with himself about joining." Schmidt, Sr., also said that on that
morning the employees, "probably all were present," were talking about the
Union, that "the next morning" (after the discharge of Heberer late the
previous afternoon) when "they (the employees) came in, why naturally it
(the Union) was the topic of discussion and I asked" Leutkemeyer and Gerard
Riebling "whether they joined (the Union) and they said they did." He-said
he thought Lentz was there at the time but he could not recall "whether I asked
him or not but it was stated anyway that he did not" (join the Union.). He did
not say whether he made such inquiry of Keck, apparently he did not, but he
stated: "Keck said he didn't sign up." Query, when did Keck give him that
information? This flurry of talk about the Union and the Schmidts' admittedly
direct interrogation of the two employees who had joined the Union with their
explanations and self excuses for doing so, and the disclaimer of Lentz and
perhaps that of Keck of any union connections, occurred with and immediately
following the arrival that morning of the men for work and was before Heberer,
Black, and Sprague called on Schmidt, Sr., about 9: 30 that morning.
As supporting their claim that they had received complaints from customers
about Heberer, and that Heberer had shirked work, was given to loafing on the
job, and was not doing jobs right, which alone they say moved them to dig-
charge him and were the only grounds assigned therefor at the time of the dis-
charge, the Schmidts testified to various incidents and called as witnesses their
employees Keck and Leutkemeyer and three customers.
As background for that which follows a statement here of the method of
charging for labor performed on repair jobs will perhaps be helpful. When a call
was received, at either Belleville or Waterloo, from a farther .for a mechanic or
repairman to come to the farm and repair machinery the Schmidts would
assign a mechanic , and a helper or helpers if the job required such assistance,
to the job. The mechanic or repairman assigned to the job would select and take
along such tools and parts as might be needed and using one of the firm's motor
trucks would travel to the farm and there do, the repair work. When the
employee or employees were ready to leave the shop on one of these trips
the leaving time was reported, at the Belleville shop, orally to the office girl,
Schmidt, Sr., or Schmidt, Jr., who made a notation thereof, and upon return
an oral report was made to one of these persons of the time of arrival back at
the shop, together with a list of parts, if any, used, and the person receiving
the report then made up a ticket charging the farmer for labor and parts. There
was a standard and uniform charge for labor of $2 an hour for shop work
and $2.25 an hour for work outside the shop computed from the time the employee
assigned to the job left until his return to the shop, that is, the customer was
.charged for the time spent in traveling to and returning from the location of
2166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the job as well'as the time spent in the actual repair work. The employees'
wages were not affected by or computed on the basis of the jobs clone or time spent
on individual jobs but were on a straight, fixed; full-time basis, paid weekly, re-
gardless of where he worked or what kind of work lie did. As I understand the
charges for-travel to and from the farm no charge was made for time spent
in travel to and fro in merely making a delivery to a farm of a piece of new
farm machinery and setting it up. Heberer spent more of his time on service
calls than in the shop, in fact, most of his time was spent in that kind of work.
Otto J. Weilbacher, a farmer customer, was called as a witness for Re-
spondents. Weilbacher's farm is about 9 miles from Waterloo and 11 miles from
Belleville. He said he had been a customer of Schmn.idt, Sr., for over 10 years
and over the years had purchased "a lot of tools and machinery from him" and
"had his (Schmidt's) men repair machinery" on his farm . "a lot of times."
During this period of "over 10 years" Herberer "wasn't out" to his farm. to do
repair work "many times because he didn't like him" (Heberer) and told
Schmidt, Sr., that he "didn't like Heberer." He said that he first complained
about Heberer sometime in 1946, that about September 1947, lie bought a new
electric water pump system from the Schmidts and they installed it, that Heberer
"helped" on the installation, that Heberer "was supposed to start the pumps
the last clay" but "one of the pumps wouldn't work . . . because the pump was
no good," that "my boy and.my wife was there and told him" but "he (Heberer)
stayed his full time" trying'"to make it go," and that "the next day another guy
came out and put in a new pump," which "worked after just a few minutes.".
Weilbacher said that on the day Heberer was endeavoring to get the balking
pump started he came home at noon and complained to Heberer that he
(Heberer) was running up "our electric bill" and that Heberer replied "we got
to do something to get the pump agoing." When the bill was presented Weil-
bacher complained to Schmidt, Sr., about the amount of time for which a charge
was made and in adjustment of the matter Schmidt, Sr., gave Weilbacher a
rebate.
In November 1948, William B. Schaumleffel, Jr., whose farm was 3 miles from
Belleville, called the Schmidts at Belleville to 'send a repair man to the farm
to repair a hand pump. Schaumleffel's father owned the farm which was
operated by William B. Jr., and another son. The Schaumleffels had long
been customers of the Schmidts and had-"bought a lot of equipment from," and
"had a lot of repair done by,.A. G. Schmidt." In this instance Heberer was
sent to repair the. pump. Schaumleffel, Jr., testified that he was there when
Heberer arrived and they had a discussion "as to what was wrong with the
pump" and that he told Heberer he "thought there was a hole in the pipe" but
Heberer didn't think so, that Fleberer examined the pump to see whether there
was a hole in the pipe and put in a new sucker and -a new valve, that Heberer
made two trips in one clay to repair the pump and then "didn't get it repaired,"
and that he did not know who afterwards did repair it but the trouble was rem-
edied "with a new pipe." Schaumleffel, Jr., protested the charge made by the
Schmidts for labor arguing that he was charged for unnecessary trips and that
the repair should have been made in less time. The complaint was satisfactorily
adjusted by a rebate.
Heberer's statement about this Schaumleffel job was that on the first day he
was accompanied by an inexperienced helper, that they took the pump out,
took it apart, and found that it needed "an entire new sucker" and he did not
"have any along with me," that he and his helper then "came back to town and
got a new one," that they returned to the farm and "put the. pump back together
A. G. SCHMIDT FARM EQUIPMENT 2167
and down again" but it didn't work to his "satisfaction," that he then told
Schaumleffel , Jr., "probably" they "would have to pull the pump again" and
Schaumleffel , Jr., said he "would like to clean the well first," and that he then
returned to the shop in Belleville. Heberer said that upon his return Schmidt,
Sr., asked him how the pump was working and he told him (Schmidt, Sr.,) that
it "wasn't (working) to my satisfaction" whereupon Schmidt, Sr., said, "a lot of
old pumps don't work the way they should," that he reported to Schmidt, Sr., at
that time that the "cylinder was too far from the water," and that he, discussed
with Schmidt, Sr., whether a charge for the "full amount" of time spent on the
job should be made and that Schmidt, Sr., said. "I guess we'll have to charge the
full amount." Heberer said he was sent back to the Schaumleffel farm "at a
later date . . . because the pump did not work" that Gerard Riebling accom-
panied him as helper on this occasion, that they "took the pump apart again,"
that he found "only about 4 or 5 feet of water in the well so" be "changed the
length of the pipe above the cylinder . . . and put in a new pump rod," that he
found "one of the couplings had a corroded spot" and lie "replaced that" and
"put the pump back in and it worked okay," that he did not use any new pipe
but did use "a new coupling," that when he returned to the shop the Schmidts
asked him "how the pump worked" and that after relating what he had done
he told them the pump "worked okay now."
I come now to the Wittlich complaint which the Schmidts claim immediately
precipitated the discharge of Heberer on December 21., that is, according to
Schmidt, Sr., "certainly" brought the discharge of Heberer "to a head." The
summarization I make of the evidence relating to this incident is based upon
the testimony of Wittlich, Schmidt, Sr., and Schmidt, Jr. Irwin Wittlich, whose
farm was 21/2 miles from Belleville, was another regular customer of the Schmidts,
both in the purchase of farm machinery and repair work. Wittlich said Heberer
had done repair work for him for 10 years. Wittlich had purchased a corn picker
from the Schmidts. He said that one morning in November 1948, when he started
to use the corn picker he found there was "something wrong with it," that he
called the Schmidts and asked them "to send a service man with parts" to his
farm to repair the picker, that he was advised that they could not "send any-
cne out until afternoon," that 1leberer arrived in one of Schmidts' pickup trucks,
at "half-past one p. m.," that he and his "hired man" were present throughout
the repair work, that he "happened to time" Heberer "and just at three o'clock
we had everything together to go out in the field and pick again. It just took an
hour and a half." When Heberer returned to the shop, he reported orally to
Schmidt, Jr., as to the time spent on the job, loading the parts and tools required,
going to the farm, doing the repair work there and returning, and the parts used.
Schmidt, Jr., made out the charge ticket which showed a charge for labor of
$10 and said that represented 41/2 hours at $2.25 an hour is he assumed he
charged $1 instead of $1.12 for the half hour. Shortly before December 21,
upon learning, of the charges made, Wittlich called Schmidt, Sr., by phone and
asked him what he charged per hour for such work and Schmidt, Sr., told him
$2.25. Wittlich said he then advised Schmidt, Sr., that Heberer "only put in
two hours." On December 21, Wittlich personally took the matter up with
Schmidt, Jr., and on that occasion told Schmidt, Jr., that Heberer "put in an
hour and half on his farm and that's what he wanted to pay for." In response
to that Schmidt, Jr., said :
I explained to him those tools had to be loaded and the truck driven out
there and the work done and the truck brought back and all of that took
time and I couldn't possibly just charge him for an hour and a half' s labor
2168 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
and we finally compromised on a rebate of $3.80, this was satisfactory to him
and satisfactory to me.
The compromise reduced the charge for labor to $6.20, which was the equivalent
of 2 hours and 45 minutes. This rebate was agreed upon on December 21, the
very day Heberer was discharged. Schmidt, Jr., said that when Wittlich first
complained he and his father asked Heberer how much time he spent on that
job and that Heberer, referring to the amount shown on the'ticket which Schmidt,
Jr., had made out, said "if that's what I told you that's what it is." This was.
at least several weeks, if not a month or more, after the work had been done.
Heberer neither made nor kept any memorandum of time spent on jobs. He
merely reported orally, as above outlined, to one of the Schmidts or the office
girl who wrote up the tickets, and, assuming that this inquiry was made, appar-
ently he had no independent recollection at the time as to the exact beginning
and termination of the trip to and from Wittlich's farm.
While it did not personally profit Heberer to deliberately and falsely report
more time spent on the job than was actually required to load the tools and
parts, travel to the farm, do the repair work, and return to the shop, it is inti-
mated, if not directly charged, that he did so though no reasonable explanation
of the motive for such action appears. Heberer impressed me as being a man
of intelligence. He had worked for the Schmidts continuously for over 10
years, and this is the only incident produced in evidence tending to show a report
by him, and a charge based thereon, of a large amount of time in excess of the
time actually spent. It is difficult to conceive why he would resort to such a
surely detectible fraud as to report an hour or 2 hours more time than the job
had required. The discrepancy, if any, about the time may have occurred in
any one or more of several ways without anyone having intentionally exaggerated
or minimized the time involved. Neither the leaving time, return time, nor
number of hours were shown on the ticket which Schmidt, Jr., made out, and
Schmidt, Jr., apparently had no independent recollection about those items.
He said that since the ticket showed a charge of $10 fox labor that Heberer
must have reported the time to him as 41/2 hours. He assumed he dropped the
1.2 cents and charged $1 for the half hour. It may well have been that Witt-
lich's memory about the time may not have been altogether accurate. He re-
called as a witness that it was exactly on the dot 1: 30 p. m. when Heberer
arrived at the farm, and exactly 3 p. m. on the hour when he completed, the
repair work, or exactly 11/2 hours in which Heberer was engaged in the actual
repair work. Further, when Wittlich inquired by telephone as to the charge
per hour he told Schmidt, Sr., that Heberer had "only put in two hours" on
that job. It is plain that Wittlich then referred to a period from the time
Heberer arrived at the farm to the time he completed the repair work as when
later, on December 21, he discussed the matter with Schmidt, Jr., -and. received
the rebate, he had in mind and thought that such period, which by that time
he had fixed as 11/2 hours, was all for which he was chargeable. After the ex-
planation by Schmidt, Jr., of the method of computing charges for labor, Witt-
lich was satisfied to pay for time amounting to 2 hours and 45 minutes. Schmidt,
.Jr., in relating how he made up the tickets covering outside jobs, said that
when the repairman, upon return from a job, made his oral report, he (Schmidt,
Jr.) would "go to the billing machine and put down the itemized parts" then
be would compute the time and the amount to be charged for the trip as labor
on scratch paper and then fill in the amount thus arrived at on the billing
machine. Inadvertently an error in computing the number of hours.or the
A. G. SCHMIDT FARM EQUIPMENT 2169
° amount could well occur at this juncture, or it could be that an error was
made in noting the leaving time.
In his direct testimony Schmidt, Sr., was asked to give the names of cus-
tomers who lodged complaints against Heberer. He named Weilbacher, Schaum-
leffel, and Wittlich, whose testimony, and the incidents to which it relates have
been covered. On cross-examination he was asked if he could recall any other
customers, in addition to the three named on direct examination, who complained
about Heberer's work. He replied "lots of others" but called upon to name the
"lot,, of others" he could recall only two whose names he gave as Warring and
Bacherer. He said the Warring job "was another pump job" and the Bacherer
work a "tractor job." There was no elaboration of the Bacherer job. Schmidt,
Sr., said both jobs were in the fall of 1948. It developed, however, that Heberer's
work on the Warring job was in mid 1946 when he was sent to the Warring
farm to repair an electric pump. He took the pump apart and worked on it but
admittedly was unable to get it to work as it should. While he "got it to
pump," it would not get the pressure it should. He returned to the shop and
,reported to the Schmidts how the pump worked and his failure to get it to work
"as well as it should." However, nothing more was heard about the Warring
pump until the fall of 1948 when the Sclimidts received a call to the Warring
farm to work on this same pump. Schmidt, Jr., Keck, the other regular me-
chanic or repairman, and Heberer, all went on this call and worked together
on the job in the fall of 1948, to which apparently Schmidt, Sr., referred, in
his testimony, in enumerating complaints from customers about Heberer's work.
The three of them "pulled the pump, cleaned it, put it back together, and it still
didn't work satisfactorily." In view of these facts I accord no weight or sub-
stance to the so-called Warring complaint as supporting the claim that com-
plaints made by customers against Heberer, culminating. in the Wittlich com-
plaint was a motivating reason assigned and for which Heberer was discharged.
Respondents called as a witness their employee Theophil Keck, who was work=
ing for them at the time of the hearing and had been so employed continuously
since June 10, 1946. Keck described his work as "mechanical work in connection
with the repair, setting up and servicing of farm equipment . . . the same kind
of work" Heberer did. I get the impression that Keck did more shop work than
Heberer most of whose time was spent outside the shops on service calls and it
will be recalled that to the very day he was discharged the Schmidts continued
to send Heberer day after day on these service calls to do repair work at the cus-
tomers' farms and that, in fact, he spent practically the entire day of December
21 in such work. Keck worked for the Schmidts approximately 21/2 years prior
to Heberer's discharge. He testified that there were complaints by customers
about Heberer's work during that whole time. When on cross-examination, he
was asked to be specific about the complaints relating to jobs Heberer had worked
on he could not recall any other than the Weilbacher and Wittlich jobs, having
overheard, he said, each of these men talking to the Schmidts in the shop about
his complaint and he had also, he said, heard there was some kind of complaint
made by Schaumleffel. He could not recall the other complaints which he
asserted were made throughout that 21/2-year period because he "was minding his
own business" and "did not pay too much attention." Keck admitted that he
also. heard complaints "now and then" about Leutkemeyer's and Gerard Rie-
bling's work and that no one had ever complained about his own work or if they
did he had never heard of it. In my opinion Keck's testimony about complaints
added little or nothing of substance in support of Respondents' claims in respect
to customers' complaints about Heberer.
2170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here and there in the testimony of the Respondents and their witnesses are
found bits of testimony indicating that complaints alleging overcharges for labor
or parts, or both, or as to how a particular job was clone frequently occurred and
involved their employees generally. Schmidt, Jr., said "there were lots of times
that a man thought he had been overcharged" which resulted in "arguments and
discussions with the farmers" making such complaints. His testimony in this
respect is not entirely clear, but whether he was intentionally evasive, though
perhaps indicated, matters not for the inference arises from what he did say and
the testimony of the other Respondents and their employees that there was noth-
ing unusual about customers' complaints concerning the quality of work or time
spent and charges made for labor or parts, discussions thereon, and rebates and
reimbursements in adjustment thereof, and that such was true without regard
to whether the job was done in or outside the shop or which of the employees did
the work.
Weilbacher's complaint came down to this, that Heberer spent too in-Lich
time and ran up his electricity bill trying to get the newly installed electric
pump to work before deciding that the pump was defective. The next day the
Schmidts substituted and installed another pump which worked properly. Hav-
ing delivered a defective pump to Weilbacher in the first place they readily gave
him some rebate on the charge for the time Heberer had spent trying to get the
defective pump in operation. A reading of the summary of the testimony about
the Schaumleffel complaint which I have heretofore made suffices, I think, to
show that this was another complaint by an old and regular customer which
the Schmidts adjusted in a wholly routine way. The Schmidts were informed
by Heberer of the difficulties he had encountered in trying to repair the old
pump and he even discussed with Schmidt, Sr., whether a charge for the full
time spent on the job on the first clay should be made, however, Schmidt, Sr.,
entered the regular charge. The Wittlich complaint I have discussed. It will
be noted that Weilbacher and Wittlich had both made complaints before and
these complaints were not the first on the part of either. Heberer said none
of the Schmidts ever mentioned either the Weilbacher or Schaumleffel complaint
to him and that the testimony of Schmidt, Sr., at this hearing about such com-
plaints was the first information he had concerning them. Likewise he testified
that none of the Schmidts, nor any other person inquired of him on December 21,
or at any other 'time, about the time spent on the Wittlich job. This is con-
sistent with what I believe to be the facts about all of these complaints, that there
was nothing particularly unusual about any of them, that they were types of
not infrequent complaints by customers arising ordinarily in the course of their
business, and in each of these instances the complaint was in a routine manner,
promptly, readily, and satisfactorily adjusted with these customers of long
standing. The Schmidts admit that in the statement which they claim was
made at the time Heberer was discharged advising him of the reasons for his
discharge no specific complaint on the part of any customer was mentioned. I
am constrained to credit Heberer's testimony that these complaints were not
even mentioned to him prior to their adjustment and to believe that to bolster
their claim that they discharged Heberer for cause Respondents have seized upon
these ordinary and by no means unusual incidents, and particularly the Wittlich
matter since the adjustment of that complaint chanced to follow on the same
day Heberer was discharged, and have magnified them out of all proportion.
In further support of one of the claimed grounds for the discharge of Heberer,
that he didn't do his work right, Floyd and Schmidt, Jr., gave testimony about
a tractor job. Floyd said he sent a caterpillar tractor to Belleville "to be worked
A. G. SCHMIDT FARM EQUIPME NT 2171
on," that "the track idlers were replaced with new ones" and the tractor was
then delivered to the farm, that later he got a complaint from the farmer that
the tractor was not working satisfactorily, that he went to the farm, inspected
the tractor, found that "the bolts which hold the track idlers assembled on the
machine were put in backwards and the idlers themselves rubbed on the nuts
of the bolts" and that he "tore them off and turned them around." Schmidt, Jr.,
said that Heberer had worked on the tractor and that when Floyd called him
by telephone about this tractor job he (Schmidt, Jr.) told Heberer "that he
should watch his work more careful . . . and there was no excuse for a tractor
going out in that condition." Heberer said this tractor came to Belleville in the
fall of 1948 and that he worked on it, that he put the "rollers" on, that he told
Schmidt, Jr., that the rollers "were not turning before I put them on and that I
couldn't turn them with my hands," that Schmidt, Jr., said "they probably were
just stuck with paint and they would loosen up in time," that he then went,
ahead and put the rollers on, that as Schmidt, Jr., drove the tractor out of the
shop to load it on a truck to take it to Waterloo, he (Heberer) "noticed that
two of these rollers weren't turning," and again called it to the attention of
Schmidt, Jr., and that Schmidt, Jr., said "they are probably just stuck, they
will turn after a little bit." I credit Heberer's account of this job and in doing
so it follows that the incident does not in my opinion contribute anything at all
in support of the purpose for which Respondents offered it.
As supporting another of the claimed grounds for the discharge of Heberer,
loafing on the job, Respondents offered the testimony of two of their employees.
Toni Leutkemeyer, 21 years of age, who had commenced working for the
Schmidts at the Belleville shop when he was 15 years of age and had worked
there with. Heberer for approximately 5 years prior to Heberer's discharge,
testified that Heberer "would generally" get to the shop "a little before 8 a. m:,"
that "we (the employees) always sat around and talked until time to start-to
work," and that promptly at 8 a. m., the starting time, the other employees would
set about "getting ready" for work but, Heberer would go to the rest room, that
when Ileberer "got out of the rest room . . . lie generally lit up his pipe and
then he generally would fool around up in the parts room getting his parts
and f would say it took him about 45 minutes before he left for a job." The
part of this testimony which Respondents emphasize is the indicated practice
of waiting until starting time to go to the toilet. Nothing was said by anyone
about any nonsmoking rule. This witness himself said he himself smoked. Nor
was it urged that Heberer took too much time in selecting tools and parts
needed for an outside job to which he had been assigned. This witness, a lad
whose work was "mostly delivering," and as helper in setting up machinery was
not in the parts room, had no knowledge as to the requirements in the way of
tools or parts for an outside job to which Heberer was assigned and I accord
no weight or validity to his purely gratuitous opinion that Heberer "generally
would fool around up in the parts room." The other employee witness about
Heberer's alleged practice of timing his toilet visitation to coincide with the
starting time was Keck, who, as mentioned above, worked at the Belleville shop
for approximately 21/2 years next prior to Heberer's discharge. He said that
Heberer would arrive at the shop before 8 a. m., but would "wait until eight
o'clock and then he'd go to the rest room and it was between 15 and 30 minutes
before he'd actually get started in the morning," that Heberer did that "every
morning" during the 21/._; years Keck worked there with him and Keck surmised
that Heberer had been doing likewise during the whole time he had worked
for the Schmidts before Keck came there. This prompts me to revert to
2172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leutkemeyer who had worked there with.Heberer for 21/ years before Keck
came and during the same period after Keck was employed. Leutkemeyer had
not noticed Heberer's practice of going to the toilet "until lately," by which,
his testimony was, he meant "a month or two before he (Heberer) got fired."
Leutkemeyer said the Schmidts "were around there" mornings when Heberer
went to the toilet and knew about it. Schmidt, Sr., said Heberer's practice of
going to the toilet at 8 o'clock "was,a regular custom." Assuming this clock-
like precision in Heberer's toilet habits and that it had been going on for years,
it does not appear that any of the Schmidts ever at any time complained or
spoke to Heberer about it if in fact they deemed it objectionable. I have the
distinct impression, based upon a view of the case as a whole and my observa-
tion of the witnesses who testified about it and my evaluation of their testimony,
that this toilet business is another circumstance which was expanded, exag-
gerated, and inflated out of all proportion to reality.
Leutkemeyer also testified that on one occasion he went with Heberer "on
a job" in Prairie du Rocher, about 40 miles from Belleville, that "we set up a
farm elevator," that he did not know "off hand when the job was finished" but
that they "had at least about 2 hours," he "would say, left to get back to work
.before quitting time," which was 5: 30 p. in. At this juncture Respondents'
counsel asked, "And two hours left, would make the time of finishing your job
about when?" The witness answered, "Well, we'd have at least about 45-"
but, at this point and before this answer could proceed further counsel for Re-
spondents interrupted the witness with "No, answer the question" and then
spelling out in detail what the witness had previously said and pointing out the
quitting time inquired what time of the afternoon the job was finished, to which
the witness then replied, "about 3: 30." Apparently the witness was about to say
something about having "at least 45" minutes for some purpose. Continuing
Leutkemeyer said that on the way back to Belleville he and Heberer stopped at a
tavern because "we wanted a drink and waste some time," that after having a
drink he remarked, "Let's go," meaning back to the shop at Belleville, that
Heberer said, "If we get back, in time we'll just get another job to do and have to
start working again," that they then stayed on awhile at the tavern and got back
to the Belleville shop "close to 5: 30," and that they were at the tavern "around
an hour." The witness could not recall when this occurred, placing it first as be-
ing in the fall of 1947, 2 years before the hearing, then thought it may have been
in the fall of 1948. As an example of this witness' uncertainty, which ran through-
out his testimony, he stated, on cross-examination, that he did not "remember
when it was" that be told the Schmidts about this incident, then that he believed
it was "before" Heberer was fired and that he could not remember which one
of the Schmidts he told nor what was said, then that he remembered telling the
Schmidts they "had stopped for about an hour," then that he didn't tell the
Schmidts "how long it was" that they stopped. On redirect examination the
witness told counsel for Respondents, without equivocation or reservation, that it
was "after" Heberer was discharged that he told the Schmidts about the incident.
Later he said he did not know if he "mentioned it before that (Heberer's dis-
charge) or not" but could not remember doing so. Leutkemeyer said that with an
empty truck he thought he could drive the 40 miles between Belleville and the
farm where the job was done "in about 50 minutes" and that on the return trip
the truck was empty. Heberer, asked about this incident, said that on this occa-
sion, he and Leutkemeyer took a new elevator and a new corn picker to this farm,
that "it took us quite awhile going down as we were pulling this corn picker
behind the truck and we couldn't drive fast," that "coming back" they stopped
A. G. SCHMIDT FARM EQUIPMENT 2173
at a tavern and "had a drink" and were there "not over 15 or maybe 20 minutes."
It is apparent that Leutkemeyer and Heberer started on this trip sometime
after 1 p. in. The evidence is that the employees were allowed an hour at noon
for lunch, from 12 noon to 1 p. m. It would appear that they started to this
job at or after 1 p. m. The truck was loaded with the elevator equipment and
was towing the corn picker. The. time required to make the trip to the farm
in this fashion is nowhere estimated but it is reasonable to assume that it required
considerably more time than the 50 minutes Leutkemeyer surmised the distance
could be covered with an empty truck and that the commencement of the setting
up or installation work at the farm and its completion was considerably later
than a computation based on his estimates would indicate . Leutkemeyer 's testi-
mony is so vague and uncertain about the time element and other matters that
I do not give much weight to his judgment 2 years later that the setting up job
was completed at 3: 30 p. m.; nor that an hour or about an hour was spent. at
the tavern and I would not undertake to determine what he meant by it being
"close to" 5 : 30 p. m. when they got back to the shop . I am prone to believe
Heberer's estimate that the stay at the tavern did not exceed 15 or 20 minutes.
No inference is to be drawn that the customer was being charged for the time
spent at the tavern as , according to Leutkemeyer , this was the type of a job, the
delivery , and setting up of new machinery , for which no charge was made against
the customer for the time spent in traveling to the farm , doing the work there,
and returning to the shop. Further it appears from the testimony of both
Leutkemeyer and Heberer that stopping off at taverns for refreshment on the
trip back was not at all uncommon or unusual . Leutkemeyer said that he had
occasionally gone on deliveries with Schmidt, Jr., when they stopped at a tavern
for a drink on the way back and Heberer said he had gone on deliveries with
both Schmidt, Sr., and Schmidt, Jr., when he and whichever one of the Schmidts
he chanced to be with would stop at a tavern for a drink on their way back.
Whatever weight may be given the incident it had nothing to-do with the deci-
sion of the Schmidts to discharge Heberer as they were not told about it until
after the discharge was made.
One more incident involving Heberer was related as tending to show him to
be delinquent , or at least indifferent about looking out for his employer 's interests.
Schmidt, Jr ., said that in 1948 , the time is not fixed and whether it was early or
late in that year is not shown, Heberer returned to the shop from a repair
job and called to his attention that one "door of the truck was dented in," and
that he (Schmidt, Jr.,) inquired as to how it happened, that Hebe er said a
"fellow" backed a truck against the Schmidt truck denting the door but that
he (Heberer ) "didn't take his name or get his license number" because "he
didn't think the fellow had anything" and "figured" that they "couldn't get any-
thing out of him anyway." Here is another of the unvarying contradictions
and clashes in credibility which run throughout the testimony in this case.
Heberer 's statement of the matter is entirely different . He said that he was sent
to the farm of one Kroupa to work on a tractor, that to get to where the tractor
was he had to drive through another man 's farmyard , that a truck owned by the
farmer over whose premises he was at the time traveling in the. Schmidt truck
but driven by the owner's employee , backed against the door of the Schmidt
truck as he ( Heberer ) was driving by, that he "got the name and address" of
the owner of the truck; and that when he returned to the shop that same morn-
ing to get some additional tools and some parts he reported the incident fully
to Schmidt, Sr., who told him that on his way back to the job to see the owner'
of the truck and "ask him what he would do about the door," that returning to
2174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the job the owner of the farm across which he had to travel to reach the repair
job on another farm, and the owner of the truck which had struck the Schmidt
truck, "was there," that he asked this man what he would do about the damages.
to the Schmidt truck, that the man said : "This is my property if you drive
through here and something happens to your truck that's your hard luck not
mine," that he reported that to Schmidt, Sr., "that evening" and there was
"nothing more" said to him about the matter by any of the Schmidts. Schmidt,
Sr., took the stand in rebuttal and said that he and I3eberer had a conversation
about the dent in the truck door, that Heberer told him another truck struck
the door "on a farm while he was on Signal Hall" but didn't tell him that "he
had to go through another man's place" nor the name of the owner or driver of
the other truck nor the license number.
Much more was made of this incident than it would seem to warrant. It
appears from the testimony of the Schmidts that Heberer did report the incident
and told Schmidt, Sr., that it happened not on the highway but while he was on
a farm. Heberer operated the Schmidt trucks over a period of more than 10
years. It seems the more probable course of action and more consistent with the
way such matters are ordinarily handled and what he would have done, that
Heberer gave the Schmidts the fuller information he says he did and made the
inquiry of the owner of the other truck on whose farm the incident occurred as
Schmidt, Sr., told him to do, that he reported the farmer's reply to Schmidt, Sr.,
and that the damage was so slight and trivial and the circumstances such that
the matter was not pursued further, wherefore, I am inclined to accept and
credit Heberer's testimony about the matter as being substantially accurate. .
In explanation of what certainly had the appearance of a very sudden decision
to discharge Heberer, coinciding in point of time with his union activity and
his union membership and that of two other employees in the Belleville shop,
the Schmidts testified that for 6 months or more prior thereto they had been
discussing such, action and that the Wittlich rebate, as Schmidt, Sr., said
"brought" the discharge of Heberer "to a head." Floyd said they had "talked
many times" about Heberer's "faults" and "over a period of time" about dis-
charging Heberer, but he could not recall when this talk "did start." Schmidt,
Jr., said, they had talked about "getting rid of Heberer and getting somebody
in that was more conscientious" for more than 6 months before Heberer was
discharged ; that he supposed that he and his father had mentioned it in their
conversations "a dozen times," that the Wittlich rebate on December 21 was
"the last straw," and that they decided "that was absolutely all we. could
tolerate." The testimony of Schmidt, Sr., covered a much longer period than
that of his sons. He said Heberer's "work had. been bad" for 3 years prior to
his discharge and that over that 3-year period he had complained to Heberer
about his work "a dozen times or more," and that he had discussed discharging
Heberer with his sons "probably a dozen times" before December 21. Despite
this purported or claimed dissatisfaction with Heberer's work for 3 years prior
to his discharge, which would reach back into 1945, the Schmidts raised Heberer's
wages in May 1948 from $1 to $1.25 an hour, a marked increase to grant an
employee whose work had been "bad" foi more than 2 years next preceding the
granting of the wage increase.
Conclusion on discharge of Heberer
In coming to a conclusion as to what are the true facts attending, and the real
reason or reasons motivating, the discharge of Heberer, I first consider the
A. G. SCHMIDT FARM EQUIPMENT 2175
evidence adduced in, support of Respondents' claim that he was discharged solely
because of loafing, not doing his work right, and complaints of customers culmi-
nating in the rebate made to Wittlich and that they had no knowledge whatsoever,
and were wholly ignorant, of any union activity in the shop or Heberer's connec-
tion therewith prior to his discharge. I have heretofore stated my evaluation of
the testimony concerning the complaints of Weilbacher, Schaumleffel, and Witt-
lich, that is, that they, nor any of them, were unusual or any more than routine
matters of the same kind and type that through the years frequently arose in
the ordinary course of the Schmidts' repair business. When the evidence about
the so-called Warring complaint, a job in 1946, is reviewed it, as likewise was the
evidence relating to the caterpillar tractor job, is found to be without substance.
The testimony to support the claim of loafing or shirking, such as the toilet
visitation and a purported stop at the tavern, has been analyzed and, as I have
already indicated, I cannot and do not accord it any weight as bearing on the
considerations motivating the discharge. If Schimdt, Sr., and employee Keck are
believed, the toilet visitation at the fixed hour of 8 a. in. had been a practice of
long standing extending over a period of years. If Leutkemeyer is believed, it
was a recent development beginning only 2 or 3 months before Heberer was dis-
charged. If the practice really existed and if the Schmidts considered it objec-
tionable, nonetheless they did not at anytime mention or complain about it to
Heberer. I cannot fully credit Leutkemeyer's uncertain, vacillating, and, as I view
it, exaggerated testimony about the tavern stop. I do not think the Schmidts
were, at the time it occurred, disturbed about or gave any further thought to the
dented truck door. The so-called Warring complaint, the caterpillar tractor job,
the toilet visitation, the tavern stop, and the dented truck door have the appear-
ance of a forced and strained effort to bolster an unreal premise lacking factual
substance.
Heberer was continuously employed by the Schmidts from the time Schmidt,
Sr., took over the Belleville place of business until his discharge, a period of
over 10 years. For a long period of time Heberer was the only mechanic and
service or repair man working at and out of the Belleville shop. At the time
of his discharge, Heberer was the oldest in point of service and the highest paid
employee. For years preceding his discharge, he was used principally on out-
side repair jobs, that is, service calls to the customers' farms and most of his
time was spent in that kind of work. Keck said he was also a mechanic and did
repair work, described as the same type of repair work done by Heberer, but
it appears that most of his work was done in the shop. It will be recalled that
Keck was continuously employed at the Belleville shop for 21/ years next prior
to Heberer's discharge. It is strange, and not understandable to me, that if
Heberer's work had been "bad" and not satisfactory for a period of 3 years pre-
ceding his discharge, as claimed by Schmidt, Sr., and if the customers were
complaining about him and he was loafing and not doing his work right and had
the faults and delinquencies now attributed to him by the Schmidts, that the
Schmidts continued day after day, week in and week out, sending him on these
repair jobs to the farms of their customers, even on the very day he was dis-
charged, when at the same time they had in their employ Keck about whose work,
even to the time of hearing, a period of more than 3 years, there had never
been a complaint of any kind by either the Schmidts or any of their customers
as Keck admitted in his testimony.
It is inconsistent with the claims that Heberer's work had been "bad" and
unsatisfactory for 3 years preceding his discharge, that over a long period his
2176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
morning toilet habits had been objectionable, that customers, the Warring job
in 1946 as an example, had complained and that these were among the factors
considered in arriving at the decision to discharge Heberer, that in May 1948,
they increased his wage from $1 to $1.25 an hour.
After a close review and analysis of all the evidence bearing upon Respondents'
claims as to the reasons for Heberer's discharge and mindful of the sharp issues
of credibility involved, I have come to the conclusion. that Respondents did
not, as claimed, suddenly discharge Heberer on December 21, 1948, without
warning after more than 10 years of service, because of the Wittlich complaint
and rebate in adjustment thereof or because of any long standing dissatisfac-
tion with his work, either or both, and that such considerations were not involved.
In looking for the real reason motivating the discharge I leave out of con-
sideration, for the moment, the testimony of Heberer, Black, and Sprague as to
the reason therefor assigned by the. Schmidts and recall the testimony of Schmidt,
Sr., and Schmidt, Jr., about the outburst of antiunion talk and repudiation,
Leutkemeyer's accusations that Heberer had misled him into joining the Union
and the declaration that Lentz had not joined the Union, which occurred among
the remaining employees immediately upon their arrival at the Belleville plant
early on the morning of December 22, following Heberer's discharge and the
order to him to get his tools and get out at or about quitting time the evening
before. It was not claimed that this talk and breast baring among the employees
was precipitated by the Schmidts' questions. about the Union. Schmidt, Jr.,
arrived at the shop that morning "about a quarter to eight" to get ready to go to
Waterloo and when he got there the men were already engaged in the antiunion
talk, disclaimers, and accusations against Heberer which continued in his pres-
ence and hearing and later that of Schmidt, Sr., who arrived shortly after and
who at some point, after Schmidt, Jr., had departed for Waterloo, joined in the
discussion by interrogating the congregated employees about the Union.and their
union connections and sympathies. Schmidt, Sr., said that when the employees
came in that morning that "naturally" the Union was the topic of conversation.
This raises the question as to why the Union was "naturally" the topic of con-
versation that particular morning when, according to the Schmidts, it had never
before been mentioned by any of the employees to them, or either of them or in
their hearing, and why the sudden rush of the employees to vociferously repudi-
ate any union sentiment or leanings and to blame Heberer for what had hap-
pened in that connection. I think it a reasonable inference that they had learned
in the meantime that Heberer had been discharged the evening before because
of his leadership in the union activity in the shop and his membership in the
Union. The disclaimers and repudiations and the accusations against Heberer
in the presence and hearing of the Schmidts had no doubt the purpose on the
part of the protestants of avoiding a further purge of those employees who
might be suspected of union sympathies. It will be noted that the remaining
employees were not discussing Heberer's work or complaints against him or
his alleged loafing habits but the topic of their discussion was the Union and
leberer's connection with it.
I do not credit Respondents' claim that prior to the discharge of Heberer
they were completely ignorant of any union activity in the shop and that their
employees had been invited and some had. attended a union meeting and joined
the Union. Schmidt, Sr., and Schmidt, Jr., both spent most of their time at the
Belleville place of business and Schmidt, Jr., worked in the shop with and along-
side the men working there. Heberer worked outside the shop most of the time.
I have already pointed out the testimony and circumstances indicating that
A. G. SCHMIDT FARM EQUIPMENT .2177
Gerard Riebling told Schmidt, Jr., about the union activity prior to Heberer's
discharge. As I recall the ingratiating nature of Beck's testimony and manner
as a witness and his attitude about unions, I think it not at all unlikely, indeed
highly probable, that he forthwith informed the Schmidts, or one or another
of them, of the invitation to attend the union meeting extended by Heberer
and what occurred subsequent thereto.
Floyd Schmidt's testimony was, in effect, that on the morning of December
21, before the rebate to Wittlich was made, Schmidt, Sr., called him at Waterloo
by telephone and told him to come to Belleville and that he went early that
morning to Belleville and spent the entire day there but he could not remember
why his father called him, the purpose of the trip, why he spent the whole
day at Belleville or what he did while there other than that he participated in a
conference with his father and brother sometime during the day about dis-
charging Heberer and attended the brief meeting in his father's office between
5 and 5: 30 p. m. when that act was performed. Though Heberer said Floyd
was not present at the time Schmidt, Sr., and Schmidt, Jr., discharged him, it may
well be that Floyd, although he did not participate in the conversation attending
that action, was present and that Heberer did not observe him. It will be recalled
that Heberer had not been at the shop that day and had just returned from a
job and was engaged in unloading the tools when Schmidt, Jr., came to him
and told him that Schmidt, Sr., wanted to see him (Heberer) in his private
office. The testimony is that as Heberer went into the office Floyd "followed"
him and stood in the doorway but did not enter the office where Herberer was
seated facing Schmidt, Sr. It is not clear but I have the impression that Floyd
may have been standing in the doorway back of Heberer. In the light of all
the circumstances, but wholly apart from Heberer's testimony, I think it is
indicated that the real purpose of calling Floyd to Belleville was to participate
in a conference of the partners concerning action to squelch the union activity
in the shop, about which Schmidt, Sr., and Schmidt, Jr., had learned, and that
the conference resulted in the decision to discharge Heberer whom they con-
sidered the leader of the union movement as he was in fact. It is interesting to
note that Floyd may well have correctly quoted a statement which was attributed
to Heberer by the other Schmidts in a form conveying a meaning different from
that connoted by the language in which Floyd says it was uttered. It will be
recalled that Heberer said, in effect, that Schmidt, Sr., told him he was being
discharged because he joined the Union. It may be that at this juncture
Heberer, aware of his rights, under the Act as an employee to join and assist
in the formation of a union, asserted as Floyd said he did, that "you can't fire
me because I joined the Union."
I come now to the testimony of Heberer, and that of Black and Sprague in
corroboration, concerning the reasons assigned by the Schmidts, at the time,
for the discharge of Heberer. It follows from what I have stated in reference
to the claims made by the Schmidts as to their reasons for discharging Heberer
that I am constrained, in resolving the issue of credibility posed, to accept and
credit the testimony of Heberer as to what was said and done at the time he
was discharged as being substantially accurate and also to credit the testimony
of Black and Sprague as to statements made by Schmidt, Sr., the following
morning as to why he had discharged Heberer. According to this accepted and
credited testimony, at the time Heberer was discharged, Schmidt, Sr., with
Schmidt, Jr., participating in the conversation, disclosed that they were fully
informed and aware of Heberer's initiative in promoting the Union, knew that
903847-51-vol. 90-138
2178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he loaned Gerard Riebling the membership fee, and that Keck had refused to
have anything to do with the Union, accused Heberer of forcing Riebling and
LeutkTemeyer to join the Union and of being like a fifth columnist in the shop,
and told him that after all the years he had worked for them during which
they had "gotten along nicely" he "was throwing it all away by joining the
union" and to take his tools and go. The following morning Schmidt, Sr.,
when specifically questioned by Black and Sprague, stated, in substance, that
Heberer's work had been satisfactory, that he had discharged Heberer because
he joined the Union, that he would not have a "damn union" in the shop and
"didn't believe" there was any law protecting an employee against discharge for
joining a union.
Beginning on December 22 and continuing at intervals thereafter the Union,
claiming it had been so designated by a majority of the employees in an appro-
priate unit and was therefore, under the Act, the duly authorized bargaining
representative for all the employees in such unit, made demands and requests
upon the Schmidts to meet and confer with its representatives for the purpose
of negotiating an agreement with respect to wages, hours,, and conditions of
employment of the employees in such unit. On December 22, 1948, the Union
filed the first charge herein alleging the discriminatory discharge of Heberer
and interference, restraint, and coercion. A first amended charge was filed
January 4, 1949, adding an allegation of refusal to bargain. For some time
following the filing of the first of these charges the Union picketed the Belleville
place of business with Heberer participating in the picketing. Heberer testified
that on March.7, 1949, while he was engaged in picketing, Schmidt, Jr., "came
out and asked if he could talk to me," that "just the two of us" sat in Heberer's
automobile and conversed, that in the course thereof Schmidt, Jr., made the
proposal that "if we would withdraw the charges from the labor board and I
would step out of the union . . . they would put me back to work." Heberer
declined the offer. Schmidt, Jr., denied that he made such a proposal to Heberer
at, that or any other time and asserted that all he ever said to Heberer at any
time while he (Heberer) was engaged in picketing was to tell him to "quit sit-
ting around the buildings and carrying that umbrella up and down." I credit
Heberer's testimony about this corroborated as it is by the circumstance that at
about the same date Schmidt, Sr., made a somewhat similar proposition to Black,
the union representative, that "I'll meet with you and we'll put Erwin Heberer
back to work if you will go over to the Board and withdraw those charges against
me and then we'll go into a meeting and see whether we can come out with a con-
tract." A further incident tending to corroborate Heberer appears in the testi-
mony of Arlie W. Collins and Nelson Briner, two union representatives. who
called on Schmidt, Sr., at his Bellevile office, around this same time exploring
the possibility of "settling the dispute." On that occasion Schmidt, Sr., told
Collins and Briner that there was a possibility of a settlement as to Heberer and
offered to put Heberer back to. work but. in the Waterloo shop provided be with-
drew from the Union and the Union ceased all picketing.
In view of my conclusions aforestated, I find that Respondents discriminatorily
discharged Heberer on December 21, 1948, and have since refused to reinstate
him, because of his membership in and activity on behalf of the Union and that
thereby Respondents discouraged union membership and activity on the part of
their employees, all in violation of Section 8 (a) (1) and (3) of the Act.
A. G. SCHMIDT FARM EQUIPMENT 2179
D.hulependent8 (a) (1) violation
It will be recalled that Gerard Riebliug, who was still employed by the
Schmidtq at the time of the hearing and who had so early and.promptly renounced
his membership in the Union and accused Heberer of inducing him to join by
misrepresentation, called as a witness for the General Counsel, testified that
Schmidt, Jr., asked him if he had joined the Union and that when he replied in
the affirmative, Schmidt, Jr., said, in substance, that if he wanted to join the
Union, lie could do so and that it was "okay." This testimony was admitted
without objection. When Schmidt, Jr., was on the stand the General Counsel on
cross-examination, inquired about this interrogation of Riebling and Schmidt, Jr.,
denied that he had made such an inquiry and said that Riebling had "volunteered"
that information during a conversation with him occurring after December 22.
There was no objection at any stage by Respondents' counsel to this line of
questioning. I credit Riebling's testimony about the matter.
On direct examination counsel for Respondents asked Schmidt, Sr.: "After
,you had discharged Heberer did you ask the rest of your employees how many
had joined the union?" Schmidt, Sr., answered, "Yes, we had a discussion about
that the next morning." Continuing. in response to further questions about the
matter by Respondents' counsel, Schmidt, Sr., said that at that time both Gerard
Riebling and Toni Leutkemeyer told him they had joined the Union. Questioned
on cross-examination by the General Counsel concerning this incident related in
his testimony on his direct examination, and asked to tell how it "came about,"
Schmidt, Sr., said: "Well, of course, this was after we discharged Heberer
and the next morning when they (the remaining employees reporting at Belle-
ville) came in, why, naturally it was the topic of discussion and I asked them
(referring to Gerard Riebling and Tom Leutkemeyer, who were, singularly, the
only employees other than IIeberer who had joined the Union) whether they
joined and they said they did." He was not sure whether he made the same
inquiry of Lentz and Keck but said that as to each it was stated he did not join.
Thus Respondents' counsel on direct examination developed that Schmidt, Sr.,
had engaged in the interrogation of employees about their union membership
and activities and interposed no objection to the interrogation of the witness by
the General Counsel, on cross-examination, concerning the matter.
Clearly, the Schmidts' interrogation of their employees about their union
membership and activities constituted interference, restraint, and coercion within
the meaning of those terms as they are used in the.Act and was a violation of
Section 8 (a) (1) of the Act and I so find.
The complaint does not allege or specify interrogation as a violation c° S
(a) M. The only independent 8 (a) (1) violation specifically alleged is that
"respondent . . . on or about December 21, 1948 and thereafter, warned and
threatened their employees with discharge if they joined or assisted the union."
As has been found, this type of interference, restraint, and coercion was inherent
in the discharge of Heberer because of his union membership and activity and
in the refusal thereafter to reinstate him because he would not renounce his
union membership and withdraw from the Union. However, the mere fact that
the complaint did not particularize or specify interrogation of the employees as
interference, restraint, and coercion, within the meaning of the Act, does not pre-
clude a finding to that effect and an appropriate. order based thereon where,' as
here, no objection whatsoever was lodged by Respondents to the evidence offered
and adduced in that respect and Respondents, without objection, fully partici-
2180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pated in the development and litigation of the issue of fact involved. It could
not have been any more fully liquidated or more a part of the case had the
formality of amending the complaint at the hearing to specify interrogation in
conformity with the. proof been complied with. Western Electric Company, Inc.,
72 NLRB 738; Ford Motor Co., 57 NLRB 1814.
I find, therefore, that by the interrogation of their employees, as aforesaid,
concerning their union membership and activities Respondents violated Section
8 (a) (1) of the Act.
E. Alleged violation of Section 8 (a) (5)
1. Discussion of appropriate unit
In the background material hereinbefore set out, I have described fully the
nature of Respondents' business and touched upon the methods of conducting
same. In my endeavor to here clearly set out the facts bearing on the appro-
priateness of the unit alleged in the complaint, it may be necessary to recall
and amplify some of the facts previously stated. This was one business enter-
prise, although a combined sales store and repair shop was maintained at both
Belleville and Waterloo, 20 miles apart, the business was conducted as a unit.
Schmidt, Sr., was the general manager of the business. All books, records, and
files covering. both stores were maintained at the Belleville office and kept
current by the one bookkeeper stationed there. "Tickets" covering all trans-
actions at Waterloo were made in triplicate, one for the customer, the second
was delivered or forwarded to Belleville for the records, and the third retained
at Waterloo. At Belleville the "tickets" were made in duplicate, one for the
customer with the other retained for the records. All purchases of machinery,
parts and supplies were made through the Belleville office and all accounts were
paid by that office where the one accounts payable ledger was maintained. The
one bookkeeper stationed at the Belleville office there made up and kept current
the accounts receivable ledger, covering both places, in duplicate and one copy
or file thereof was kept at Waterloo so that regardless of which place or wherever
the customer had made a purchase or had repair work done he could make pay-
ment at either place of business as best suited his convenience. Most stock
shipments of machinery and parts were shipped to and unloaded at Belleville
and that part or portion allotted to Waterloo was then moved by the employees
to Waterloo. On the other hand, some of these shipments went first to Water-
loo where they were unloaded and division made between the two stores. Re-
gardless of the store at which the sale of a piece of machinery or parts was made
or order taken, the article was delivered from the store which was most con-
venient or if not immediately available at one store it was obtained from the
other. Likewise, when parts or tools needed for repair or service work were not
immediately available at one place they would be obtained from the other. If
more repair work came into the Waterloo shop than the small force ordinarily
working there could expeditiously handle, some of the work was either moved
to the Belleville shop or some of the employees ordinarily working at the Belle-
ville shop would be called or sent to the Waterloo shop to help in the work there.
It appears that the Belleville shop was the larger and much better equipped
for doing repair work and when some repair work came into the Waterloo shop
for which its facilities were not adequate such work would be moved to the
Belleville shop and on occasion when this was done either Floyd Schmidt, who,
as noted, lived upstairs over the store and shop at Waterloo and supervised that
place of business , or an employee ordinarily working at the Waterloo shop would
A. G. SCHMIDT FARM EQUIPMENT 2181
go to the Belleville shop to assist in the job. Each week the employees at each
place of business were paid their wages in cash. The only record that was kept
was in the form of a "ticket" on which the names of all the employees in that
shop were listed with the amount paid each set opposite his name. Apparently
there was no record of any kind showing where or on what jobs any employee
worked. There was no geographical or territorial division of any kind between
the two places of business as to either sales or repair work. Some other perti-
nent facts bearing on the method of operation have been hereinbefore stated and
are not here repeated. It suffices to observe that from an operative standpoint
the two places of business could have been but little more, if any, closely inte-
grated had they been under one roof.
By the complaint and his position in support thereof, the General Counsel seeks
to limit the appropriate unit to "all of the employees of the respondents at their
Belleville store, excluding salesmen, office employees and supervisors," thereby ex-
cluding any employee or employees working at and out of the Waterloo shop. The
General Counsel's representations in this connection are directed to the month
of December 1948. Although in part repetitious, I shall review Respondent's
personnel or employee situation as of that time. No salesmen were employed.
The Schmidts attended to the selling end of the business and in addition both
Schmidt, Jr., and his brother Floyd not only did supervisory work but also
set up machinery and did repair and service work both at and outside the shops.
There was one bookkeeper who worked in the office at Belleville. All other
employees, including both places of business, were engaged variously in either
mechanical and repair and service work, or in general work, such as unloading
machinery, setting up and assembling machinery, deliveries, or as helpers on
repair jobs in the shop or on the farm repair or installation jobs. Heberer and
Keck worked at and out of the Belleville shop as mechanics and repair and
service men, and they also did setting up and installation work. Leutkemeyer,
Lentz, and Gerard Riebling working at and out of the Belleville shop and
Paul Riebling at and out of the Waterloo shop did general work of all kinds.
Lentz, who lived on a farm near Belleville and reported for work at the
Belleville shop, . was employed for general work sometime in December 1948,
not definitely fixed other than it was shortly prior to December 17, the date of
the union meeting. He quit early in 1949. Paul Riebling lived in Waterloo "only
3 blocks" from the combined store and shop and for more than a year prior to
December 1948, had regularly reported there for work. Gerard Riebling com-
menced working for the Schmidts in October 1948. At that time he lived in
Waterloo and while he regularly reported for work at the Waterloo shop his
working time was divided between the Belleville shop and the Waterloo shop
as and when the needs required. He later, apparently sometime in late Novem-
ber or early in December, moved to Smitliton, about 7 miles from Belleville, and
was living there in December 1948. After moving to Smithton he regularly
reported for work to the Belleville shop. However, he was sent from time to
time to work at the Waterloo shop with his brother Paul and Floyd Schmidt.
The substance of the Schmidts' testimony about this phase of the case, which
in my opinion is sustained by the preponderance of the evidence, was that they
did not hire men to work at any particular shop, that their employees "were
hired to work wherever" needed, that none of their employees were hired as an
employee of either the Belleville or the Waterloo store and shop as such, and
that all of their employees were subject at all times to assignment to either
shop, or to any outside farm repair, delivery, or installation job, as the exigen-
cies of their over-all work situation required.. Their testimony was that oft-
2182 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
.times at the close of business on the evening before an employee or some of them
working at and out of the Belleville shop would be directed to go to the Waterloo
shop the next morning to assist in repair work in that shop or to do some
farm repair job for which a service call had been received at the Waterloo shop,
that at such times an employee who lived in or near Belleville would come to the
Belleville shop the next morning and take one of Respondents' trucks and "pick
up," for instance, Keck, who lived then at Columbia, or.Gerard Riebling, after
he moved to Smithton, or both and go to the Waterloo shop or to the farm
repair or installation job, as the case may be, and that at such times Paul Rieb-
ling, or some other employee from the Waterloo shop, if at the time more than
one employee was working at Waterloo, would work with the employee or
employees sent from the Belleville shop. Their testimony further was that at
times Paul Riebling was called or sent from Waterloo to work in the Belleville
shop and that when shipments of machinery or parts were ,received at either
Belleville, usually Belleville, or Waterloo, Paul Riebling and men from the
Belleville shop worked together in the unloading and setting up. Floyd Schmidt,
asked on cross-examination by the General Counsel to estimate how many
times during the year 194S Paul Riebling worked at the Belleville shop said no
record was kept, that they "paid no attention" to that as it "made no difference"
in the operation of their business: or the wages paid the individual employee.
Pressed to make an estimate, whether it was more than 10 times, he said it was
more than that but he could not give an accurate estimate. Schmidt, Sr., esti-
mated that during 1948 Paul Riebling worked in the Belleville shop on an
average of at least 2 days a month and said "whenever we needed him up there
we would call him." On the other hand, Floyd Schmidt said that when there
was more repair work in the Waterloo shop than he and Paul Riebling could
do, men came down from the Belleville shop and assisted them at the Waterloo
shop, and that at times he had as many as 3 or 4 men from the Belleville shop
working at Waterloo.
I accept and credit the testimony of the Schmidts about the work arrange-
ment and the manner of assigning and transferring employees wherever the work
needs of the day or the hour required to best expedite their business as being
a substantially accurate depiction of the situation in that respect. There is little
to be found in the evidence tending to contradict or minimize to any appreciable
extent the Schmidt version of the situation and in fact the other testimony
about the matter is corroborative.
Gerard Riebling, as a witness for the General Counsel, said, on direct exanmi-
nation, that after he moved to Smithton he "reported into Belleville every
morning" and that "maybe a few times" he was sent "to Waterloo to help out."
Apparently referring to the month of December 1948, he estimated that he
was sent "to work in the Waterloo shop 3 or 4 times." On cross-examination he
said that "once or twice" the Schmidt truck came by his home in Smithton and
picked him up and took him "along with whoever was driving it" to Waterloo
to work in the shop there, and that on several other occasions he took his own
car "and went direct" from his home. in Smithton to Waterloo to work in that
shop. On redirect examination he said that "unless he received instructions to
go to Waterloo" he "would report directly to Belleville." Heberer stated that
repair work was frequently brought from Waterloo to be done at the Belleville
shop and that frequently repair work was shifted from one shop to the other,
and that he worked with Paul Riebling at the Waterloo shop on occasions when
he (Heberer) was sent to work in that shop, but said he did not recall working
with Paul Riebling in the Belleville shop, however, he admitted that,most of
A. G. SCHMIDT FARM EQUIPMENT 2183
his time was spent in working at customers' farms on service calls and that
when he was so engaged he did not know who was working in the Belleville
shop and did not attempt to contradict the testimony that at times Paul Riebling
was called or sent to work in the Belleville shop. Heberer further said that he
worked with Paul Riebling in unloading shipments of machinery and parts at
Belleville.
From the specific testimony set out and the general summary first made, which
was gleaned from the evidence relating to this phase of the case as a whole, it
appears that the working conditions of all the employees engaged in repair and
service work, and general work, both or either, regardless of whether they reported
at and worked out of the Belleville or the Waterloo shop, were substantially the
same, that all were. under common supervision, that the wages, according to the
type of work done, were substantially the same, and that work and personnel
were assigned, transferred, and exchanged between the two shops as conven-
ience or facilities or the nature of a particular job or the work situation at a
given time indicated would best facilitate Respondents' business.
Considering the situation as of December 1948, Respondents had six em-
ployees. After Gerard Riebling moved to Smithton, five employees regularly
reported for work at Belleville and one, Paul Riebling, at Waterloo. Three
of those reporting to Belleville joined the Union, thus, if a bargaining unit
limited to employees reporting, as of that time, at Belleville is recognized as an
appropriate unit, in accordance with the contention of the General Counsel, then,
since three, a majority, of the members of such a unit had designated the Union
as their collective bargaining representative, the Union became the bargaining
representative of all the employees in such unit.
However, I am doubtful that the union representatives themselves had such
a unit in contemplation at the time it commenced organization or even during the
period efforts to negotiate a contract with Schmidt, Sr., were in progress. First,
at such times it is clear, I think, that the union representatives were under the
impression that Lentz, who had been in Respondents' employ only a short time,
was working as a salesman and could not properly be classified as a member
of a unit composed of all of Respondents' employees engaged in mechanical and
repair work, and general work, as heretofore defined, which excluding Lentz
would have numbered five. The classification of Lentz as a salesman was hinted
and implied by the General Counsel at the hearing but no substantial evidence
was adduced to support it. The overwhelming preponderance of the testimony
bearing on Lentz' work was to the contrary and to the effect that he did assem-
bling, unloading, and setting up, and worked as a helper on repair and installa-
tion jobs. Lentz was subpoenaed as a witness by the General Counsel and in
response thereto was present at the hearing but was not called upon to testify.
Second, during the period the Union was attempting to negotiate a contract with
Schmidt, Sr., the union representatives submitted to him for his consideration a
proposed oontract with respect to wages, hours, and conditions of employment.
This contract covered "all employees" of A. G. Schmidt Farm Equipment in the
classifications included in an appropriate bargaining unit and was not limited or
restricted to the employees working at and out of the Belleville shop. No place
of business is even mentioned in the proposed contract and clearly it purported to
cover all of Respondents' employees within the classifications mentioned regard-
less of where they worked.
. The one employee reporting for work at Waterloo in December 1948 could not
constitute a separate appropriate unit and, as has been pointed out, he did the
same kind of work under the same working conditions, and was subject to the
2184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same common supervision and work assignments as his fellow employees report-
ing to the Belleville shop. He worked with and alongside them on the same
jobs as and when all so employed were directed by their common employers. The
only explanation I perceive for seeking to exclude Paul Riebling from the bar-
gaining unit is that since Lentz, who was not invited to do so and did not join
the Union, must be included in any appropriate unit found, therefore, unless Paul
Riebling is excluded from such unit the Union did not have a majority of the
employees in a bargaining unit at any of the times when its representatives made
demands and requests upon Respondents to recognize the Union as the exclusive
bargaining agent for all their employees within an appropriate unit and to meet
and negotiate with the Union with respect to wages, hours, and other terms and
conditions of employment of such employees. To exclude Paul Riebling from the
bargaining unit for such a reason and to serve such a purpose would be making
the extent of organization controlling and decisive as to unit coverage contrary
to the provisions of the Act.
2. Conclusion as to appropriate unit
It is my conclusion that under the facts, as I have found them to be, the appro-
priate unit should be employer-wide and that a bargaining unit limited to only the
employees reporting and working at and out of the Belleville shop would be in-
appropriate for the purposes of collective bargaining. Nowell- We tt erau Grocer
Co., 88 NLRB 515; Hamilton Gas Corporation, 72 NLRB 269.
3. Conclusion as to alleged violation of 8 (a) (5) .
Since I have found that the Union was not at any time designated or selected
as a bargaining representative by a majority of the employees in a unit appro-
priate for such purposes, the allegations of the complaint that, at all the times
material herein, the Union was the duly authorized and designated representative
for the purposes of collective bargaining of all the employees in an appropriate
unit have not been sustained and it follows that the allegations in the complaint
that Respondents violated, and are in violation of, Section 8 (a) (5) of the Act
should be dismissed as I shall recommend.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with its operations described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the sev-
eral States, and such of them as have been found to constitute unfair labor prac-
tices tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondents .have engaged in, and are engaging in, certain•
unfair labor practices, it will be recommended that they cease and desist there-
from and take certain affirmative action to effectuate the policies of the Act.
By interrogating employees about their union membership, activities, connec-
tions, and sympathies, and by the threats of reprisal against their employees
who might join or espouse a union, inherent in declarations made in connection
with their discharge of Heberer, and thereafter, that they would not have or
allow a union to be organized in their shops and in their offers to reinstate
Heberer if he would withdraw from the Union and renounce and abstain from
A. G. SCHMIDT FARM EQUIPMENT 2185
exercising the rights guaranteed to all employees by the Act to join or assist in
the formation of labor organizations and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, Respond-
ents have evidenced a purpose and disposition to thwart the self-organization of
their employees and deprive their employees of their rights under the Act. In
view. of which there is, in my opinion, a likelihood not only that such acts and
conduct may be repeated but that other unfair labor practices may also be re-
sorted to by Respondents in an effort to prevent any other or further attempts by
their employees to effect self-organization. To minimize the likelihood of recur-
ring unfair labor practices, assure to the employees the enjoyment of their
statutory rights, and make effective the,interdependent guarantees of Section 7
of the Act, it will be recommended that Respondents be ordered to cease and
desist from in any manner interfering with, restraining, or coercing their em-
ployees in the exercise of their rights of self-organization.
It has been found that Respondents discriminatorily discharged and thereafter
refused to reinstate employee Erwin J. Heberer, thereby discriminating against
him in regard to the tenure of his employment. It will, therefore, be recom-
mended that Respondents offer to the said Erwin J. Heberer immediate and full
reinstatement to his former, or a substantially equivalent, position,3 without
prejudice to his seniority or other rights and privileges, and make him whole for
any loss of pay he may have suffered by reason of Respondents' discrimination
against him by payment to him of a sum of money equal to that which he nor-
mally would have earned as wages as an employee from December 21, 1948, the
date of his discharge, to the date of such offer of reinstatement less his net
earnings' during such period.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. The operations of the Respondents constitute and affect commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. International Association of Machinists, District No. 9, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the tenure of employment of Erwin J.
Heberer, thereby discouraging membership in International Association of Ma-
chinists, District No. 9, Respondents have engaged in, and are engaging in, unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing their, employees in the exer-
cise of the rights guaranteed to them by Section 7 of the Act„ Respondents have
engaged in, and are engaging in, unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
5 . The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. The allegations of the complaint that Respondents have violated, and con-
tinue in violation of, Section 8 (a) (5) of the Act have not been established.
' "Former position wherever possible, but if such position is no longer in existence then
to a substantially equivalent position." The Chase National Bank of the.City of New
York, an Juan, Puerto Rico, Branch, 65 NLRB 827.
4 Term "net earnings," as here used, defined. Crossett Lumber Co., 8 NLRB 440,
497-498, and Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
2186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that the Respondents; A. G. Schmidt, A. G. Schmidt, Jr., and Floyd Schmidt,
co-partners, d/b/a A. -G. Schmidt Farm Equipment, and their agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Association of Machinists, Dis-
trict No. 9, or any other labor organization, by discriminating in any manner,
against any of their employees in regard to hire or tenure of employment or any
term or condition of employment;
(b) Interrogating or questioning any of their employees concerning their union
membership, activities, connections, or sympathies;
(c) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of their rights of self-organization, to form labor organiza-
tions, to join or assist International Association of Machinists, District No. 9,
or any other labor organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which I find will effectuate the policies
of the Act :
(a) Offer to Erwin J. Heberer immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges.
(b) Make whole the said Erwin J. Heberer for any loss of earnings that
he may have suffered by reason of Respondents' discrimination against him
by payment to him of a sum of money equal to the amount which he normally
would have earned as wages during the period from December 21, 1948, the
(late of his discharge, to the date of the offer of reinstatement less his net earn-
ings during such period;
(c) Post at their places of business at Belleville and Waterloo, Illinois, copies
of the notice attached hereto, marked Appendix A. Copies of said notice, to be
furnished by the Regional Director for the Fourteenth Region, after being duly
signed by Respondents' representative, shall be posted by Respondents immedi-
ately upon receipt thereof and maintained by them for sixty (60) consecutive
days thereafter in conspicuous places at each of their said places of business,
including all places thereat where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to insure that said notices are
not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Fourteenth Region, in writing,
within twenty (20) days from the date of the receipt of this Intermediate Report
what steps Respondents have taken to comply therewith.
It is further recommended that, unless on or before twenty (20) days from
the date of the receipt of this Intermediate Report the Respondents notify
said Regional Director, in writing, that they will comply with the foregoing
recommendations, the National Labor Relations Board issue an order requiring
Respondents to take the action aforesaid.
5 See footnote 4, supra.
A. G. SCHMIDT FARM EQUIPMENT 2187
It is further recommended that the complaint be dismissed insofar as it
alleges violation of Section 8 (a) (5) of the Act.
As provided in Section 203.46 of the Rules and Regulations of the National Labor
Relations Board, any party may, within twenty (20) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.45 of said
Rules and Regulations, file with the Board, Washington 25, D. C., an original
and six copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report and Recommended Order or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and six copies of a brief in support thereof ; and any
party. may, within the sane period, file an original and six copies of a brief in
support of the Intermediate Report and Recommended Order. Immediately
upon the filing of such statement of exceptions and/or briefs, the party filing the
same shall serve a copy thereof upon each of the other parties. Statements of
-exceptions and briefs shall designate by precise citation the portions of the record
relied upon and shall be legibly printed or mimeographed, and if mimeographed
shall be double spaced. Proof of service on the other parties of all papers
filed with the Board shall be promptly made as required by Section 203.85. As
further provided in said Section 203.46 should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of service of the order transferring
the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 28th day of March 1950.
CHARLES L. FERGUSON,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL.NOT interrogate or question our employees with respect to their
union affiliations, activities, or sympathies, or in any manner interfere with,
restrain, or coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist INTERNATIONAL
ASSOCIATION OF MACHINISTS, DISTRICT No. 1), or any other other labor organi-
zation, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all such activ-
ities except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act, as guaranteed by Section 7
thereof.
WE WILL OFFER to employee Erwin J. Heberer immediate and full rein-
statement to his former or substantially equivalent position without prejudice
2188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to any seniority or other rights and privileges previously enjoyed, and make
him whole for any loss of pay suffered as a result of our discrimination
against him.
All our employees are free to become or remain members of the above-
named union or any other labor organization , or to refrain from such activities.
We will not discriminate in regard to hire or tenure of employment or any
term or condition of employment against any employee because of membership
or nonmembership' in or activity on behalf of any such labor organization.
A. G. SCHMIDT, A. G. SCHMIDT, Jr.,
and FLOYD SCHMIDT, co-partners,
d/b/a A. G. SCHMIDT FARM EQUIP-
MENT,
Employer.
Dated --------------------- --- By ------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced , or covered by any other material.
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