Chicago Apparatus Company

National Labor Relations Board - Board Decisions

May 17, 1939

12 N.L.R.B. 1002 (N.L.R.B. 1939)

In the Matter of CHICAGO APPARATUS COMPANY and FEDERATION OF
ARCHITECTS, ENGINEERS , CHEMISTS AND TECHNICIANS , LOCAL 107
Cases Nos. C-485 and B-490.-Decided May 17, 1939
Scientific Laboratories Equipment Industry-Interference, Restraint, and
Coercion : anti-union activity by supervisory employees during working hours
and on company property ; anti-union statements ; persuading employees to re-
sign from union ; soliciting resignation by supervisory employees an unfair
labor practice although such employees are members of the union-Unit Appro-
priate for Collective Bargaining : production employees exclusive of salesmen, office
employees , and supervisory employees with authority to hire and discharge-
Representatives : membership in union as : signed applications sufficient to desig-
nate ; payment of membership dues as requisite to designation of-Collective Bar-
gaining: refusal to recognize representatives ; obstructing and delaying union's
efforts to bargain ; negotiation in good faith , consent election , request for by em-
ployer while in midst of a campaign to discredit union as ; refusal to negotiate with
representatives , employer 's attempt to destroy union majority and thus eliminate
obligation to bargain as; ordered to bargain collectively with union as exclusive
representative ; order based on majority at date of refusal to bargain-Unfair
Labor Practice: violation of Section 8 (1) as constituting violation of Section 8
(5)-Discrimination : discharges , for union membership and activity; compelling
union member to quit his employment ; charges of, not sustained as to one per-
son-Reinstatement Ordered-Back Pay: awarded to discharged employees-
Investigation of Representatives : petition for, dismissed in view of order to
bargain.
Mr. Stephen M. Reynolds, for the Board.
Gann, Seeord, Stead do McIntosh, by Mr. Loy N. McIntosh, of
Chicago, Ill., for the respondent.
Mr. Frank J. Kornacker, of Chicago, Ill., for the Union.
Mr. A. Bruce Hunt, Jr., of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Federation of
Architects, Engineers , Chemists and Technicians, Local 107, herein
called the Union, the National Labor Relations Board, herein called
the Board, by Leonard C. Bajork, Regional Director for the Thirteenth
12 N. L. R. B., No. 101.
1002
CHICAGO APPARATUS COMPANY 1003
Region (Chicago, Illinois), issued its complaint dated December 6,
1937, against Chicago Apparatus Company, Chicago, Illinois, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, with-
in the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act.
With respect to the unfair labor practices, the complaint alleged
in substance (a) that on June 29, 1937, and thereafter, the respondent
refused to bargain collectively with the Union as the exclusive repre-
sentative of the respondent's employees in an appropriate unit, al-
though a majority of said employees had designated the Union as
their representative for such purpose; (b) that the respondent dis-
charged Joseph Doyle and Patrick R. Doyle on or about July 23,
1937, and Alban H. Mirguet on August 25, 1937, and has since re-
fused to reinstate them for the reason that they had joined and as-
sisted the Union and had engaged in concerted activities with other
employees of the respondent for the purpose of collective bargaining
and other mutual aid and protection; (c) that on or about August
20, 1937, the respondent through certain of its agents, discouraged
membership of its employees in the Union and solicited resignations
therefrom among its employees who were members; and (d) that by
these and other acts, the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
On July 2, 1937, the Union filed with the Regional Director a peti-
tion alleging that a question affecting commerce had arisen concern-
ing representation of employees of the respondent, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the Act. On November 1, 1937, the Board, acting pursuant
to Section 9 (c) of the Act and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered an investigation with respect to the petition and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice, and acting pursuant to Article II, Section
37 (b), and Article III, Section 10 (c) (2), of said Rules and Regula-
tions, further ordered the cases consolidated for purposes of hearing.
Notices of hearing, together with copies of the complaint, were duly
served upon the respondent and the Union.
On December 13, 1937, the respondent filed its answer, admitting
the allegations of the complaint as to the character of its business and
its interstate nature, denying that it had engaged in unfair labor
practices, and alleging affirmatively that Alban H. Mirguet had re-
signed his position and that Joseph Doyle and Patrick R. Doyle had
been discharged for inefficiency.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held in Chicago, Illinois, from
December 13 to 16, 1937, inclusive, before Charles E. Persons, the
Trial Examiner duly designated by the Board. The Board and the
respondent were represented by counsel and the Union by its agent,
and all participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was afforded all parties.
During the course of the hearing, counsel for the Board moved to
amend the complaint to include the name of one additional em-
ployee, Clark Heppe, as having been discriminatorily discharged.
This amendment, which alleged that Heppe was discriminatorily dis-
charged on or about October 20, 1937, and that he does not desire to
be reinstated to his former position, was allowed by the Trial Ex-
aminer over the respondent's objection." By amended answer, the
respondent alleged that Heppe "was temporarily laid off due to the
passing of the peak season and recession of business . . ." Counsel
for the Board also moved to amend the complaint to conform to the
proof. The motion was granted by the Trial Examiner. At the close
of its case, the respondent moved to dismiss the complaint on the
ground of insufficient proof. The motion was taken under advise-
ment by the Trial Examiner and denied in his Intermediate Report.
During the course of the hearing, the Trial Examiner made several
other rulings on motions and on objections to the admission of evi-
dence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On March 10, 1938, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties, in which
he found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Sec-
tion 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He
accordingly recommended (a) that the respondent bargain collec-
tively with the Union, (b) that it reinstate Alban H. Mirguet, Joseph
Doyle, and Patrick R. Doyle with back pay, (c) that it award back
pay to Heppe, who does not desire reinstatement, and (d) that the
respondent take certain other appropriate action to remedy the situa-
tion brought about by the unfair labor practices. Thereafter, the
respondent filed its exceptions to the record and to the findings and
recommendations of the Intermediate Report.
Pursuant to notice, a hearing was held before the Board in Wash-
ington, D. C., on April 19, 1938, for the purpose of oral argument.
'Although the respondent objected to the amendment on various grounds, it did not
assert its right to notice. In view of our findings regarding Heppe, we do not consider
the Trial Examiner's ruling in this instance to be prejudicial.
CHICAGO APPARATUS COMPANY 1005
The respondent and the Union were represented by counsel and par-
ticipated in the hearing. The Board has considered the respondent's
exceptions to the record and to the Trial Examiner's Intermediate
Report and, in so far as they are inconsistent with the findings, conclu-
sions, and order below, finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, an Illinois corporation, having its principal office
and place of business in Chicago, is engaged in the business of manu-
facturing and jobbing of apparatus and supplies for scientific labora-
tories, principally those of educational institutions. The number of
the respondent's employees varies from 45 to 90, since its business is
highly seasonal.
Manufacturing constitutes approximately one-fourth of the re-
spondent's operations and consists of the production of electrical
demonstration pieces, bunsen burners, tongs and tweezers, balances
and weights, and kindred laboratory equipment. For the 5 months'
period ending November 30, 1937, the respondent purchased raw ma-
terials, aggregating about 21/2 tons, from States other than Illinois.
These raw materials consisted principally of copper sheet, finished
wood, screws, fibre, motors, steel, and animal and plant specimens.
The remainder of the respondent's business is jobbing, about three-
fourths of the materials for which are procured from States other
than Illinois. During 1937, the respondent purchased approximately
9 tons of optical instruments, chemical glassware, and chemical
porcelain from New York, New Jersey, and Colorado, in addition to
chemical glass, plaster anatomical models, and balances and weights
from Germany, unprepared slides from Pennsylvania, forceps and
scissors from New York, and nitric, hydrochloric, and sulphuric
acids from Indiana.
The respondent's sales are generally made by mail order, approxi-
mately three-fourths of its shipments, by volume, being to points
outside Illinois. During 1937 about 375 tons of its products were so
shipped. The respondent employs five salesmen who travel through-
out Minnesota, Wisconsin, Iowa, Michigan, Indiana, New Jersey,
New York, Pennsylvania, and Illinois.
II. THE ORGANIZATION INVOLVED
Federation of Architects, Engineers, Chemists and Technicians,
Local 107, is a labor organization affiliated with the Committee for
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Organization , admitting to membership persons employed
by the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges that "all the production and maintenance
workers . . . except salesmen, and clerical and supervisory em-
ployees," constitute a unit appropriate for the purposes of collective
bargaining. In its answer the respondent denied that such a unit
is appropriate but introduced no evidence at the hearing to support
its denial or to assist the Board in determining what employees con-
stitute an appropriate unit. The petition alleges that "all production
employees exclusive of office, salesforce, and foremen" constitute an
appropriate unit. Although the pleadings thus show a variation with
respect to maintenance employees, the record contains no reference to
such employees and tends to establish the allegation of the petition.
Moreover, the efforts of the Union to bargain collectively with the
respondent were on behalf of a unit composed of the production
employees.
The Union excludes from its membership the salesmen, office em-
ployees, and supervisory employees with authority to hire and dis-
charge and does not desire to represent them in collective bargaining
with the respondent. Under the circumstances, we shall exclude the
above classes of employees from the appropriate unit.
We find that the production employees of the respondent, exclusive
of salesmen, office employees, and supervisory employees with author-
ity to hire and discharge, constitute a unit appropriate for the pur-
poses of collective bargaining and that such unit insures to employees
of the respondent the full benefit of their right to self-organization
and collective bargaining and otherwise effectuates the policies of the
Act.
2. Representation by the Union of a majority in the appropriate unit
The respondent's pay roll of July 11, 1937, for its production de-
partment contains the names of 54 employees. Three of these in-
dividuals, namely, Daniel P. Weaver, Edward F. Konkey, and Florian
F. Polk, are listed respectively on the pay roll as a receiving clerk,
an order picker, and the head of the chemical department. Except
in the case of Polk, these designations are not supported by the
record which clearly establishes that all three are supervisory em-
ployees. Weaver is in fact in charge of the "receiving room" and
CHICAGO APPARATUS COMPANY 1007
supervises several employees. Konkey acknowledged that he was
"foreman" of the "stock room," while Polk is foreman of the chemical
department. It is clear that Konkey does not have authority to hire
and discharge, but the record is not definite in this respect as to the
other two. For the purposes of determining the representation by
the Union of a majority of the employees, it is not necessary to decide
whether the three above-named supervisory employees are within the
appropriate unit.
Between May 21 and 28, 1937, 28 of the respondent's employees
signed applications for membership in the Union. Between the
latter date and June 29, 1937, an additional 19 employees similarly
signed membership application cards. All the application cards
were received in evidence, without objection, after identification by
a representative of the Union who testified that these employees were
accepted as members. In addition to these 47 employees, several
others thereafter signified their intention of joining the Union. An
examination of these cards shows that on June 29, 1937, and for
several weeks prior thereto, the Union represented a substantial
majority of the employees in the appropriate unit.
At the hearing and in its exceptions to the Intermediate Report,
the respondent on various grounds urged that the evidence described
above did not establish the Union's representation of a majority of
the employees in the appropriate unit. The respondent contends that
those employees who signed the membership application cards, but
who had not paid initiation fees and dues, could not have been mem-
bers of the Union pursuant to its bylaws and that therefore the
Union was not entitled to represent them for the purposes of collec-
tive bargaining. This contention is without merit. Whether or not
the employees actually perfected their applications and became mem-
bers of the Union is immaterial. It is sufficient that by signing the
applications the employees signified their desire to be represented by
the Union for the purposes of collective bargaining.2
The respondent finally argues that in considering the issue of the
Union's majority, the Board must give effect to letters of resignation
which were received by the Union from 17 of its members. All these
letters except two are dated between August 20 and 24, 1937. Sixteen
2 Matter o f St. Joseph Stock Yards Company and Amalgamated Meat Cutters and
Butcher Workmen of North America , Local Union No. 159 , 2 N. L. R. B. 39; Matter of
National Motor Bearing Company and International Union, United Automobile Workers
of America , Local No. 76, 5 N. L. R . B. 409; Matter of Zenite Metal Corporation and
United Automobile Workers of America , Local No. 442, 5 N. L. R. B . 509; Matter of Cen-
tury Mills, Inc. and South Jersey Joint Board, of the International Ladies Garment Work-
ers Union, 5 N. L. R . B. 807 ; Matter of Trenton -Philadelphia Coach Company and
Amalgamated Association of Street, Electric Railway and Motor Coach Employees of
America, 6 N. L. R . B 112; Matter of The Serrick Corporation and International Union,
United Automobile Workers of America, Local No . 459, 8 N. L. R. B. 621
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employees who so resigned further testified at the hearing that
they no longer desired to be represented by the Union.8 For the
reasons discussed below in Section III B, and in "The remedy," we
find that the resignations and the testimony of these employees can-
not operate to diminish the majority status previously obtained by the
Union.
We find that on June 29, 1937, and at all times thereafter, the
Union was the duly designated representative of a majority of the
employees in the appropriate unit, and pursuant to Section 9 (a) of
the Act, was the exclusive representative of all the employees in such
unit for purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
3. The refusal to bargain
(a) History
By letter dated June 16, 1937, Lewis Alan Berne, midwest or-
ganizer for the Union, informed the respondent that the Union repre-
sented a majority of the employees in the production department and
requested a conference. On June 18, M. C. Stoelting, president of the
respondent, acknowledged the letter, set a conference for June 22, and
advised that C. A. Bengston, the respondent's treasurer, would appear
for the respondent.
The June 22 conference was held as scheduled. The Union, ap-
pearing by Berne and Frank J. Koinacker, another organizer, sub-
initted written proposals for consideration by the respondent. Dur-
ing the conference there was some discussion of the manner in which
the Union's majority would be established. The Union took the posi-
tion that it would not submit its records to the respondent but would
file a petition with the Board if the respondent doubted its majority
and demanded proof. Bengston requested time in which to consider
the entire matter, including the written proposals, and a second con-
ference was arranged for June 29.
At the beginning of the second conference, at which the parties were
represented by the same individuals, Bengston asked the union repre-
sentatives if they were prepared to prove their majority status. As
the representatives replied that they had previously explained the
procedure they would follow if such proof were demanded, Bengston
interrupted by saying : "Well, you are not at present prepared to
prove that you represent the employees." The representatives
3 Certain of these 16 employees were employed on a temporary basis, that is, they were
employed during the respondent's peak season , and had been laid off prior to the time of
the hearing due to the passing of that season . However , it is clear that it is the
respondent 's practice to reemploy them at the commencement of its busy season each year,
one such employee having been so employed by the respondent for 11 years.
CHICAGO APPARATUS COMPANY 1009
acknowledged the truth of Bengston's statement and started to say
that the respondent had given them no indication that such proof
would be requested at this conference. Bengston again interrupted
and terminated the conference with the words, "Inasmuch as we have
no proofs, there will be no further discussion, and the conference will
come to an end." Our findings as to the events which occurred at
these conferences are based upon the testimony of Kornacker. C. A.
Bengston was not a witness.
On the same day but after the above-described conference had
terminated, the respondent distributed among its employees a mimeo-
graphed "statement of policy." This statement, adopting several of
the proposals which had been submitted by the Union, announced a
general wage increase and outlined a policy with respect to hours of
work, overtime rates of pay, vacation privileges, and a grievance pro-
cedure. The statement also announced that the respondent would
recognize "any union or group of employees" as the collective bar-
gaining representative "for the employees of our various departments,
providing satisfactory proof is given that they represent a major-
ity . . ." There followed a lengthy argument on behalf of the open
shop, which the respondent announced it intended to maintain partly
because, "In view of the law on this point, it would be inconsistent
and manifestly improper for us, as employers, to make membership
in a union a condition of employment." The "statement of policy"
concluded with the following paragraph :
... under the merit system, the employee does not have to ask
permission of some walking delegate as to what position he may
hold nor does he have to pay tribute to anyone for the privilege
of working. Even a casual reader of current events described
in recent developments, could easily ascertain what is sought to
be foisted upon American workmen. We have our freedom at
the moment and we should fight to retain it. An open shop
policy, based upon a merit system, will preserve this for us.
By letter dated July 1, the Union protested to the respondent that
the statement had "been unanimously rejected by" the employees and
"that the action of the management at the last meeting was evidence
of a breach of faith." On the following day the Union filed a petition
with the Board requesting an investigation and certification of
representatives.
During July, August, and September, 1937, three conferences were
held in the Board's Regional Office and were attended by representa-
tives of the Board, the respondent, and the Union for the purpose of
settling the differences between the respondent and the Union. Ef-
forts to arrive at a settlement, however, proved futile. The Union
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered to submit its membership application cards in support of its
representation claim, but the respondent refused to accept such a
basis of settlement on the ground that considerable time had elapsed
since the cards had been signed. On July 27 the respondent indicated
its willingness to cooperate in the conduct of a consent election under
the supervision of the Regional Director, but thereafter the Union
refused to participate in such election.
Between July and September, the Union secured cards signed by
employees, authorizing it to represent them in collective bargaining.
Thereafter it made additional efforts to bargain collectively with the
respondent. Shortly prior to August 20, 1937, Kornacker telephoned
J. O. Bengston, the respondent's secretary, asking for a conference.
The latter replied, "that he saw no reason for continuing with the
negotiations, he would not negotiate with our union." On August
20, 1937, by letter to the respondent, the Union again asserted its
claim to represent a majority of the production employees and offered
a proposed agreement "which your employees ask you to sign . . 21
The respondent failed to acknowledge the letter, and no further re-
quests were made by the Union to bargain collectively.
(b) Conclusions
As we have found above, on June 29, 1937, and at all times there-
after, the Union in fact represented a majority of the respondent's
employees in the appropriate unit. The respondent admits that it
refused to bargain collectively with the Union and seeks to justify its
refusal on the ground that the Union did not prove its right to repre-
sent the employees. We are of the opinion that the respondent's
refusal to bargain was not based upon such failure of proof and that,
by its activities described herein, it sought to relieve itself of its
obligation to bargain collectively with the Union 4
It is significant of the respondent's attitude with respect to the
Union's authority to represent the employees, that at the first confer-
ence the respondent did not request any proof of majority represen-
tation but merely inquired how such proof might be established. It
was only at the second conference on June 29, 1937, that the respond-
ent made such request. At that time, without referring to the Union's
offer to invoke the procedure of the Act, the respondent abruptly
broke off all negotiations. Had the respondent been acting in good
faith, and had it had an honest doubt of the Union's majority, it is
reasonable to assume that the respondent would have accepted the
' Our findings in subsection "C" infra, are further proof of the respondent's bad faith
and establish further instances of the respondent 's efforts to relieve itself of its obligations
under the Act.
CHICAGO APPARATUS COMPANY 1011
Union's offer to file a petition with the Board.5 The respondent's
failure to discuss with the Union the latter's proposal to demonstrate
its authority to represent the employees, and the sequence of events
which followed immediately upon the termination of the June 29
conference, convince us that the respondent was not actuated by an
honest doubt that the Union had been designated by a majority of
the employees as their collective bargaining representative e
The record does not disclose when the "statement of policy" de-
scribed above was prepared. The publication of the statement, how-
ever, immediately following the termination of negotiations, demon-
strated to the Union the futility of pressing its claim for bargaining
recognition and revealed to the employees the respondent's preference
for dealing directly with them. As described above, the statement
contained many of the proposals submitted by the Union. Indeed,
the respondent admits that the presence of the Union in the plant
"might have expedited" the wage increases announced in the state-
ment. In effect, the respondent's "statement of policy," while con-
ferring upon the employees many of the benefits sought to be obtained
by the Union, constituted a direct attack upon the Union's efforts
to bargain collectively.' The publication of this statement dealt a
severe blow to the Union's prestige by demonstrating to the em-
ployees that so far as the respondent was concerned collective bar-
gaining was neither desirable nor necessary.
An employer who, in good faith, questions whether a labor organi-
zation seeking to bargain collectively for his employees represents
a majority, is not obligated to bargain with such organization in the
absence of proof of its designation. Had the respondent been satisfied
to question the status of the Union and to cooperate with the Union
in the latter's efforts to furnish the required proof, its protestations
of good faith might have proved invulnerable. The abrupt termina-
tion of the June 29 conference followed immediately by the publica-
tion of the statement of policy, shows, however, that the respondent's
refusal to negotiate with the Union was based solely upon its unwilling-
ness to deal with this labor organization as the representative of its
employees, and its desire to destroy the Union.
The conduct of the respondent described above, moreover, amounted
to a direct refusal to bargain collectively with the Union. The duty
of an employer to bargain collectively arises only if a request therefor
5Cf Matter of Burnside Steel Foundry Company and Amalgamated Association of Iron,
Steel and Tin Workers of Noith America, Lodge No. 1719, 7 N L R B 714.
e Cf. National Labor Relations Board v Remington Rand, Inc ., 94 Fed. ( 2d) 862,
(C. C. A. 2d; 1938), cert. den . 304 U. S. 576; National Labor Relations Board V Biles-
Coleman Lumber Company, 96 Fed (2d) 197, (C. C. A 9th; 1938).
° Cf. Matter of the Hanson -Whitney Machine Company and International Union, United
Automobile Workers of America, Local No. 428, 8 N L. R. B. 153
169134-39-vol. 12-65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is made by a labor organization that meets the requirements of Sec-
tion 9 (a). Where a labor organization representing a majority of
employees in an appropriate unit seeks to bargain collectively, an
employer's attempt to destroy such majority and thus to relieve
himself of his obligations under Section 8 (5) of the Act is as
patently a refusal to bargain within the meaning of Section
8 (5) as a forthright refusal to meet with representatives of
a labor organization clothed with the right to exclusive recognition.
We need not decide whether under other circumstances an employer's
activities which clearly infringe upon his employees' rights and
constitute unfair labor practices within the meaning of other sub-
divisions of Section 8 of the Act also constitute an unfair labor
practice within the meaning of Section 8 (5). It is obvious, how-
ever, that under the circumstances present in the instant case, to find
that the respondent's conduct in posting its "statement of policy"
constituted an unfair labor practice only under Section 8 (1) of
the Act would nullify Section 8 (5). So to restrict our finding "would
be to hold that the obligation of one provision of the Act may be
evaded by the successful violation of another." 8 The respondent, in
seeking to destroy the majority status of the Union, immediately
following the Union's request to bargain and its asserted intention
to invoke the services of the Board in demonstrating its majority,
plainly showed that it was solely interested in avoiding its obliga-
tion to bargain with the Union.
The respondent finally urges as proof of its good faith its asserted
willingness in July to be guided by the results of a consent election
and the Union's refusal to participate in such election. Under or-
dinary circumstances, and particularly when the labor organization
claiming to represent a majority of the employees is unwilling to
disclose the names of its members in proof of such claim, an em-
ployer's request that the labor organization acquiesce in a consent
election to demonstrate such proof is entitled to considerable weight
in determining the attitude of the employer to the collective-bar-
gaining requests of a labor organization. As fully described below,
however, the respondent was then in the midst of a campaign to dis-
credit the Union among its employees. Its conduct had plainly placed
in jeopardy the majority status of the Union and indicated its bad
faith in making such proposal. Under the circumstances, the re-
fusal of the Union to test its strength at that time without the full
protection of the Act was not unreasonable. Our reasoning above
applies with equal force to this contention of the respondent. Fur-
8 Matter of Missouri, Kansas ct Oklahoma Coach Lines and International Association
of Machinists , et al., 9 N. L. R. B 597.
CHICAGO APPARATUS COMPANY 1013
thermore, as we have noted above, the Union thereafter again as-
serted its authority to represent the employees and again requested
the respondent to bargain collectively.* It is conceded that the re-
spondent received this letter. Its failure to reply remains unex-
plained in the record.
We find that on June 29, 1937, and thereafter, the respondent re-
fused to bargain collectively with the Union as the exclusive repre-
sentative of its employees in an appropriate unit, and that the
respondent has thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
B. Interference, restraint, and coercion
As described above, the issuance of the "statement of policy" con-
stituted the initial step in the respondent's campaign to discredit the
Union and to discourage its employees from becoming members there-
of. The respondent's acts in furtherance of these objectives were
committed by certain of its supervisory employees and ranged from
subtle suggestion to direct coercion.
Eugene C. Young, a chemical-quotation clerk and the only clerical
employee who was a member of the Union, was also the chairman
of that labor organization. Some time after the Union was or-
ganized, C. A. Bengston asked him whether he had any grievances,
stating, according to Young, that, "if he was forced through unioniza-
tion of his employees to pay higher wages," the added costs would
place him under a handicap with his competitors. Young testified
that C. A. Bengston approached him again in August and, referring
to Young's union activities, stated that, "he felt as though I had
violated a trust of responsibility which the company had given me
so that they could not feel that they could give me additional respon-
sibilities or promotion." According to Young, J. O. Bengston, the
respondent's secretary who was also present, warned him that "any
employee who left the building on a strike automatically terminated
his employment by the company." During October or November
1937, and subsequent to the discharges discussed below, C. A.
Bengston asked Young if he was still "antagonistic" toward the
respondent. Young replied that he had never been antagonistic,
whereupon Bengston stated that he "was glad to hear that and he
thought that I (Young) realized that . . . (the discharged em-
ployees) had not been able to accomplish anything by taking their
disputes to the Labor Board." Neither of the Bengstons contro-
verted the statements attributed to them by Young or denied that
the conversations as thus described took place. We accept Young's
testimony as true. The statements were clearly intended to dis-
courage Young from continuing his activities on behalf of the Union.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Florian F. Polk, a supervisory employee in charge of the chemi-
cal department, was a member of the Union. His brother, Henry
A. Polk, also a union member, was a "chemical order picker" in his
department. Prior to June 22, 1937, Florian Polk asked C. A. Beng-
ston to assist Henry Polk, who was then in financial difficulties.
Bengston assured Florian that "he would try to see what he could
do for my brother." Both Florian and Henry Polk resigned from
the Union on August 2, 1937. On August 12 and 13, respectively,
Florian and Henry Polk both signed cards authorizing the Union to
represent them for the purposes of collective bargaining. Shortly
after the latter dates, Florian Polk again approached C. A. Bengston
to obtain financial assistance for his brother. According to Florian
Polk's uncontradicted testimony, Bengston asked him if he had signed
such authorization. Upon receiving an affirmative reply, Bengston,
in the words of Polk, replied, "that through the entire course he tried
his best to take care of Hank, that is my brother, insofar as him being
in financial difficulties, but-that while we still were members of the
union it was practically impossible for him to go against his word
insofar as the company policy was concerned; for that reason he
could absolutely do nothing for him." Florian Polk repeated this
conversation to Henry Polk and on August 17 both men revoked their
union authorizations.
Henry Polk testified that his revocation of the authorization was
not motivated by Bengston's refusal to assist him but was "because
I found out that everybody in the building found out that I signed'
the slip . . ." He further testified that he had been assured that his
having signed the authorization would not become generally known.
In reply to a question by the respondent's counsel as to a comparison
in his employer's attitude toward him before and after he joined the
Union, Henry Polk stated : "I think their feeling towards me is better
now than it ever was."
It is apparent that Florian Polk withdrew his union authorization
as a result of his conversations with C. A. Bengston. While Henry
Polk denied that Bengston's conduct similarly actuated him, it is
clear that he was aware of "the company policy" and that his with-
drawal of support from the Union restored him to the good graces
of the respondent.
In addition to the above-described conduct of the respondent's offi-
cials, the employees were subjected to a concerted drive on the part
of supervisory employees to secure their resignations from the Union.
Most active in this attempt to deplete the union membership was
R. W. Tobiasson, an employee whose name does not appear on the
pay roll of the production department. Tobiasson classified himself
as the head of the inspection department and as "a correspondence
man; handle complaints, adjustments, service correspondence." As
CHICAGO APPARATUS COMPANY 1015
a supervisor with two stenographers under his direction and by rea-
son of the nature of his duties, Tobiasson attended meetings of fore-
men. We find that Tobiasson, identified with the management and
occupying a position corresponding to a foreman, was a supervisory
employee for whose activity the respondent was chargeable.
Tobiasson, frankly admitting that he solicited resignations from
the Union, testified: "I just went over the entire organization and
asked everybody that I thought or believed belonged to the union."
Upon receiving assurances from the employees he approached that
they would resign, Tobiasson prepared letters of resignation for their
signatures and, assertedly at his own expense, sent them by regis-
tered mail to the Union. As a result of his efforts, Tobiasson in-
duced 17 or 18 employees to sign letters of resignation from the
Union. Although he could not recall how much time he devoted to
this activity, he admitted that it was carried on during working
hours.
Tobiasson testified that he received the assistance of Weaver and
Florian Polk in this enterprise. Konkey acknowledged having ob-
tained signatures of employees to letters of resignation which were
prepared by Tobiasson, but denied that he had solicited them, assert-
ing that he told the employees : "I'm on one side, you are on the other
side, it don't make no difference to me" what they did. After the
resignations were obtained, however, there were- no remaining union
members in Konkey's department. Also, all employees except one
over whom Florian Polk was supervisor, signed letters of resignation.
On several occasions Weaver approached employees under his super-
vision and criticized the Union, stating that it was "doing no good"
and that "it would be for my own good (to sign a letter of resigna-
tion), . . . that if I did not sign it I might as well look for another
job." We find no merit in Konkey's protestation of neutrality.
Moreover, Weaver was not called by the respondent as a witness,
while Florian Polk did not deny his activity described above.
The respondent denies responsibility for the acts of Tobiasson,
Weaver, Florian Polk, and Konkey, asserting that they were not
authorized to act as they did, that it knew nothing of their activities
until the resignations had been obtained, that when knowledge of their
activities came to its attention the respondent directed that the activi-
ties cease, that Konkey and Florian Polk were themselves members
of the Union prior to or during the time of their activity, and that
these four individuals, being employees, had a right under the Act
to engage in activity against the Union, as well as in its behalf.
Tobiasson corroborated the respondent in its assertion that he was
directed to cease his anti-union activity and that he engaged in no
such activity after having been so directed.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent's assertion that the above-described activity of
these four individuals was carried on without its knowledge and ap-
proval is unconvincing. Several of the letters of resignation bear
dates of August 23 and 24, 1937. Alban H. Mirguet, one of the em-
ployees named in the complaint as having been discriminatorily dis-
charged, was called into the office of C. A. Bengston on August 25.
Mirguet testified :
... When I walked into the private office, Mr. Bengston was
standing. .
He said, "Mr. Mirguet, it has been reported to me that all
day yesterday you were about the building advising the em-
ployees not to sign these papers."
I knew what he was referring to, and I denied being there.
I told him that I was in my department the entire day before
with work that I had to get out.
He says, "You can't lie out of this." I said "I am not lying."
[Italic supplied.]
C. A. Bengston was not called by the respondent as a witness, and
we accept Mirguet's testimony as true. So far as the record shows,
no "papers" other than the letters of resignation were being signed
by the employees or_ the previous day, and it is clear that it was
these letters to which C. A: Bengston referred.
J. 0. Bengston was not present on August 25 when the conversa-
tion between Mirguet and C. A. Bengston commenced. J. 0. Bengs-
ton testified that the respondent's officers had learned "that Mr. Mir-
guet had spent a great deal of his time around the premises and
not on any ostensible business of the company, and we had decided
that Mr. (C. A.) Bengston would talk to him," and that after he
entered the office he heard C. A. Bengston remonstrating with Mir-
guet "for taking company time and for disturbing the employees of
the company while they were at work." J. 0. Bengston continued,
"I don't know whether he was getting memberships in the union or
whether he was trying to stop people from resigning the preceding
day." Upon all the evidence, we conclude that the activity in which
Tobiasson, Weaver, Donkey, and Florian Polk engaged by soliciting
resignations from the Union was carried on with the respondent's
knowledge and approval.
Irrespective of the conclusion which we have reached above, the
respondent is directly chargeable for the anti-union acts of its super-
visory employees. Those supervisory employees "are in constant as-
sociation with employees, who take orders from them and commonly
learn from them the Company's policy on other matters. The activ-
ity of such supervisory employees must bind the employer unless
CHICAGO APPARATUS COMPANY 1017
effectively disavowed." 9 Nor has the respondent "effectively dis-
avowed" the anti-union acts of its supervisory employees. Indeed,
the respondent seeks to take advantage of those acts and urges that
the Board, in determining whether the Union represented a majority
of the employees, recognize as valid the union resignations so ob-
tained. Moreover, that certain of these supervisory employees were
members of the Union does not relieve the respondent from responsi-
bility for their actions. Our opinion in Matter of lYard Baking
Company and Committee for Industrial Organization, et al.,10 is
equally applicable here :
... the respondent is not relieved from responsibility for the
union activity of its supervisory employees by virtue of mem-
bership of such employees in a labor organization. A corporate
employer in its relations to its ordinary employees necessarily
acts through and must be held responsible for the acts of its
supervisory employees. Where such employees actively interfere
with . . . (a) labor organization . . . the employer itself must
be deemed to have engaged in such interference .. .
We find that the respondent, by the above-described activity of its
executives and supervisory employees, has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
C. The discharges
Alban H. Mirguet, an osteologist and biologist, was hired by the
respondent in March 1928 at a salary of $65 per week. His salary
was raised to $70, later lowered to $45, and still later raised to $60.
From the date of his employment until June 1937, Mirguet was in
charge of the biological department, his work consisting principally
of preparing catalogues and stock and checking orders. In June
1937, Mirguet was succeeded by Dr. Edgar A. Baird as head of
that department, but it appears that he was a capable employee and
that he continued to do responsible work until his employment with
the respondent ceased on August 25, 1937.
Mirguet joined the Union in June 1937 and became one of its
most active workers. He regularly attended its meetings, and strove
to induce other employees to join. His most efficient work on be-
half of the Union was in obtaining certain designations of the
Union as the collective bargaining representative of the employees,
9Matter of Tennessee Copper Company and A. F. of L. Federal Union No. 21164, 9
N. L. R. B . 117. See also Matter of MockJudson-Voehringer Company of North Carolina,
Incorporated and American Federation of Hosiery Workers, North Carolina District,
8 N. L. R . B. 133.
10 8 N. L. R B. 558 See also Matter of Tennessee Copper Company and A. F. of L.
Federal Union No. 21164, 8 N. L. R . B. 575.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which he accomplished in company with Young, the Union's chair-
man, principally after working hours by visiting the employees at
their homes. Most of these authorizations were obtained about the
middle of August 1937.
On August 18 or 19, 1937, C. A. Langston summoned Mirguet
to his office and for a period of about 2 hours engaged Mirguet in
a conversation which was concerned principally with the latter's
union activities. According to Mirguet, Bengston stated :
It has been reported to me that you have been working evenings
and during week-ends using your time, your car and gasoline
going about visiting employees getting signatures on slips of
paper that would be in direct opposition to what the company
was trying to do.
Mirguet acknowledged the accuracy of this statement, whereupon
Bengston replied : "'But you know', he says, `you are working directly
against the company."' At this point the conversation turned to
certain phases of the respondent's business, during which Bengston
complimented Mirguet on the quality of his work. The discussion,
however, was again directed toward Mirguet's union activities.
Bengston criticized Mirguet for the latter's use of "company time"
for union business and urged that Mirguet resign from the Union :
"Mr. Mirguet," he said, "if you think seriously of your acts
and you wish to go along with the company I will see to it,"
he said, "I still have a voice in the organization and I will see
to it that this is all passed over and things will go on as
usual." .. .
Upon Mirguet's promise to return in a few days and give him an
answer, the conversation terminated. Since C. A. Bengston was not
a witness, we accept Mirguet's account of this conversation as true.
As we have described above, Mirguet was again summoned to C. A.
Bengston's office on August 25 and accused of dissuading the em-
ployees from signing the resignations from the Union which were
then being circulated by Tobiasson and other supervisory employees.
During this conversation Bengston reminded Mirguet of his promise
of the previous week to return in a few days and discuss the pro-
posal that he resign from the Union. After admonishing Mirguet
for his failure to return, Bengston stated, "why don't you resign
from the company ?" Mirguet refused to resign, and asked why
the respondent did not discharge him if it did not desire him as an
employee. Both C. A. Bengston and J. O. Bengston, who had come
into the office, stated that he would not be discharged because the
respondent did not want "trouble with the Labor Board." At this
point C. A. Bengston said : "You haven't the guts to resign" and
CHICAGO APPARATUS COMPANY 1019
"There is no room in our organization for you, get out, get out."
Thereupon Mirguet returned to his office, told Baird of the conversa-
tion, and announced that he was leaving the respondent's employ.
Baird then left the room but returned shortly thereafter with C. A.
Bengston and M. C. Stoelting, president of the respondent. C. A.
Bengston asked Mirguet: "So, you have quit?", to which Mirguet
replied that he had not: "You told me there was no room in the
organization for me, to get out." As Mirguet left the respondent's
premises, Bengston called after him: "Just a minute, just a minute."
The respondent's contention is that Mirguet voluntarily ceased
his employment and that he was not discharged. It is asserted that
C. A. Bengston did not tell Mirguet, "There is no room in our or-
ganization for you" and that, in using the words "get out," Beng-
ston desired that Mirguet leave the scene of the conference and re-
turn to work. J. 0. Bengston testified for the respondent that the
conference concerned Mirguet's union activities and that he par-
ticipated by telling Mirguet that the latter's services had not been
satisfactory. After testifying that he "was becoming very much
provoked," J. 0. Bengston continued:
... father (C. A. Bengston), who, seeing that I was becom-
ing more and more upset and afraid that I might tell Mr.
Mirguet to pack his bag and get out, asked Mr. Mirguet, or
ordered him, as near as I can recall the words, "Get out, get
out, and go back to your own floor," or "Get out and go to work"
on the second "Get out." I don't recall exactly.
It is apparent that the respondent was hesitant to discharge Mir-
guet, fearing that the dismissal would give rise to charges before
the Board, and it is not denied that Mirguet was challenged to resign.
The latter was admittedly in doubt with respect to his status at the
end of the conference and finally concluded that he had been dis-
charged. In accepting Mirguet's version of his discharge, we are
impressed with his definite recollection of the language used by C. A.
Bengston, with J. 0. Bengston's admission that he was on the verge
of discharging Mirguet, with J. 0. Bengston's hazy recollection of
the incident, and with the fact that C. A. Bengston was not called by
the respondent as a witness to contradict Mirguet's testimony. Under
the circumstances, we find that Mirguet's interpretation of C. A.
Bengston's "order" was justified and that Mirguet was in fact
discharged.
Even accepting the respondent's contention that Mirguet quit his
employment, we must reach the same conclusion. As we have de-
scribed above, Mirguet was subjected to constant admonitions and
cross-examination by the Bengstons with respect to his union ac-
tivity. He was advised that his continued employment was distaste-
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ful to the respondent and he was urged to resign. Under the casti-
gations of C. A. Bengston on August 25, he had no alternative but to
resign. An employer cannot avoid his responsibilities under the Act
by creating a situation so unbearable to an employee, so detrimental
to harmonious and constructive working conditions, that the employee
relinquishes his position rather than continue in such a situation 11
The respondent asserts that Mirguet was an inefficient employee,
and there is much testimony designed to substantiate this allegation.
Since the respondent contends that Mirguet was not discharged, it is
not clear for what purpose such testimony was offered other than as a
defense for having denied reinstatement to him. It is plain from
the record, however, that such testimony is without merit. Mirguet
had been employed by the respondent for a period of 9 years, during
which his services had apparently been sufficiently satisfactory to
warrant his continuance as an employee. It is significant that during
his conversations with C. A. Bengston on August 18 and 25 no earnest
question of Mirguet's efficiency was raised, although J. O. Bengston
asserted that he participated in the latter conversation by stating that
Mirguet's services had been unsatisfactory. Mirguet's testimony,
however, that C. A. Bengston complimented him remains uncontro-
verted. Moreover, despite Bengston's assertion above, the record
establishes that the quality of Mirguet's work was not the matter in
issue during his dispute with the respondent.
The conversations of August 18 and 25 between the Bengstons and
Mirguet occurred because of the latter's union activities. The re-
spondent asserted at the hearing that it objected to the union activi-
ties of Mirguet which were conducted on "company time." Mirguet
acknowledged that he spent a total of "three or four hours" of such
time engaging in union activity. We have described, however, the
anti-union activities of the respondent's supervisory employees which
were also conducted during working hours. Under the circumstances,
the respondent cannot be heard to complain of Mirguet's activities on
behalf of the Union.
We find that Mirguet was discharged because of his membership
in the Union and his activities in its behalf. From the time of his
discharge to the time of the hearing, Mirguet was not gainfully
employed.
Joseph Doyle worked for the respondent for about 6 months in 1934
and for a similar length of time in 1935. It does not appear that he
was discharged for cause at the conclusion of either of those terms
of employment. On March 3, 1936, he again commenced working
for the respondent and at the time of his discharge he was classified
as an "order picker." On May 21, 1937, he joined the Union and later
' Cf Matter Of Ste? ling Corset Co, Inc , and Universal Brassiere & Justrete Corset Go,
Inc. and International Ladies' Garment Workers' Union, Local 85, 9 N L R. B. 858
CHICAGO APPARATUS COMPANY 1021
became a steward, with the duties of collecting dues and soliciting
members.
On the Wednesday prior to his discharge, Doyle and another em-
ployee, Robert Wallenberg, engaged in a conversation concerning the
business of the respondent at that time and its improvement over the
previous year. During the conversation, Daniel Weaver, one of the
supervisory employees who engaged in the solicitation of resignations
from the Union, came within hearing distance of Doyle and Wallen-
berg. On July 23, 1937, Doyle was discharged by Curtis, personnel
manager, with the statement that "you and the company have come
to a parting of the ways." Doyle testified that, in response to his
request for the reason, Curtis stated : "Well, the conversation that
you had with Robert Wallenberg on the previous Wednesday ...
You know very well what the nature of that conversation was."
Curtis was not called by the respondent as a witness, and we accept
Doyle's testimony as true. '
That a conversation such as the one between Doyle and Wallen-
berg was a matter with which the respondent would concern itself
is apparent in the testimony of Tobiasson. One conference between
C. A. Bengston and the supervisory employees, including Tobiasson,
concerned "the financial position of the company at that time."
Tobiasson testified concerning this conference that, "There had been
an awful lot of gossip going around the plant, that, of course, they
were turning over at a terrific profit, that the coffers were being
swelled and that the employees were being exploited . . ." It is
apparent that the respondent objected to conversations of the sort
which occurred between Doyle and Wallenberg solely because of their
connection with union demands.
The respondent denies that Doyle was discharged because of his
conversation with Wallenberg, and asserts that he was discharged
for inefficiency. J. O. Bengston testified that Curtis had complained
that Doyle was inefficient, but that no action was taken because "we
had a labor situation at the plant." J. O. Bengston also testified that
after Curtis had made this complaint, and several days prior to the
discharge, Doyle was seen on a floor, other than that on which he
normally worked, "sitting on a work bench or sitting on a truck with
one of the other employees, talking to him. As I passed by he made
no effort to make a move, which seemed to me rather peculiar, since
I am one of the owners of the company." No action was taken against
Joseph Doyle at this time "for fear of retaliation by the union."
J. O. Bengston testified that, finally, on the day of the discharge,
Curtis reported to him that "the Doyle boys," both, of whom are
named in the complaint, were "loafing, and related a series of events
concerning them, which I don't recall exactly." J. O. Bengston testi-
fied that at this time he told Curtis to discharge both Doyles.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It does not appear that Joseph Doyle was ever warned by the re-
spondent or charged with being inefficient or dilatory , nor was he told
that he was being discharged as an incapable employee. We do not
believe that he was discharged because he was seen on a floor on
which he did not regularly work, sitting on a work bench; nor does
it appear that the employee who was talking to Joseph Doyle on that
occasion was criticized for being dilatory. Joseph Doyle testified on
cross-examination that occasionally he went to departments other than
that in which he regularly worked in order to obtain materials, that
sometimes "I had to wait a while for those materials to be weighed
up or measured out, and then I would have a few minutes - to stand,
around, in which I was really not working." Concerning this par-
ticular incident , J. O. Bengston testified that, "it was very possible
he (Joseph Doyle) could have been called to the" floor on which
Bengston saw him.
We do not believe that Joseph Doyle was discharged for being
dilatory or inefficient . No indication was given to him that these
were the reasons for the severance of his employment . On the con-
trary, he was told that he was being discharged for another reason,
which can be interpreted only to mean that the respondent regarded
him as an employee who was active in the Union's efforts to bargain
collectively. Although Bengston testified that at the time of the dis-
charge he did not know that Joseph Doyle was a member of the
Union, his statement that the latter was not discharged at the previous
Wednesday "for fear of retaliation by the union" can be construed
only as an admission of the respondent 's knowledge that he was a
member of the Union. We conclude that Joseph Doyle was dis-
charged by the respondent because of his membership in the Union
and his activities in its behalf. He earned about $53 at temporary
employment from the time of his discharge to the date of the hearing.
Patrick R. Doyle, a brother of Joseph Doyle, was employed by the
respondent as a freight -elevator operator. He was hired on June 10,
1936, and, as in the case of Joseph Doyle, was discharged on July 23,
1937. - Along with his brother, Joseph, he was one of the first employ-
ees to join the Union. Unlike Joseph, however, Patrick was not
active in union affairs.
Curtis, the personnel manager, was also the supervisor of Patrick
Doyle. On the, day of his discharge, Patrick Doyle was told by
Curtis that he ,was being discharged for neglect of duty. Curtis was
not awitness, and the respondent's explanation of the discharge was
given by J. O. Bengston. It is asserted that "on two occasions he
was found checking through records in the factory for which he had
no reason , or had no reason-when he was asked why he was there,
he gave no reason at all." It is not related who saw Patrick Doyle
under such circumstances or who requested that he explain the alleged
CHICAGO APPARATUS COMPANY 1023
conduct. On cross-examination, Patrick Doyle testified that the rec-
ords of the factory stockroom are kept by a clerk, and that he, Patrick
Doyle, delivered "freight slips" to this clerk. While denying that his
examination of the records was ever beyond the duties of a freight-
elevator operator, Doyle testified that occasionally the clerk was not
at his desk and that "I wouldn't consider it beyond my employment
if there was nobody there to receive, if I saw the order slip, I put
them together, put the two of them together and put them on the
clerk's desk."
Upon the entire record in this case, we cannot conclude that
Patrick Doyle was discharged for examining factory records. There
is no. evidence to support this assertion beyond the bare statement of
J. O. Bengston. Patrick Doyle's explanation of how he may have
had to look at certain records on the stockroom clerk's desk in the
course of his duties is clear and reasonable.
As related in the discussion of the discharge of Joseph Doyle,
J. O. Bengston testified that he was told by Curtis that both Doyles
had been dilatory, but that he did not "recall exactly" what Curtis
had told him. No other evidence was offered to support Curtis'
alleged statements. However, - Patrick Doyle testified on cross-
examination that the respondent had complained once to him with
respect to certain glass machine plates which had been broken, and
concerning his leaving work on one occasion prior to the usual quit-
ting time. The respondent, however, did not advance these incidents
as reasons for his discharge. We conclude that the discharge of
Patrick Doyle was designed to hinder and obstruct the Union in its
organizational activities.
On July 26, 1937, Patrick Doyle commenced working .for Mont-
gomery Ward & Company, but resigned this position in about a week,
having earned approximately $23.86. On September 27, 1937, he
obtained employment, elsewhere at a salary of $22.50 per week in a
position which he termed "steady" and which he held at the time
of the hearing. He desires reinstatement.
Clark Heppe was employed by the respondent on March 10, 1937,
on a temporary basis, and worked in the chemical department until
his discharge on October 20, 1937. He joined the Union at one of
its meetings, probably in July, but it does not appear that he was
a particularly active member.
At the time of Heppe's discharge, the respondent's busy season
had passed and other temporary employees were also being laid off.
The respondent asserts that Heppe was laid off in the regular course
of its business and it is clear that Heppe's period of employment
would have expired during 1937. Heppe had seniority over several
other temporary employees who were kept on at the time of his
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge, but it is not shown that the respondent had a fixed senior-
ity policy. Although the case is not free of doubt, we do not con-
clude that Heppe was laid off other than in the normal course of the
respondent's business. Accordingly, we find that the record does
not sustain the allegations of the complaint, as amended, that Heppe
was discharged for union membership or activity.
We find that the respondent discriminated in regard to the hire
and tenure of employment of Alban H. Mirguet, Joseph Doyle, and
Patrick R. Doyle because of their membership in and activities on
behalf of a labor organization, and that the respondent thereby dis-
couraged membership in a labor organization and interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we will order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act and to restore as nearly as possible the status quo that existed
prior to the commission of the unfair labor practices. We will order
the respondent to offer full reinstatement to Alban H. Mirguet,
Joseph Doyle, and Patrick R. Doyle, and to make them whole for
any loss of pay they have suffered by reason of their respective dis-
charges by payment to each of them of a sum equal to the amount
which he normally would have earned as wages from the date of his
discharge to the date of the offer of reinstatement, less his net
earnings 12 during said period.
12 By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America. Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R . B. 440. Monies
received for work performed upon Federal , State, county , municipal, or other work-relief
projects are not considered as earnings , but as provided below in the Order, shall be
deducted from the sum due the employee , and the amount thereof shall be paid over to the
appropriate fiscal agency of the Fedeial , State, county, municipal, or other government
or governments which supplied the funds for said work-relief projects.
CHICAGO APPARATUS COMPANY 1025
Having found that the Union represented a majority of the em-
ployees in the appropriate unit on the dates of the respondent's sev-
eral refusals to bargain collectively, our Order will provide that the
respondent, upon request, bargain collectively with the Union as the
exclusive representative of the employees within the appropriate unit.
We have found that certain employees signed letters of resignation
from the Union. These resignations of membership were occasioned
by the respondent's unfair labor practices. It will be the purpose of
our Order to restore the status quo by giving effect to the Union's
majority existing on the dates of the refusals to bargain collectively.
A failure to order the respondent to bargain collectively, upon
request, with the Union "would be to hold that the obligation of one
provision of the Act may be evaded by the successful violation of
another; that the freely expressed wishes of the majority of the em-
ployees may be flaunted if the employer brings to bear sufficient inter-
ference, restraint, and coercion to undermine the representative's
majority support." 18
THE PETITION
We have determined the appropriate bargaining unit and have
found that a majority of the respondent's employees within that unit
designated the Union as their representative for the purposes of col-
lective bargaining. Accordingly, we will dismiss the petition for
investigation and certification of representatives.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Federation of Architects, Engineers, Chemists and Technicians,
Local 107, is a labor organization within the meaning of Section 2 (5)
of the Act.
2. The production employees of the respondent, exclusive of sales-
men, office employees, and supervisory employees with authority to
hire and discharge, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
3. Federation of Architects, Engineers, Chemists and Technicians,
Local 107, was on June 29, 1937, and at all times thereafter has been
the exclusive representative of all the employees in such unit for the
purposes of collective bargaining, within the meaning of Section 9
(a) of the Act.
13 Matter of Missouri, Kansas d Oklahoma Coach Lines and International Association of
Machinists, et at, 9 N. L. R B 597. See also Matter of National Licorice Company
and Ralery and Confectionery Worleis International Union of America , Local Union 40;,
Greater New York and Vicinity, 7 N L IZ n 537.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By refusing to bargain collectively with Federation of Archi-
tects, Engineers, Chemists and Technicians, Local 107, as the exclu-
sive representative of its employees in the appropriate unit, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of Alban H. Mirguet, Joseph Doyle, and Patrick R. Doyle, and
each of them, and thereby discouraging membership in a labor organ-
ization, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
8. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act with respect to the discharge
of Clark Heppe.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Chicago Apparatus Company, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Federation of Architects,
Engineers, Chemists and Technicians, Local 107, as the exclusive
representative of the respondent's production employees, excluding
salesmen, office employees, and supervisory employees with authority
to hire and discharge;
(b) Discouraging membership in Federation of Architects, En-
gineers, Chemists and Technicians, Local 107, or any other, labor
organization of its employees, by discharging or refusing to reinstate
any of its employees or in any other manner discriminating in regard
to their hire and tenure of employment or any term or condition of
their employment or by threat of such discrimination;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
,concerted activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
CHICAGO APPARATUS COMPANY
0
1027
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with Federation of Archi-
tects, Engineers, Chemists and Technicians, Local 107, as the ex-
clusive representative of its production employees, excluding sales-
men, office employees, and supervisory employees with authority to
hire and discharge, in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment;
(b) Offer to Alban H. Mirguet, Joseph Doyle, and Patrick R.
Doyle immediate and full reinstatement to their former positions
without prejudice to their seniority or other rights and privileges;
(c) Make whole said Alban H. Mirguet, Joseph Doyle, and Patrick
R. Doyle for any losses of pay they may have suffered by reason of
their discharges, by payment to each of them respectively of a sum
of money equal to that which he normally would have earned as
wages during the period from the date of his discharge to the date of
such offer of reinstatement, less his net earnings 14 during said
period; deducting, however, from the amount otherwise due to each
of said employees, monies received by said employee during said
period for work performed upon Federal, State, county, municipal,
or other work-relief projects, and pay over the amount, so deducted,
to the appropriate fiscal agency of the Federal, State, county, munici-
pal, or other government or governments which supplied the funds
for said work-relief projects;
(d) Immediately post notices to all its employees in conspicuous
places in and about its plant, and maintain said notices for a period
of at least sixty (60) consecutive days, stating that the respondent
will cease and desist in the manner set forth in paragraphs 1 (a)
to 1 (c), both inclusive, of this Order;
(e) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (3) of the
Act by discharging Clark Heppe.
AND IT IS FURTHER ORDERED that the petition for investigation and
certification of representatives filed by Federation of Architects,
Engineers, Chemists and Technicians, be, and it hereby is, dismissed.
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Decision and Order.
14 See footnote 12, supra.
169134-39-vol 12--G6