Clark Equipment Company, a Corporation

National Labor Relations Board - Board Decisions

May 31, 1939

12 N.L.R.B. 1469 (N.L.R.B. 1939)

In the Matter of CLARK EQUIPMENT COMPANY, A CORPORATION aind
INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 46
In the Matter of CLARK EQUIPMENT COMPANit and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LODGE No. 46
Cases Nos. 0-620 and 1-792, respectively.Decided May 31, 1939
Automotive, Railway, and Agricultural Equipment, and Machine Shop Tool
Mannfacturb?g Industry-Interference, Restraint, and Coercion: anti-union
statements ; circulation of anti-union petitions ; refusal to place union members
in their proper work classifications-Company-Dominated Union: domination
of and interference with formation and administration ; support of ; disestab-
lished as agency for collective bargaining-Contract: with company-dominated
union abrogated-Discrimination: discharge; to discourage membership in
union ; complaint dismissed as to eleven employees found not to have been dis-
criminated against in lay-offs-Reinstatement Ordered: discharged employee-
Back Pay: awarded-Collective Bargaining: refusal to recognize union as exclu-
sive bargaining representative; charges of dismissed due to doubtfulness of
majority status of union-Investigation of Representatives: controversy con-
cerning representation of employees: majority status disputed by employer-
Unit Appropriate for Collective Bargaining: all hourly paid production and
maintenance employees, excluding watchmen, office workers, engineers and de-
signers, supervisory employees, foreman whose principal work is not in opera-
tion of a machine, and foremen not engaged in productive work ; stipulation
as to-Election Ordered: company-dominated union excluded from ballot; elec-
tion to be conducted at such time as Board shall in future direct.
Mr. Charles F. MpErlean , for the Board.
White d White, by Mr. Charles E. White, of Niles, Mich., and
Knapp, Allen e Cushing, by Mr. K. A. Knapp, of Chicago, Ill., for
the respondent.
Mr. James Cleary , of Battle Creek, Mich ., for the Association.
Mr. L. 0 . Thomas, of Battle Creek , Mich., for the I. A. M.
Mr. Daniel J. Harrington , of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On May 18, 1937, International Association of Machinists, Lodge
46,1 herein called the I. A. M., filed with the Regional Director for
1 Also designated in various pleadings and other papers as Lodge 46, International
Association of Machinists and as International Association of Machinists , Lodge No. 46.
12 N. L. R. B., No. 139. 1469
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Seventh Region (Detroit, Michigan) a petition alleging that a
question affecting commerce had arisen concerning the representation
of employees of Clark Equipment Company, Battle Creek, Michigan,
herein called the respondent, and requesting an investigation and
certification of representatives pursuant to Section 9 (c) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act. On
the same day the I. A. M. filed with the Regional Director charges
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Sec-
tion 8 (1), (2), and (5) of the Act. On February 10, 1938, the I. A. M.
filed with the Regional Director amended charges alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1), (2),
(3), and (5) of the Act.
On February 14, 1938, the National Labor Relations Board, herein
called 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 and au-
thorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice ; and, acting pursuant to Arti-
cle III, Section 10 (c) (2), and Article II, Section 37 (b), of said
Rules and Regulations, further ordered that the representation pro-
ceeding and the proceeding in respect to the alleged unfair labor
practices be consolidated for purposes of hearing. On February 16,
1938, L. O. Thomas, Grand Lodge Representative of the I. A. M.,
filed with the Regional Director an amended petition requesting an
investigation and certification of representatives. On February 21,
1938, the Board issued an amended order of consolidation directing
an investigation and hearing, amending its original order by sub-
stituting the name International Association of Machinists, Lodge
46, in place of the name Lodge 218, International Association of Ma-
chinists, which appeared in the original order.
On February 21, 1938, the Board, by the Regional Director, issued
a complaint alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (2), (3), and (5), and Section 2 (6) and
(7) of the Act. Copies of the complaint, accompanied by notice of
hearing, were duly served upon the respondent, the I. A. M., and
Employees Association of Clark Equipment Company of Battle
Creek, Michigan, herein called the Association.
The complaint alleged in substance (1) that the respondent by
various acts including, but without limitation, assignments of work,
handling of grievances, and selection of men for lay-offs, attempted
to demoralize the I. A. Al. and thereby induce its employees to
CLARK EQUIPMENT COMPANY 1471
abandon the exercise of the rights guaranteed to them by Section 7
of the Act, and that said acts had the effect of interfering with the
exercise of such rights by the employees and of forcing a withdrawal
of employees from the I. A. M. with a consequent destruction of the
majority held by the I. A. M. on or about April 15, 1937; (2) that
the respondent encouraged, sponsored, dominated, and interfered
with the formation and administration of the Association, a labor or-
ganization, and contributed financial and other support to it and con-
tinues to do so; (3) that the respondent, oil or about May 12, 1937,
discharged and at all times since that date refused to reinstate
Albert Lahn, and during October, November, and December, 1937,
laid off 15 named employees without regard to their seniority rights,
for joining and assisting the I. A. M. and engaging in concerted
activities with other employees for collective bargaining and other
mutual aid and protection; (4) that the P. C.,2 Drilling, Milling,
Lathe, Swazey and Assembly departments of the respondent's Battle
Creek plant constituted an appropriate unit for the purposes of col-
lective bargaining; (5) that on and before April 15, 1937, a majority
of the employees in such unit had designated the I. A. M. as their
representative for the purpose of collective bargaining with the re-
bpondent; (6) that the respondent was requested by the I. A. M.
on or about April 17, 1937, to bargain with it as the exclusive repre-
sentative of all the employees in such unit; (7) that on or about
April 29, 1937, and at all times thereafter, the respondent refused to
bargain with the I. A. M. as such representative; and (8) that the
respondent, by the foregoing acts, had interfered with, restrained, and
coerced and was interfering with, restraining, and coercing its em-
ployees in the exercise of their rights guaranteed in Section 7 of
the Act.
The respondent filed an answer to the complaint on February 26,
1938, in which it denied that it had engaged in the alleged unfair labor
practices, but admitted certain allegations as to the nature of its
business.
On February 26,1938, the Association filed with the Regional Direc-
tor a petition to intervene in both the representation and the
complaint cases.
Pursuant to notice, a hearing was held in the consolidated cases
at Battle Creek, Michigan, on March 1, 2, 3, 4, 9, 10, 11, 12, 14, 15,
and 16, 1938, before Herbert Wenzel, the Trial Exanliner duly desig-
nated by the Board. At the hearing the petition for intervention of
the Association was granted and the Association filed an answer to
the complaint. The Board, the respondent, and the Association were
2 The railway department of the plant is designated by these two letters.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by counsel, the I. A. M. by L. 0. Thomas, Grand Lodge
representative of the International Association of Machinists, and
all participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties.
At the close of the Board's case, counsel for the Board moved that
the complaint be dismissed as to Art Van Aman, Charles Pierce,
Harry Norris, and Leonard Hughes.3 The Trial Examiner granted
the motion. At the close of the hearing, counsel for the Board
moved to amend the complaint to conform to the proof. This motion
was granted. Counsel for the Board also requested leave to prepare
an amended complaint to conform to the proof to be served on all
parties. The Trial Examiner granted the request. Counsel for
the respondent stated that the respondent's answer to the original
complaint would stand as the answer to the amended complaint. The
amended complaint, dated March 18, 1938, was served on all parties
after the hearing was concluded. It was limited to the correction of
minor variances between the proof and the allegations of the original
complaint. The Trial Examiner allowed the parties 10 days for
the filing of briefs. Thereafter, the respondent, the I. A. M., and
the Association filed briefs.
On May 26, 1938, the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon the parties, finding that the
respondent had engaged in unfair labor practices affecting commerce
within the meaning of Section 8 (1), (2), (3), and (5), and Section
2 (6) and (7) of the Act, and recommending that the respondent
cease and desist therefrom and, affirmatively, withdraw recognition
from and disestablish the Association as representative of any of the
employees, offer full reinstatement with back pay to Lahn, and on
request bargain collectively with the I. A. M. as exclusive representa-
tive of its employees within the appropriate unit. The Trial Exam-
iner further found that the respondent had not discriminated in
regard to the hire or tenure of the 11 named employees 4 who had been
laid off and recommended that the complaint be dismissed as to them.
Exceptions to the Intermediate Report were filed by the respondent
on May 23, 1938, and by the I. A. M. on May 26, 1938.
Pursuant to notice, a hearing was held before the Board on July
19, 1938, in Washington, D. C., for the purpose of oral argument.
The respondent and the I. A. M. were represented by counsel and
participated in the oral argument.
3 Spelled Art Van Anon, Charles Pierce, Harry Morris, and Leonard Hughs , respectively,
in the complaint.
`As stated above, the complaint was dismissed during the hearing as to 4 of the 15
employees named therein.
CLARK EQUIPMENT COMPANY 1473
During the course of the hearing, the Trial Examiner made a
number of other rulings on motions and on objections to the admis-
sion of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. The Board has considered the exceptions
to the Intermediate Report and finds them without merit, save for
those which are consistent with the findings, conclusions of law, and
order set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Clark Equipment Company, is a Michigan corpo-
ration, having its principal office and place of business in Buchanan,
Michigan, and plants at Buchanan, Jackson, Berrien Springs, and
Battle Creek, Michigan. The present proceedings involve only the
plant at Battle Creek, at which the respondent manufactures machine-
shop tools, auto-truck axles, cast-steel wheels, castings of all sorts,
tractors, mechanical hydraulic brakes, two- and four-wheel trans-
missions for trucks, high-speed gears for street cars, and various
other agricultural, automotive, and railway parts.
In the operation of its Battle Creek plant, the respondent uses
steel obtained from Illinois and Pennsylvania, and paint brushes, oil,
files, and other supplies obtained from various places throughout the
United States. The value of the raw materials used in the plant dur-
ing 1937 was in excess of $1,000,000. The approximate value of the
finished products of the plant for 1937 was over $2,000,000, more
than 80 per cent of these products being sold and shipped outside the
State of Michigan, some being exported to foreign countries. The
respondent employs about 300 persons at its Battle Creek plant.
The respondent admits that it is engaged in interstate commerce.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, Lodge 46, is a labor organ-
ization affiliated with the American Federation of Labor. It admits
to membership employees at the Battle Creek plant engaged in any
branch of the machinists' trade.
Employees Association of Clark Equipment Company of Battle
Creek, Michigan, is an unaffiliated labor organization admitting to
membership all employees at the Battle Creek plant of the respond-
ent, except salaried employees and other employees or executives not
"eligible by law."
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Domination of and interference with the formation and adminis-
tration of the Association; and interference, restraint , and coercion
The I . A. M. made an effort to organize the employees at the Battle
Creek plant in 1934. The respondent increased wage rates at that
time and the I. A. M. partially ceased its organizational activities.
In 1936, the I. A. M. revived its organizational activities and con-
ducted a membership campaign. On October 26, 1936, the I. A. M.
notified Earl J. Seaver, superintendent of the "tructractor " and rail-
way division of the plant , that a majority of the employees had
selected the I . A. M. as their representative for collective bargaining
and submitted to him a list of proposals as a basis for an agreement.
Seaver referred the matter to Robert J. Burrows , vice president in
charge of the plant.
About this time Seaver asked William Wiedenback , financial sec-
retary of the I . A. M., why he did not start a little union of his own
in the shop and told him that with his experience in the A. F. of L.
he could have a good one . At about the same time Lawrence J.
Thompson, the respondent 's employment clerk who interviews appli-
cants for employment, told Ray Cameron , then superintendent of
the wheel division of the plant , that he had instructions to try to
enlist some employees in a shop union . Thompson prepared a peti-
tion, allegedly at the request of B. Roy Gordon , an employee. This
petition , stating "THE COMMITTEE CONSISTING OF THE
THREE MEN APPOINTED BY THE UNION DO NOT REP-
RESENT US-THE UNDERSIGNED ," was circulated in the
plant, at times during working hours, by Thompson , Gordon, and
another employee , Don C. Caldwell , and was signed by 165 employees,
including 5 of the 6 foremen in the plant . The participation of
supervisory officials in the preparation , signing, and circulation of this
petition is further exemplified by the conduct of Melvin Case , a fore-
man, who summoned the employees of the toolroom to Seaver's
office and asked them if they wished to sign the petition.
Early in November 1936, the bargaining committee of the I. A. M.
and L . O. Thomas, Grand Lodge Representative, conferred with
Burrows and discussed the I . A. M.'s proposals . Burrows stated
that it would be necessary to refer the proposals to a meeting of
the board of directors of the respondent to be held on November 17,
1936, and further stated that he did not think that the I. A. M.
represented a majority of the employees . The committee and Thomas
offered to prove the majority of the I. A. M. either by an election
CLARK EQUIPMENT COMPANY 1475
supervised by an impartial citizen, submission of the matter to the
Board for a consent election, or by having Burrows count the I. A. M.
members as they marched past his office. Burrows declined, however,
to accept any of these modes of proof.
Gordon, Caldwell, and another employee named Frank Rapp
presented the petition described above to Burrows on or about
November 9, 1936, and shortly thereafter another petition and a pro-
posed agreement to be submitted to the respondent were prepared
and circulated in the plant by Caldwell. This petition stated that
the signers desired to be represented by Caldwell, Gordon, and Rapp
as a bargaining committee in their dealings with the management.
Harriman, a night foreman, told practically all the employees in
his department to see Caldwell, who was in the plant at the time
securing signatures to the petition. Caldwell spent about one-half
of his time during working hours for 3 days securing signatures to
this petition. He was paid for this time and it is inconceivable that
the respondent was unaware of this activity, particularly since the
petition was signed by five of the .six foremen.- On November 16,
1936, the petition, containing 163 signatures, and the proposed
agreement were submitted to Burrows, who agreed to refer them to
Eugene B. Clark, president of the respondent.
The circumstances surrounding the preparation and circulation of
the petitions impel the conclusion that the respondent was responsible
for the preparation and circulation of the petitions. The participa-
tion of the foreman and employment clerk was a clear indication to
the employees of the respondent's hostility to the I. A. M. and its
preference for an organization composed of its own employees only.
Such a manifestation of preference, accentuated by the signatures of
the foremen and employment clerk on the petitions and by fore-
men's assistance in securing the signatures could only result in
coercing employees dependent for their livelihood on the good will
of the employer. The fact that Thompson was subsequently dis-
charged on the complaint of the bargaining committee of the I. A. M.
and immediately reinstated in another department at the request of
the committee did not dissipate the effects of the respondent's inter-
ference and coercion with respect to the petitions.
The last paragraph of the proposed agreement submitted by Cald-
well, Gordon, and Rapp to the respondent on November 16, 1936, is
identical with the last paragraph of the proposal submitted by the
I. A. M. on October 26, 1936, except for dates and with the exception
that the phrase "representatives of management and employees" is
used in the I. A. M.'s proposal, while the Association's proposal uses
the phrase "representatives of management and the BARGAINING
196134-39-vol. 12-34
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
COMMITTEE." 6 Caldwell testified that he composed the wording
of the last paragraph in the proposed agreement submitted by Cald-
well, Gordon, and Rapp, using for that purpose old union magazines
containing union contracts and a union contract book which he had
had in his possession since 1914. He further testified that the mag-
azines and contract book were destroyed in a fire prior to the hear-
ing. Thomas, on the other hand, testified that the paragraph was
one he evolved himself through his experience in drafting clauses of
a similar nature and that it was not the standard clause used in
union contracts. He further testified that union journals very
seldom contain complete contracts and that only exceptional con-
tracts containing provisions of interest to the entire membership
appear in union magazines. Although Burrows testified that he
mailed the proposals of the I. A. M. to Clark a short time after
receiving them, probably the same day, the coincidence that the last
paragraphs of the proposed agreements of the I. A. M. and the rival
group are identical is so striking that we find that the respondent
furnished the group opposing the I. A. M. with a copy of the I. A. M.
proposal to enable it to draft a proposed agreement and that this
was done as part of its plan to thwart the I. A. M. by creating a
buffer organization, headed by Caldwell, Gordon, and Rapp.
The respondent's antipathy to the I. A. M. is further reflected in
conversations between supervisory officials and employees. Thus
Ernest Tobey, an employee, testified that in October 1936, Seaver
told him that it "made him pretty near sick" when he discovered that
Tobey was a member of the I. A. M. Tobey also stated that one
Crofoot, his foreman, occasionally told him that he did not believe in
organized labor and that the respondent could handle the man better
without a union. Harold Norris, after having been twice transferred
to other jobs, quit his employment in July 1937, deciding that the
respondent wished him to do so. He testified that before quitting
he asked Seaver what he had done that was improper, to which
Seaver replied that he had talked too much and "when it backfired
on you, you can't take it and my advice to you would be to be not
so active in organization." William Collins testified that Hess, his
foreman, told him that if he wished to work in a union shop he
should go to a union shop and get a job and that the respondent
could get along very well without him.
5 The last paragraph of the I. A. M 's proposal reads as follows : "This agreement shall
become effective and continue in force thereafter until or unless amended or
modified in which case thirty days ' notice shall be given in writing by the party desiring
the change . All changes shall be made in conference and grievances shall have precedence.
In the event that it appears impossible for the representatives of management and em-
ployees to agree, nothing shall be done by either party until after every agency available
has been called upon to bring about agreement."
CLARK, EQUIPMENT COMPANY 1477
Seaver, on the other hand, testified that when employees sought his
advice respecting which organization to join, he always told them
that it was their own affair and they would have to decide for them-
selves. At the hearing counsel for the Board and counsel for the
respondent stipulated, but without admitting as facts, that if the
foremen were called as witnesses they would testify that none of
them ever attempted in any manner to influence the employees to
join the Association or to discourage them from joining the I. A. M.
and that several employees who asked their advice as to whether or
not they should join either organization, were told by them that they
would have to use their own judgment and that the respondent was
taking no part whatsoever in the matter. As has been noted, how-
ever, the foremen signed both petitions of the Association and thus
indicated their position in the controversy. It is highly improbable
that these foremen after identifying themselves with the group op-
posed to the I. A. M. thereafter lost all interest in the matter and
became strictly impartial, taking no part in the discussions that took
place in the plant. Under all the circumstances we believe that
Seaver and the foreman made the statements attributed to them and
that these statements were intended to and did coerce the employees
in the exercise of their right to self-organization.
The bargaining committee of the I. A. M. met with Burrows again
on November 18, 1936. He told the committee that another group
claimed to represent a majority of the employees, that he had read
a list submitted by it of employees supporting it, and that he had
concluded that that group represented a majority of the employees.
Although Burrows testified at the hearing that the names on both
petitions had been checked with the names of employees in the plant,
neither he nor any of the other witnesses knew who had done the
checking. The respondent's readiness to accept the claim of this
group to represent a majority of the employees and its haste to accord
it recognition is in strong contrast to its treatment of the I. A. M.,
when Burrows not only expressed doubt concerning the I. A. M.'s
majority, but also refused to receive proof of such majority. This
conduct clearly reveals the respondent's hostility to the I. A. M. and
its support of the rival group. It is clear that the respondent utilized
the petitions, circulated and signed with its active assistance, as a pre-
text for denying collective bargaining to the I. A. M.
On November 23, 1936, Clark conferred with Caldwell, Gordon,
and Rapp, and on the following day sent them a letter containing an
answer to their proposed agreement. This letter set forth the terms
of an agreement and Caldwell, Gordon, and Rapp signed it on behalf
of the employees at the plant. The agreement thus entered into was
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be effective until November 23, 1937, and provided for collective
bargaining with respect to hours and conditions of work and a gen-
eral increase of 5 cents an hour in wages of shop employees . Clause
Five of this agreement provided : "It is mutually agreed that the
employees at the Battle Creek plant of the Company shall be allowed
to maintain and operate a store in the plant for their own behalf
under such conditions as will relieve the Company of responsibility
as to tax on sales and other similar responsibilities ." This store, in
which candy , cigarettes , and other merchandise were sold, had been
installed in the plant by the respondent for the benefit of all the em-
ployees, regardless of union affiliations . It is clear that the contract
gave to the group opposing the I . A. M. control over and the profits
from the operation of the store.
At the time the respondent entered into its agreement with Caldwell,
Gordon, and Rapp, the group they represented did not have a name,
constitution , or bylaws. On or about November 30, 1936, the group
opposing the I . A. M. elected Caldwell president and Lyle S . Quayle,
an employee , secretary . They selected the name Employees Associa-
tion of Clark Equipment Company of Battle Creek , Michigan, and
adopted a constitution and bylaws . The Association required no,
membership fees, dues , or assessments , as it had taken over the opera-
tion of the store for its own benefit , and Article Five of the constitu-
tion and bylaws provides :
The Association having at present the operation of the store at
the company plant for the benefit of the employees , in which
the profits are sufficient to meet all expenses , no dues are hereby
fixed. The bargaining committee and officers shall be in charge
of said store and its operations.
When the bargaining committee of the I. A. M. complained to.
Seaver that the Association was using store funds , he replied that the
store belonged to all the employees and that they would have to settle
the matter among themselves . He also threatened to remove the store
from the plant . At the hearing , Caldwell admitted on cross -examina-
tion that the Association intended to pay the fees df its attorney from
the store funds. Following this disclosure , the respondent an-
nounced at the close of the hearing its disapproval of the use of store
funds for this purpose and stated that unless all the employees agreed
on the proper disposition of the funds , the respondent would remove
the store from the plant . The respondent , however, failed to explain
why the clause in the original contract with the Association giving the
Association the control of and the profits from the operation of the
store was again included in a new agreement with the Association
signed January 21 , 1938.6
Respondent Exhibit No 8.
CLARK EQUIPMENT COMPANY 1479
Although at the hearing the respondent was insistent on its dis-
interestedness and impartiality concerning the use of store funds, it
is to be noted that prior to the hearing it made no effort to prevent
the Association from using those funds, even when the matter was
called to its attention. On the contrary, in two contracts, the latter
of which was to be effective for at least a year after January 17, 1938,'
the respondent vested control over the store funds in the Association.
Moreover, the Association paid no rent for the store. By permitting
the Association to divert store funds to its own purposes, the respond-
ent made it possible for the Association to eliminate dues, thus in
effect contributing financial support to it, and in addition placed it in
a highly advantageous position in its competition with the I. A. M.
for members. The respondent thereby not only made manifest to its
employees its preference for and assistance to the Association, but also
insured its continued functioning.
After entering into the agreement with Caldwell, Gordon, and
Rapp in November 1936, Clark was reluctant to make a contract with
the I. A. M. After the I. A. M. placed the matter before the Regional
Director for the Seventh Region, however, the respondent entered
into an agreement with the I. A. M. on February 24, 1937, in which
the I. A. M. was recognized as sole bargaining agency for its members
employed by the respondent. The agreement was made effective retro-
actively from January 15, 1937, and was to continue in effect at least
until January 15, 1938, unless amended or modified by notice given by
either party 30 days in advance. This contract provided that em-
ployees covered by it were to be grouped under certain classifications.
A minimum hourly rate was set for each class of work and an em-
ployee's classification was determined by the type of work he per-
formed. An expert machinist or "set up" man received the maximum
rate and was placed in Class A; a machine operator who set up his
own machine was placed in Class B; a machine operator who did not
set up was placed in Class C ; and drill-press operators and truckers
were placed in Class D.8
A number of meetings for the purpose of classifying the employees
were held thereafter between the bargaining committee of the I. A. M.,
Seaver, and John R. Brower, manager of another of the respondent's
plants, who was sent to the plant by Clark to supervise the classifica-
tion. When the bargaining committee and Seaver were unable to
agree on the classification of an employee, Brower rendered the deci-
4 This agreement , Respondent Exhibit No 8, by its terms was to be in effect for a
period of 1 year from January 17, 1938, and thereafter from year to year unless either
party expressed a desire for changing it at least 30 days prior to the annual expiration
date.
s The different classifications were not designated in the contract by letters. In classify-
ing the employees subsequently the letters were used and are used above for the sake of
convenience.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion as to his classification. It is to be noted that Brower was acting
solely as the representative of Clark and, therefore, cannot be con-
sidered an impartial arbitrator. Considerable dissatisfaction devel-
oped among employees who did not receive the classification to which
they believed they were entitled.
The evidence at the hearing reveals instances in which the respond-
ent insisted on placing employees in a lower classification than the one
to which their work entitled them. Thus, when the bargaining com-
mittee of the I. A. M. requested a higher classification for Ray Brown,
an employee, the respondent contended that he could not do the work in
the higher classification. Fred Craig, Brown's foreman, wrote a note
to the effect that Brown was a very efficient worker and, when an effort
was made subsequently to secure the higher classification, Craig told
Ernest Tobey, a member of the bargaining committee, that he had been
reprimanded for stating that Brown was an efficient worker. Edward
King, an employee, received a lower classification than the one to which
he was entitled and the bargaining committee was unsuccessful in its
attempt to have him reclassified. When King informed Craig, his
foreman, that he no longer was a member of the I. A. M., Craig in-
creased his hourly rate of pay.
There was a pronounced decline in I. A. M. membership subsequent
to the classifications, which was at least partly attributable to the
failure of the bargaining committee to achieve proper classification for
I. A. M. members. We find that the respondent in a number of in-
stances refused properly to classify employees, who were members of
the I. A. M., for the purpose of damaging the prestige of the I. A. M.
and discouraging membership in it.
On January 21, 1938, the respondent and the Association signed
a contract which granted the Association recognition as the exclu-
sive collective bargaining representative of the employees.°
The sequence of events set forth above clearly reveals the deter-
mination and plan of the respondent to prevent the I. A. M. from
gaining a foothold in the plant and its sponsorship of the Asso-
ciation to accomplish that purpose. Immediately after the I. A. M.
notified the respondent that it represented a majority of the em-
ployees and submitted its list of proposals, the petitions of a rival
group were circulated with the respondent's assistance. Having
utilized the petitions to evade recognition of the I. A. M., the re-
spondent hastened to enter into a contract with Caldwell, Gordon,
'Clause 1 of this contract is entitled "Recognition" and provides : "The Clark Equip-
ment Company recognizes the Clark Employees Association of Battle Creek, Michigan, as
a duly constituted association . organized for mutual benefit, and for the purpose of col-
lective bargaining with the Company through a duly elected committee . Any employee
of the Battle Creek Plant, however , is to have the right to bargain with the Company
either through this committee, or individually , as he chooses to "
CLARK EQUIPMENT COMPANY 1481
and Rapp, in order to create and maintain an effective buffer to
the I. A. M. Having thus installed a group opposed to the I. A. M.,
armed with a contract and furnished with a continuing source of
funds by the respondent, its formal organization into the Associa-
tion followed immediately and as a matter of course. Thereafter
the respondent utilized the Association as a pretext for refusing
to bargain with the I. A. M. Later, having belatedly and reluc-
tantly recognized the I. A. M. as bargaining agent for its members
only, the respondent then proceeded to nullify the effectiveness of
the I. A. M. and to discourage membership in it by discriminatory
treatment of I. A. M. members in the matter of classification. Fi-
nally, on January 21, 1938, the respondent completed its plan to
eliminate the I. A. M. as a bargaining representative of the em-
ployees by entering into a contract with the Association recognizing
it as the exclusive collective-bargaining representative of the em-
ployees.
We find that the respondent has dominated and interfered with
the formation and administration of Employees Association of Clark
Equipment Company of Battle Creek, Michigan, and has contributed
financial and other support to said Association, and has thereby,
and by the other acts and conduct set forth above, interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The discharge and the lay-offs
1. The discharge of Lahn
Albert Lahn was employed continuously by the respondent, with
a few exceptions when he either quit or was laid off for lack of
work, from August or September 1927 until his discharge on May
12, 1937. He became a member of the I. A. M. about August 1935
or 1936 and was still a member at the time of the hearing. At
one time he had been a foreman in the axle department of the plant
and had operated many machines, setting up his own work on them.
At the hearing the respondent conceded that Lahn had formerly
been a very efficient employee, but contended that he was inefficient
from the spring of 1936 to the date of his discharge. Seaver tes-
tified that in the spring of 1936 he sent Lahn home for breaking
tools and because of scrap from his work., Although Lahn ad-
mitted that at one time there had been a complaint concerning the
amount of scrap resulting from his work, he claimed that it was
not entirely his fault. He also stated that, when he was laid off at
times, it was due to lack of work. A few days after being sent
home Lahn was reemployed by the respondent. Shortly thereafter
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had a conference with Seaver in his office about his work. As
the result of this conference Lahn was put back on a machine. Sea-
ver testified that thereafter there were complaints about Lahn's
work and that he was changed from task to task in an endeavor
to keep him employed . Lahn admitted that he was not employed
on a machine steadily during this period.
In the classification of work provided for in the agreement be-
tween the respondent and the I. A. M., Lahn was placed in Class
C, that of machine operator who does not set up his own work.
Lahn complained about his classification to the bargaining com-
mittee of the I. A. M., contending that he was entitled to a higher
classification . The bargaining committee took up the matter of
his classification with Seaver , who refused to place him in a higher
classification on the ground that he was incapable of doing the
required work.
At a conference between Seaver , Thomas, and the bargaining com-
mittee Seaver stated that Lahn was not required to set up his own
work. Thomas then made a notation on Lahn 's classification card
that he was not to set up his work and the card was returned to Lahn.
In accordance with this instruction Lahn subsequently requested
Henry Wright , the set-up man, to set up his machine . On Wright's
refusal to do so Lahn informed his foreman , Art Hess , who told him
to set it up himself , with which instruction Lahn complied . Prior to
this incident Hess and Wright had talked to Lahn for more than an
hour and a half during working hours concerning the I . A. M. They
told him that he was foolish in being a member of the I. A. M., that
it would never amount to anything, and that he was wasting money
by paying I. A. M. dues.l°
The bargaining committee of the I. A. M. felt that Hess had not
treated Lahn fairly and agreed at a meeting with Seaver that he
should be transferred to another department. Seaver ordered him
transferred and placed under the supervision of Howard Cooley.
The respondent contended that the committee stated that, if Lahn
were unable to do the work there, he should be discharged. Lahn
was placed on a machine formerly operated by a Class A operator.
He was not as efficient in operating the machine as others experienced
on it and spoiled several pieces of work. After Lahn had operated
the machine for 2 weeks Cooley reported that his work was unsatis-
factory. Seaver testified that he left Lahn on the machine for
another week, although the bargaining committee of the I. A. M. told
him to remove him because of his unsatisfactory work. On May 12,
1937, Seaver discharged Lahn on stated grounds of inefficiency. A
10 Wright did not testify, and Hess being a foreman, was included in the stipulation
referred to on page 1477, supra
CLARK EQUIPMENT COMPANY 1483
few days later at the request of the bargaining committee Lahn's
case was reviewed in the presence of the committee, Lahn, Kritzner,
Brower, and Seaver. Lahn was not reinstated.
The respondent contends that three and possibly all four members
of the bargaining committee of the I. A. M. agreed to Lahn's being
tested on the machine to which he was assigned. Donald Stock,
however, testified that at the time Lahn was placed on the machine
the bargaining committee claimed that the work was far above his
classification. Stock, who worked next to Lahn at the time, stated
that Lahn did good work, although he was slow and that the respond-
ent admitted that his work was good. While from the testimony of
Ernest Tobey it appears that the bargaining committee agreed that
Lahn should be given a trial on Class C work and should be dis-
charged if he failed to do the work properly, Tobey stated that he
never agreed with the respondent that Lahn had been given the test
agreed upon and did not think that any of the committee did. Tobey
testified that after Lahn had been on the machine for 3 weeks Seaver
said that he wanted to give him an additional trial. However,
Seaver did not put him in his proper classification, although Tobey
testified that he "begged" Seaver to assign him to a task which he
was capable of performing and not to put him, a Class C man, on a
Class A job. Seaver admitted that, although he claimed that Lahn
was not capable of doing Class A or B work any more, he tested him
on a machine which a Class A man had been operating. O'Connell,
one of the respondent's own witnesses, admitted that it was not
customary to transfer men with Class C ability to machines that re-
quired men of Class A ability. Cooley also admitted that it was not
customary to place a Class C man on a machine that a Class A man
had been operating. While there is a great deal of conflict as to the
position of the bargaining committee in the matter, we are satisfied
that it did not agree to have Lahn tested on a machine which a Class
A man had been operating.
Members of the I. A. M. at a meeting subsequent to Lahn's dis-
charge voted to strike in protest against the discharge. The Grand
Lodge of the I. A. M., however, refused to sanction the strike and a
charge was subsequently filed with the Board.
Gleason Holdridge, Lahn's foreman at the Union Steam Pump
Company, where Lahn was employed after his discharge, testified
that Lahn as an engine lathe operator was a competent workman.
The I. A. M. contended at the hearing that Lahn's discharge was
a factor causing a decline in its membership while the respondent
claimed that the decline in membership was occasioned by the fact
that the bargaining committee of the I. A. M. accepted pay from both
the I. A. M. and the respondent when it met during working hours
with the management. While the respondent's contention may have
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some merit, it is undoubtedly true that part at least of the decline
must be attributed to the discharge of Lahn.
The inconsistency of the respondent's position in testing Lahn on
a machine which a Class A man had been operating while at the
same time refusing to grant him a higher classification on the ground
that he was incapable of doing even Class B work, is obvious. This
fact, coupled with the anti-I. A. M. statements made to him by Hess
and Wright, and Wright's refusal to set up Lahn's machine, makes it
evident that the respondent utilized Lahn's case as a means of com-
bating the I. A. M. and discouraging it in its attempts to adjust the
classifications of its members. The inevitable result, of course, was
a weakening of the I. A. M.'s prestige in the plant, with a conse-
quent loss of membership. This fully comports with the respondent's
plan to destroy the I. A. M. as a bargaining representative of the
employees, as set forth in Section III A above.
We find that the respondent, by discharging and refusing to rein-
state Albert Lahn, discriminated in regard to his hire and tenure of
employment, thereby discouraging membership in the I. A. M. and
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed them in Section 7 of the Act.
At the time he was discharged Lahn was earning 65 cents an hour
and his average weekly compensation was between $27 and $32. Since
his discharge he has earned between $540 and $840 at other employ-
ment. At the time of the hearing he was unemployed.
2. The lay-offs
In September 1937, there was a decrease in production in the plant
due to the cancelation of a large contract. This necessitated a reduc-
tion in personnel and groups of employees were laid off from time
to time. The I. A. M. felt that the lay-offs were not in accordance
with the seniority clause of its agreement with the respondent. On
October 28, 1937, Emil Yohpe, business representative of District 117,
International Association of Machinists, and the bargaining commit-
tee of the I. A. M. held a conference with Seaver and Kritzner, who
explained to them that the lay-offs were in accordance with seniority
in each classification. A controversy arose between the respondent
and the I. A. M. as to the proper interpretation of the seniority
clause, which is very ambiguous." The I. A. M. contended that the
11 The seniority clause reads as follows : "It is agreed that the principles of seniority
as usually understood shall be applied by the Company in its employment and reemploy-
ment practice , but a period of probation of one year shall be necessary before any em-
ployee is entitled to the strict application of seniority principles . It is also understood
that in applying the principles of seniority , consideration shall be given to occupational
requirements. That is to say, on the basis of seniority it is not necessary that a
machinist 's helper be taken back solely on the basis of seniority in oider to fill the
Company's requirements for a first -class machinist."
CLARK EQUIPMENT COMPANY 1485
system of laying off employees adopted by the respondent was discrim-
inatory as to members of the I. A. M. and that the respondent's plan
was to destroy the I. A. M.
Burrows testified that prior to the contract with the I. A. M., the
respondent's practice as to lay-offs had been to give consideration to
humanitarian principles first; then skill, ability, and length of serv-
ice were considered on an equal basis. He stated that consideration
had always been given to "occupational requirements."
Seaver testified that when the question of laying off employees
presented itself, he had no way of knowing how the plan which was
adopted would affect members of the I. A. M. unless he made a
detailed analysis of their respective records, which he stated he had
not done. Kritzner also testified that he had no knowledge as to how
the lay-offs would affect I. A. M. members. The evidence does not
show that the lay-off plan adopted by the respondent was devised to
eliminate I. A. M. members.
The plan adopted by the respondent seems to have been carried
out in good faith with no deviation from the rule. In the confer-
ence with Yohpe and the bargaining committee of the I. A. M., it
was discovered that two employees were improperly laid off. They
were recalled to work and were given back pay for the time they had
lost. At the hearing it was discovered that a similar mistake had
been made in the case of E. H. Mayer, one of the individuals on
whose behalf charges in the instant case were filed. The respondent
stated that the same procedure would be followed in his case.
At the hearing Kritzner testified that he had made an analysi 3 of
the lay-offs and that, if the rule contended for by the I. A. M. had
been adopted, exactly the same men would have been employed at the
commencement of the hearing as were employed under the rule
adopted by the respondent.
During the hearing the respondent announced that it had obtained
some new business and that in anticipation of an increase in employ-
ment, it had notified 25 of the men who had been laid off, to return
to work. The employees were recalled in strict accordance with the
plan adopted for the lay-offs. Twenty-two of the men notified to
return were members of the I. A. M. as of April 17, 1937, while 13
were members as of October 15, 1937. Six of the men were indi-
viduals on whose behalf charges were filed in the instant case.
The facts set forth above do not show that the respondent laid off
these 11 employees because of their union membership or activities.
We find that E. H. Mayer, Guy Shilts, Clarence Sass, William L.
Collins, Charles Worthington, Robert L. Hughes, Phillip C. Marsh,
H. W. Buys, Dell Prior, John Mallison, and Roy T. Tyler were not
laid off because of union activity or membership.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The refusal to bargain collectively
1. The appropriate unit
At the hearing all parties stipulated as follows in regard to the
appropriate unit :
It is stipulated and agreed by and between counsel for the
respective parties that the appropriate unit shall consist of all
hourly paid production and maintenance employees, excluding
watchmen, office workers, engineers and designers, supervisory
employees, and foremen whose principal work is not in the
operation of a machine, and excluding foremen not engaged in
productive work.
We see no reason for modifying the unit agreed upon by the parties.
We, find that all hourly paid production and maintenance employees
of the respondent at its Battle Creek, Michigan, plant, excluding
watchmen, office workers, engineers and designers, supervisory em-
ployees, and foremen whose principal work is not in the operation of
a machine, and excluding foremen not engaged in productive work,
constitute a unit appropriate for the purposes of collective bargain-
ing and that said unit insures to employees of the respondent the frill
benefit of their right to self-organization and to collective bargaining
and otherwise effectuates the policies of the Act.
The respondent's pay roll as of April 8 to 21, 1937, within which
period the I. A. M. requested sole bargaining rights, was introduced
in evidence. It shows that during that period there were 334 em-
ployees. The elimination of employees whom the parties agreed
were not within the bargaining unit reduced the number to 304 em-
ployees. The testimony of Robert Harris, a witness for the respond-
ent, disclosed that two employees on the list of 304, Bryant De Bolt
and Mike Padgett, were tool designers and, therefore, not within the
unit. In his Intermediate Report the Trial Examiner excluded
these two individuals from the unit and the respondent in a brief
filed subsequently agreed to the exclusion. This reduced the number
of employees within the unit to 302. The I. A. M. contended that 13
of the remaining 302 employees were not within the unit. The re-
spondent conceded that one of these 13, Lyle Katz, a fireman and
janitor in the office, was not within the unit, but contended that the
remaining 12 employees challenged by the I. A. M. should be in-
eluded in the unit of 301 employees. We now turn our attention to
these 12 employees.
Lewis Trine is chief inspector of the tractor department, and is di-
rectly responsible to the engineering department. He has three as-
sistants. His duties are the inspecting of all incoming materials and
all material going through the machine shop and the keeping of rec-
CLARK EQUIPMENT COMPANY 1487
ords of inspections for the engineering department. He divides his
time between the actual work of inspection and the keeping of rec-
ords. He has no authority to hire or discharge. Trine is not within
the unit, since he is a foreman whose principal work is not in the
operation of a machine. Also, he is not engaged in productive work,
his duties being more of a clerical nature.
Donald Caldwell and William Besser are assemblers in the "true-
tractor" and railway departments, respectively. These men are what
may be termed gang leaders. They actually work on the assembly
lines with a number of men whose work they supervise. They have
no authority to hire or discharge. Both Caldwell and Besser are
within the unit.
Elwin Roberts, is a receiving and shipping employee in the tractor
department and also works in the stockroom. His duties include
receiving material into the plant, preparing it for shipment, and
shipping it. He supervises the work of other employees, but also
participates in the physical moving and shipping of materials. In
addition, he spends a portion of his time in keeping records. Rob-
erts is not within the unit, since he is a supervisory employee and is
not engaged in productive work.
H. B. Shay is the millwright in the plant and is engaged in keep-
ing the building and machinery in repair. At times other employees
assist him and he supervises their work. He works with these men,
performing the same work they do. He is within the unit, since he
is a maintenance employee and does not appear to be such a super-
visory employee as was intended to be excluded from the unit.
Albert Krohn was a stock chaser in the "tructractor" department
during April 1937. His duties consisted in routing material through
the shop and in taking parts from one department to another. He
participated in the physical moving of materials. Krohn was within
the unit during April 1937. Since July or August 1937, however,
he has been working in the production office and was not within the
unit at the time of the hearing.
Robert Redmond worked in the tool crib during the nighttime,
supplying employees with tools and performing a small amount of
timekeeping. On about April 26, 1937, he was transferred to the pro-
duction office and Kenneth Rosa took his place in the tool crib. Prior
to his transfer, Redmond spent several days "breaking in" Rosa in
the tool crib. Both men should not be included in the unit, since
they occupied the same position. Inasmuch as Redmond was trans-
ferred, we exclude him from the unit. Also, in his present position
in the production office, he is not within the unit.
Carl Smith, is a receiving clerk in the railway department. He un-
loads and stores incoming material in the stockroom, checks it, and
submits reports concerning such material to the office. He spends
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about one-half of his time in actually moving material and the other
half in keeping records and submitting reports concerning material.
Smith has assistants in the moving of material and they are
responsible to him. In testifying concerning his position, Smith
stated that he considered himself "more of a clerk" than a machinist.
He is not within the unit.
Angelo Faustin and John Garman are employed between 8 and
9 months a year as firemen in the heating plant of the shop. The
rest of the year they work as gardeners on the lawn surrounding
the plant. Since the major portion of their work is in firing the
boilers, they are within the unit.
Howard Cessna is a timekeeper in the railway department. He
checks the amount of time an employee spends on a piece of work
and the number of pieces he handles. He makes a record of these
items and delivers it to the cost-accounting department, which
uses it in determining the cost of the finished article. Cessna is
a clerical employee and is not within the unit.
Nelson Van Nocker is a truck driver. He picks up material at
freight houses, takes it to the plant, and delivers finished products
to the freight houses. He does no work inside the plant. He is
not within the unit.
Inasmuch as six of the above employees were within the unit,
we find that there were 295 employees within the unit during April
8 to 21, 1937.
2. Representation within the appropriate unit
At the hearing, counsel for the Board offered in evidence the
applications and books of the I. A. M. and asked leave to substitute
in place thereof a list of names of I. A. M. members, who were
employees of the respondent as of April 15, 1937, compiled from the
applications and books. No objection was made and leave was granted
to substitute the list. The names of 173 employees, 28 of whom
were applicants for membership in the I. A. M., appeared on the
list. The elimination of the names of three members, who were
not on the respondent's pay roll as of April 8 to 21, 1937, reduced
the list to 170 names. The respondent challenged the right of the
I. A. M. to represent 37 employees whose names appeared on the
list of 170 and asserted that 54 of the employees on the list, includ-
ing some of the 37, had signed either one or both of the petitions
of the Association circulated in November 1936. Having found that
the respondent assisted in securing signatures to the petitions, we
shall disregard such signatures on the ground that they were ob-
CLARK EQUIPMENT COMPANY 1489
tamed through the respondent's interference and coercion and do
not reflect the free will of the employees.12
The evidence with respect to 27 of the 37 employees whom the
respondent claimed that the I. A. M. was not entitled to represent
at the time it sought sole bargaining rights is so conflicting and
confusing that we are unable to determine whether or not the I.
A. M. in April 1937 represented these employees for the purposes
of collective bargaining. The elimination of these 27 employees
from the list of I. A. M. members and applicants- reduces the
representation of the I. A. M. to 143 out of 295 employees within
the appropriate unit, less than a majority. Since we are unable to
find that the I. A. M. represented a majority of the respondent's
employees in the appropriate unit during April 1937, we will dis-
miss that portion of the complaint which alleges that the respondent
refused to bargain with the I. A. M.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor. practices, we shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies
of the Act by restoring as nearly as possible the situation that existed
prior to the commission of the unfair labor practices.
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed financial and other support to it. Its continued existence
is a consequence of violation of the Act, thwarting the purpose of
12 Matter of C. A Lund Company and Novelty Workers Union , Local 1866 (A. F. of L )
Successor and Matter of Christian A Lund , et al . and IW'oodenware Workers Union,
Local 20481 , 6 N. L. R. B. 423 ; enforced , sub nom , National Labor Relations Board v.
Christian A. Lund, doing business as C. A Lund Company and Northland Ski Manufac.
turing Company, 103 F ( 2d) 815 (C. C A 8th, 1939).
13 In a brief filed after the hearing , the respondent challenged the right of the I A. M.
to represent applicants for membership . There is no merit to this contention Matter of
Clifford M . DcKay, Doing Business Under the Trade Name and Style of D & H. Motor
Freight Company and International Brotherhood of Teamsters , Chauffeurs , Stablemen
and Helpers of America , Local Union No 61,9 , 2 N L B. B . 231 Cf Matter of Zenile
Metal Gorpoiatiou and United Automobile Worleis of America , Local No 442, 5 N L
R B 509.
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act and rendering ineffective a mere order to cease the unfair
labor practices.- In order to effectuate the policies of the Act and
free the employees of the respondent from such domination and in-
terference, and the effects thereof, which constitute a continuing ob-
stacle to the exercise by the employees of the rights guaranteed them
by the Act, we will order the respondent to withdraw all recognition
from the Association as representative of any of the respondent's em-
ployees for the purposes of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
and conditions of work, and to disestablish it as such representative.
Since the contract of January 21, 1938, between the respondent and
the Association may still be in effect, since it embodies recognition
of the Association as such representative, and since, further, it repre-
sents the fruit of the respondent's unfair labor practices, is a device
to perpetuate their effects, and a cover under which the respondent
may continue to commit unfair labor practices, we will order the re-
spondent to cease from giving effect to the contract heretofore de-
scribed or any other contract or agreement it may have entered into
with the Association in regard to rates of pay, wages, hours of
employment, or other conditions of work.'5
We have found that the respondent discriminatorily discharged
Albert Lahn. We will order the respondent to offer him immediate
and full reinstatement to his former position, without loss of his
seniority and other rights and privileges, and to make him whole for
any loss of pay he has suffered by reason of his discharge, by payment
to him of a sum equal to the amount which he would normally have
earned as wages from the date of his discharge to the date of such
offer of reinstatement, less his net earnings 16 during said period.
14 See Consolidated Edison Co . v. National Labor Relations Board, 305 U. S. 197, 236,
where the Court said :
"The continued existence of a company union established by unfair labor practices or
of a union dominated by the employer is a consequence of violation of the Act whose con-
tinuance thwarts the purposes of the Act and renders ineffective any older restraining the
unfair labor practices."
National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U. S 261
(1938 ) National Labor Relations Board v Pacific Greyhound Lines , 303 U S. 272
(1938 ) ; National Labor Relations Board v. Fansteel Metallurgical Co,p, 306 U. S 240
15National Labor Relations Board v Stackpole Carbon Company, 105 F ( 2d) 167
(C. C. A. 3rd, 1839 ), enforcing Board ' s Order in Matter of Stackpole Carbon Company and
United Electrical & Radio Workers of America , Local No 502, 6 N. L R B 171.
11 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 Federal , State , county, municipal , or other goveinment or governments
which supplied the funds for said work-relief projects
CLARK EQUIPMENT COMPANY
VI. THE QUESTION CONCERNING REPRESENTATION
1491
On or about April 17, 1937, the I. A. M. requested the respondent
for recognition as the exclusive bargaining representative of the re-
spondent's employees in the appropriate unit. The respondent re-
fused on the ground that it had a contract with the Association. We
have found that the respondent dominated, interfered with, and
supported the Association and are ordering the respondent to with-
draw recognition from and disestablish the Association and to cease
giving effect to any contracts it may have entered into with the
Association. At the hearing the respondent denied that the I. A. M.
represented a majority of the employees in the appropriate unit.
We find that a question has arisen concerning representation of
employees of the respondent.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VIII . THE DETERMINATION OF REPRESENTATIVES
In Section III C 2, above, we were unable to find that the I. A: Al.
represented a majority of the employees in the appropriate unit
during April 1937. There is no evidence to show that since that time
the I.'A. M. has ever represented a majority of the employees in the
unit. We find that the question concerning representation which has
arisen can best be resolved by holding an election by secret ballot.
We will direct that an election by secret ballot be held, but we will not
at this time fix a date for holding the election. We will delay the
holding of the election until such time as we are satisfied that the
effects of the respondent's unfair labor practices have been dissipated
sufficiently to permit 'a free choice of representatives. At the time
we fix the date for the holding of the election we will determine the
pay-roll date to -be used in ascertaining the eligibility of the em-
ployees in the appropriate unit to vote.
Since we have found that the respondent dominated and interfered
with the formation and - administration of the Association and con-
tributed financial and' other support to it, we shall make no provision
for the designation of the Association on the ballot.
169134-39-vol. 12-95
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the
entire record in this proceeding, the Board makes the, following :
CONCLusIONs OF LAW
1. International Association of Machinists, Lodge 46, and Em-
ployees Association of Clark Equipment Company of Battle Creek,
Michigan, are labor organizations, within the meaning of Section
2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. By dominating and interfering with the formation and admin-
istration of Employees Association of Clark Equipment Company of
Battle Creek, Michigan, and by contributing financial and other
support to said Association, the respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section
8 (2) of the Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of Albert Lahn, and thereby discouraging membership in a
labor organization, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of
the Act.
5. The aforesaid labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. The respondent has not discriminated in regard to hire or
tenure of employment of E. H. Mayer, Guy Shilts, Clarence Sass,
William L. Collins, Charles Worthington, Robert L. Hughes, Phillip
C. Marsh, H. W. Buys, Dell Prior, John Mallison, Roy T. Tyler,
Art Van Aman, Charles Pierce, Harry Norris, and Leonard Hughes,
within the meaning of Section 8 (3) of the Act.
7. The respondent has not engaged in unfair labor practices
within the meaning of Section 8 (5) of the Act.
8. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondent, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
9. All hourly paid production and maintenance employees of
the respondent at its Battle Creek, Michigan plant, excluding watch-
men, office workers, engineers and designers, supervisory employees,
and foremen whose principal work is not in the operation of a
machine, and excluding foremen not engaged' in productive 'work,
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the National Labor
Relations Act.
CLARK EQUIPMENT COMPANY
ORDER
1493
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Clark Equipment Company, and its officers, agents, suc-
cessors, and assigns shall :
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of Employees Association of Clark Equipment Company
of Battle Creek, Michigan, or with the formation or administration
of any other labor organization of its employees, and contributing
financial or other support to Employees Association of Clark Equip-
ment Company of Battle Creek, Michigan, or to any other labor
organization of its employees;
(b) Recognizing Employees Association of Clark Equipment
Company of Battle Creek, Michigan, as the representative of any
of the employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work;
(c) Giving effect to any agreement entered into with the Em-
ployees Association of Clark Equipment Company of Battle Creek,
Michigan, in regard to rates of pay, wages, hours of employment,
or other conditions of work ;
(d) Discouraging membership in International Association of
Machinists, Lodge 46, or any other labor organization of its em-
ployees, by discharging or refusing to reinstate employees, or other-
wise discriminating in regard to their hire and tenure of employ-
ment or any term or condition of their employment;
(e) Denying employees classifications to which they are entitled
because of their affiliations with a labor organization;
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining and other
mutual aid and protection, as guaranteed in Section 7 of the Na-
tional Labor Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from Employees Association of
Clark Equipment Company of Battle Creek, Michigan, as a repre-
sentative of any of its employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of pay,
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours of employment, or other conditions of work, and completely
disestablish the Employees Association of Clark Equipment Company
of Battle Creek, Michigan, as such representative;
(b) Offer to Albert Lahn immediate and full reinstatement to his
former position, without prejudice to his seniority and other rights
and privileges;
(c) Make whole Albert Lahn for any loss of pay he has suffered
by reason of his discharge, by payment to him of a sum of money
equal to that which he would normally have earned as wages during
the period from the date of his discharge to the date of the offer of
reinstatement, less his net earnings during said period, deducting,
however, .from the amount otherwise due him monies received by him
for work performed on Federal, State, county, municipal, or other
work-relief projects, and pay over the amount so deducted to the ap-
propriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied the funds for said
work-relief projects;
(d) Immediately post and keep posted in conspicuous places
throughout its Battle Creek plant, for a period of at least sixty (60)
consecutive days, copies of this Order, together with a statement that
the respondent will abide by and comply with the provisions of the
Order;
(e) Notify the Regional Director for the Seventh Region in writ-
ing, within ten. (10) days from the date of this Order, what steps-the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent discriminated in regard to the hire and tenure of
employment of E. H. Mayer, Guy Shilts, Clarence Sass, William L.
Collins, Charles Worthington, Robert L. Hughes, Phillip C. Marsh,
H. W. Buys, Dell Prior, John Mallison, Roy T. Tyler, Art Van Aman,
Charles Pierce, harry Norris, and Leonard Hughes, within the mean-
ing of Section-,8 (3) of the Act, be, and it hereby is, dismissed.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent engaged in unfair labor practices within the
meaning of Section 8 (5) of the Act, be, and it hereby is, dismissed.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
it is hereby '
CLARK EQUIPMENT COMPANY 1495
DIRECTED that, as part of the investigation ordered by the Board to
ascertain representatives for the purposes of collective bargaining
with Clark Equipment Company, an election by secret ballot shall
be conducted at such a time as the Board shall in the future direct,
under the direction and supervision of the Regional Director for the
Seventh Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Article III, Section 9, of said Rules
and Regulations, among all hourly paid production and maintenance
employees of the respondent at its Battle Creek plant, employed by
the respondent during a period or at a time to be determined by the
Board in the future, excluding watchmen, office workers, engineers
and designers, supervisory employees, and foremen whose principal
work is not in the operation of a machine, and excluding foremen
not engaged in productive work, to determine whether or not they
desire to be represented by International Association of Machinists,
Lodge 46, affiliated with the American Federation of Labor, for the
purpose of collective bargaining.