E. Clemens Horst Co.

National Labor Relations Board - Board Decisions

May 25, 1940

23 N.L.R.B. 1193 (N.L.R.B. 1940)

In the Matter of E. CLEMENS HORST COMPANY and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LOCAL No. 33
Case No. C-1384.-Decided May 25, 1940
Grower and Dealer in Hops, Fruit, and Lupulin and Manufacturer of Hop-
Picking Machines-Jurisdiction of Board: commerce : interstate distribution
and passage of hops, fruit, lupulin, hop-picking machines, and raw materials-
Employee Status: employees involved : those working in machine shop on
Company's principal ranch ; nature of work : construction, maintenance, and
repair of hop-picking machines, and maintenance and repair of other agri-
cultural machinery ; held to be "employees" within meaning of Section 2 (3)
of Act and not "agricultural laborers"-Interference, Restraint, and Coercion:
speech by Company's general superintendent to machine-shop employees for
purpose of discouraging organizational activities-Unit Appropriate for Col-
lective Bargaining: machine-shop employees, exclusive of supervisory em-
ployees-Representatvees: Proof of choice: membership-application cards-
Collective Bargaining: refusal to bargain collectively.
Mr. John P. Jennings, for the Board.
Brobeck, Phleger ce Harrison, by Mr. Robert E. Burns, of San
Francisco, Calif., for the Company.
Mr. Willard Young Morris, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon• charges and amended charges duly filed by International
Association of Machinists, Local No. 33, herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Twentieth Region (San Francisco, Cali-
fornia), issued its complaint dated July 13, 1939, against E. Clemens
Horst Company, San Francisco, California, herein called the re-
spondent, alleging that the respondent had engaged in, and was
engaging in, unfair labor practices affecting commerce within the
meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notices of hearing, were
duly served upon the respondent and the Union.
23 N. L. R. B., No. 126.
1193
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In respect to the unfair labor practices, the complaint, as amended,
alleged in substance (1) that, although the Union had been desig-
nated as their representative for the purposes of collective bargain-
ing by a majority of the respondent's Brewer Ranch machine-shop
employees, said employees constituting an appropriate bargaining
unit, the respondent on or about March 9, 15, and 22 and on April 4,
5, and 25, 1939, and at all times thereafter, refused to bargain collec-
tively with the Union as the exclusive representative of such em-
ployees; and (2) that the respondent, by the above acts and by calling
in and speaking to its Brewer Ranch machine-shop employees on
March 10, 1939, concerning the Union's request for a bargaining
conference and the position of the respondent concerning this request,
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed them in Section 7 of the Act. On July 24,
1939, the respondent filed an answer which, as amended, denied that
its Brewer Ranch machine-shop employees were "employees" within
the meaning of the Act; denied that the activities of such employees
affected or burdened commerce within the meaning of the Act; and
denied that it had engaged in the alleged unfair labor practices. At
the same time the respondent filed motions to strike the amended
charge and to dismiss the complaint.
Pursuant to notice a hearing was held at Sacramento, California,
on July 27 and 28, 1939, before Thomas H. Kennedy, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was
afforded all parties.
At the opening of the hearing, the respondent renewed motions
previously filed to strike the amended charge and to dismiss the
complaint. The Trial Examiner denied these motions. The rulings
are hereby affirmed. During the course of the hearing other rulings
were made by the Trial Examiner on motions and on objections to
the admission of evidence. The Board has reviewed these rulings
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
Subsequent to the hearing, briefs were filed by the Union and the
respondent. Thereafter, the Trial Examiner filed his Intermediate
Report, dated October 3, 1939, in which he found that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (5) and Section 2
(6) and (7) of the Act. He recommended that the respondent cease
and desist from its unfair labor practices and upon request bargain
collectively with the Union as the exclusive bargaining representative
E. CLEMENS HORST COMPANY 1195
of the respondent's employees working in its Brewer Ranch machine
shop.
Thereafter, the respondent filed exceptions to the Intermediate
Report. Additional briefs were filed by the respondent and the Union
on November 2 and 18, 1939, respectively.
The Board has reviewed all the exceptions to the Intermediate
Report and finds them to be without merit, except as they are con-
sistent with the findings, conclusions, 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, E. Clemens Horst Company, is a New Jersey cor-
poration with its principal office and place of business in San Francisco,
California. It is engaged in (a) growing and selling hops, livestock,
hay, seed, and fruit; (b) buying and selling hops, barley, malt, malt
syrup, grits, and rice; and (c) the manufacture, operation, lease, and
sale of hop-picking machines. The respondent, according to its gen-
eral superintendent, is one of the largest hop producers and dealers
in the world.
The respondent owns and operates six ranches in the State of Cali-
fornia, two ranches in the State of Oregon, and owns all the outstand-
ing stock of British Columbia Hop Co., Ltd., a Canadian corporation.
The respondent owns 4,081 acres in California and 1,352 acres in
Oregon. The number of employees, exclusive of agricultural workers
employed under contract, working on the respondent's ranches in
California from January 1938 to June 1939 varied from 1,261 during
harvest time in August 1938 to 68 in February 1939; and in Oregon
from 333 during harvest time in September 1938 to none in February
1939.
The respondent's principal crop on its California and Oregon
ranches is hops. During the year ending June 30, 1938, the respond-
el is sales of hops grown on its own ranches amounted to approxi-
mately $511,412, of which 64 per cent was shipped to States other than
the States of origin or to foreign countries. Of the 5,950 bales of hops
grown by the respondent during the year ending June 30, 1939, on
its California ranches, 2,900 bales were sold and shipped to points
outside California. Also during that year the respondent sold approx-
imately $217,657 worth of canned fruit, which was grown on its Cali-
fornia ranches, 9 per cent of which was shipped to points outside the
State of California. During the same year the respondent sold approx-
imately $47,451 worth of green and dried fruit, all of which appears
to have been grown in California, to buyers "resident in California."
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus it appears that the respondent during the year ending June 30,
1938,1 sold $776,320 worth of produce grown on its own ranches, of
which $359,617 worth, or approximately 46 per cent, was shipped to
points outside the States of origin.
The respondent is also engaged at the Brewer Ranch,2 its head ranch
located near, Sacramento, California, in refining lupulin, a product of
hops which is used in brewing beer. During the year ending June 30,
1938, the respondent sold $8,000 worth of lupulin, between 30 and 40
per cent of which was shipped outside the State of California.
The employees of the respondent involved in this proceeding are
those who work in a machine shop maintained by the respondent on its
Brewer Ranch. The machine shop consists of two buildings called,
respectively, the assembly building and the machine shop. Both are
hereafter referred to as the machine shop. The work done in the
machine shop consists of construction, maintenance, and repair of hop-
picking machines, both portable and stationary, and repair, mainte-
nance, and reconstruction of all kinds of agricultural and ranching
equipment, including tractors, plows, trucks, dusters, kilns, and fur-
naces. Although the respondent maintains shops on its other Cali-
fornia ranches, the Brewer Ranch machine shop is the only one
equipped with lathes. All repair work for the respondent's six Cali-
fornia ranches which requires a lathe is done at the Brewer Ranch
machine shop, as well as all construction of hop-picking machines.
All hops on the respondent's California ranches are picked by ma-
chines which separate the hops from the vines and leaves, and clean
and sack the hops, leaving them ready for the drying kilns. The hop-
picking machines are of two types : the stationary machine, to which
the hop vines must be carried; and the portable machine, designed
by Edward Thys, superintendent of the Brewer Ranch, which is pulled
through the fields by a tractor and has the advantage of mobility. The
respondent has used stationary hop-picking machines since 1908. In
1938 the machine shop constructed the parts for four stationary ma-
chines, three of which were sold to other growers, and one of which
was assembled for use on one of the respondent's California ranches.
Since 1937, when the respondent began the construction of 10 portable
hop-picking machines, 16 machines of this type had been built in the
' The respondent stipulated that its sales for the year ending June 30, 1939, to points
within and outside the States of origin, were in the same proportion as the sales for the
preceding year, although "somewhat lower" In amount.
2 Comprising 540 acres , the Brewer Ranch is primarily devoted to hop growing , although
fruit and grain are also grown there, and livestock occasionally raised. In the year end-
Ing June 30 , 1938, the respondent produced on its Brewer Ranch 2,437 bales of hops and
in the following year 2,656 bales of hops. The number of employees working on the Brewer
Ranch during the period from January 30, 1938, to June 1939 varied from 725 during
August 1938 to 40 in November 1938.
E. CLEMENS HORST COMPANY 1197
machine shop at the time of the hearing.3 In 1937 four of these ma-
chines were used experimentally on California ranches and one was
sold and shipped to England at a price of approximately $4,000. In
1938 the respondent used four portable machines to pick hops on the
Brewer Ranch and on an adjoining ranch, and at the close of the
California hop harvest shipped three portable machines to its Oregon
ranches, for experimental purposes only, according to the respondent.
The latter machines were returned to the Brewer Ranch in 1939.
At the hearing, in July 1939, which was prior to the California
hop-picking season, the respondent's general superintendent, George
Miller, stated that the respondent did not plan to use any portable
hop-picking machines on its own ranches that year, because the exist-
ing stationary pickers were entirely adequate. The respondent had
leased 11 of its portable machines to various California ranches not
owned by the respondent, sold 3 others by contracts of conditional
sale , and retained only 1 portable machine, which it was holding in
reserve. Miller testified, however, that the portable picking machines
would be essential to the respondent's operations when the stationary
machines are "worn out" ; that although the respondent had no pres-
ent plans for further construction of portable hop-picking machines,
plans to build additional machines are made "at such time as the
demand calls for the machines."
In all events, it is clear that the activities of the machine-shop
employees affect commerce within the meaning of the Act. We have
found that the respondent is engaged in producing and selling hops,
fruit, and lupulin, a substantial portion of which is sold and shipped
out of the States where they are produced. The respondent is a large
hop grower owning and operating eight ranches. To service its
six ranches in California the respondent has set up a machine shop
on the Brewer Ranch which handles the larger repairs for all six
ranches, not only of the hop-picking machines but also of other
agricultural equipment. Machines constructed by the machine-shop
employees have also been utilized at the respondent's ranches in the
harvesting of hops; portable machines, already constructed, or to
be constructed, will eventually replace the stationary machines pres-
ently operated on the respondent's ranches. The respondent, whose
operations are highly mechanized, is dependent upon the men who
construct, repair, and maintain its machines for the effective un-
interrupted continuance of those operations. The effect of a labor
dispute among its Brewer Ranch machine-shop employees upon the
8 The respondent had constructed portable hop-picking machines in 1935 and 1936. They
were operated only for a period of a few minutes, however, and their construction appears
to have been largely experimental.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
growing, harvesting, and consequent distribution of its crops, would
therefore be direct and immediate.4
A strike in the machine shop would, moreover, directly and im-
mediately affect the interstate passage of materials purchased by the
respondent for the Brewer Ranch machine shop. During the period
from July 1, 1938, to June 30, 1939, the respondent purchased raw
materials for this purpose which cost about $15,452, consisting of
babbitt, castings, copper, canvas, felt, pipe, veneer, wicking, wire,
steel, paint, and other miscellaneous items. Although most of these
raw materials appear to have been used in the construction of hop-
picking machines, some were used for other agricultural equipment
and for buildings on the Brewer Ranch. Of the total purchases of
raw materials, $3,377 worth was delivered to the respondent from
stocks located outside California.
A labor dispute in the machine shop would similarly affect the
interstate transportation of portable hop-picking machines. As
stated above, of the portable hop-picking machines constructed at
the machine shop, one was sold for about $4,000 and shipped to
England in 1937, and three were shipped to and from Oregon ranches
of the respondent during the 1938 season. Although in the latter
case the respondent insists that it was for purely experimental pur-
poses and urges that in 1939 it did not intend to use any of its portable
hop-picking machines in Oregon, we believe that certain alterations
on the machines made by the respondent's machine-shop employees
after the experiment in 1938, designed to correct the defects which
appeared in picking hops in Oregon, indicate a reasonable probability
of continued future use of such machines on the respondent's Oregon
ranches."
H. APPLICATION OF THE ACT TO MACHINE-SHOP EMPLOYEES
The respondent contends that employees working in its Brewer
Ranch machine shop are "agricultural laborers" within the meaning
of the Act and therefore excluded from the operation thereof 6
4 Cf Southern Colorado Power Company v National Labor Relations Board , 111 F. ( 2d) 539
(C. C. A 10) ; Matter of California Cotton Oil Corporation and Edible Oil Workers Union,
Local 21569, A. F L, 20 N L R B 540
5 Thys , superintendent of the Brewer Ranch and designer of the portable bop-picking
machines , when asked whether the respondent contemplated sending portable machines to
Oregon for the hop harvest in 1939 testified • "Contemplated-we have been talking about
it We have not made any definite plans "
Since the Oregon hop harvest occurs later than the California harvest, the lease of ma-
chines in California would appear to be no obstacle to the shipping of some of the respond-
ent's portable machines to Oregon.
Section 2 ( 3) of the Act provides in part:
The term "employee" shall include any employee . . . but shall not include any indi-
vidual employed as an agricultural laborer .. .
'B.-CLEMENS -HORST COMPANY 1199
The employees here under consideration, from January 1, 1938, to
June 30, 1939, worked 72,715 hours, of which 59,758 hours were worked
inside the machine shop and 12,957 hours outside. We are here con-
cerned only with the work of such employees while within the ma-
chine shop.'
The respondent's Brewer Ranch machine shop is equipped with three
lathes, a shaper, a drill press, vises, a bending machine, emery wheels,
a power hacksaw, a stamping press, a key seat cutter, two are welders,
a spot welder, and other ordinary tools, such as anvils, hacksaws, files,
hammers, chisels, pliers, and several kinds of wrenches.
The machine-shop employees use these tools and equipment in the
construction, maintenance, and repair of hop-picking machines and
in the maintenance and repair of other agricultural equipment. In
the construction of the hop-picking machines, the respondent's em-
ployees work on all parts except the motors, the wheels, chains, fans,
belts, and some springs. They bore sprockets and machine castings,
cut key ways in the shafts, make wire 'fingers for the picking parts
of the machines, machine the sheaves, cut and bend the sheet metal,
and assemble the machines. The employees also do machine work on
kilns, tractors, trucks, dusting machines, plows, pumps, manure spread-
ers, wagons, and spray rigs.
We have hitherto had occasion in several cases to interpret the
term "agricultural laborer" as used in the Act, and have, in so far
as here relevant, defined that term to include persons employed by
tho3 owner or tenant of a farm on which products in their raw or
natural state are produced to perform services on such farm in
connection with the cultivation of soil, the harvesting of crops, the
nursing, feeding or management of livestock, or other ordinary farm
operations, as distinguished from manufacturing or commercial
operations.8 The respondent argues that the machine-shop employees
perform ordinary farming operations; that every farm, regardless
of size, must be equipped with some tools and equipment; and that
size and elaborateness of machine shop do not alter the character of
the operation. We are of the contrary opinion and in agreement
7 The complaint describes the alleged appropriate unit as consisting of "all employees of
the respondent . . . tin its machine shop (italics supplied) " The Union in its brief states
that its "only interest in these employees is during the time they are doing our work "
We do not decide, however, that the work of these employees performed outside the ma-
chine shop is such as to exclude them at such times from the operation of the Act The
evidence does not disclose in sufficient detail the nature of the work of such employees
outside the machine shop to permit us to decide this question. The Tiial Examiner admit-
ted into evidence the exhibits showing the comparative time worked in and outside the
machine shop with the understanding that the Board would not rely on the employment
outside the machine shop "to establish the employee as not an agricultural laborer."
8 See Matter of The Park Floral Company and United Greenhouse and Floral Workers
Union No 510 of the United Cannery, Agricultural, Packing and Allied Workers of America,
Affiliated with the Congress of Industrial Organizations , 19 N. L R B . 404, and cases
there cited.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the views recently expressed by the United States Circuit Court
of Appeals for the Ninth Circuit in North Whittier Heights Citrus
Association v. National Labor Relations Board,9 that:
The factual change in the manner of accomplishing the same
work is exactly what does change the status of those doing
it...
There are many instances related in the authorities showing
that work done in one way is agricultural labor and workmen
doing the same nature of work but under different circumstances
are not agricultural laborers, and vice versa.
The above is particularly applicable to the difference between a
farm laborer who uses ordinary farm tools in repairing and main-
taining farm equipment and the employees in a machine shop with
complex equipment such as that on the Brewer Ranch where, in
addition to their construction of hop-picking machines, they repair
and maintain agricultural equipment not only from the respondent's
Brewer Ranch but also from its other California ranches. The
work performed by the machine-shop employees in the construction
of hop-picking machines, as described above, is a clear instance that
they are engaged in the operations of a skilled mechanic, rather than
those of a farm laborer; that their work in the machine shop is
industrial in nature rather than agricultural in the common under-
standing of that term.
Moreover, the work performed by the machine-shop employees
can by no means be considered normally and customarily incidental
to the agricultural operations of the respondent. The machine-shop
employees are not only engaged in the construction, repair, and
maintenance of all of the respondent's agricultural equipment, but
were, in the 18-month period preceding the hearing, also engaged
during a majority of their working hours in the construction and
repair of hop-picking machines which were leased or sold to other
growers by the respondent.,' A fair indication of the respondent's
own appraisal of its machine-shop activities is to be found in the
letterhead of its stationery which it had printed late in 1937 or early
in 1938. This letterhead reads as follows :
9109 F. (2d) 76 (C. C. A. 9), enf'g Matter of North Whittier Heights Citrus Association
and Citrus Packing House Workers Union, Local 21091, 10 N L. R. B. 1269. See also
Tovrea Packing Co v. N L R. B, 111 F (2d) 626 (C. C A. 9), enf'g as mod, Matter of
Tovrea Packing Co. and Amalgamated Meat Cuttcrs and Butcher Workmen of North Amer-
ica, Local No. 313, 12 N. L. R. B. 1063.
10 44,320 hours, out of the total of 59,758 hours worked inside the machine shop, were
utilized for this purpose.
E. CLEMENS HORST COMPANY 1201
E. CLEMENS HORST CO.
Manufacturers of Agricultural Machinery
Other governmental agencies which have passed on this question
have ruled that employees such as those here involved are not agricul-
tural laborers. Thus, in defining the term "agricultural labor" as
used in the Social Security Act," the Treasury Department, Bureau
of Internal Revenue, has held as follows :12
Where the nature of the service is such that it might properly
be said of the individual performing it that he is pursuing a
special trade, calling, or occupation not closely connected with
agriculture, the service does not constitute "agricultural labor,"
even though the service may be performed on a farm by an
employee of the owner or tenant thereof. Typical of such serv-
ices are those performed by a bookkeeper, stenographer, carpen-
ter, mechanic or engineer (italics supplied). Services of this
nature are not agricultural even though pertaining to agricul-
tural pursuits .. .
Thus, if an individual employed on a farm is engaged princi-
pally in repairing farm machinery and equipment but inciden-
tally engages in the performance of services in connection with
the cultivation of the soil his entire services may be treated as
having been performed in "employment," the incidental agri-
cultural services being disregarded.
Similarly, under the California Unemployment Reserves Law,",
which excludes "agricultural labor" from the term "employment," the
California Department of Employment, Unemployment Reserves
Commission, on April 13, 1937, issued the following ruling :
Blacksmiths, carpenters, ranch painters, mechanics, cooks, elec-
tricians, performing services on a farm, are not engaged in
agricultural labor .. .
Blacksmiths, carpenters, ranch painters, and other persons per-
forming specialized services such as mechanics, cooks, electricians,
and others are considered as engaged in a specialized employ-
n Sections 210 (b ), 811 (b ), and 907 ( c) of this Act , 49 Stat. 620 , provide in part: The
term "employment" means any service . . . except- ( 1) agricultural labor; . .
In amendments to the Social Security Act, approved August 10 , 1939, certain changes
were embodied concerning the definition of "agricultural labor "
It may be noted that the respondent had, at the time of the hearing, complied for some
time with the Social Security Act with respect to the machine -shop employees.
12 Bureau of Internal Revenue Rulings XVI-14-8630-S . S T 125. Section 811: Definl
tions, Regulations 91, Article 6 ; Agricultural labor (Also Section 907, Regulations 90,
Article 206 (1).)
13 Chapter 352, Laws of 1935
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, and do not come within the definition of agricultural labor
as adopted by the Unemployment Reserves Commission.
And the California Employment Commission, in defining employ-
ment, has issued the following ruling 14 concerning the definition of
agricultural labor :
Agricultural labor shall not include services performed on
a farm by managers, supervisors, foremen, carpenters, painters,
blacksmiths, mechanics (italics supplied), timekeepers, book-
keepers, or other clerical workers, watchmen, janitors, cooks,
gardeners, or individuals engaged in similar occupations. '
We find that the Brewer Ranch machine-shop workers are not
"agricultural laborers" and are therefore "employees" within the
meaning of Section 2 (3) of the Act.
III. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists, Local No. 33, is a labor
organization affiliated with the American Federation of Labor. It
admits to membership employees of the respondent working in its
Brewer Ranch machine shop.
IV. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit
The complaint alleges that an appropriate unit consists of the
employees working in the respondent's Brewer Ranch machine shop,
exclusive of supervisory employees. The Union does not admit to
membership other employees of the respondent. In view of the
differentiation in work between the machine-shop employees and
other employees of the respondent and the extent of organization by
the Union, we find that a unit composed of the machine-shop em-
ployees is appropriate.
We find that the respondent's Brewer Ranch machine-shop em-
ployees, exclusive of supervisory employees, at all times material
herein, constituted and they now constitute a unit appropriate for the
purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and that
said unit insures to such employees of the respondent the full benefit
of their right to self-organization and to collective bargaining and
otherwise effectuates the policies of the Act.
14 Effective April 1, 1940.
E. CLEMENS HORST COMPANY 1203
2. Representation by the Union of a majority in the appropriate unit
Lists of employees, prepared from the respondent's original time
records by one of the respondent's two timekeepers on the Brewer
Ranch, were introduced in evidence. The lists cover the period from
January 1, 1938, to June 20, 1939, and show the distribution of time
and the general nature of work done during that period by the re-
spondent's employees who had worked in the Brewer Ranch machine
shop.15 During March and April 1939, the period during which the
Union sought to bargain with the respondent., there were 21 employees
who worked in the machine shop. In June there were 25 such em-
ployees, and at the time of the hearing in July, there were 26
employees. -
A list of names, prepared from the Union's membership applica-
tion cards signed by employees of the respondent, was introduced in
evidencel8 The original application cards were available at the
hearing, and opportunity was afforded the respondent to inspect and
examine them. The respondent raised no question concerning the
original cards or the list of names compiled. from them. Having
compared the names on this list with the names on the respondent's
list of employees in the machine shop, we find' that in March and
April 1939, 15 of the 21 machine-shop employees had signed union
membership application cards, and in June 1939, 15 of the 26 machine-
shop employees had signed such cards. During July two additional
machine-shop employees signed membership application cards so
that at the time of the hearing the Union had been designated by 17
of the 26 employees then employed in the machine shop.
We find that the Union in March and April 1939, and at all
times thereafter, was' the duly designated representative of a ma-
jority 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 the purposes*of collective bargaining.
16 The respondent introduced a separate tabulation showing the number of employees car-
ried on the machine-shop pay roll from July 1938 through June 1939 The totals for some
of the months appear to vary from those of the employee lists referred to. The respondent
does not contend, however, that all the employees included in its tabulation worked in the
machine shop and offered the exhibit for the limited purpose of showing "the number of
people . . . carried on the machine shop payroll . . as compared with the total number
carried on the ranch . . The reason for the respondent 's pay-roll classification is not
clear.
11 There were also introduced in evidence signed cards, 15 dated March 2, 1939, and 2
dated July 24, 1939, designating the Union as collective bargaining representative. These
cards were signed by machine-shop employees in the presence of Foster, the Union's busi-
ness agent. The identity and number of names on the cards agree with the list prepared
from membership application cards.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to bargain
On March 9, 1939, Harry Foster, the Union's business agent, and
one Marsh, another union official, called on Miller, the respondent's
general superintendent, for the first time. Foster explained that he
was the business representative of the Union and told Miller that he
desired to begin negotiations on behalf of the Union for the purpose
of working out a collective bargaining agreement with the respond-
ent. Miller told Foster and Marsh that he did not think that they
had "any business" with the respondent ; that the respondent was an
agricultural concern; and that he, Miller, was satisfied that the men
were satisfied because they had not made any complaint. Miller
expressed doubt that the men had designated the Union as their
bargaining agent, whereupon Foster and Marsh asked him what
proof he wanted to establish this fact and whether he would agree to
an election. Miller demurred to the suggestion that an election be
held, saying that since the men had not complained, he did not think
that the men or the respondent were "interested."
On March 15, 1939, Foster sent a registered letter to the respondent
in which he restated the Union's claim to a majority and his desire to
undertake negotiations and requested that the respondent let him
know when a conference might be held. The respondent received the
letter on the day it was sent, but made no reply.
On March 22 Foster sent a second registered letter to the re-
spondent. The respondent, on March 23 and again on March 27,
refused to accept this letter. The letter was enclosed in an envelope
which bore the name and return address, but not the title, of the
Union's secretary, who was apparently unknown to the respondent.
The envelope bore a "union bug" but nothing further to indicate its
source. The letter was returned to the sender marked "unclaimed."
On April 4 Foster and a Field Examiner of the Board went to the
Brewer Ranch and talked with Miller, who again stated that the
respondent was an agricultural concern and that he did not believe
that a majority of the men had designated the Union as their bar-
gaining representative because they had not complained. According
to Miller's own testimony, he told Foster and the Board's examiner
that ". . . w6 [the respondent] had plenty of ranch help working
on' the ranches at various times that we could move into the shops,
and we had a waiting list of men that were anxious to fill the posi-
tions of the men that were in the shop at the time, and that we had
many men on the ranches who were capable of doing that work."
Miller stated that further discussion was useless and suggested to
Foster that the Union deal with the respondent through the latter's
attorneys. This was the last conference between representatives of
i
E. CLEMENS HORST COMPANY 1205
the Union and the respondent .17 At the hearing the respondent
maintained that it was under no duty to bargain with the Union on
the ground that the machine-shop employees were agricultural
laborers.
We find that on March 9, 1939, and at all times thereafter, the re-
spondent refused to bargain collectively with the Union as the ex-
clusive representative of its employees in the appropriate unit in
respect to rates of pay, wages, hours of employment, and other con-
ditions of employment. We also find that by such refusal the re-
spondent interfered with, restrained, and coerced its employees in
the exercise of their rights guaranteed in Section 7 of the Act.
B. Interference, restraint, and coercion
On April 10, the day following Foster's unsuccessful attempt to
begin collective bargaining with Miller, the respondent' s general su-
perintendent, the latter summoned all the machine-shop employees to
his office and addressed them. Miller stated to the assembled em-
ployees that it seemed that some of the men were not satisfied; that
someone had sent a union representative to the ranch; that the' re-
spondent was an agricultural organization; that with the exception
of the work performed by three or four of the men the work could
be done by farm laborers; that the respondent had gotten along very
nicely without the assistance of the "hiring hall" in the past; and
that it intended to do so in the future. Miller further stated that as
far as wages were concerned the respondent was paying about all it
could; that there was no one working for the respondent who was in-
dispensable ; and that this included the machine-shop employees.
Miller concluded his talk by advising the men that if they could "get
out and get better positions and better work that paid more money,
there would be no hard feelings."
Miller's speech to the machine-shoe employees, coming, as it did,
immediately after the respondent had been requested by the Union to
begin negotiations looking toward a contract, was calculated and in-
tended to discourage the organizational activities of the machine-shop
employees and was of necessity coercive and restrictive in effect.
Since we have found that the employees to whom Miller made his
speech are "employees" within the meaning of the Act, it follows
necessarily, and we find, that the respondent by the speech of its
general superintendent on March 10, 1939, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
17 In response to subsequent inquiry from the Board' s Regional office, the respondent's
attorneys stated by letter dated April 25, 1939, that the respondent adhered to its position
that the machine- shop employees were agricultural laboreis and^not covered by the Act.
283034-41-vol 23-77
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom; and, in order
to effectuate the purposes and policies of the Act, we shall, in aid of
our cease and desist order, order the respondent, upon request, to
bargain collectively with the Union as the exclusive representative
of all the employees in the appropriate unit.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists , Local No. 33, affili-
ated with the American Federation of Labor, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. The respondent 's employees working in its Brewer Ranch ma-
chine shop are "employees" within the meaning of Section 2 (3) of
the Act.
3. The respondent 's machine -shop employees, exclusive of super-
visory employees, at all times material herein constituted and they
now constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
4. International Association of Machinists , Local No . 33, was on
March 9, 1939, and at all times thereafter has been, the exclusive rep-
resentative of all employees in such unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
5. By refusing and continuing to refuse to bargain collectively with
International Association of Machinists, Local No. 33 , as the exclu-
sive representative of the employees in such unit , the respondent has
engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (5) 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.
ORDER
Upon the basis of the foregoing 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 re-
spondent, E. Clemens Horst Company, and its officers, agents, suc-
cessors, and assigns shall :
I
E. CLEMENS HORST COMPANY 1207
1. Cease and desist from :
(a) Refusing to bargain collectively with International Associa-
tion of Machinists, Local No. 33, as the exclusive representative of
its Brewer Ranch machine-shop employees, exclusive of supervisory
employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Associ-
ation of Machinists, Local No. 33, as the exclusive representative of
its Brewer Ranch machine-shop employees, exclusive of supervisory
employees, with respect to rates of pay, wages, hours of employment,
and other conditions of employment;
(b) Post immediately in conspicuous places at its Brewer Ranch
machine shop and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees
stating : (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; and (2) that the respondent will take the affirmative
action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Twentieth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.