Eclipse Moulded Products Co.

National Labor Relations Board - Board Decisions

Aug 23, 1941

34 N.L.R.B. 785 (N.L.R.B. 1941)

In the Matter of ECLIPSE MOULDED PRODUCTS COMPANY and STEEL
WORKERS ORGANIZING COMMITTEE (CIO)
Case No. C-1865.-Decided August 23, 1941
Jurisdiction : Thermo-setting and thermo-plastic castings manufacturing indus-
try.
Company's contention that complaint should be dismissed because of prior
jurisdiction exercised by Wisconsin Employment Relations Board held to
be without merit.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; threats of dis-
charge; threat of cessation of operations; ordering suspended employee and
and union representative to leave respondent's property.
Company-Dominated Union: initiation of, by discouraging membership in out-
side union-participation of representatives of management in initiation and
formation of: solicitation of members ; attendance at meetings-support : per-
mitting employees to solicit members and to circulate petitions on company
time.
Discrimination: suspension and subsequent discharge of union president and
discharges of four other union members because of their union membership
and activities and refusal to join dominated organization ; contention of
employer that suspension of union president pending physical examination
was because of illness held to be without merit. -
Remedial Orders : disestablishment of company-dominated organization; rein-
statement of discharged employees ; back pay from date of discharge to
date of reinstatement, omitting period from date of Intermediate Report to
date of Decision in cases dismissed by the Trial Examiner ; reinstatement
of strikers upon application or placement on preferential list; back pay for
strikers refused reinstatement or placement on preferential list; back pay
for-strikers refused reinstatement or placement on preferential list to be
based 'on period from five days after application for reinstatement to date
of reinstatement, whether such application is made before or after date of
Order.
Mr. Frederick P. Mett, for the Board.
Dunn, Aarons c Roemer, by Mr. Michael J. Dunn and Mr. L. C.
Aaron, of Milwaukee, Wis., for the respondent
Mr. W. O. Sonmemann, of Milwaukee, Wis., for the Union.
Miss Grace McEldowney, of counsel to the Board.
34 N. ,L. R. B., No. 99.
785
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Steel Workers
Organizing Committee (CIO), herein called the Union, the National
Labor Relations Board, herein called the Board, by its Regional
Director for the Twelfth Region (Milwaukee, Wisconsin), issued its
complaint 'dated December 19, 1940, against Eclipse Moulded Prod-
ucts Company, Milwaukee, Wisconsin, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (2), and (3) 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 notice of hearing thereon, were duly
served on the respondent, the Union, and the Independent Associa-
tion of Eclipse Workers, herein called the Association, a labor or-
ganization alleged in the complaint to be dominated by the
respondent.
With respect to the unfair labor practices, the complaint alleged
in substance (1) that the respondent (a) discriminated with regard to
the hire and tenure of employment of five named employees 1 because
of their membership in and activities on behalf of the Union and
in order to discourage membership in the Union; (b) on or about
September' 26, 1940, and thereafter, dominated and interfered with
the formation and administration of the Association, and contributed
support to, the Association; and (c) on or about September 26, 1940,
and thereafter, interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act, by threatening that it would close down its plant or move away
from Milwaukee before it would recognize or negotiate with the
Union, by questioning its employees about their membership in and
activities on behalf of the Union, and by other acts; and (2) that on
or about October 9, 1940, as a result of the unfair labor practices
of the respondent, the Union called a strike which was still in prog-
ress when the complaint was issued.
On or about December 31, 1940, the respondent filed with the
Regional Director a motion to dismiss the complaint on the ground
that jurisdiction of the proceedings had been vested in the Wiscon-
'Arthur Neuschaefer, suspended September 26, 1940, and discharged October 11, 1940;
Carl H. Navel, discharged October 3 , 1940; Roland A. Gehrig, discharged October 7, 1940:
Leonard Erickson , discharged October 8 , 1940 ; and Floyd Gainer, discharged October 8,
1940.
ECLIPSE MOULDED PRODUCTS COMPANY 787
sin Employment Relations Board.2 On the same date, the respondent
filed its answer, in which it denied the unfair labor practices alleged
in the complaint with the exception' of certain paragraphs as to
which it requested a bill of particulars. The Regional Director there-
after referred the respondent's motion to dismiss to the Trial
Examiner.
Pursuant to notice, a hearing was held in Milwaukee, Wis-
consin, from January 16 through February 1, 1941, inclusive, before
James C. Batten, the Trial Examiner duly designated by the Chief
Trial Examiner. The Board, the respondent, and the Union were
represented by counsel and participated. in the hearing. Full op-
portunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
The Association did not participate in the hearing.,
At the opening of the hearing the respondent renewed its motion
to dismiss the complaint on the ground that the Wisconsin Employ-
ment Relations Board had exercised prior jurisdiction over the matters
covered thereby. The motion was denied a The respondent renewed
its request, originally made in #ls answer, for a bill of particulars
with regard to certain paragraphs of the complaint. The Trial
Examiner advised the Board's attorney that, unless a bill of particu-
lars was furnished with respect to the allegations of the complaint
that the respondent "by other acts and conduct" had engaged in
unfair labor practices, those allegations would be stricken. No bill
of particulars was furnished by the Board's attorney, and the alle-
gations in question were stricken from the complaint. At the close
of the Board's case, the respondent moved to strike certain testimony
from the record and to direct counsel for the Board to turn over to
the Trial Examiner any notes or memoranda containing a list of
the respondent's stockholders, and renewed its motion to dismiss the
complaint on jurisdictional grounds. The Trial Examiner reserved
his rulings on these motions, and subsequently denied them in his
Intermediate Report. The respondent also moved to dismiss the
complaint on the ground that the Board had failed to establish a
prima facie case. This motion was denied. Subsequently the Trial
Examiner granted the respondent's motion to dismiss the complaint
2 On December 9, 1940, the present respondent had filed with the Wisconsin Employment
Relations Board, herein called the State Board, a complaint against the Union and certain
of its members, among whom were included the five individuals claiming discrimination in
the present proceeding . In its answer and cross complaint the Union made the same alle-
gations of unfair labor practices on the part of the present respondent as are contained in
the complaint now before the Board . Pursuant to a notice of hearing issued on December
13, 1940, a hearing was held before the State Board from January 3 to 9 and on January
15, 1941. No decision had been issued by the time of the hearing before the Trial
Examiner.
8 Under the Act the Board is granted exclusive power to prevent any person from engaging
in specified unfair labor practices affecting commerce . See 49 Stat . 449, Sec. 10 (a).
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in so far as paragraph 19c 4 was concerned. At the close of the
testimony the respondent's counsel renewed his motion for dismissal
of the complaint. The trial Examiner reserved decision on this
motion and later denied it in his Intermediate Report. Also at the
close of the testimony, counsel for the Board moved that the pleadings
be conformed to the proof. The motion was allowed in so far as
minor particulars were concerned. During the course of the hearing
the Trial Examiner made rulings on other motions and on'objections
to the admission of evidence. The Board has reviewed all the rulings
of the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed. At the close of the hear-
ing the respondent filed an amended answer raising no new issues
but setting forth the respondent's defense in greater detail. The
Trial Examiner afforded all parties an opportunity for oral argument.
Counsel for the Board and the respondent argued orally and later
filed briefs, which were duly considered by the Trial Examiner.
Thereafter the-Trial Examiner filed his Intermediate Report, dated
April 18, 1941, copies of which were duly served upon all the parties.
He found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act,
and recommended that the respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.5 Exceptions to the Intermediate Report and a brief were
filed by the respondent.
Upon the request of the respondent and pursuant to notice to all
parties a hearing was duly held before the Board in Washington,
D. C., on June 19, 1941, for the purpose of oral argument. The re-
spondent was represented by counsel; the Union and the Association
did, not appear. The Board has considered the exceptions and brief
filed by the respondent, and, save in so far as the exceptions are
consistent with the findings, conclusions, and order set forth below,
finds them to be without merit.
Upon the entire record in the case the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a Wisconsin corporation engaged in the produc-
tion and sale of thermo-setting and thermo-plastic castings. Its
4 It was alleged in this paragraph of the complaint that, during the strike called by the
Union, the respondent invited "its striking employees to return to work but with loss of
their previously accumulated seniority," arid advised them "that they would never be taken
back to work if they did not return to work soon."
5 Since the transcript of the hearing did not recite the admission into evidence of Board
Exhibits 9-A and 9-B, the Trial Examiner in the Intermediate Report directed their
receipt into evidence and their incorporation as part of the record.
ECLIPSE MOULDED PRODUCTS COMPANY 789
principal office and plant are located at Milwaukee, Wisconsin. The
respondent purchases raw materials to the value of between $75,000
and $100,000 a year, 90 per cent of which are shipped to the respond-
ent from points outside the State of Wisconsin. ' Sales of manufac-
tured products amount in value to approximately $300,000 'a year.
Between 5 and 15 per cent of these products are shipped to points
outside the State of Wisconsin. In addition the respondent fur-
nishes parts to many manufacturing concerns in the vicinity of
Milwaukee, which, in turn, ship at least a part of their products out
of the State of Wisconsin. The respondent employs approximately
65 production employees working in three shifts.
II. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee is a national labor organi-
zation affiliated with the Congress of Industrial Organizations. It
admits to membership employees of the respondent.
The Independent Association of Eclipse Workers is an unaffiliated
labor organization. It admits to membership employees of the re-
spondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
In the spring of 1937 a number of employees of the respondent
attended a meeting called by International Association of Machinists,
herein called the I. A. M. At this meeting, several of the respond-
ent's employees joined the I. A. M. One of them, Armas Karjala,
on the next work day was requested to go to the main office. Present
in the office were several officials of the respondent : Eugene G. Eng-
man, president; Heaton, secretary-treasurer; and Charles Engman.
vice president. Eugene Engman told Karjala, according to Karj ala's
testimony:
Well, there is a slack season coming up, and we are going to have
to let some of the employees go. What we wanted you in here
for is to find out whether you are loyal to the company .. .
The men that are loyal to the company are going to get the good
jobs when they come along. The company is going to enlarge and
expand, and we are going to keep the men that are loyal to the
company on with us.
Karjala testified that because he "wanted to keep [his] job," he
assured Engman that he was going to be loyal to the company.
Although Engman denied that he had ever discussed unions with
Karjala, the Trial Examiner credited Karjala's testimony as being a
substantially correct and true version of the meeting, and we so find.
451269-42-vol. 34-51
0
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All the other employees who had attended the meeting called by the
I. A. M. were called into the office on the same day. Later there was
some discussion among these men. Karjala testified that, "as the
result of that, we came to a more or less conclusion that we wouldn't
go down to the Machinists' Union for another meeting, we would
forget about our efforts to organize." For some time thereafter the
I. A. M. sent notices of meetings to the employees, but none of the
persons notified appeared at the meeting hall. It is thus evident that
the efforts of the respondent to discourage self-organization by its
employees in the I. A. M. were successful.
Shortly after this attempt by the I. A. M. to organize the respond-
ent's employees, Milton W. Hoge, an employee in the respondent's
molding department, called together a group of employees in the plant
office on Saturday afternoon and advised them that "it would be a
good idea if we formed, an organization, a club, we could talk over
our grievances with the management, we could throw a party once
in a while." Charles Engman, the respondent's vice president, attended
the meeting. The Eclipse Recreation Club was thereupon organized,
and subsequently held a number of meetings which were attended by
various officials of the respondent as well as by employees. After
approximately 6 months this organization was disbanded, and the
dues were returned to its members. Gilbert W. Greve," the respond-
ent's shipping clerk, was treasurer of the club. Hoge and Greve subse-
quently assisted in the organization of the Association, discussed
below, and Greve became its secretary-treasurer. The evidence is not
clear that the Eclipse Recreation Club was organized as a labor organ-
ization or that it ever functioned as such, but coming into existence
at or about the time of the campaign of the I. A. M., it had its
effect in discouraging the organizational efforts of the respondent's
employees.
The respondent's employees again attempted to organize in the
fall of 1939. At this time a number of them joined International
Molders' Union of North America and wore union buttons in the
plant. On one occasion Eugene Engman, when passing Karjala's
machine, noticed that he was wearing a button, and asked whether
he was "one of the brothers." Shortly after this incident Enginan,
according to Karj ala's testimony, advised a group of the employees as
follows : "Well, if you boys want union wages, you are going to work,
you are going to give me union production." Engman also said,
according to Karjala, that,
... if we liked working in a union shop, he could get us a job
in a union shop, that he had quite a bit of influence down. at
6 Greve's supervisory status is discussed in Section III C, infra
ECLIPSE MOULDED PRODUCTS COMPANY 791
Cutler-Hammer, and he could place any of us that wanted to work
in a union shop down there. ,
Although, as stated above, Engman denied that he had ever talked
with Karjala about unions, we credit the testimony of Karjala, as did
the Trial Examiner.
In October 1939 two employees, Clarence Wilke and Vincent J.
Bertzyk, both of whom had joined International Molders' Union of
North America, were discharged for an infraction of the rules. After
their discharge, they requested a recommendation from Eugene Eng-
man. According to the testimony of Bertzyk, Engman replied : "I'll
tell you, if you go to a place where there is a union, that's all right ;
but if you go to a place that's non-union . . ." Engman shrugged
his shoulders and lifted his hands in the air, a gesture apparently
signifying, as the Trial Examiner found, that Engman would not
i ecommend them if they sought employment in a non-union shop.
Although Engman denied generally that he ever talked with Bertzyk
on union matters; we credit Bertyzk's account of the incident, as did
the Trial Examiner.
It is clear from the above facts that prior to the events covered by
the complaint the respondent opposed the exercise by its employees
of their right to form labor organizations of their own choice by
discouraging membership in the I. A. M. and International Molders'
Union of North America, by the organization of a recreational club,
and by warning its employees that if they liked working in a union
shop they should secure jobs in a union shop. Although the acts of
the respondent referred to` in this section were not alleged in the
complaint to constitute unfair labor practices, they are, nevertheless,
pertinent as background in determining the issues, raised by the
complaint.?
B. The organization of the S. W. O. C. and the suspension of
Newwhae f er
In September 1940 organization of the respondent's employees was
again undertaken when Arthur Neuschaefer, a molder in the respond-
ent's plant, talked to several of the other molders about the Union
and arranged for a meeting. At this meeting, held on September 26,
17 employees joined the Union, and a temporary organization was
formed. Neuschaefer was elected temporary president.
On September 25, Neuschaefer approached Floyd Gainer, also em-
ployed as a molder, and invited him to attend the organizational
7 See N. L. R. B. v. Pennsylvania Greyhound Lines , Inc, 303 U. S . 261; N. L. R. B. v.
Pacific Greyhound Lines, Inc., 91 F . ( 2d) 458 (C. C. A. 9), aff'd 303 U. S . 272. Matter of
Highway Trailer Company and United Automobile Workers of America , Local No . 135, et al.,
3 N. L. R . B. 591.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting . Neuschaefer gave Gainer a card which indicated the place
where the meeting was to be held. Gainer testified that when he left
his shift on the morning of September 26, Charles Engman walked
up to him and said: "What's the trouble around here? There seems
to be something brewing, as though something is going to happen";
and that Gainer replied : "I don't know. The fellows are talking about
some sort of meeting they are holding, and they gave me a card, telling
me to come down," and took the card out of his pocket and gave it to
Engman. Engman, in his testimony, contended that Gainer offered
to act as a "stool pigeon" and report what was being done toward the
organization of the Union, but that he rejected the offer. Whether
the testimony of Gainer or Engman is accepted there is no doubt, and
we find, that on September 26 the respondent had notice of the fact
that the Union was, being organized.
The meeting on September 26 was held at 10 a. m., and Neuschaefer
reported for work on the afternoon shift. Before starting work he
spoke to Ralph Engman, foreman of the tool and die department,
through whose friendship he had obtained employment with the
respondent. He told Engman that he "wanted a little congratula-
tions" because he had been elected president of the Union that morn-
ing. At this, according to Neuschaefer, Engman "flared up" and
said :
We will not recognize any outside union in this plant, and before
we do, we will close it up, we will board it up, we will move out
of town, which we intended to in the first place ... Any farmer
can run this kind of job.
After further discussion Engman added, according to Neuschaefer :
"I go, as a friend, to get you a job, and everything else, and that is
the way you turn on me ... I thought you were a friend of mine,
and I found out you are not, . . . that is the last time any friends
will ever get a job in this plant." Ralph Engman did not testify.
We credit Neuschaefer's testimony regarding this incident, as did the
Trial Examiner.
After this conversation Neuschaefer went to work. In about three
quarters of an hour Eugene Engman, the president, and Charles Eng-
man, the vice president, entered the plant, walked past Neuschaefer's
machine, stopped for a moment, and then went into the office. Eugene
Engman soon left the office, again walked past Neuschaefer's machine,
and went out of the door of the plant. Charles Engman remained in
the office. Immediately thereafter Eugene Engman reentered the
building, retraced his steps to Neuschaefer's machine,. and inquired of
him, "What's the matter with you?" Neuschaefer replied, "Nothing.
Why?" Engman said : "I understand you get the fits ... I think I
am going to send you to the doctor." Neuschaefer then asked :
ECLIPSE MOULDED PRODUCTS COMPANY 793
"What is this all about? Because I told Ralph I was president of
the C. 1. 0. today, now, all of a sudden, I get the fits?" Engman asked
Neuschaefer why he had gone home on a previous night and whether
he had not told Van Diemen, the shift foreman, that he was not
feeling well and "had the fits." Neuschaefer denied that he had made
such a statement to Van Diemen.
Upon instruction from Eugene Engman, Neuschaefer shut down
his machine and reported to the office. There Eugene Engman again
asked him whether he had not advised Van Diemen, several days
prior to September 26, that he felt a fit coming on and that he wanted
to stop work and go home. Neuschaefer again denied that he had
made such a statement. Nevertheless Engman told Neuschaefer that
it would be necessary to send him to a doctor for an examination, and
that he should return to the plant the following day for a slip to take
to the doctor's office.
The incident referred to by Engman in his conversation with Neu-
schaefer had occurred about a week previously, on September 18. On
that evening Neuschaefer had felt sick at his stomach, reported this to
his foreman, Van Diemen, and requested permission to go home.
Neuschaefer, in his testimony, denied that he told Van Diemen that
he suffered from fits or dizzy spells. Harold Procknow, an employee
in the tool and die department, testified that on the evening in question
Neuschaefer told him that he suffered from dizzy spells, and that he
(Procknow) reported the matter to Van Diemen and Ralph Engman.
Neither Van Diemen nor Ralph Engman testified. Neuschaefer denied
that he had made the statement ascribed to him by Procknow. We
credit Neuschaefer's testimony, as did the Trial Examiner, and find
that on September 18 Neuschaefer was taken ill, but that there was
nothing serious about that illness, and that he did not state to anyone
that he suffered -from fits or dizzy spells. We further agree with the
Trial Examiner that the testimony of Eugene Engman that it had
been reported to him that Neuschaefer suffered from fits and dizzy
spells cannot be credited.
After being told that he was to go to a doctor, Neuschaefer left the
plant and got in touch with Waldemar 0. Sonnemann, a representa-
tive of the Union. Sometime later Sonnemann and Neuschaefer went
to the respondent's plant, arriving around 7: 30 or 8 o'clock in the
evening. Sonnemann told Richard Gruenewald, the plant superin-
tendent, that they wished to speak to Eugene Engman, who was not
present when they arrived. Within a few minutes, Gruenewald
appeared with Engman. As described by Neuschaefer, the following
took place:
... Gene Engman comes walking into the plant with his hands
up in the air, he says, "Get the hell out of here. This is private
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
property. You have no business trespassing." He wouldn't even
give Mr. Sonnemann a chance to talk to him, he started raving.
And along with him was a big dog, that stood waist high, .. .
[Engman further said,] "If you don't get the hell out of here,
this is private property, I will call the law."
Engman then walked into the office and made a telephone call, and
returning from the office said : "Get the hell out of here. If you don't,
I will sic this dog on you." Sonnemann and Neuschaefer walked out
of the plant and waited in front of the building until a police squad
car arrived. After one of the officers had taken the names of the
parties, Sonnemann and Neuschaefer left the vicinity of the plant.
Although Neuschaefer had been told to return to the plant on
September 27 for the slip for the doctor, he did not report until
the 28th. At that time he explained to Eugene Engman that be-
cause of the trouble occurring on the night of the 26th he thought
it would be better to wait a day or two. To Neuschaefer's accusation
that he was being sent to the doctor because he had been elected
president of the Union, Engman replied, according to Neuschaefer's
testimony, which we credit, as did the Trial Examiner : "I don't care
what union you belong to, or anything else . . . You can belong
to any organization you want." Engman further advised Neu-
schaefer : "Now if we consider this examination okay, and you are
all 'right, you can go back to work. But, if not, and until that
time, you are not to enter the plant, or to touch any part of the
property whatsoever, not put a foot on it. If you have got any
clothes, or anything in there, that you want, you talk to the foreman,
he will get it out for you, but you are not to enter the plant at
any time." Neuschaefer was then given a slip to report to Dr. G. F.
Fitzgerald for examination. As Neuschaefer was leaving, Engman
advised him that after Dr. Fitzgerald had sent in his report, it would
be considered, and that Neuschaefer would be paid for all of his time
until the final decision was made. Neuschaefer left the plant and
called Dr. Fitzgerald's office for an appointment. Neuschaefer's sub-
sequent discharge, which occurred on October 11, 1940, is discussed
below.
It is obvious' from the foregoing and from the entire record in
the case that Engman suspended Neuschaefer because of his election
to the presidency of the Union, and that the suspension and Eng-
man's instructions that Neuschaefer was not to set foot in the plant
were for the purpose of discouraging Neuschaefer's activities and
influence as president of the Union. Neuschaefer's illness, which the
respondent contends was the cause of the suspension, had occurred
a week earlier. Clearly, if it had been as serious as the respondent
claims, the respondent would not have waited a week before taking
ECLIPSE MOULDED PRODUCTS COMPANY 795
action. Further, Neuschaefer's suspension, although it came about
a week after his illness, immediately followed his statement to Ralph
Engman that he had been elected president of the Union and Eng-
man's expression of opposition to the Union and anger because of
Neuschaefer's activity on its behalf. We are convinced and find, as
did the Trial Examiner, that the respondent on September 26, 1940,
suspended Neuschaefer because of his membership in and activity on
behalf of the Union, and by such action discriminated in regard to
Neuschaefer's hire and tenure of employment and the terms and con-
ditions of his employment, thereby discouraging membership in the
Union ; and that it thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
C. Further interference, restraint, and coercion; The organization of
the Association
During the night of September 27, Eugene Engman clearly indi-
cated to the employees on the night shift his hostility toward the
Union. W. Van Diemen, the shift foreman, instructed the men to
shut down their machines and to congregate at one end of the plant.
Engman then spoke to the men, reading at least in part from a
sheet of paper in his hand. We find, as did the Trial Examiner,
that the following undenied testimony of Laurence Peterson, an
employee on Van Diemen's shift, is a substantially correct account
of what Engman said:
He [Engman] says : "I have this here paper because I want to
be sure that I say it right, what I am going to talk about .. .
This is an American place and . . . it is run by Americans."
He says, "I hope you guys is all Americans . . . We can
all do what we want in this here country, and . . . you
guys got the right to join any organization there is that you
want to join, but . . . I hope you do join an American one."
He says, "This building here is mine," or "I'm a shareholder in
it .:. and I can do what I want with it. I can take it down
brick by brick, tear it down, or burn it up if I want to."
These remarks clearly conveyed the disparaging intimation that the
Union was an un-American organization, as well as a thinly veiled
threat that the respondent might cease operations should the Union
gain a foothold in the plant. After completing the talk, Engman
instructed. the employees to go back to work, and told them they
would be given credit for the time lost in listening to the speech.
This speech of Engman on the 27th, following upon the suspension
of Neuschaefer on the 26th and Ralph Engman's remarks to him
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior thereto, very definitely demonstrated the respondent's hostility
toward the organization of its employees in the Union. We believe,
from a consideration of the record in its entirety, that Neuschaefer's
suspension and Engman's talk to the employees were parts of a gen-
eral program followed by the respondent to eliminate the Union from
the plant and to lay the foundation for the establishment of a new
labor organization, the Association, which is discussed below.
We find, as did the Trial Examiner, that by Ralph Engman's state-
ments to Neuschaefer, Eugene Engman's dealings with Neuschaefer
and Sonnemarin on the night of September 26, and his talk to the
employees on the night of September 27, the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On Saturday, September 28, 1940, Hoge, who had been the or-
ganizer of the Eclipse Recreation Association, hereinbefore described,
drew up in the office of Gruenewald, the plant superintendent, two
petitions on paper which he secured in that office. The petitions
were ' worded s follows :
We, the following employees of the Eclipse Moulded Products
Company, 5151 N. 32nd Street, are interested in forming an
Independent Union.
It is not disputed that Hoge left his machine and drew up the petitions
during working hours. Some of the signatures to the petitions were
also secured during working hours at the plant. Among the signers
were several persons employed in a supervisory capacity, including
two shift foremen in the molding department, Van Diemen and
William L. Culbert," as well as Scholz and Greve, the respondent's
die setter and shipping clerk," both of whom had some supervisory
duties. Scholz and Greve were very active in securing signatures on
the petitions, and Culbert asked at least one employee to join the
Association. George Perlick, the inspector and time-study man of
8 After a number of signatures had been secured , Hoge, Scholz , and Harry O'Neil, another
molding department employee , consulted George A. Burns , an attorney of Milwaukee, and
upon his advice , the names of Van Diemen and Culbert were stricken from the petitions
e Van biemen was shift foreman from 3 to 11 p m and Culbert from 11 p. in. to 7 a. in.
The respondent contended that Scholz , who was on duty from 7 a. in to 3 p . in., was not a
shift foreman , basing its contention chiefly on the fact that Gruenewald , the superintendent,
was present in the plant during most of Scholz ' s hours. The record shows , however, that
in addition to setting up the presses when the dies were changed , Scholz performed duties
similar to those of Van Diemen and Culbert. He checked the men in and out of the plant,
instructed them in their work, assigned work to them , and relayed other instructions
Gruenewald did not come to work until 8 a. in. and in the interval between 7 and 8 a. m,
Scholz was, in sole charge of the molding department . Gilbert Greve , the only regular
employee in the shipping and finishing department , at times had two helpers who assisted
him and to whom he gave instructions . At other times these helpers worked in the finish-
ing department . As appears more fully below, his authority to act for the respondent arose
not only from his own position but from the fact that Scholz requested him to secure
signatures to the petition for the Association.
ECLIPSE MOULDED -PRODUCTS COMPANY 797
the plant, did not sign a petition, but joined the Association and was
an active member. Perlick's position in the plant was one of
responsibility and would certainly lead the employees to believe that
his action in supporting and joining the Association represented the
desires of the respondent.1° Since the petitions were openly passed
around in the plant during working hours, it is reasonable to infer
that Gruenewald was also familiar with them. There is no evidence
that he or any other supervisor objected to their circulation.
Greve testified that Scholz gave him one of the petitions in the
plant on the morning of September 20, and that he took it over to
the buffing and finishing department, telling the employees there
"that some of the guys got together and felt like organizing an
Independent Association, because they felt they didn't want the
C. I. O. in there." According to his testimony all the employees in
the finishing department, including his two helpers, and one man
from the buffing department signed this petition,. and no one whom
he approached refused to sign. He then returned the petition to
Scholz. Previously Greve had secured the signatures of three em-
ployees in the buffing department to a similar petition.
On most occasions when Scholz attempted to secure the signatures
of employees he was accompanied by Hoge. They not only assisted
in the formation of the Association in the plant during working
hours, but took time off to promote the interests of the Association
and to make preparations for the organization meeting. The arrange-
ments which Hoge made for securing time off for this purpose were
rather unusual. According to his testimony, on Saturday morning,
September 28, he- shut his machine down without authority from
Gruenewald and went to Eugene Engman's office to apply for leave
on September 29 and 30, and was gone about 30 minutes. Hoge was
unable to recall any other occasion when he took time off and went
to see Eugene Engman for such a purpose, since ordinarily arrange-
ments for leave were made with Gruenewald or Charles Engman.
His only explanation for going to Eugene Engman was that he was
going to take off several days. Hoge testified that he wanted the
time off to assist in organizational work for the Association, but that
when he requested it, he merely stated that he wished to be off for
several days the following week, and that Engman replied that it
was immaterial to him. On October 1, Hoge decided that he would
return to work at least for part of the day. He did not report this
fact to anyone, but just went back to his machine and started working.
He further testified that when he left again about noon the same day,
10 Perlick inspected the pieces or castings before they were shipped , and also timed new
jobs to establish the piece rates to be paid for them.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he advised Gruenewald that he was leaving, and that Gruenewald
said that that would be all right, without asking for an explanation.
The organization meeting of the Association was held on Octobei
1, 1940. Present, among others, were Scholz, Perlick, and Greve. At
the meeting Articles of Association were adopted, containing a con-
stitution and bylaws. The constitution and bylaws provide for a
supreme council to "act as the governing and judicial body of the
said Union in all matters respecting the welfare of the Union and
its members," including the approval of any contracts. Meetings of
the membership, it is provided, are to be held at the call of the
president of the Association. The supreme council is given authority
to demand recognition when a majority of the employees have joined
the Association, and to enter into a formal recognition contract with
the management.
The Association met with the respondent on October 4. The com-
mittee representing the Association presented to Eugene Engman,
Charles Engman, and Michael J. Dunn, the attorney for the respond-
ent, a "recognition agreement." Greve, who was present at the meet-
ing, testified, "Well, we just presented them a recognition agreement,
if that is what you wish to call it, and asked them to read it over and
sign it if they wanted to." The application cards of the Association's
members were given to Eugene Engman, who glanced at them and
returned them to the Association's representatives; and the agree-
ment, as submitted, was then signed by the respondent and a copy
posted on the bulletin board. The agreement stated that the Associ-
ation had been designated as bargaining representative by a majority
of the respondent's employees, and that therefore the respondent
recognized it as the exclusive bargaining representative of its
employees.
At or about the time of this meeting on October 4, the respondent
posted on the bulletin board the following notice :
TO THE EMPLOYEES OF ECLIPSE MOULDED PRODUCTS CO.-
STATEMENT OF POLICY
Membership or non-membership in any labor organization is
not required to secure or retain employment with Eclipse Moulded
Products Company. Neither will discrimination of any kind be
shown any employee because of membership or non-membership
in any such organization.
Employees leaving their respective places of work during work-
ing hours and found to be discussing with other employees mat-
ters outside the scope of their particular job will be subject to
immediate dismissal without further notice.
ECLIPSE MOULDED PRODUCTS COMPANY 799
It is apparent from the foregoing facts and from the record as a
whole that the Association cannot be regarded as a labor organization
selected by the free choice of the respondent's employees, but that it
is rather a labor organization established by the respondent for its
employees. The impetus for the organization arose from Eugene
Engman's speech, in which he expressed the respondent's opposition
to organization by the employees in the Union. The circumstances
under which Hoge was given time off to form the Association make
it evident, and we find, as did the Trial Examiner, that the respond-
ent assented to and approved of Hoge's purpose. Supervisory em-
ployees Scholz and Greve actively participated in soliciting members
for the Association. Others, Van Diemen, Culbert, and Perlick, lent
their approval and support. The sponsors of the Association were
given free rein to organize in the plant during working hours. There-
after the respondent, after a cursory examination of application cards,
granted the Association recognition as the exclusive bargaining
agency of its employees, thereby attempting to preserve for it the
gains that it had made with the assistance and support of the re-
spondent. The simultaneous posting by the respondent of the notice
prohibiting discussion of union matters in the plant during working
hours can only be viewed as a measure taken by the respondent to
deny to any other labor organization the advantages which it had af-
forded to the Association and which the Association had employed
so successfully. This support to the Association is in sharp contrast
to the respondent's hostility to the Union as evidenced by the elimina-
tion from the plant on September 26 of the president of that organi-
zation, a move designed to, and having the necessary effect of, dis-
couraging membership in the Union and encouraging membership in
the Association, which started its organizational activities 2 days later.
We find, as did the Trial Examiner, that the respondent by the
acts described in this section dominated and interfered with the forma-
tion and administration of the Association, and contributed support
to it, thereby interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act. We
further find that the Association is incapable of serving the respond-
ent's employees as their genuine representative for the purpose of col-
lective bargaining.
D. Discrimination in regard to hire and tenure of employment and
the terms and conditions of employment
1. Kavel, Gehrig, Erickson, and Gainer
The complaint, as amended, alleges that the respondent discrimi-
natorily discharged Carl H. Kavel on October 4, 1940. and Roland A.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gehrig, Leonard Erickson, and Floyd Gainer on October 8, 1940, and
thereafter refused to reinstate them because of their membership in
and activity on behalf of the Union. In its answer the respondent
denied that it discharged or refused to reinstate the employees for
the alleged reason, claiming affirmatively that it discharged them for
cause.
These cases must be considered against the background and the
unfair labor practices of the respondent, described above.
Carl H. Kavel started work for the respondent on September 20,
1940, and was discharged on October 4, 1940. The respondent paid
its employees a minimum hourly rate. If an employee produced more
than a; stated number of pieces per hour, he was paid at the piece
rate for his job. The respondent's officials testified that the respond-
ent found it unprofitable to retain employees who consistently failed
to earn the minimum rate. During Kavel's period of employment
he failed to earn the minimum rate at any time. However, he was
never criticized on this account by his foreman or any other repre-
sentative of the respondent, nor was he ever told that his failure to
attain this standard would cause his discharge.
Kavel joined the Union on September 27. When he was asked
to sign the petition for the formation of the Association, he replied
that he "would think it over." On October 3, Hoge and Scholz ap-
proached him about 4: 15 in the afternoon and asked him to join the
Association. Kavel told them that he was in a hurry, and as he started
to leave, Hoge said, "You belong to the other then?" Kavel replied
that he did.
The next day at 4 o'clock Gruenewald, the plant superintendent,
called Kavel into his office and discharged him with the statement, ac-
cording to Kavel, that, "They tell me in the office that you ain't mak-
ing production, and too many rejects." Kavel was then handed his
check and left the office.
Roland A. Gehrig started work on September 22, and was discharged
on October 8, 1940. After he had worked for about 3 days, he was
laid off by Gruenewald, the plant superintendent, but was returned to
work on September 26, being advised by Gruenewald, according to
Gehrig's testimony, that he had "picked on the wrong man." Gehrig
earned more than the minimum rate on several occasions.
Gehrig joined the Union on September 26. On October 2 he was
asked by Scholz to join the Association, and on October 6, by Hoge.
On both of these occasions, Gehrig replied that he was "on the fence."
Hoge told him on the 6th: "You might as well come clean. We know
what you are." Gehrig then informed Hoge that he had joined the
Union.
On the morning of October 8, Culbert, Gehrig's shift foreman, told
him to report to Gruenewald, the superintendent. After Gehrig fin-
ECLIPSE MOULDED PRODUCTS COMPANY 801
ished his work; he did so, and Gruenewald advised him that he was
discharged. According to the testimony of Gehrig, which we credit,
as did the Trial Examiner, Gruenewald said : "You are discharged.
You are getting what more of them are going to get." Gehrig said :
"What is the reason ? There must be some reason for me being dis-
charged." "Yes," Gruenewald said, "the company complained about
you having too many counts in." Gehrig replied, "Well, they never
complained about my work before this, before this morning." Gruene-
wald said that he could do nothing about it.
The testimony of the respondent's officials as to the basis for
Gehrig's discharge i,s vague, confusing, and inconsistent. Gruenewald
testified that he discharged Gehrig because Gehrig had poor pro-
duction, too many rejects, and failed to count accurately the number
of pieces he produced. He further testified that he recommended
to Charles Engman that Gehrig be discharged and that Engman
agreed with him, but that he did not discuss Gehrig with Eugene
Engman. Charles Engman' did not testify at all with regard to
Gehrig. Charles Preston, secretary of the respondent, testified that
he brought to Eugene Engman's attention Gehrig's inaccurate count,
and that Eugene Engman then ordered Gruenewald to discharge
Gehrig. We find all of this testimony unconvincing, as did the Ti ial
Examiner. It is clear from the record that employees are paid on the
basis of a count made by Perlick, the inspector, rather than on the
basis of their own count; and there is no showing that an inaccurate
count by an employee constitutes a serious error. The Trial Examiner
did not credit the respondent's contention that Gehrig was discharged
because of faulty work or because of his failure to report accurately
the number of pieces molded, and we agree.
Leona'r'd Erickson started work on September 19 and was discharged
on October 8, 1940. He joined the Union on September 26.
On September 30 Erickson was asked by Hoge and Scholz to sign
the petition for the formation of the Association. At that time he
advised them that he wished to think it over before he signed. Hc,ge
invited him to attend the organizational meeting of the Association.
Erickson attended the meeting and filled out an application for mem-
bership, but did not pay any initiation fee. On about October 3 he
was approached in the plant by Greve and asked to pay the initiation
fee and dues. Erickson replied, "I might as well tell you that I joined
up with the C. I. 0., I might as well tell you, to keep you from bother-
ing me any more." Greve left, but later in the day, when Erickson
was changing his clothes, again approached him and inquired whether
he preferred the Union to the Association. Erickson replied : "Yes,
I think it will do me the most good. That's the reason I joined up
with them." He also said that he thought the Independent was "too
much like a company union"
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Erickson finished working on October 5, he felt a little fever-
ish and overheated and did, not go to work on October 6 or 7. How-
ever, on October 7 he called up Gruenewald and advised him that he
was not feeling well; and Gruenewald replied that it would be all
right for him to report in the morning , that is, on October 8 . Erickson
returned to the plant on October 8 at about 8 o'clock in the morning
and went directly to the main office for his check. Preston, secretary
of the respondent, approached him and asked how he felt. Erickson
replied that he was not feeling very well. When asked by Preston
as to his age Erickson replied , "Thirty-nine," and Preston said : "Well,
this is kind of a hard job for a man about your age . . . It is pretty
hot work." Erickson agreed that it had been pretty hard the first day
or two on account of the heat , but said that he was getting more used
to it and that it no longer affected him. Preston said : "I don't think
you would be suited for this job . . . It is more for a young man,
that would stand the heat," and concluded, "Well, we will have to
let you go." Erickson received his check and left the office. Preston
testified that he discharged Erickson and gave him his check, but
denied having talked to him about the reason for his discharge. We
agree with the Trial Examiner, who refused to credit this denial.
As in the case of Gehrig, the respondent's testimony with regard
to the discharge of Erickson is vague, confusing , and inconsistent.
Charles Engman testified that Erickson was discharged because he
broke a die, and because he was "off work" on October 6 and 7. He
testified further that Gruenewald showed him the broken die, and that
without inquiring further or asking who had done it, he instructed
Gruenewald to discharge whoever was responsible . Gruenewald tes-
tified that the incident of the broken die occurred 4 or 5 days before
October 5, and that he sent Erickson home on that occasion, but that
Erickson returned and continued to work for 4 or 5 days. He testi-
fied further that he reported the incident of the broken die to Charles
Eugman on the day of the incident, and that he (Gruenewald) did
not discharge Erickson, but that the discharge was "handled" by
someone else. Preston, who testified that he advised Erickson of the
discharge, did not testify at whose instruction the action was taken.
Finally Eugene Engman, who testified that he ordered Erickson to
be discharged, could not recall whether his instructions were given
to Charles Engman or to Gruenewald . Because of the confusion
and contradiction in the respondent 's testimony with regard to the
discharge, of Erickson, we agree with the Trial Examiner that the
testimony of the respondent 's officials cannot be credited, and we
find that Erickson was not discharged either because he broke a
die or because the respondent believed that he did.
ECLIPSE MOULDED PRODUCTS COMPANY 803
Floyd Gainer 11 started work for the respondent on September 12,
1940, and was discharged on October 8, 1940. He joined the Union
on September 29.' As found above, he had a conversation with Charles
Engman on September 26 about the organizing activity on behalf
of the Union.
On September 30 Culbert, a shift foreman, asked Gainer to join
the Association, but Gainer replied that he "would like to think
this all over." On October 7 Scholz asked Gainer to join, but Gainer
refused. On October 7 he attended a conference at the Labor Board
office as a member of the Union. The record shows, and we find,
as did the Trial Examiner, that the respondent had knowledge of the
persons present at this conference.
The respondent contends that Gainer was discharged because -he
broke dies on two successive days. However, there is no clear evidence
in the record that substantial damage was done on either occasion.
Certain repairs were made to the dies, after which they were, again
used, and neither of them had been replaced by the time of the hearing.
The cases of Kavel, Gehrig, Erickson, and Gainer must be considered
together and can only be determined in the light of the general situation
in the plant after September 26, 1940. During this period, as appears
above, the respondent opposed the organization of the Union, while
at the same time it fostered and supported the organization and growth
of the Association. All four of the employees who were discharged
between September 26, the date of the organization of the Union, and
October 9, when the Union went on strike, were members of the Union
and were discharged shortly after they had expressed their refusal to
join the Association. No members of the Association were discharged
during the same period.12 A review of the situation would not be
complete without considering other actions of the respondent during
this period directed against members of the Union. ,
Armas Karj ala, an employee in the molding department, first en-
tered the respondent's employ in December 1936 and worked steadily
for it from July 1939 until October 9, 1940, the date of the strike. On
October 7, 1940, he attended a conference at the Regional Office of
the Board as a member of a union committee. When he reported for
work on the afternoon of the same day, Charles Engman transferred
him from a job that he had not yet completed to a type of work with
u Also known as Florian Gainer and Florian Zyscowski.
11 Before the discharges took place there were approximately 29 employees in the molding
department , of whom 12 had signed the petition for the Association . The other 17, includ-
ing the 5 employees named in the complaint , were either shown by the record to be mem-
bers of the Union or can be presumed to be members from the fact that they went on strike
on October 9.
804 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD -
which he was not familiar. Shortly thereafter, Eugene Engman
approached him and said:
Well, this job is going into production right now. You are to
make 72 latch strips. You get 5 cents apiece for them. They
have got to be perfectly straight, they can't show any granulation,
they have got to be filled out, they have to be perfect. You make
72 latch strips, or you are all done.
Engman later inquired how he was getting along. Karjala said that
the, pieces were not being properly molded and displayed them to
Engman. Engman then told Karjala that he was "all through."
Before Karjala left the plant, he was called into Gruenewald's office,
where, according to Karjala, the following conversation took place
between himself and Eugene Engman :
He [Engman] started out by saying, "Now you can go out in
the world and see how things really are."
I said, "Okay, Gene."
He said, "Do you expect me to pay you money for work like this?"
I says, "Wait a minute, Gene," I says, "you know very well I
was only shown a few minutes how to run this job, and, further-
more, I had never run this type of material before."
He said, "What do you expect me to do? Import a specialist
every time we have a certain job?"
I said, "at least I should be properly shown how to run
the job. I would have had a reasonable chance of making produc-
tion on any one of the thermo plastic jobs, on any one of the
eight machines, but, to make sure, you put me on this thermo
plastic machine."
He said, "Well, there is one thing I don't like, is a sneak."
I said, "Wait a minute, Gene." I said, "In other words, you are
referring to me being down at the Labor Board this morning?"
He says, "Well, yes. I know everything as soon as it happens."
He said, "I happen to know you were the first one that got up
down there this morning."
I said, "All right, Gene, so what?" I said, "Did I misrepresent
anything'down there this morning?"
He said, "No, I didn't say you did." He said, "There is one
thing I appreciate much more, is if a man comes out and tells me
his convictions or his beliefs, instead of sneaking about it."
I said, "I can go down and join any club, or anything, and
I don't have to come running up to you. The same goes for the
C. I. 0., that I can go down and join it, and I don't have to tell
you about it."
ECLIPSE MOULDED PRODUCTS COMPANY 805
He said, "That is true, you can belong to any organization you
want to, but," he said, "I can also run my business any way I
want."
I said, "You are going to have to take my two and a half
year record, and put it up against this one hour record. Do you
still think you can make it stick?"
He said, "Well, you have been with me some time. Maybe I
was a little hasty." He said, "I will give you another chance,"
he says, "I will let you come in tomorrow."
Engman testified that he never said to Karjala, "I don't like a
sneak," but did not deny any of the remainder of this conversation.
We find, as did the Trial Examiner, that the conversation occurred
substantially as testified to by Karjala, and that by the statements
.made to him by Engman, the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Lawrence Pagel entered the employ of the respondent in 1937, and
worked continuously for it from September 1939 until the time of the
strike. He joined the Union on September 26, 1940, and refused
Hoge's request to join the Association on October 1, and Scholz's request
to join on October 5. Pagel told Hoge that he belonged to the Union.
According to Pagel's testimony, on the morning of October 8 his fore-
man, Culbert, "came over with some pieces I had not filed from the
week before, and he said they had to be filed with the others, and make
production, or else I was all through." Pagel replied that it would
be impossible to do that, to which Culbert answered, "Then you are
through." As Pagel was about to leave, Culbert came up to him and
said : "You had better stick around, you had better go back to work,
and see what the big shot has got to say in the morning about it. I don't
want to get mixed up in this mess." We find, as did the Trial Exam-
iner, that by the threatened discharge of Pagel, the respondent inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
In addition to these incidents with regard to Karjala and Pagel,
on-or about October 7 and 8 the respondent shifted the employees
in the molding department around and changed their work assign-
ments. The respondent contended, and the evidence indicates, that
it has been the customary practice over a period of years frequently
to transfer employees from one press to another. However, the
record is equally clear that the custom is to transfer when a job is
completed. On October 7 and 8 many shifts were made among the
employees and particularly among those who were members of the
Union, ' before they had completed the job upon which they were
451269-42-vol. 34-52
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working. As a result of these changes and shifts, the employees felt,
and we find, as did the Trial Examiner, that a definite program of
elimination of members of the Union was in progress.
It is evident from the incidents with regard to Karjala and Pagel,
recited above, and from the shifting of employees from job to job,
that the respondent was searching for pretexts to discharge members
of the Union. We are convinced that the discharges of Kavel,
Gehrig, Erickson, and Gainer were part of the respondent's program
of anti-union hostility and of its attempt to eliminate all members
of the Union from the plant. This is confirmed by the remark made
to Gehrig by Gruenewald at the time of Gehrig's discharge that
Gehrig was "getting what more of them are going to get." It has
been found above that the testimony introduced by the respondent
is entirely inadequate to explain the discharges of Gehrig and Erick-
son. It is true that the record contains evidence which might, under.
other circumstances, satisfactorily explain the discharge of Kavel
and Gainer. However, as we have heretofore held : "While proof of
the presence of proper causes at the time of discharge may have
relevancy and circumstantial bearing in explaining what otherwise
might appear as a discriminatory discharge, such proof is not con-
clusive. The issue is whether such cause in fact induced the dis-
charge." 13 We are convinced that Kavel and Gainer were in fact
discharged, as were Erickson and Gehrig, because of their member-
ship and activity in behalf of the Union, and because of their refusal
to join the Association. We therefore find, as did the Trial Exam-
iner, that by the discharge of Kavel, Gehrig, Erickson, and Gainer,
the respondent discriminated in regard to their hire and tenure of
employment, thereby discouraging membership in the Union and en-
couraging membership in the Association; and that it thereby inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Arthur Neuschaefer
We have found above that the respondent suspended Neuschaefer
because of his leadership in the organization of the Union. After
Neuschaefer's suspension and prior to his reporting for an examina-
tion by Dr. Fitzgerald, the doctor to whom he was sent by the re-
spondent and who was a stockholder of the respondent, Neuschaefer
was examined by two other doctors, a general practitioner and a
neurologist, to whom he was sent by the Union. The reports of
these doctors, which were introduced into the record, are admittedly
is See Matter of The Kelly-Springfield Tire Company and United Rubber Workers of
America, Local No. 26, et al., 6 N. L. R. B. 325.
ECLIPSE MOULDED PRODUCTS COMPANY 807
incomplete and inconclusive. Neuschaefer was given a fairly thor-
ough examination by Fitzgerald, and at the conclusion of the exam-
ination, according to Neuschaefer's testimony, Fitzgerald said : "What
the hell are they trying to do? Make a well man sick?" Fitzgerald
did not testify.
Dr. Fitzgerald's report of his examination was submitted on or
about October 9,14 but before receiving it, the respondent insisted
that, since Neuschaefer had been examined by two doctors selected
by the Union, he be examined by another specialist to be selected by
the respondent. Sonnemann, as the representative for the Union, in
conferences with counsel for the respondent at first agreed to this
proposal, but a day or two later withdrew from the agreement; and
on his advice Neuschaefer refused to consent to a further examination.
Since it is evident from the record, and was evident to both the Union
and Neuschaefer, that the respondent's request that he be examined
by another doctor was not made in good faith, but was merely an
effort of the respondent to find some pretext to discharge him, Neu-
schaefer and the Union were justified in rejecting the proposal.
On October 11, the respondent withdrew its request that Neu-
schaefer submit to another examination, and at the same time indi-
cated that even if a second examination was favorable, the respondent
would not reinstate Neuschaefer. The alleged basis for this action
was the discovery by the respondent that Neuschaefer had at one
time requested from the Wisconsin Workmen's Compensation Bu-
reau additional compensation for an injury, after having agreed to a
final settlement. This factor, alleged the respondent, indicated that
Neuschaefer was not the type of individual it cared to have working
in the plant. On the same day Neuschaefer was handed a discharge
slip. This action was taken according to the respondent because of
his refusal to submit to the second examination.
We are convinced, as was the Trial Examiner, that none of the
reasons advanced by the respondent in justification of the discharge
of Neuschaefer in fact motivated his discharge. It is evident from
the entire record, and we find, that as soon as the respondent learned
of Neuschaefer's leadership in the organization of the Union, it
determined to discharge him for that reason, and thereafter searched
for some pretext which might serve to explain the discharge. We
find, as did the Trial Examiner, that the respondent by the discharge
of Neuschaefer discriminated in regard to his hire and tenure of
employment, thereby discouraging membership in the Union and
,encouraging membership in the Association; and that it thereby in-
2+ On the basis of the respondent 's report that Neuschaefer had suffered an attack of
vertigo, which , as found above, was contrary to the fact, Fitzgerald concluded that it
might be related to a skull fracture suffered by Neuschaefer years before . Ile accordingly
suggested that Neuschaefer be examined by a neurologist.
808 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
terfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
E. Strike of October 9
The discharge of some members of the Union, the shifting of others
from job to job, and the threatened discharge of still others, led the
Union to believe that the respondent intended to discharge all of its
members. Accordingly, a special meeting of the Union was held on
October 7 at which a strike vote was taken and carried. The mem-
bers of the Union went out on strike on October 9 and were still on
strike at the time of the hearing.
Neuschaefer testified as follows with regard to the causes of the
strike :
The purpose of the strike, they started dismissing some of my
members, three or four of the members were discharged, and
they threatened to discharge more if they didn't produce. There
was some of my members on the night of the 6th, I think it was,
that came to me and told me if they don't produce tonight, they
are out of a job, and give them another chance, and I says, "Well
if this keeps on, we had better hold a special meeting," which
we did, and a meeting was held down at the S. W. O. C. office.
* * * * * * s
Q. What were the unfair labor practices, by reason of which
you went out on strike?
A. They started shifting the men from one machine to the
other, and claiming, if they didn't produce, they was through, and
these men were more or less jeopardized through them statements,
and felt we should do something about it, which I did, and I
called this special meeting, and what happened was, we voted
on a strike, and, on the 9th, we called the men out, at 6: 00 o'clock
in the evening I went out there and called the men all out, they
walked out.
We credit the testimony of Neuschaefer, as did the Trial Examiner,
and find that the strike of October 9, 1940, was caused by the unfair
labor practices of the respondent. We therefore further find that the
strikers remained employees within the meaning of Section 2 (3)
of the Act.
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,
ECLIPSE MOULDED PRODUCTS COMPANY 809
and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
In order to effectuate the purposes and policies of the Act, we shall
order the respondent to cease and desist from the unfair labor prac-
tices in which we have found' it to be engaged, and in aid of such
'order and' as a means of removing and avoiding the consequences of
such practices, we shall further order it to take certain affirmative
action more particularly described below.
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed support to it. We further find that the effects and con-
sequences of the respondent's domination, interference with, and sup-
port of the Association, as well as the recognition by the respondent
of the Association as the bargaining representative for its employees,
constitute a continuing obstacle to the free exercise by the employees
of their right to self-organization and to bargain collectively through
representatives of their own choosing. Accordingly, we shall order
the respondent to withdraw recognition from and disestablish the
Association as the representative of any of its employees for the
purposes of dealing with it concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment.15
We have found that the respondent discriminated in regard to the
hire and tenure of employment of Carl H. Kavel, Roland A. Gehrig,
and Leonard Erickson. We shall therefore order the respondent to
offer to each of these employees immediate and full reinstatement to
his former position or to a substantially equivalent position without
prejudice to his seniority or other rights and privileges. We shall
further order the respondent to make these employees whole for
any loss of pay they may have suffered by reason of the respondent's
discriminatory conduct, by payment to each of them of a sum of
money equal to the amount which he would normally have earned
as wages from the date of the discrimination against him to' the date
of the offer of reinstatement, less his net earning s,111 during such
period.
'b See N. L. R. B. v. Newport News Shipbuilding and Dry Dock Company, 308 U S. 241 ;
N. L. R. B. v. The Falk Corporation, 308 U. S 453; N. L. R. B. v. Pennsylvania Greyhound
Lines, Inc., 303 U. S. 261.
"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 Amer-
ica, Lumber and Sawmill Workers Union, Local $590 , 8 N. L. It. B. 440 Monies received
for work performed upon Federal , State, county , municipal , or other work-relief projects
shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U, S. 7.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have also found that the respondent discriminated in regard
to the hire and tenure of employment of Floyd Gainer 17 and Arthur
Neuschaefer.18 Accordingly we shall order the respondent to offer to
each of these employees immediate and full reinstatement to his
former position or to a substantially equivalent position without
prejudice to his seniority or other rights and privileges. Further
to effectuate the policies of the Act we should normally order back
pay from the time of the discrimination against them to the time
of the respondent's offer of reinstatement. In view of the Trial
Examiner's recommendations, however, the respondent could not
have been expected to reinstate them after receiving the Intermediate
Report.19 It should not, therefore, be required to pay them back pay
from that time until the issuance of this Decision. Accordingly, we
shall order the respondent to make whole these two employees for any
loss of pay they may have suffered by reason of the respondent's
discrimination against them, by payment to each of them of a sum
of money equal to the amount which he would normally have earned
as wages from the date of such discrimination to the date of the
Intermediate Report, and from the date of this Decision and Order
until the offer of reinstatement, less net earnings 20 during these
periods.
We have further found that the strike of October 9, 1940, was
caused by the respondent's unfair labor practices. In order to restore
the status quo as it existed prior to the time of the strike, we shall
order the respondent to offer reinstatement, upon application, to the -
employees who went on strike on October 9, 1940, and who have not
since been fully reinstated to their former or substantially equivalent
14 In the case of Gainer the Trial Examiner did not recommend reinstatement , basing his
refusal to do so on the ground that the record showed that Gainer had made false state-
ments in his application for employment with the respondent and that at the hearing be
had given testimony at variance with his testimony before the Wisconsin Employment
Relations Board After reviewing the record , we are of the opinion that the untruthful-
ness of Gainer, which was not alleged by the respondent as the reason for his discharge,
is not material to the issue before us , nor does it warrant a refusal to extend to Gainer the
benefits of our usual order , designed to effectuate the policy of the Act Full consideration
has been given to the evidence of Gainer's lack of veracity in determining his credibility
as a witness.
13 The Trial Examiner recommended reinstatement for Neuschaefer provided he should
pass a physical examination conducted by an impartial doctor, to be selected in the manner
we have previously ordered In Matter of Phelps Dodge Corporation , Copper Queen Branch,
Smelter Division and Southern Arizona Smeltermen's Union, Local No. 420, International
Union of Mine, Mill and Smelter Workers, C. I. 0, 28 N. L. R. B. 442. In the Phetv5l
Dodge case, however, there was a genuine conflict of testimony regarding the physical con-
dition of the employee concerned , whereas in the present case it Is apparent that the re-
spondent's insistence on a physical examination was a mere pretext to conceal the real
reason for the discrimination against him . We shall not, therefore, require Neuschaefer to
'pass a physical examination and present to the respondent a doctor's certification of the
fitness for employment as a prerequisite to his reinstatement.
19Matter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North
America, Local No. 6, 1 N. L. R. B. 760.
20 See footnote 16, supra. The record shows that Neuschaefer was paid by the respond-
ent from the date of his lay-off to the date of his discharge.
ECLIPSE MOULDED PRODUCTS COMPANY 811
positions, in the manner set forth below without prejudice to their
seniority and other rights and privileges : All or such number neces-
sary of the persons hired by the respondent after October 9, 1940, the
date of the strike, and not in the employ of the respondent on said
date, shall be dismissed to provide employment for those to be offered
reinstatement. If, thereupon, despite such reduction in force, there is
not sufficient employment available for the employees to be offered
reinstatement, all available positions shall be distributed among such
employees without discrimination against any employee because of
his union affiliation or activities, following such a system of seniority
or other procedure to such extent as has heretofore been applied in the
conduct of the respondent's business. Those employees remaining
after such distribution for whom no employment is immediately avail-
able, shall be placed upon a preferential list with priority determined
among them by such system of seniority or other procedure as has
heretofore been followed by the respondent, and shall thereafter, in
accordance with such list, be offered employment in their former or
substantially equivalent positions as such employment becomes avail-
able and before other persons are hired for such work.
We shall also order the respondent to make whole the employees
to be offered reinstatement for any loss of pay they may have suf-
fered by ieason of the respondent's refusal, upon application, to rein-
state them or to place them upon a preferential list as provided above,
whether such application for reinstatement has been, or is, made be-
fore or after the date of this Decision and Order, by payment to each
of them of a sum of money equal to that which he would normally have
earned as wages during the period from five (5) days after such appli-
cation for reinstatement to the date of the offer of reinstatement or
placement upon a preferential list, less his net earnings'21 if any, during
said period.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:,
CONCLUSIONS OF LAW
1. Steel Workers Organizing Committee, affiliated with the Con-
gress of Industrial Organizations, and Independent Association' of
Eclipse Workers are labor organizations within the meaning of Sec-
tion 2 (5) of the Act. .
2. By dominating and interfering with the formation and adminis-
tration of Independent Association of Eclipse Workers, and con-
tributing support to it, the respondent has engaged and is engaging
in unfair labor practices within the meaning of Section 8 (2) of the
Act.
21 See footnote 16, supra.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discriminating in regard to the hire and tenure of employ-
ment and the terms and conditions of employment of Arthur Neu-
schaefer, Carl H. Kavel, Roland A. Gehrig, Leonard Erickson, and
Floyd Gainer, thereby discouraging membership in Steel Workers
Organizing Committee (CIO) and encouraging membership in In-
dependent Association, of Eclipse Workers, the respondent has en-
gaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (3) of the Act.
4. 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.
5. 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 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 respond-
ent, Eclipse Moulded Products Company, Milwaukee, Wisconsin, and
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Inde-
pendent Association of Eclipse Workers; or the formation or adminis-
tration of any other labor organization of its employees, or contribut-
ing support to Independent Association of Eclipse Workers or to
any other labor organization of its employees ;
(b) Discouraging membership in the Steel Workers Organization
Committee (CIO) or any other labor organization of its employees,
or encouraging membership in Independent Association of Eclipse
Workers or any other labor organization of its employees, by dis-
criminating in regard to the hire and tenure of employment or any
terms or conditions of employment of its employees;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the 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 we find will effec-
tuate the policies of the Act :
(a) Withdraw all recognition from and completely disestablish
Independent Association of Eclipse Workers as the representative
ECLIPSE MOULDED PRODUCTS COMPANY 813
of any of its employees for the purpose of dealing with the respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment;
(b) Offer to Carl H. Kavel, Roland A. Gehrig, Leonard Erickson,
Floyd Gainer, and Arthur -Neuschaefer, immediate and full rein-
statement to their former or substantially equivalent positions with-
out prejudice to their seniority and other rights and privileges;
(c) Make who e ®a-'l H. Kavel, Roland A. Gehrig, and Leonard
Erickson for any loss of pay they may have suffered as a result of
the respondent's discrimination in regard to their hire and tenure
of employment, by payment to each of them of a sum of money equal
to the amount which each normally would have earned as wages
during the period from the date of such discrimination to the date
of the offer of reinstatement, less _his net earnings during said
period ;
(d) Make whole Floyd Gainer and Arthur Neuschaefer for any
loss of pay that they may have suffered as a result of the respond-
ent's discrimination in regard to their hire and tenure of employ-
ment, by payment to each of them of a sum of money equal to the
amount which he would have earned as wages from the date of such
discrimination to the date of the Intermediate Report, and from the
date of this Order to the date of the respondent's offer of reinstate-
ment, less his net earnings during such, periods;
(e) Upon application offer to those employees who went on strike
on October 9, 1940, and who have not since been fully reinstated,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, in the manner provided in the section entitled
"The remedy" above; and place those employees for whom employ-
ment is not immediately available upon a preferential list in the
manner set forth in said section, and thereafter, in said manner,
offer them employment as it becomes available;
(f) Make whole the employees specified in subsection (e) above,
for any loss of pay they may have suffered by reason of the respond-
ent's refusal, on application, to reinstate them or to place them upon
a preferential list pursuant to subsection (e) above, whether such
application has been, or is, made before or after the date of this
Order, by payment to each of them of a sum of money equal to that
which he would normally have earned as wages during the period
from five (5) days after his application for reinstatement to the
date of his reinstatement or placement upon a preferential list, less
his net earnings during said period, as provided in the section
entitled "The remedy" above;
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Post immediately in conspicuous places throughout its plant
in Milwaukee, Wisconsin, and maintain for a period of at least
sixty (60) consecutive 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), (b), and (c) of this Order; (2) that the respondent will take
the affirmative action set forth in paragraphs 2 (a), (b), (c), (d),
(e), and (f) of this Order; and (3) that the respondent's employees
are free to become or remain members of Steel Workers Organizing
Committee (CIO), and that the respondent will not discriminate
against any employee because of membership in or activity on behalf
of that organization;
(h) Notify the Regional Director of the Twelfth Region in
writing on or before ten (10) days from the date of this Order what
steps the respondent has taken to comply herewith.