Heider Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 23, 1950

91 N.L.R.B. 1185 (N.L.R.B. 1950)

In the Matter of HEIDER MANUFACTURING COMPANY and INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, LOCAL 90, A. F. OF L.
Case No. 18-CA-97.-Decided October 23, 1950
DECISION AND ORDER
On April 25, 1950, Trial Examiner Eugene F. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not violated Section 8 (a) (1)-, 8 (a) (3), and
8 (a) (5) of the Act as alleged in the complaint against the Respond-
ent, and recommending that the complaint be dismissed in its en-
tirety, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
The Board I has reviewed the rulings of the Trial Examiner at the
hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings and conclusions of the Trial
Examiner only to the extent that they are consistent with the
additions and modifications hereinafter set forth.
1. The Trial Examiner concluded that the Respondent has not
refused to bargain with the Union. We do not agree.
As set forth in the Intermediate Report, the Respondent and the
Union had been bargaining for several years before the occurrence
of the events here considered. In 1942 or 1943, the first of a series
of collective bargaining contracts between the Respondent and the
Union was executed. At that time the Respondent's operations were
being conducted'by the predecessors of the present owners and man-
agement group. The bargaining relationship was continued, after
a change in the Respondent's ownership and management which oc-
curred in 1946, by the execution of two contracts, the last of which was
for a term of 1 year effective April 1, 1947.
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
( Chairman Herzog and Members Houston and Styles).
91 NLRB No. 166.
1185
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly before, and again after, March 31, 1948, the terminal date
of the 1947 contract, the Respondent and the Union discussed its
renewal. However, no agreement was reached.
On June 29, 1948, Edward S. White, an attorney, wrote the Union
that his law firm had been retained to conduct negotiations on behalf
of the Respondent. In the same letter, White noted that the Union
had never been certified by the Board, and stated that certification
was necessary before bargaining negotiations could resume. At a
conference about 2 weeks later, the Respondent again questioned the
Union's majority, insisted upon a Board-conducted election and cer-
tification, and also expressed the view that employees voting in the
election should be given an opportunity to vote for a company union.
There was no such union in existence, but the Respondent suggested
that if the Union lost the election it wished to have "an officially
recognized one to be formed." When advised that a nonexistent union
could not be placed on the ballot in any Board-conducted election,
the Respondent rejected all suggestions that the question of the
Union's majority be resolved informally, and insisted upon a Board
election. The Union, on September 24, 1948, thereupon filed a
representation petition with the Board.
On October 7, 1948, the Union -von a Board-conducted consent
election by a vote of 56 to 5. The parties thereupon began a series
of negotiating conferences. The basis of discussion was provided by
a contract proposed by the Union, which was virtually identical with
the expired 1947 contract. The parties, however, again could not
agree. Their chief item of disagreement resulted from the Respond-
ent's insistence on the deletion from the proposed contract of senior-
ity, arbitration, and grievance provisions identical with those included
in the 1947 contract.2 The Respondent proposed these deletions for
the first time in October 1948 at the parties' second conference after
the consent election ; and it continued to press for them at two suc-
ceeding conferences held in November, suggesting at one point that
in insisting upon retention of the seniority provisions the Union was
not voicing the sentiments of the employees. Later,.at a conference
on December 4, 1948, the Respondent, although persisting in its re-
jection of the arbitration and grievance provisions, proposed that the
Union accept a modified seniority clause. When the Union indicated
it would accept this provision the Respondent revoked the proposal
and proposed a clause which vested the Respondent with power over
the transfer, promotion, discharge, and rehiring of employees, lini-
S As the Trial Examiner found , by the end of November 1948 an over -all 10-cent per hour
increase was acceptable to both the Respondent and the Union . The issue between them
was whether the increase was to be coupled with the retention of the seniority , arbitration,
and grievance provisions.
HEIDER MANUFACTURING COMPANY 1187
ited only in that seniority was to be considered when, "in the opinion
of the Company," other employee qualifications were equal. As thus
modified the Union rejected the proposal.
On December 6, 1948, the Respondent laid off nine employees, in-
cluding four members of the Union's negotiating committee, without
regard to their seniority. The layoff of three of the latter four was,
as found below, discriminatory and violative of the Act.3 There fol-
lowed a meeting between the Respondent and the Union devoted
entirely to a discussion of the discharges.
On January 6, 1949, the parties met once again and resumed dis-
cussion of a contract. At this meeting, the Respondent, with no
explanation therefor, abruptly abandoned its previous position against
seniority and offered to accept the disputed seniority, arbitration, and
grievance provisions as they had appeared in the 1947 contract. The
Respondent, however, coupled its change of position with a proposal
that the contract contain a provision purporting to settle all exist-
ing differences between the parties, and it persisted in this latter
demand even after the Union pointed out that it objected to such a
clause because it alight jeopardize the success of unfair labor prac-
tice charges the Union intended to file on behalf of the discharged
employees.4
Both the Union and the Respondent remained firm in their posi-
tions with respect to the "settlement" clause, which was then the sole
issue outstanding between them, and bargaining negotiations were
broken off shortly thereafter.
We are convinced that the record shows that the Respondent did
not bargain in good faith with the Union. In reaching the conclu-
sion that the Respondent thereby violated Section 8 (a) (5) of the
Act we find it unnecessary to rely upon events which preceded the
consent election conducted by the Board in October 1948, but rely
solely upon the Respondent's later acts.' The Respondent's acts be-
fore the occurrence,of the consent election are here worthy of note,
however, in that they form a background useful in the evaluation of
the Respondent's later conduct. In this respect, the Respondent's
questioning of the Union's majority status and its insistence that the
Union be certified by the Board are significant. For where an em-
3 The charges filed by the Union alleged that all nine employees laid off on December 6,
1948, had been discriminatorily discharged ; no complaint has issued , however , with respect
to the nonmembers of the Union' s negotiating committee.
" The disputed " settlement" clause, like its predecessor in the 1947 contract , provided
"It is further agreed and understood between the parties hereto that upon the signing of
this contract all differences heretofore existing between the Employer and Employees is
[sic] declared to be satisfactorily settled by the parties hereto."
5In so doing , however , we are not to be construed as passing upon the question of
-whether under Section 10 ( b) of the Act the Board may rely upon conduct constituting
a refusal to bargain which occurs more than 6 months prior to the filing of a charge.
917572-51-vol. 91-76
'1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer in the midst of negotiations looking to the renewal of a con-
tract with a bargaining representative of many years' standing, ab-
ruptly, and with no contemporaneous explanation therefor, ques-
tions the union's status as majority representative, the employer's
good faith becomes suspect. Admittedly such factors as a large la-
bor turnover or a demand by another union, may be shown to justify
the questioning of the majority. In the instant case, however, the
justification that was advanced is not convincing s Moreover, the
Trial Examiner's conjecture that the Respondent may have acted
because of knowledge that some employees were dissatisfied with
the handling of union matters is mere speculation and is not an ade-
quate substitute for proof that is not in the record. On the other
hand, in seeking the basis of the Respondent's motivation, we cannot
overlook the fact that the Respondent sought to place the name of
a company union-albeit a'yet unformed company union-on the bal-
lot in the election it was seeking. The Trial Examiner would explain
that request away by speculating that the Respondent may have
sought thereby only to test employee support of the Union.7 But,
certainly, had this been the Respondent's sole motive, and adequate
device was readily available in the Board's usual election procedure,
in which the Respondent's employees would have voted-and in fact
did vote-for or against the Union as their bargaining representative.
On the basis of the evidence adduced, therefore, it appears to us that
even before the date of the consent election, the Respondent's good
faith in bargaining had been impugned.
In our view the Respondent's bad faith continued to taint the Re-
spondent's bargaining after the consent election. This is best demon-
strated by the position it took with respect to the continuation of the
seniority, arbitration, and grievance provisions that had been included
in the 1947 contract. Significantly, the Respondent's position, if
"In the light of the circumstances herein, we are not persuaded that the Respondent
acted in good faith by the explanation offered by the Respondent ' s attorney , who testified
that , as a result of his inspection of the statutes and based upon other information he
had procured , it was believed that the Respondent ' s best interests would be served by
insistence upon the Union's certification . In this connection , it is pertinent to note that
in spite of the Respondent ' s concern with the applicable statutory law, it did not proceed
pursuant to Section 9 (c) (1) (B ) of the Act by itself filing a petition seeking to test
the Union 's representative status . See United States Gypsum Company , 90 NLRB 9S4,
where, upon analogous facts, the Board recently held that an employer ' s failure and refusal
to invoke the provisions of the Act to resolve its alleged doubts as to a union 's status,
indicate that the professed doubts were not raised in good faith.
7 The Trial Examiner alluded to the fact that the Respondent 's experience with the
Union was of shorter duration than that of the Union ' s tenure in the plant as a possible
basis for the Respondent 's doubts regarding the Union ' s strength . But that view over-
looks the additional facts that the events here considered took place more than 2 years
after the change in the Respondent 's ownership and management , and after two bargaining
contracts had been negotiated with the Union by the new owners and management.
HEIDER MANUFACTURING COMPANY 1189
:successfully maintained, would have caused a dimunition in the ad-
vantages previously won by the Union through collective bargaining.
In the Register Publishing case, the Board held that an employer's
insistence on the omission from a renewal contract of certain employee
benefits that had been included in the most recent bargaining contract
was evidence of the employer's lack of good faith in bargaining. The
Board there stated that "the respondent's insistence, without any
justification shown, that the Union surrender benefits it had gained,
is the very antithesis of any desire to reach a mutually acceptable
agreement." 8 True, in the instant case, the Respondent, during the
negotiations and again at the hearing, sought to justify its stand on
the ground that it was operating in a restricted labor market, and
that the continuation of the provisions in question perpetuated the
tenure of less desirable employees at the expense of the loss of better
ones. In the light of the evidence as a whole, however, we cannot
accept such an excuse as the actual motive underlying the Respond-
ent's position on the disputed clauses. Thus, although the Respond-
ent was contending that it wished to eliminate the seniority pro-
vision in order to be in a position whereby it could rid itself of its
less efficient workers, it was simultaneously asserting to the Union
that its employees as a whole were excellent, and that it had no in-
tention of discharging employees without consideration of seniority.
Yet despite the latter, assertion, on December 6, 1948, the Respondent
acted in the absence of an operative seniority provision, and dis-
charged a number of employees without regard to their seniority. In
addition, the Respondent, inconsistently with its previous assertion
to the Union, sought in this proceeding to justify the discharges on
the ground that the discharged employees were incompetent. The
Respondent's assertion that it acted in good faith is further com-
promised, we think, by the fact that having effected those discharges,
which included four of the five employee-members of the Union's
negotiating committee, the Respondent, only a month later and at the
first opportunity that was presented, reversed its position without
giving an explanation therefor and indicated a willingness to accept
the disputed seniority, grievance, and arbitration, provisions. From
these facts we can only conclude that the Respondent's position with
respect to seniority was motivated solely by its desire to avoid any
contractual obstacles to the discriminatory discharges it later ef-
fected, and not by any of the reasons advanced to the Union. Thus
the Respondent's demand that the Union relinquish the gains it had
8 Register Publishing Co., Ltd., 44 NLRB 834 , 847. See also Interstate Steamship Com-
pany, 36 NLRB 1307, 1320 ; Burgie Vinegar. Company, 71 NLRB 829.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
achieved in earlier bargaining was not only without justification lout
was adopted for illegal motives, and was therefore wholly lacking
in that good faith which the Act requires.
Moreover, although the Respondent, by yielding on the question
of including the disputed seniority, grievance, and arbitration pro
visions, removed the obstacle that up to that time had prevented the
parties from achieving agreement on a bargaining contract, it con-
tinued to raise new obstacles to bargaining. Even thought the Re-
spondent was aware that the Union was in the process of filing unfair
labor practice charges on behalf of the discharged employees, the
Respondent thereupon made the inclusion of a clause purporting to
settle all differences between the parties a, condition precedent to the
execution of a contract. While it is true that the parties' 1947 contract
contained a settlement clause similar to the one here in question, and
was therefore a precedent for the position taken in 1949 by the Re-
spondent, in view of the circumstances that existed in 1949 when that
position was taken, the Respondent's insistence upon inclusion of
the settlement clause was tantamount to insistence that the Union
abandon its unfair labor practice charges in order to finalize a bar-
gaining agreement. Earlier cases that are here controlling have held
unlawful similar attempts to make compliance with the Act's bargain-
ing requirements contingent upon a union's suppression of charges
that violations of the Act had been committed." In the light of those
cases, we hold that the Respondent's insistence on the inclusion of the
"settlement" clause was at variance with its obligation to bargain
with the Union in good faith.
On the basis of the foregoing facts and discussion, we find that the
Respondent, during and after October 1948, refused, and has con-
tinued to refuse, to bargain with the Union.
2. Unlike the Trial Examiner, we find that the Respondent dis-
criminatorily discharged Clarence Pluckhahn, Leonard Connors, and
Russell Bayer. On the date of the discharges, December 6, 1948,.
P]uckhahn was the Union's shop steward and a member of the com-
mittee then engaged in bargaining negotiations with the Respondent;
Connors and Bayer also were members of the Union's negotiating
committee.
The Respondent contended, and the Trial Examiner found, that
Pluckhahn, Connors, and Bayer were discharged for cause in that
they were incompetent. As set forth in the Intermediate Report,
9 Hartsell Mills Co. v. N. L. R. B., 111 F. 2d 291, 292 (C . A. 4) ; The American Laundry
Machinery Company, 76 NLRB 981, 982-983 ; The Toledo Desk 4 Fixture Co., 75 NLRS
744, 745; Leyse Aluminum Company, 37 NLRB 839, 857.
HEIDER MANUFACTURING COMPANY 1191
the record contains evidence-a good deal. of which is vague 10-which
-indicates that the Respondent had grounds for considering these em-
ployees to be incompetent and for discharging them for cause. How-
,ever, although legal cause grounded on incompetence may have been
present, we believe that the Respondent did not discharge Pluckhahn,
Connors, and Bayer for that reason. On the contrary, from the rec-
ord as a whole, we are persuaded that the Respondent discharged
them because they were members of the Union's negotiating commit-
tee, which, over a 'Protracted period of bargaining immediately pre-
ceding the discharges, had been tenaciously unyielding in most of its
demands upon the Respondent." In so concluding, we rely particu-
larly upon the facts that (1) the Respondent, on December 6, 1948,
laid off 4 of the 5 employee-members of the Union's negotiating com-
mittee; l' (2) only 1 of the above 4 laid-off employees was subsequently
rehired in January 1949, when the Respondent called back a large
number of the approximately 20 employees who had been laid off in
October 1948, and also called back certain other employees who, like
Pluckhahn, Connors, and Bayer, had been laid off on December 6,
1948; 13 (3) the Respondent had given no previous warning to Pluck-
hahn, Connors, and Bayer that their discharges would result from the
continuance of their alleged incompetence; (4) the Respondent, in
10 As set forth in the Intermediate Report, and there relied upon by the Trial Examiner,
the evidence failed to show the date of the occurrence of several of the incidents relied
upon by the Respondent to show the incompetence of Pluckhahn and Bayer. Faulty for
that reason, and therefore of little probative value, is the evidence pertaining to the fol-
lowing, illustrative, incidents: (1) When Pluckhahn allegedly threatened another employee
with the loss of his job for leaving the Respondent's premises; (2) when Pluckhahn did
not follow Fitzpatrick's suggestions concerning more efficient methods of drilling risers;
(3) when Puckhahn and Juergens conferred with respect to a program for improving
Pluckhahn's works; (4) when, during a 3-week period, 1.98 cull quality risers were pro-
duced in Pluckhahn's department ; and (5) when a dispute arose between Bayer and
-other employees concerning the use of trucks.
"See Ray Smith Transport Conmpany, 89 NLRB 1045, and cases cited therein as
illustrative of cases in which, although cause was present, discharges were found to have
been effected for other discriminatory reasons.
u The member of the negotiating committee in the employ of the Respondent who was
not discharged was on December 6, 1948, the head of the Respondent's fabrication depart-
ment, and, as the Trial Examiner points out, was considered to be a foreman.
The Trial Examiner minimized the importance of the employee-members of the negoti-
ating committee by pointing to their passive roles during negotiating conferences. Indic-
ative. however, that the employee-members of the negotiating committee were regarded by
the Respondent as important functionaries of the Union is the fact that the Respondent,
in December 1947, gave notice to Pluckhahn, a committee member, of its intention to
grant a wage increase during the pendency of the bargaining contract which had been
opened for wage negotiations. The Trial Examiner, moreover, relied upon Pluckhahn's
:acquiesence as exculpatory of the Respondent's action.
13 We agree with the Trial Examiner's conclusion that the layoff of Conrad Feld, who
was recalled in January 1949, was not discriminatory. Aside from the fact that Feld was
'recalled by the Respondent, the, evidence concerning Feld's incompetence, particularly his
own admissions regarding his frequent absences and poor efficiency because of ill health,
is more convincing than that offered to show the incompetence of Pluckhahn, Connors„
and Bayer. and has persuaded us that Feld was laid off for cause.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 1948, had disclaimed an intention to'discharge any employees;
without regard to seniority, and had simultaneously remarked on the
excellency of its employees ; (5) the Respondent, although specifi-
cally asked by Pluckhahn, Connors, and Bayer regarding the reason
for their layoffs, assigned no reason therefor at'the time of the lay-
offs; (6) the layoffs were made without regard to seniority, although.
the Respondent .had previously followed a policy of laying off em-
ployees according to seniority, and had about 2 months before the
date of the layoffs, on October 15, 1948, when there was no, contract in
effect requiring such action, effected a number of discharges in accord-
ance with its seniority policy.
In view of the foregoing, and upon all the evidence, we conclude
that by laying off Pluckhahn, Connors, and Bayer on December 6,.
1948,14 and thereafter refusing to reinstate them, the Respondent dis-
criminated in regard to the hire and tenure of these employees, and
thereby discouraged membership in the Union.. By such acts, the
Respondent violated Section 8 (a) (3) and 8 (a) (1) of the Act.
The Effect of the Unfair Labor Practices Upon Commerce
The activities of the Respondent set forth above occurring in con-
nection with the operations of the Respondent described in Section I
of the Intermediate Report have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
The Remedy
Having found that the Respondent has engaged in the unfair labor
practices set forth above, we shall order that it cease and desist there-
from and that it take certain affirmative action designed to effectu-
ate the policies of the Act.
It has been found that the Respondent refused to bargain collec-
tively with the Union as the representative of its employees in an
appropriate unit. Accordingly, we shall order the Respondent to
bargain collectively with the Union as the exclusive representative
of its employees in the appropriate unit with respect to rates of pay,
14 Although the complaint failed to allege that Bayer was discriminatorily laid off on
December 6, 1948, alleging only that he was discriminatorily refused reemployment on
January 10, 1949, the Respondent ' s answer admits that it laid off Bayer on December 6,
1948, and affirmatively alleges that both the layoff and the failure to reinstate were for
cause: Moreover , no distinction was made at the hearing between Bayer's case and the
cases of the other alleged discriminatees , the Respondent at no time objecting to the proof
as being at variance with the complaint in any prejudicial manner, and the Respondent's
brief filed with the Trial Examiner treats as a single issue the "discharge " of Bayer,
Pluckhahn , Conners, and Feld. -
HEIDER MANUFACTURING COMPANY 1193
wages, hours, and other terms or conditions of employment, and if
an understanding is reached, embody such understanding in a signed
written agreement.
It has also found that the Respondent discriminatorily laid off
Clarence Pluckhahn, Leonard Connors, and Russell Bayer on De-
cember 6, 1948', and thereafter refused to reinstate them. We shall
therefore order that the Respondent offer to Pluckhahn, Connors, and
Bayer immediate and full reinstatement to their former or substan-
tially equivalent positions,15 without prejudice to their seniority or
other rights and privileges. We shall also order that the Respondent
make them whole for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them. In accord-
ance with the Board's recently adopted policy,16 we shall order that
the loss of pay be computed on the basis of each separate calendar
quarter or portion thereof during the period from the Respondent's
discriminatory action on December 6, 1948, to the date of a proper
offer of reinstatement. The quarterly periods, hereinafter called
"quarters," shall begin with the first day of January, April, July, and
October. Loss of pay shall be determined by deducting from a sum
equal to that which each of the employees discriminated against
would normally have earned for each quarter, or portion thereof,
his net earnings'17 if any, in other employment during that period.
Earnings in one particular quarter shall have no effect upon the back-
pay liability for any other quarter. However, as the Trial Examiner
recommended the dismissal of the 8 (a) (3) charges, consistent with
our usual practice, the back-pay awarded Pluckhahn, Connors, and
Bayer shall be tolled during the period from April 25, 1950, the date
of the Intermediate Report herein, to the date of this Decision and
Order.
We shall also order the Respondent to make available to the Board
upon request payroll and other records to facilitate the checking of
the amount of back pay due."'
15 In accordance with the Board ' s consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position wher-
ever possible and if such position is no longer in existence then to a substantially equivalent
position." See The Chase National Bank of the City of New York, San Juan , Puerto Rico,
Branch, 65 NLRB 827.
'I F. W. Woolworth Company; 90 NLRB 289.
'? 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, which would not have been incurred but for this unlawful discrimination , and the
consequent necessity of his seeking employment elsewhere . Crossett Lumber Company,
8 NLRB 440 . Monies received for work performed upon Federal , State, county , municipal,
or other work -relief projects shall be considered earnings . Republic Steel Corporation V.
N. L. R. B., 311 U. S. 7.
is F. W. Woolworth Company, supra.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The violations of the Act which the Respondent committed are per-
suasively related to other unfair labor practices proscribed by the
Act, and the danger of their commission in the future is to be antici-
pated from the Respondent's conduct in the past. The preventive
purposes of the Act will be thwarted unless our order is coextensive
with the threat. In order, therefore, to make more effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of unfair
labor practices, and thereby minimize industrial strife which burdens
and obstructs commerce, and thus effectuate the policies of the Act,
we shall order the Respondent to cease and desist from infringing in
any manner upon the rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, Local 90, AFL , is a labor organization
within the meaning of Section 2 (5) of the Act.
2. At all times material herein , all production and maintenance
employees of the Respondent at its Carroll, Iowa, plant, excluding
office and clerical employees , professional employees , guards, and
supervisors as defined in the Act, constituted, and now constitute,
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
3. International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local 90, AFL, in October 1948, was,
and at all times thereafter has been, the exclusive representative of
all employees in the above unit for the purposes of collective bargain-
ing within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local 90, AFL , as the exclusive bargaining representative of the
'employees in the appropriate unit, the Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment
of its employees, Clarence PIuckhahn, Leonard Connors, and Russell
Bayer, thereby discouraging membership in International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-'
ica, Local 90, AFL, the Respondent has engaged in, and is engaging
,in, unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
HEIDER MANUFACTURING COMPANY 1195
Respondent has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
7. The foregoing unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Heider Manu-
facturing Company, Carroll, Iowa, and, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local 90, AFL, as the exclusive bargaining representative of all
production and maintenance employees of the Respondent at its Car-
roll, Iowa, plant, excluding office and clerical employees, professional
employees, guards, and supervisors as defined in the Act;
(b) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local
90, AFL, or in any other labor organization of its employees, by laying
off, discharging, or refusing to reinstate any of its employees, or in
any other manner discriminating in regard to their hire or tenure
of employment, or any term or condition of their employment;
(c) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local 90, AFL, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all' of such ac-
tivities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as acondition
of employment as authorized in Section 8 (a) (3) of the amended 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 Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local 90, AFL, as the exclusive representative of all production
and maintenance employees of the Respondent at its Carroll, Iowa,,
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant, excluding office and clerical employees, professional employees,
guards, and supervisors as defined in the Act, with respect to rates of
pay, wages, hours of employment, or other conditions of employment,
and if an understanding is reached, embody such understanding in a
signed written agreement;
(b) Offer to Clarence Pluckhahn, Leonard Connors, and Russell
Bayer, immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or other
rights and privileges;
(c) Make whole the three above-named employees, in the manner
set forth in the section entitled The Remedy, for any loss of pay each
may have suffered by reason of the Respondent's discrimination against
him;
.
(d) Upon request, make available to the Board, or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back. pay due under the terms
of this Order;
(e) Post at its plant in Carroll, Iowa, copies of the notice attached
hereto, marked Appendix A.19 Copies of said notice, to be furnished
by the Regional Director for the Eighteenth Region, shall, after being
duly signed by the Respondent's representative, be posted by the Re-
spondent immediately upon receipt thereof, and maintained by it for
a period of at least sixty (60) consecutive days thereafter in conspic-
uous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that such notices are not altered, defaced, or covered by any
other material;
(f) Notify the Regional Director for the Eighteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
.
IT Is FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated Section 8 `(a) (3) of the Act by discrimina-
torily discharging Conrad Feld, be, and it hereby is, dismissed.
CHAIRMAN HERZOG, dissenting :
The case is extremely close, but on the entire record I would affirm
the Trial Examiner and dismiss the complaint.
0
19 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "Decision and Order ," the words, "Decree of
the United States Court of Appeals Enforcing."
HEIDER MANUFACTURING . COMPANY
APPENDIX A
NOTICE TO ALL EMPLOYEES
1197
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
AVE WILL NOT discourage membership in INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, LOCAL 90, AFL, or in any other labor or-
ganization, by laying off, discharging, or by refusing to reinstate
any of our employees, or by discriminating in any other manner
in regard to their hire or tenure of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist the above-
named union, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to refrain from
any or all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized in Section
8 (a) (3) of the Act.
VVE WILL bargain collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
wages, hours of employment, or other conditions of employment,
and if an understanding is reached, we will embody such under-
standing in a signed agreement. The bargaining unit is:
All production and maintenance employees at our Carroll,
Iowa, plant, excluding office and clerical employees, profes-
sional employees, guards, and supervisors as defined in the
Act.
WE WILL offer to CLARENCE PLUCKHAHN, LEONARD CONNORS, AND
RUSSELL BAYER immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
and other rights and privileges; and we will make them whole, in the
manner provided in the Decision and Order, for any loss of pay
suffered as a result of our discrimination against them.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of any labor organization, except to
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the extent that such right may be affected by an agreement, as au-
thorized in Section 8 (a.) (3) of the Act, that requires membership in
a labor organization as a condition of employment.
HEIDER MANUFACTURING COMPANY,
Employer.
By --------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,,
and must not be altered, defaced, or coveted by any other material.
INTERMEDIATE REPORT
Mr. Erwin A. Peterson, of Minneapolis, Minn., for the General Counsel.
Mr. Edward S. White, of White and Bruner, Carroll, Iowa, for the Respondent-
Mr. C. I. McNutt, of Des Moines, Iowa, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 90, A. F.
of L., herein called the Union, the General Counsel of the National Labor Rela-
tions Board, herein called the General Counsel and the Board respectively, by
the Regional Director of the Eighteenth Region (Minneapolis, Minnesota),
issued his complaint dated October 18, 1949, against the Heider Manufacturing
Company, herein called the Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act, as amended (June 23, 1947, Pub. Law 101, 80th
Cong., Chap. 120, 1st Sess.), herein called the Act. Copies of the complaint and
charge were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent: (1) On or about September 30, 1947, and at all times there-
after refused to bargain with the Union, the duly designated representative of
Respondent's employees in an appropriate unit; (2) on or about December 6,.
1948, "did discharge, lay off, fail to provide work for, and terminate the employ-
merit of Clarence Pluckhahn and Leonard Connors" because of their union
activities and membership; (3) from on or about December 6, 1948, through
January 17, 1949, laid off Conrad Feld because of his union activities and
membership ; (4) on or about January 10, 1949, refused to reemploy Russell
Bayer because of his union activities and membership; and (5) because of the
aforesaid acts and conduct engaged in unfair labor practices in violation of
Section 8 (a) (1), (3), and (5) of the Act.
In its duly filed answer, Respondent admitted certain allegations of the com-
plaint but denied that it had engaged in any of the alleged unfair labor practices.
Pursuant to notice, a hearing was held on November 1, 2, and 3, 1949, at
Carroll, Iowa, before Eugene E. Dixon, the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. All parties were represented by
counsel, participated in the hearing, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
HEIDER MANUFACTURING COMPANY 1199
ing upon the issues. After the General Counsel's case-in-chief, Respondent's
motion to dismiss the complaint was denied without prejudice to its renewal at
the end of the hearing. Rulings were reserved on similar motions by Respondent
at the end of the hearing and are disposed of as appears herein. Respondent's
objection to continuance of the hearing until November 14, 1949, for the purpose
of taking the deposition of one Carl heal by the General Counsel at Carroll, Iowa,
was overruled. Respondent's renewal of that motion at the time the deposition
was taken is also overruled, and the deposition is made part of the record
herein. All parties waived oral argument before the undersigned but Respondent
availed itself of the privilege granted to all parties to file a brief with the under-
signed.
Upon the entire record in the case and from my observation of the witnesses,
I, the undersigned Trial Examiner, make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Heider Manufacturing Company is an Iowa corporation with its principal
office and place of business at Carroll, Iowa, where it is engaged in the manu-
facture of wooden ladders and farm wagon boxes.
During the calendar year 1948, Respondent made purchases of lumber, steel,
wire, paint, and nuts and bolts aggregating in excess of $500,000, of which ap-
proximately 95 percent was purchased and shipped to it from points outside the
State of Iowa. During the same period, the value of its sales of ladders and
wagon boxes exceeded $700,000, of which approximately 65 percent represented
sales and shipments to points outside the State of Iowa.
It is found that Respondent is engaged in commerce within the meaning of the
Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 90, is a labor organization affiliated with the Ameri-
can Federation of Labor admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Summary of salient facts
The Heider Manufacturing Company had been in business for many years
under the management of the late John and Henry Heider. In 1946 the busi-
ness was taken over by a group headed by Paul E. Heider as president, who
apparently was the son of one of the former owners. The Union had established
relations with the old management, having first entered into a collective bargain-
ing agreement with them about 1942 or 1943. The purchase agreement of the
new management became operative April 1, 1946. At that time no contract was
in effect between the Union and the Company, but one was negotiated later that
year and made retroactive to April 1, 1946. This contract, except for wage pro-
visions, apparently, was substantially the same as the contract entered into
the following year on July 10, 1947, retroactive to April 1, 1947.1 The latter
I There is no dispute that with respect to the similarity of the two contracts , both had a
seniority clause and a "settlement of past - grievances" clause.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract among other things, contained a seniority clause applicable to reductions
in force, rehirings, and promotions. Also contained in the latter contract was a
so-called "settlement of past grievances" clause providing in effect that upon
execution of the contract all outstanding differences between the parties are
deemed settled. Pursuant to its terms, this contract was reopened in October
1947 for wage discussions. Action at that time was deferred but a general wage
increase of 5 cents an hour was put into effect by Respondent in December of
1947. In addition, in the spring of 1948 a 5-cent per hour increase was also,
given by Respondent to certain keymen.
Although a collective bargaining relationship had existed between the Union
and the Respondent for a number of years, there had never been a Board cer-
tification of the Union as the bargaining agent of Respondent's employees..
On April 1, 1948, the last agreement between the Union and Respondent expired.
Shortly before this time and thereafter up to about the middle of January 1949,
numerous meetings and exchanges between the two took place in which the
terms of a new contract were discussed. Also during this period a, consent
election was conducted by the Board and overwhelmingly won by the Union, the
tally being 56 to 5.
No new contract was entered into as a result of these negotiations. The
chief obstacle on the part of the Respondent to new contract was the inclusion
of the seniority clause contained in the old contract. At the latter stages of
the negotiations the acceptance of the "past grievances" clause contained in
the old contract became an impediment to an accord by the Union in view
of the termination on December 6, 1948, of nine employees by Respondent, four
of whom were members of the negotiating committee of the Union, one of them
being the shop steward. Apparently the wage increases and the circumstances
surrounding these negotiations and the failure to reach an agreement constitute
the basis of a charge by the Union that the Respondent refused to bargain
with the Union in violation of Section 8 (a) (5) of the Act. The terminations
of three of the members of the negotiating committee and the refusal to reinstate
them and to reinstate another member of that committee, are contended by the
Union to have been motivated by Respondent's discrimination against those em-
ployees because of their union membership and activities in violation of Section
8 (a) '(3) of the Act.
B. The alleged discrimination
About the middle of 1948 a significant change 2 took place in the type of lumber
being purchased by Respondent and the method of processing it. Up to that
time for its stepladder production, Respondent had been purchasing ladder-
grained lumber in specified widths, lengths, and grades. Little or no independent.
skill or judgment on the part of the employees was required in the selection,.
grading, and handling of this lumber for fabrication into ladder parts because
it had already been run to pattern and completely graded at the mill and was
received by Respondent in "almost finished form." Under the new policy, how-
ever, Respondent purchased Grade C and better rough green flitch lumber,
which was of poorer quality than ladder-grained grades and which, in addition
to requiring considerable more processing, also required a great deal more in
the nature of grading and selection wherein the exercise of more judgment, skill,
2 Sometimes referred to herein as the change-over or new policy. Operations under the
new policy did not take place prior to June 12, 1948, when the first of two band ripsaws
were installed.
HEIDER MANUFACTURING COMPANY 1201
and discretion was required on the part of the employees handling it if ex-
cessive wastage was to be avoided and the maximum utilization of the lumber
was to be attained.
To implement the new policy, Respondent installed a drying room and two
band ripsaws, the latter equipment being used for rip sawing into appropriate
sizes green lumber up to 8 inches in thickness. This operation was the first
step in the new process and was primarily directed to the production of as many
long, clear, defect-free' rails as possible for use in long ladder production. The
byproduct of this rail production was to be used for the fabrication of step-
ladder parts. In processing this byproduct into stepladder parts, the number
of usable pieces salvaged depended upon the judgment and care of the person
doing the processing. Thus, if one proceeded to cut a piece of lumber into step
parts, for example, without regard to the occurrence of blemishes or defects in
that piece, each step in which a defect occurred would be a total loss. Had
the defects been trimmed out before the cutting took place, the loss might have
involved only the amount of lumber covered by the approximate area of the
defect.
In Respondent's stepladder production the first step was to run all the lumber
through the molder without serious inspection. This cleans and smooths the
piece so that all defects can be seen. The next step was the so-called "equal-
izing"nor cutting pieces into the exact dimensions for the risers (the sides of
the stepladder), the steps, etc. The parts produced in this step should have
been and were expected to be defect free and ready for the final steps of the
parts fabrication crew-tbe dadoeing and drilling. After these operations, the
parts were placed in bins or on carts ready for actual assembly into stepladders.
Obviously, if a defective part that should have been rejected in the equalizing
stage went through the remainder of the production process and became part
of the finished stepladder, it would result in a defective stepladder. Or if the
part went through several additional processing and handling phases but was,
discarded before ultimate assembly into the stepladder, the work performed on
it would have unnecessarily added to Respondent's production costs. To avoid.
unnecessary fabrication or, assembly of faulty parts it was Respondent's pur-
pose to localize the responsibility for the inspection of stepladder parts at the
earliest point feasible in the fabrication process. This point was the first proc-
essing step after the molder operation, namely, that of "equalizing." Prior
to the discharges in question, this work was the responsibility of Pluckhahn
and the men in his crew.' In this group was included Connors, one of the other
alleged discriminatees. While Pluckhalin usually cut the risers and Connors
3 Defects were described as knots, cross grains, pitch pockets , checks , and blemishes from
various causes.
' Pluckhahn was described as a gang leader . No contention was raised that he was a
supervisor within the meaning of the Act. While he was consulted by management as to
the termination of other employees , it would appear that such consultation was carried on.
with Pluckhahn in his capacity as union steward rather than as a supervisory employee.
The only instances in the record where recommendations as to his own crew members
were made by Pluckhahn reveals that the recommendations were not followed by the Re-
spondent . While his duties involved , in some measure , the direction of the men in his gang.
there is no showing what the exact duties were. Pluckhahn and his gang worked under the
supervision of Ray Juergens whose entire department consisted of only 13 people. In
view of this it would appear that Pluckhahn 's direction of the men in his gang was in the
nature of advice and guidance to less experienced employees rather than as the voice of
management . I find he was not a supervisor within the meaning of the Act. George
Ehlenberger & Co., Inc., 77 NLRB 701; General Steel Tank Co., 81 NLRB 1345.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the steps , it appears that on occasion they also performed the additional steps
of dadoeing and drilling.
As a defense to the charge of discrimination against the four employees in
question , Respondent 's answer alleged that Pluckhahn and Connors "had not
efficiently and satisfactorily performed the work assigned to them " ; that the
failure to reemploy Bayer was because he "did not satisfactorily perform the
duties assigned him and that the proper and efficient operation of respondent's
business required [his] discharge" as well as that of Feld . At the hearing,
Respondent contended that the employees in question were incompetent, which
term included such things as excessive waste of materials, poor quality of work-
manship, poor use of men , carelessness in handling of tools and equipment,
slowness of working methods , time wasting , trouble making and inability to get
along with fellow employees , refusal to take orders or suggestions gracefully,
absenteeism and tardiness , and inability to perform all tasks that might
normally be assigned . The facts as to these contentions as well as the circum-
stances surrounding the union membership and activities of the discriminatees
and their relationship with Respondent follow.
Clarence Elmer Pluckhahn
Pluckliahn started working for Respondent under the old management in
1937. His tenure of employment was interrupted by a period in the Armed
,Services from August 1943 to November 1945. He joined the Union in 1941.
Before he left for the service, he had acted as shop steward and regained that of-
fice about a month after he returned to his job in 1945, holding it at the time of his
discharge. Whether by reason of his stewardship or otherwise, he was also a
member of the negotiating committee of the Union and attended most if not
all of the discussions between the Union and the Respondent at which the com-
mittee appeared. It is clear that aside from their physical presence at these
meetings, the members of the committee took no active part in them as indi-
cated by the words of Pluckhahn when he testified that "In these meetings we
as a committee usually never spoke. That is what we had our business agents
and so forth for."
For about the first year with Respondent, Pluckhahn worked on extension
ladders and stepladder assembly and then was transferred to wood fabrications.
In this department he became a gang leader under the new management about
a year and a half prior to his discharge on December 6, 1948. In this position
it was his duty along with other members of the gang to select and sort lumber
for milling and then cut it for various other operations such as drilling and
dadoeing. In December 1947, he participated in a 5-cent per hour increase
granted all employees. A few months later, he was one of a group of keymen
given individual increases of 5 cents an hour.
On December 6, 1948, Pluckhahn stood about seventh in seniority. At about
4:30 p. m. that day, Fitzpatrick, the plant superintendent, came out to a shed
that Pluckhahn had been helping a carpenter remodel for some 10 days previous
and gave Pluckhahn his check, informing him that he was one of a group that
was being laid off. When asked by Pluckhahn what the reason was, if it was
that his work was "no good," Fitzpatrick answered that ". . . it isn't that" but
did not reply to an additional query as to whether it was because of union ac-
tivities.
On direct examination, Pluckhahn testified that Fitzpatrick had never crit-
icized his work except that "only one time" he asked Pluckhahn "Do you suppose
HEIDER MANUFACTURING COMPANY 1203
we could get things moving a little faster?" To which Pluckhahn replied "Well
if you have another man that is better qualified you think than I am, you put
him in that position and I will step back into the line." On cross-examination,
Pluckhahn admitted that in this exchange Fitzpatrick also criticized the amount
of waste and spoilage resulting from his cutting operation.
From other admissions by Pluckhahn on the witness stand, it appears: (1)
That he, Fitzpatrick and Juergens (who was in charge of the parts fabrica-
tion department) G had a conference one evening relative to the inefficiency of
the work in Pluckhahn's department and that a "rather definite program was
worked out for the improvement of that work" ; (2) that shortly after the
change-over, Heider complained to Pluckhahn about the manner in which lie
was cutting and sorting the lumber because of the amount of waste occurring;
(3) that Pluckhahn and management had a difference of opinion as to whether
edge grain or flat grain lumber was best for ladder use and that he continued to
follow his own opinion partially, substituting it to that extent for the opinion
of management; (4) that in the summer of 1947, there had been a great deal
of discussion about how many pieces of lumber should be put through the sander
at one time and Pluckhahn had objected to increasing that number but that he
finally tried it and found that it worked out satisfactorily; (5) that lie con-
tinued, over the objection of management, to use 2 men to handle legs and risers
in connection with the bins; (6) that it was possible that there, were 198 cull
quality risers produced in his department in less than 3 weeks and that he was
told the situation had to be improved; (7) that during the same period 136 steps
were culled but that while he "was responsible to a. certain extent" it was
someone else in his gangs that had cut them; (8) that he was frequently ab-
sent without giving management notice of his intention to be absent; ° (9) that
while lie denied that he was frequently late to work, his testimony that "lots
of times things carne up at the last minute and 'I couldn't make it at the right
time, and in the time you would call, I'd be on my way down there," is clearly an
admission that he was; (10) that an incident occurred wherein Pluckhahn
reported to Fitzpatrick that the saw in his department was not cutting right
and damaging the lumber. Upon investigation it was found that the blade had
been installed in reverse. There was no showing that Pluckhahn was working
with the saw at the time or that he installed the blade.
Leo Fitzpatrick, the plant superintendent, testified that in July 1948,8 he had a
conference with Pluckhahn in which he. discussed the various aspects of Re-
spondent's dissatisfaction with Pluckhahn's work. At this conference, Pluck-
hahn was given a memorandum listing the items in which improvement was
desired. In his testimony, Pluckhahn admitted having had such a discussion
and having received a written statement at that time but maintained that he
did not recall what the statement contained because, as he explained, "he didn't
pay a lot of attention to what was on the paper because he had always got
along."
Although Juergens was apparently considered as a foreman, he was nevertheless the,
fifth member of the negotiating committee.
6 The record is silent as to any other person involved in the cutting of steps except
Connors.
On redirect, he testified that he was not absent any more than the rest of the employees
but on recross he admitted that it was possible he was absent more than other keymen. I
find such to be the fact.
8 Although there is some confusion between the direct and cross -examination as to the
date this incident occurred , I find it to have been in July 1948.
917572-51-vol. 91-77
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this memorandum, one of the items of complaint involved a rush order to
Pluckhahn for plank rails. Instead of arriving in time at the proper point, they
were found, after a 2-hour delay, in the bin. The man who ordered them claimed
he was not told they were ready. Pluckhahn insisted the man had been told.
Whatever the truth of the matter, it is clear and I find, that the incident oc-
curred and that Respondent did not accept Pluckhahn's explanation either be-
cause it was not believed or because of the conviction that it was Pluckhahn's
responsibility to see that the rails were delivered.
Another item brought out at that time was an incident in the spring of 1948
wherein Pluckhahn took a crew of three men to pick up a wagonload of lumber
in the yard. The time sheets showed that the task took them 18 man-hours
to perform. A similar job was performed shortly thereafter by a different man
and a helper in 9 man-hours. Pluckhahn's explanation at the time was that
the time sheets must have been wrong.
According to Fitzpatrick's testimony, in the early summer of 1948, one of
Pluckhahn's men broke the "big drill." The man told Fitzpatrick he had never
worked on the drill before and that Pluckhahn had not given him any instruc-
tions as to its use. Pluckhahn admitted that the incident occurred but denied
,putting the man on without instructions.
Fitzpatrick further testified without contradiction that on another occasion
shortly after the end of a rest period, Pluckhahn followed the shipping clerk
off the premises to a "store" nearby and saw him have a glass of beer whereupon
Pluckhahn threatened to fire him or "get his job." The employee is question
had been unable to take off during the rest period and was compensating for
the time lie should have had. He questioned Pluckhahn's authority to get
his job and went to Fitzpatrick about it. The latter discussed the matter
.with Pluckhahn, the discussion centering chiefly around the question of Pluck-
hahn's authority to let anyone go or threaten anyone in that respect.
On another occasion, according to Fitzpatrick's testimony, he suggested to
Pluckhahn that as a more efficient method of operation the latter ought to have
the men handle more than one riser at a time in connection with the drilling
operation, pointing out that an extension platform had been put on the drill
for just that purpose. The following day, observing that only one riser was
still being handled at a time, Fitzpatrick discovered that Pluckhahn had not
mentioned the matter to the men. On cross-examination on this point, Pluck-
hahn made it clear that his policy was to let the men follow their own inclina-
tions as to the number of risers each handled. Whether or not it was in con-
nection with this incident or an entirely different one, Fitzpatrick testified that
after one discussion with Pluckhahn in which improved methods of operations
were discussed, he discovered a day or two later that the new methods were
not being followed. When his attention was called to it, Pluckhahn "got a
little irritated" and told Fitzpatrick he had been around there longer than Fitz-
patrick and that he probably knew as much or more about running things as
Fitzpatrick did "or words to that effect."
It appears that twice Pluckhahn told Fitzpatrick he intended to leave his
employment-once in the summer of 1.946 when he indicated he was going into,
the summer resort business and the next time in the fall of 1948 when he planned
to go into the lightning rod business. It was at about this time according
to Fitzpatrick's testimony that through his position on the school board he
was able to offer Pluckhahn a job as janitor of the high school at about $15
more a month than he was getting with Respondent. Pluckhahn refused the
HEIDER MANUFACTURING COMPANY 1205
job on the grounds that there were "too many bosses" involved in it naming
one particular person he could not get along with. The substance of this testi-
mony was admitted by Pluckhahn.
Fitzpatrick further testified that at various times in 1948 the question of
waste was discussed with Pluckhahn and the manner in which to avoid it was
pointed out to him, but that he was unable to see any improvement in Pluck-
hahn's work as a result of these discussions. After his discharge, however,
Fitzpatrick testified the waste noticeably decreased and the quality of the
parts produced improved, although it was admitted by Fitzpatrick that the
quality of the lumber Respondent had been able to purchase since then might
have improved slightly.
The entire foregoing testimony by Fitzpatrick is either admitted, undenied,
or not otherwise controverted or discredited by Pluckhahn or other of the General
Counsel's witnesses. Whatever explanations there are do not obviate the oc-
currence of the incidents. I credit Fitzpatrick's testimony as set forth.
• Heider testified credibly that the grade of lumber being used by Respondent
after the change-over should have had a maximum utilization for ladders of
about 95 percent, but that during that part of 1948 after the change-over oc-
curred they experienced about 75 percent utilization which resulted in an
unnecessary waste 'of about 10 to 15 percent ; that after the change-over occurred
complaints from customers increased in volume as to the quality of the Respond-
ent's product, the inability to get defect-free stepladders as well as the high
costs and inefficiency which Respondent was experiencing were the basis of
his own reasons for Pluckhahn's discharge, but that Fitzpatrick was more con-
cerned with the personal aspect of Respondent's relationship with Pluckhahn.
Marvin Snyder, employed by Respondent in stepladder assembly during Pluck-
hahn's employment in parts fabrication and after his discharge, testified cred-
ibly that the parts coming to the assembly department improved after Pluck-
hahn's departure ; that while Pluckhahn was equalizing, Snyder used to reject
about a half a dozen risers out of 100 handled by him a day as compared to
about 1 a day being rejected by him at the time of the hearing.
Henry Dion, in charge of one of Respondent's band ripsaw operations and its
crew, testified credibly that Pluckhahn would come out in the yard to get
lumber that was under his authority and would not consult him as to what was
the driest and thus most ready for use, but would try to find it himself or bring
Juergens with him for that purpose. While Dion testified that he never men-
tioned to management this failure to consult with him, Fitzpatrick, recalled to
the stand, testified credibly that after it had been going on for some time he
-learned about it and put a stop to it and that while it was his impression that
it was Dion who told him about it, he may have gotten the information from
someone else.
Christianson, the shipping clerk, testified credibly that one of his duties was
to inspect ladders before shipment and that there were not "near as many"
defects found by him at the time of the hearing as there were a year before
that; that Pluckhahn kept the plant in turmoil continually by going around
with stories regarding lay-offs, wage cuts, strikes, and similar matters.
Juergens, who was in charge of the entire wood fabrication department during
Pluckhahn's employment therein and at the time of the hearing, testified cred-
ibly that Pluckhahn should have watched the lumber more closely as it went
through his hands and that his work "could have been done quite a little faster" ;
.that since the discharge of Pluckhahn and Connors the men "are putting out a
lot more work" by reason of their getting along better.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conrad J. Feld
Feld was a member of the negotiating committee. He started working for
Respondent October 16, 1945, Sand after 6 months on extension ladders was
.transferred to the iron shop until his layoff on December 6, 1948. At that
.time Fitzpatrick told him work was slack and they were going to lay him
,off for a while. When he was taken back by Respondent on January 17, 1949,
two of the group laid off with him had already returned to work. He testi-
fied that he had had no complaints about his work but that Fitzpatrick spoke
to him some 6 or 7 weeks prior to his layoff about absences from work. He
admitted that his health was not good and that at times he "was just naturally
forced to lay off" ; that at the time of his layoff his health would permit him
to be at work about 90 percent of the time, a condition which he described
.as being somewhat worse than his health would permit before his layoff. He
-further. testified that due to his physical condition he "gets weak and all in,
Just tired all the time" and short of strength and admitted that as a result
of this condition he was "somewhat slower than some of the other men in the
plant." He also admitted that at times the Company saw to it that he was
not put on the heavier jobs. After lie returned to the job in January his health
got worse and he got a leave of absence to go to Iowa City for treatments.
.He returned to the job thereafter, worked 5 or 6 weeks and then was absent
without notice. Later he informed Respondent he simply was unable to work
because of his health and would have to quit permanently, which lie did.
Fitzpatrick testified credibly that Feld would be absent for a week or two
at a time without notice; and that "he was a good kid but just incompetent";
.that he reapplied three or four times after his layoff in December and that
finally Fitzpatrick got softhearted and said "go on back to - work," knowing
at the time they "couldn't carry him."
Leonard F. Connors
Connors was a member of the negotiating committee. His employment with
Respondent started in the latter part of 1946 at 721/2 cents an hour. A general
increase brought him to SO cents prior to December of 1947 at which time another
general increase raised him to 85 cents. Thereafter he was given another 5-cent
increase apparently at the same time Pluckhahn was given a similar increase
early in 1948.
During his last year with Respondent, Connors worked with Pluckhahn fabri-
cating parts for stepladders which included equalizing. While he testified that
he had "not directly" had any complaints about his work from Fitzpatrick or
Heider, he did admit that Fitzpatrick "would come around sometimes" when he
was cutting steps and caution him about the amount of waste resulting from
his work.
Connors stood approximately twenty-seventh in seniority. He testified that
in the afternoon of December 6, 1948, Fitzpatrick gave him his check and told
him they had decided to "cut down some men" and he was one of them. When
.asked if it was permanent or temporary, Fitzpatrick said he did.not know,
that it was orders from the office. After the discharge he and the others
terminated with him went to Fitzpatrick asking for reinstatement, but were
,told by Fitzpatrick that he would have to "find out from the office and advise
[them] later." The advice was transmitted to the others through Pluckhahn
to the effect that under no circumstances would they be able to go back to work.
HEIDER MANUFACTURING COMPANY 1207
Fitzpatrick testified credibly that even before the change-over Connors was
a "marginal" employee ; that he was slow and inefficient and that "he couldn't
figure out how to cut boards and get the most good" out of them ; that after
efforts to show him how to do it, he still could not learn properly to cut out
knots; that repeatedly during the summer of 1948; he had complaints from
various employees about Connors naming Norbert Heithoff, Carl Moore, Marvin
Snyder, and Ted Rehm as the complainants, all of whom apparently worked
on stepladder assembly. Of those named only Snyder was called to the stand
but there was no testimony by him regarding Connors.
Pluckhahn in his testimony admitted that about 6 months prior to Decem-
ber 6, 1948, he volunteered the suggestion that Fitzpatrick let Connors go because
he did not think Connors "was properly performing his work."
Russell Bayer
Bayer was also a member of the negotiating committee. His employment
with Respondent started at 80 cents an hour in February 1948. For about 3
months he worked on the molder and then was transferred to equalizing for
extension ladders where his duties required his getting lumber out of the yard
and cutting it to length for risers. After his first 2 weeks, he received a wage
increase of 5 cents an hour. A few months later he received another increase
of 5 cents an hour, being told by Fitzpatrick that it was because he was one of
the better men. At the time of his layoff, he was earning 95 cents an hour. His
discharge occurred at the same time and in the same manner as those of the
other employees in question, no reason being given by Fitzpatrick in reply to
Bayer's request for an explanation.
Fitzpatrick testified that Bayer was "slow and quite a man to visit" and
kill time; that they "couldn't get him to watch and select the rails closely"
and that from time to time he persisted in sitting at the molder rather than
standing as requested by his superiors ; that about the time of the change-over,
it was decided to take him off the molder and put on a man more responsive
to suggestions ; that his work in the yard which followed give him the oppor-
tunity to loaf in the saw shed where he would see Fitzpatrick coming and im-
mediately start talking about operations, trying to lend the impression that
his presence there was required by his work. While on cross-examination,.
Bayer testified that none of the above things were brought to his attention,.
there was no testimony by him or anyone else denying that they were not in fact
true. I so find.
Fitzpatrick also testified that complaints had been made by other employees.
about Bayer and named Marvin Stokes as one of, the complainants. Stokes.
testified that Bayer had altercations with other employees and that while he
could not testify that Bayer actually took a truck away from anyone, neverthe-
less Bayer "gave the opinion if he wanted he could get it any time.
While there is no evidence that Bayer physically took a truck away from,
another employee and Bayer denied doing so, the testimony raises enough
question to convince me that' some kind of difficulty between Bayer and other
employees arose over the use of trucks.
Fitzpatrick's testimony regarding Bayer's loafing is credibly corroborated by
Stokes' testimony that Bayer spent several half-hour periods a week loafing in
the saw shed. While Stokes admitted on cross-examination that other employees
whose presence was not required also spent time in the saw shed, there is no
showing who such employees were or the amount of time so spent.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings as to Discrimination
On October 15, 1948, about 7 weeks prior to the discharges in question Respond-
ent laid off approximately 17 employees, all of whom were laid off in accordance
with seniority except 1. At the time of the discharges in question, unsuccessful
negotiations for a new contract had been going on for some months. These
facts plus the negotiating committee membership of the alleged discriminatees
constitute the major premise of the General Counsel's proof of the charge of
discrimination. There was no allegation nor proof of interference, restraint,'
or coercion by Respondent with the rights guaranteed its employees in Section
7 of the Act except as derived from the above charge of discrimination and
refusal to bargain.
The Respondent's evidence as to the reasons for the discharges is unrefuted
and largely undenied. Indeed, a great deal of it was admitted by the alleged
discriminatees themselves. No evidence was adduced by which a standard of
comparison could be made of Respondent's treatment of and attitude toward
employees who remained on the job when the employees in question were
terminated. Aside from the fact that the terminations occurred a few days
after a bargaining conference in which an accord was almost reached but failed,
there is no significant inference that can be drawn from the timing of the dis-
charges. Likewise, there is no evidence of any untoward incident between
members of the negotiating committee and the management that might have
given rise to action motivated by anger or antipathy generated in the bargaining
conferences. At the time the discharges took place five other employees were
terminated, all or most of whom were union members. There was no allegation
in the complaint that these terminations were discriminatorily motivated and
the record is barren as to the circumstances surrounding their terminations or
employment.9
In the light of the foregoing, we turn to an analysis of Respondent' s defense.
The keystone of this defense is the situation involving the change-over in
Respondent's operations occurring in the middle of 1948. Having gone to con-
siderable trouble and expense in an effort to secure an adequate and economical
source of lumber for its operations, the wisdom and success of the change-over
was a source of conjecture and anxiety to Respondent for months after it was
inaugurated. On the one hand, if too much waste occurred, the operation
would prove to be uneconomical. On the other, if faulty material appeared
in the finished product, it would adversely affect Respondent's reputation and
.sales. That Respondent's concern in this respect was real and genuine is fully
borne out by the record. Also borne out by a preponderance of the evidence
was Respondent's numerous complaints to the employees in question regarding
the amount of Waste occurring in their operations and Respondent's efforts to
get them to avoid waste and at the same time to minimize the amount of faulty
parts being transmitted for fabrication. True, Respondent's position left the
employees with somewhat of "Hobson's choice." Reasonably or unreasonably
from the beginning Respondent took the position that the primary responsibility
for the *success of the change-over with respect to stepladder parts fabrication
rested largely on the shoulders of Pluckhahn and any others performing the
equalizing. That success was possible is borne out by the record. Whether
or not in view of the newness of the operation and the lack of experience on the
9 Nine people were named by the Union in the charges filed with the Board as having
been discriminated against by Respondent because of their union activities.
HEIDER. MANUFACTURING COMPANY 1209
part of the employees in grading, selecting, and cutting the new type lumber,
Respondent's demands were reasonable, does not seriously affect the validity
of Respondent's defense. In the absence of. other factors that an employer
might weigh in evaluating an employee's performance in a new operation such
as was involved here, it would not be unusual for the employer, imbued as he
.is with the soundness of his idea and necessity for its success, to arbitrarily
.condemn a performance not consonant with his requirements. Human nature
being what it is, it is axiomatic that the immutable crises of the industrial
process have always taken their toll of relatively innocent heads.
But here we have factors separate from the performance itself which I am
convinced had an important bearing on Respondent's action with respect to the
employees in question. There is substantial evidence in the record as a whole as
to have given rise to the conviction on the part of the Respondent that the em-
ployees in question were not making a conscientious effort to make the change-
over a successful operation. The record adequately supports Respondent's
contention that in varying degrees certain of the employees were not receptive
to suggestions from management. True, other than that they occurred during
the regime of the new management, some of the incidents adverted to are un-
identified as to the time they arose or occurred prior to the change-over and may
not have had a direct connection with the crucial issue of the apparent waste
in the new operation. But even they are not without their probative value in
analyzing Respondent's reaction to the performance of the employees in the
execution of the new policy.
For example let us analyze Pluckhahn's relationship with Respondent. Here
is an employee of relatively long tenure who returns after an absence in the
service and takes up where he left off. At the time of his return the conditions
of employment and methods of operation are substantially the same as they
had been previous to his absence. Thereafter a new management takes over.
Ultimately he is promoted to the job of leadman. Being in somewhat of a key
position, it is probably inevitable that from time to time a conflict of ideas be-
tween him and management may have arisen as to the proper methods to be used
in various phases of the operations.
Having had most of his experience under the old management it was probably
natural for Pluckhahn to evaluate suggestions by the new management in the
light of methods used by the old management and to voice his opinion accord-
ingly. Prior to the change-over these conflicts probably did not assume the im-
portance in the eyes of management that such conflicts did thereafter. For one
thing, they were not so closely identified with a major issue before the change-
over. For another thing, management was relatively new and inexperienced and
with respect to events that occurred before the change-over may have allowed
itself tobe swayed by Pluckhahn's long experience in the plant. In not meet-
ing with any determined objections or resistance to his attitude at first it is
understandable if he assumed a sense of importance not commensurate with his
position.
It is probable that even prior to the change-over Respondent began to ques-
tion Pluckhahn's resistance to innovation and suggestion. When the change-
over occurred, however, and Respondent was faced with the success or failure of
the new policy, I am convinced that any indications, past or current on his part
or on the part of any of the other employees in question of unwillingness or.in-
ability to effectuate the suggestions of management were translated in the light
of the success or failure of the new policy and could ultimately lead to the con-
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viction that it was necessary to eliminate those employees. Under these cir-
cumstances, it would be only natural for Respondent to evaluate critically every
other factor bearing on the efficiency and deportment of the employees in ques-
tion. In this light Respondent's attitude regarding troublemaking and inability
to get along with fellow employees is quite. understandable. Whether or not
the defense in this respect standing alone would be adequate to negate the charge
of discrimination against Respondent, I find that the preponderance of the evi-
dence supports the conclusion that in varying degrees difficulties arose between
Pluckhahn, Connors, and Bayer and their fellow employees,10 and that when
added to the underlying motivation for the discharges, constituted a valid part
of the over-all consideration for these discharges. A similar conclusion is com-
pelled regarding the other credible evidence adduced by Respondent in its de-
fense or admitted by the employees in question.
The foregoing considerations apply chiefly to Pluckhahn and to a more limited
extent to Connors and Bayer, the case of Feld turning on different factors. For
some reason the major portion of the hearing with respect to the charge of dis-
crimination was centered on Pluckhahn. The record with respect to Connors
and Bayer is relatively meager. It appears that all three received merit in=
creases during the last year with Respondent. These increases, however, oc-
curred in the spring or early summer of 1948 and I find were granted prior to
the change-over. It is entirely plausible that regardless of what Respondent's
evaluation of the employees in question was prior to the change-over the problems
.that were raised by that change-over could easily result in an unfavorable
evaluation of those employees by Respondent. I find such to be the case. In
any event, to the extent that the dismissals hinged on the factor of inability to
get along with fellow employees, the wage increases have no particular relevance
occurring as they did some 5 or 6 months before the dismissals.
With respect to Connors it is apparent by virtue of Pluckhahn's admission that
something was amiss with his performance just prior, to the change-over. Such
being the case the problem presented by the change-over could very well have
tipped the balance against him. That Pluckhahn's recommendation that Connors
be discharged was not affirmatively acted upon at the time is explained in part
by Fitzpatrick's testimony that he liked to reserve judgment in matters of that
kind and give a man another chance. He credibly supported this testimony with
details of at least one other incident similar to Connors'."
In regard to Bayer who at the time of the dismissal was equalizing parts for
extension ladders the responsibility for waste or the production of faulty parts
does not apply with the same cogency as it does to Pluckhahn and Connors. But
here too, the fact that about the time of the change-over he was taken off the
molder which was a relatively important job. raises some doubts as to his effi-
ciency or.his willingness to comply with the suggestions of management. There is
nothing in the record to allay these doubts. In any event, apart from the question
of his efficiency there is substantial evidence as to his loafing and some evidence
"while the record is quite convincing as to Pluckhahn's proclivity in this respect, the
aberrations of Connors and Bayer would seem to be of the type normally encountered in
the day-to-day stresses of the industrial process. However, since there is no evidence of
similar incidents by other employees and in view of Respondent's basic complaint against
the employees in question, the conclusion that these difficulties formed a valid part of the
basis for the dismissals is inescapable.
11 Pluckhahn recommended that the employee involved in the drill-breaking incident
referred to above be discharged. Fitzpatrick did not follow the recommendation but
shifted the employee to another department where he proved to be quite satisfactory.
HEIDER MANUFACTURING COMPANY 1211
as to difficulties with fellow employees. To what extent these latter governed
his dismissal is not known but that it constitutes a valid and uncontroverted
explanation of the dismissal is clear.
It was Respondent's testimony that the dismissals in question were tentatively
worked out and planned about the middle•of September at the time the October
15 layoff was planned. When asked why they were not effectuated until Decem-
ber 6 Respondent's testimony was that with the negotiations then in progress
they were reluctant to face the objections that they were sure the Union would
make but that the situation with respect to the success of the change-over had
by then become so critical it was imperative, that the issue be faced. Fitzpatrick
testified credibly that had it not been for Pluckhahn's union position he would
have been discharged long before lie was.
In the last analysis Respondent faced the issue. In my opinion the case against
Pluckhahn is overwhelming. His apparent studied refusal to defer to Dion in the
selection of lumber in the yard 12 and his handling of the Christianson incident,13
among other things in the record, bespeaks of an attitude that was hardly cal-
culated to result in anything but a disagreeable relationship with his fellow
employees and bears out Fitzpatrick's observation that he was always "throwing
his weight around." This fact plus his resistence to the suggestions of manage-
ment and his inability to satisfy the justly or unjustly imposed demands of man-
agement in connection with the change-over convinces me that, the reason for his
dismissal was not his union activities but his apparent undesirability as an em-
ployee in Respondent's organization. , Added to these factors and possibly some-
what enhanced by them was the impression Respondent must have had over a
2-year period that Pluckhahn was dissatisfied with his work and intended to leave
as borne out by the record. While not as decisive as in Pluckhahn's case the
Respondent's contentions regarding Bayer and Connors as developed in the
record as a whole lead me to a similar conclusion regarding them.
With respect to Feld little need be said. The record amply supports Respond-
ent's contention that there was valid cause for his layoff. True, he was refused
reinstatement with the others when they applied in concert a few days after the
dismissals. However, a few weeks later he was rehired under the circumstances
found above. It seems hardly likely that had the layoff been motivated by anti-
union causes Feld would have been rehired under any circumstances, let alone in
the sympathetic manner that he was.
While there is some evidence in support of the charge of discrimination, I am
not convinced on the record as a whole that there is the necessary preponderance
of such evidence to sustain the charge of discrimination against Respondent.
.The nearest that the evidence comes to establishing a case in my opinion is to
raise it suspicion that Respondent discriminated against these employees in
violation of Section 8 (a) (3) of the Act. But a suspicion, no matter how strong,
is not sufficient to support a finding that the Act has been violated.14 Accordingly,
I shall recommend that the charge of discrimination be dismissed.
12 While it is true that there is no direct evidence that it was Pluckhalin 's duty to con-
sult with Dion about the selection of lumber in the yard, the fact that the latter had
authority over it plus Fitzpatrick 's testimony that when the matter came to his attention he
saw to it that it was corrected supports an inference that it was. In any event, whether
as it duty or a voluntary deference , Pluckhahn ' s deliberate omission in this respect leads
to the same conclusion.
21 There is some explanation of this incident in the record which is plausible enough but
it does not refute the conclusion that Plucklahn ' s handling of it was undiplomatic and
ill-advised.
14 Punch and Judy Togs, Inc. of California, 85 NLRB 499.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The refusal to bargain
1. The appropriate unit
The complaint alleges that all production and maintenance employees employed
by Respondent at its plant, excluding office and clerical employees, guards, pro-
fessional, and supervisory employees as defined in the Act constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (.b) of the Act. This allegation is admitted by Respondent's answer.
Accordingly I find that the above-described unit at all times herein constituted
and now constitutes a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
2. The majority
Obviously no question of majority presents itself during the period from
April 1, 1947, to April. 1, 1948, during which the last contract between the parties
was in effect. Nor is one presented after October 7, 1948, when the election
and certification took place. During the period between the expiration of the
contract and the certification, however, the question of the Union's majority
becomes pertinent. While there is no showing what the total of the Union's
membership was immediately after the contract expired,,John Connally, Jr.,
attorney for the Union, testified without objection that in June 15 when he talked
to Edward S. White, Respondent's attorney, "there were 56 employees at that
time, and we had 49 of them, I believe, of which we were willing to produce
evidence." Although this testimony is somewhat vague it is not denied and
is credited. Prior to the expiration of the contract and up to the time White
was retained by Respondent, the Union had made some attempts to get Respond-
ent to negotiate a new contract. During this period, no question was raised
by Respondent as to the Union's majority. Under these circumstances and
in view of the presumption raised by the previous recognition of the Union
by Respondent I find that at all times pertinent. herein the Union represented
a majority of Respondent's employees in an appropriate unit 1°
3. The events
a. The general increase of December 1947
The last contract between the Union and Respondent was effective from April
1, 1947, to April 1, 1948. Pursuant to its terms this contract was reopened for
wage negotiations in October 1947. The Union asked for an increase of 15
cents an hour. Respondent's position was that conditions were too uncertain
to grant an increase at that time and asked the Union to defer the matter until
the following spring. Heider testified credibly that he stated the position at
the time that he was "anxious to do the best we could for the men and we
would do so as soon as conditions in the business would warrant." The Union
took the matter up with its members and as a result decided to honor Respond-
.ent's request . Pluckhahn testified that his understanding of the situation was
that Respondent was "to notify the Union of any raises."
15 It appears that Connally was mistaken as to the month . The record shows that it
was pot until June 29 that White entered the picture and that the first meeting with
White took place in July.
'° Cf. Harris-Woodson Co ., Inc., 70 NLRB 956.
HEIDER MANUFACTURING COMPANY 1213
At about noon on the following Christmas Eve, Fitzpatrick told Pluckhahn
that the Respondent intended to give the boys a litle Christmas present of an
increase of 5 cents an hour and asked him if he thought it "was a good idea"
to which Pluckhahn replied, "Yes." At the Respondent's request Pluckhahn
and a group of about 14 others, mostly keymen and gang leaders, met that
afternoon after work in Heider's office where after they had "a nice drink"
the latter announced that Respondent was granting a 5-cent increase retroactive
to December in Pluckhahn did not transmit a report of the increase to the
union officials in Des Moines until he had occasion to report on dues. At no
time did he voice an objection or qualification to Respondent about the increase.
Moreover, the Des Moines officials did not mention the matter to him and made
no reference about it to Respondent until some 6 months later."' In view of
the foregoing, I find that in granting the wage increase Respondent believed that
it was complying with the.understanding reached in the October 1947 wage nego-
tiations and that, in any event, in obtaining Pluckhahn's prior acquiescence it had
fulfilled its obligation to the Union. Accordingly, I find that the December 1947
wage increase did not violate the Act.
b. The increases of the spring and early summer of 1948
Following the above increase , in the spring and early summer of 1948 Respond-
ent granted several individual merit increases of 5 cents an hour mostly to
keymen. Included in these increases was one to Pluckhahn as well as to
Connors and Bayer. There was no discussion with or notice . to the Union
about them . The individuals involved were simply notified that they were
being given the increase . There was no provision in the last contract between
Respondent and the Union allowing for merit increases ." It is clear that in
the absence of a contractual provision authorizing the granting of unilateral
merit increases an employer operating under a collective bargaining contract
runs the risk of violating the Act in proceeding in that manner . ° While the
exact dates of the increases here do not appear and thus may have been granted
after the contract expired on April 1, since negotiations were then in progress
for a new contract or for continued recognition of the Union , the Respondent
ran the same risk as if the contract had been in force 21 However , in this con-
nection Heider testified that in view of the agreement there apparently was
no possibility when they saw "a nice young fellow coming along to give him
a little reward for his efforts ." Consequently he told Helvig , who was the union
official in charge of the Heider negotiations until June 1948 when Hartzer took
170n direct examination Pluckhahn categorically testified that nothing was said about
the Union by Heider at this meeting . Later, on redirect examination after a short recess,
Pluckhahn testified that he remembered that Heider made the remark "that this was one
nickel that the Union didn ' t get ." In view of the confusion of the testimony itself and
Pluckhahn 's cross -examination on the point , I do not credit it.
18.The only evidence in the record as to when the question of unilateral increases were
first called to Respondent 's attention by the Union was Soutter 's testimony on cross-
examination that it was in his first meeting with Respondent after the December 1947
increase , which he admitted could have been in June or July of 1948.
19 Clause 14 of the agreement provided that "Any agreement entered into between the
Employer and Employees other than specified in this agreement shall be in violation of
this contract ." The pertinent part of clause 7, the wage clause, provided that :
All beginners in the employ for the first month 75 cents per hour.
All men over one month of employ 80 cents per hour.
20N. L . R. B. v. Allison, 165 F . 2d 766 ( C. A. 6), cert. denied , 335 U . S. 814 , rehearing
denied 335 U. S. 905; Aluminum Ore Co. v. N.L . R. B., 131 F . 2d 485 (C. A. 7).
21 May Department Stores Company v. N. L. R. B., 326 U. S. 376.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over the duties, that he "would like to have a little room to reward good em-
ployees" and asked him, "Would you have any serious objection if from time to
time we gave such merit increases?" Helvig's reply was, "We certainly would
not stand in the way of a man getting a raise. You can. pay anything you
want as long as you don't go below the wages specified in the contract." Heider's
testimony on this point was quite definite and convincing. Since Helvig did
not testify it stands on the record undenied and is credited. Accordingly, I
'find that by Helvig's statement, the Union waived any prohibition in its con-
tract against unilateral merit increases and authorized such increases. Thus
it is clear that the granting of such increases by Respondent prior to the expira-
tion of the contract was. done pursuant to negotiation, rather than in the avoid-
ance of it and did not violate the Act. I so find.
Whether the increases granted after the contract expired are in the same cate-
gory is not so clear. It would seem that a union having authorized merit in-
-creases. during the existence of a contract, the authorization should be good until
rescinded even after the expiration of the contract. But here we have not only
the expiration of a contract but the insistence on a Board certification before bar-
gaining for a new one. On the other hand we also have a course of action validly
adopted and followed with respect to individual employees who may or may not
:have known it had been authorized by its officials but obviously did know that
it was not objected to. When the contract expired the Company's policy con-
'tinued without change. As far as the employees were concerned I do not believe
that the increases granted after the expiration of the contract had a different sig-
nificance for them than the increases granted before its expiration. Nor do I
believe that these increases were viewed with a different significance by Respond-
ent. Heider testified that in view of Helvig's assurance to him he felt the Com-
pany was acting with the unqualified permission of the Union. On the record
as a whole, I am not convinced that the merit increases occurring in the early
summer after the expiration of the contract ere made for the purpose of inter-
fering with or bypassing the Union. Accordingly I find that they did not violate
the Act.
c. The events that followed
6
Toward the expiration date of the last contract efforts apparently were made
by the Union to get Respondent to enter into a new agreement. Exactly what
steps the Union took in this respect is not clearly revealed by the record other
than that the testimony indicates there were one or two meetings between the
parties during the period from March 1, 1948, to the first meeting with White
in July.
On June 29, 1948, Edward S. White of the law firm of White and Bruner in-
formed the Union by letter that he had been retained to represent Respondent in
its negotiations with the Union; that not being able to find any indication that
the Union had ever been certified as the bargaining agent of Respondent's em-
ployees it would insist on a Board certification before it would enter into
negotiations.
About 2 weeks later union officials Hartzer and Helvig, the Union's attorney
John Connally, Jr., and the union negotiating committee met with White in the
latter's office. White questioned the Union's majority in the plant and Connally
replied that in view of the long relationship between the parties there should
not be much question about the right of the Union to represent Respondent's em-
ployees but that he would "be glad to find some quick, easy method of satisfying
HEIDER MANUFACTURING COMPANY 1215
the Company that the Union did represent the majority of the employees" and
offered to have an informal election the next night with the mayor of Carroll.
to act as judge. White stated that regardless of what type election was held.
the ballot should provide for the choice of the union, no union, or a company union-
Connally asked if any one in the plant belonged to such an organization to which
White replied no, "but they felt that if the Union lost they wanted to have an
officially recognized one to be formed." Connally thereupon informed White he
knew of no provision of law that would permit a nonexistent organization to be
placed on a ballot. As a result of disagreement on this point White called the
Regional Office of the Board at Minneapolis and learned that if any certification
was to be made by the Board it would be made only pursuant to a Board-conducted
election either by consent or petition and that in no event would the Board permit
a nonexistent organization on the ballot. This being the case, White stated that
Respondent would not agree to an informal election. Connally thereupon charged
that Respondent's insistence on an election was merely "an attempt to lengthen
out negotiations which had already been prolonged as far as no new contract was
concerned to break the Union. . . ." White stated that was. not Respondent's
idea but insisted on a certification.
After the initial conference with White on July 12, 1948, apparently there were
no meetings between Respondent and the Union until after the consent election
was held. During this period, however, the question of recognition was dis-
cussed by the parties several times over the telephone. Being unable to persuade
Respondent to abandon its demand for certification, the Union finally petitioned
the Board for certification. A consent election agreement was entered into with.
Respondent and on October 7, 1948, the election was held which, as previously
stated, was won by the Union 56 to 5. That afternoon, after the results of the
election had been announced, officials of the Union, including its negotiating
committee,'met with White presenting him with a copy of a proposed contract
which contained many of the provisions that had appeared in the old contract-
It is clear that at this meeting White pointed out that the subject at hand was
a new field to him and that lie "had to authority to bind the Company to any
part of any proposed contract" at that time, and that his instructions were to
see what the Union's proposal was and discuss it with his client. Thereupon,
the proposed contract was discussed paragraph by paragraph, White indicating
the clauses to which he could see no objection.' Among those provisions to.
which White raised no-objection were the seniority, arbitration, and grievance
provisions. White was to present the proposal as submitted and discussed with
him to the Respondent. A subsequent meeting was arranged for further dis-
cussion after Respondent had examined the Union's proposal.
A few days later, the Union met again with White but the meeting was ad-
journed shortly after it convened due to White's being called out of the city..
About 10 days later another meeting between the parties took place. This time,.
in addition to White, both Heider and Fitzpatrick attended. The terms of the
proposed contract were discussed extensively at this time, centering chiefly
around Respondent's insistence on deletion of the seniority, arbitration, and
grievance provisions in the Union's proposal. The Union sought an explanation.
of Respondent's reasons for its position. Respondent replied that it wanted
While Hartzer's testimony confirms White's regarding the latter's newness to his client
and lack of knowledge as to Respondent's thoughts on the subject, it was his testimony that
White "agreed to a good many of the provisions in the proposal that had been of long
standing, and those lie was in doubt about he agreed to refer to management" White's
version is Credited.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no limitations on its right to hire or fire ; that by observing seniority it was
forced to keep men who were less competent than some men who had been re-
leased. Fitzpatrick voiced his opinion that regardless of a man's competence,
or acceptability as an employee, it was his desire to reserve the right of dis-
missal if he did not want to work beside an employee-"if he didn't like the way
he combed his hair.... . When asked if Respondent intended to exercise the
absence of a seniority provision in that manner Fitzpatrick answered : "No, our
employees as a whole are excellent. We have no intention, we just want it there
in case we want to use it." It was pointed out by the Union that there had never
been resort to the grievance procedure in the contract and it was suggested to
Respondent that by utilizing such procedure it would be possible to avoid the
things it feared in the adoption of a seniority provision. The entire meeting
was devoted to the above questions and ended without agreement on any issue.
Another meeting was scheduled for about 10 days later but did not take place
due to conflicting commitments or inclement weather. In its stead was sched-
uled a meeting for about a week later which took place on November 5, 1948.
At this meeting the Respondent offered an increase of 10 cents an hour "across
the board," but no seniority or grievance procedure was to be included. This
offer was not accepted by the Union. The discussion again centered on the
seniority and grievance position of the parties and the meeting adjourned after
a fruitless . session.'
The next meeting took place about 3 weeks later. In addition to the usual
participants Schaeffer, a commissioner of the United State Conciliation Service,
and Carl Keul, an international representative of the Union, were, present. The
Union proposed the acceptance of the Respondent's previous offer of a 10-cent
increase to be coupled with the provisions of the old contract. The Respondent,
however, stood firm on its original offer of the increase with no seniority or
grievance provisions. It was apparently at this meeting that Heider contended
that the union officials were not voicing the sentiments of the employees. There-
upon the Union offered to let the employees vote on the matter as it stood if
the Respondent would abide by the result of the vote. Heider agreed to consider
this offer but nothing further was said about it. This meeting also adjourned
without obvious results.
Five days later, on December 4, another meeting took place involving the same
participants who attended the previous meeting. At this time Respondent sub-
mitted a typewritten proposal to the Union providing for a 10-cent increase but
containing no seniority, grievance, or arbitration provisions. The main objec-
tion of the Union to Respondent's proposal was the absence of a seniority clause,
the rest of the proposal being acceptable. After some discussion, Heider wrote
out in longhand the following proviso to clause 7 of its proposal :
Except that wherever possible seniority will be given first consideration in
every transfer, promotion, layoff, or reemployment.
Upon reading Heider's proposal the Union indicated that it was willing to accept
it. At this point White took Heider and Fitzpatrick aside for a private discus-
sion with the result that the Respondent's proposal was modified as follows :
Except that seniority will be given first consideration in every transfer,
promotion, layoff, or reemployment when, in the opinion of the Company, all
other qualifications are equal:
As modified, the Union was unwilling to accept the Company's proposal and
the conference broke up without reaching an accord.
HEIDE.R MANUFACTURING COMPANY 1217
On December 6 the Respondent terminated nine employees , among whom were
four members of the negotiating committee heretofore discussed.
The next meeting between the parties took place on December 22. The dis-
cussion at this time was devoted entirely to the terminations that occurred on
December 6.. In response to the Union's demand for an explanation , Respondent
stated that the discharges were because of incompetence but would not elab-
orate. When it was learned that Respondent's employees were to receive turkeys
as a Christmas present, the Union tried to prevail on Respondent to include
. in their gesture those terminated on December 6. Respondent refused to do so.
A few days after the above meeting, Keul talked to Heider from Des Moines
with Soutter, president of the Union, participating on an extension phone.
Keul tried to persuade Heider to put the men in question back to work and to
enter into another agreement. Heider refused. Soutter testified that the con-
versation "got pretty warm between Mr. Keul and Mr. Heider," and that finally
Heider made a statement that, "I am 30 years younger than you are and, by
God, I'll take and fight you the 30 years to get rid of this Union." Keul's testi-
mony by deposition, substantially corroborates the foregoing. With respect to
this conversation Heider testified that Keul pointed out that the latter's part
in the negotiations indicated the importance with which the situation was viewed
by the Union, and that if Heider refused to reinstate the men and sign a con-
tract, the Union would pursue the matter until they forced Heider out of busi-
ness. According to Heider's testimony, his retort was, "If you intend to force
us out of business, I'm going to fight you all the way. Since I'm 30 years
younger than you are, I'll still be fighting when you are out of the picture."
In view of the admissions of both Soutter and Keul that the discussion became
somewhat heated, and, the failure on their part to deny making the threat to
force Respondent out of business, I find that such threat was made. Under
these circumstances, assuming that Heider made the remark attributed to him,
I am unable to attach much significance to it, particularly when the conversa-
tion ended with a request by Heider for a meeting between the union represent-
atives and company officials without the presence of attorneys on either side.
The meeting referred to took place on January 6, 1949. In accordance with
the arrangements, neither Connally nor White were present. At first, Heider
objected to the presence of Hartzer, but Soutter prevailed on him to change
his mind and permit Hartzer to participate in the. conference. At this time
Respondent offered a 10-cent increase, acceptance of the provisions of the old
contract, plus a heretofore unmentioned dues checkoff proposal. Soutter asked
if the proposal envisioned reinstatement of the employees terminated on De-
cember 6. Heider replied that it did not; that he would reinstate three of them
but not the remainder. At this time, Hartzer, who had apparently been ex-.
amining Respondent's proposal while Soutter and Heider were conversing, raised
an objection to inclusion of the settlement of the past grievances clauses en-
compassed in the proposal on the grounds that it would jeopardize the Union's
position with respect to the terminations.23 After some discussion on this point
it was decided to put Respondent's offer before the men for a decision. At a
meeting that night Respondent's proposal was discussed by the membership and
acceptance of it was rejected by the vote of those present.
This last offer by Respondent carried with it a time limitation to January 15.
On January 7, Hartzer wrote Heider a letter referring to the Union's action of
21 At the time of this meeting it appears that the Union was in the process -of drafting
and filing charges against Respondent with the Board . and that Respondent was aware of
this fact.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
the night before and enclosing copies of a contract incorporating the provisions
of Respondent's last offer except for the settlement of the past grievances pro-
vision.
It was requested that the Respondent execute this contract and return signed
copies to the Union. Not receiving a reply to this communication by January
21, Connally wrote White on that date referring to the Union's letter and
proposed contract of January 7 to Respondent -and requested Respondent to be
in Des -Moines on January 27 for the purpose of further negotiation. On Jan-
uary 25, White wrote Connally acknowledging his letter of the 21st, pointing
out that the Union's proposal of January 7 was not in accordance with the Re-
spondent's offer, and that Respondent had withdrawn its proposal. The letter
closed with the following statement:
As you suggest, our meetings up.to now have been rather fruitless and
Mr. Heider wishes me to inquire as to what proposal you now have or want
to discuss. His thought is that it can be handled by correspondence.
If you have anything which you wish to submit, we shall be glad to con-
sider it.
On January 1, 1949, Respondent put into effect a 10-cent general wage increase
retroactive to December 16, 1948. On December 20 White had written Soutter
informing him of Respondent's desire to grant the increase, and asking for the
Union's approval thereof "with the understanding that it does not, in any ii'ay,
constitute a settlement of the differences between the Company and the Union."
This letter was followed by another letter from White to Connally dated Decem-
ber 22, referring to a conference the writer had with Keul that morning wherein
he had "reached an agreement with -Mr. Keul to the effect that the Com-
pany would increase the wages of its present employees by $0.10 per hour." A
letter from Connally to White dated December 2i1, referred to White's letter
of the 20th and stated with respect to Respondent's granting an increase -that
we want it understood that in doing so the Union is not considering settling its
dispute with tile Company over wages and conditions, including discharges."
This letter ended with the following pa.ragraph :
I am sending this letter so that. both you and I, in behalf of our respective
clients, will understand that the action is not committing either of us to an
agreement on disputed matters.
On January 22, 1949, Ilartzer wrote White, stating that the Union had not
received a response to Connally's request of January 21, and asked White to
meet with representatives of the Union at 10 a. in. on July 6 at Des Moines..
There is no evidence in the record of further contracts between the parties.
4. Concluding facts on refusal to bargain
Having found that the general wage increase of December 1947, and the
individual merit increases of the spring and early summer of 1948, were not
in violation of the Act , there remains to be determined the effect of Respondent's
conduct after the contract of the parties expired April 1 , 1948. Under the
Act is is clear that when an employer has any doubt that the claimed repre-
sentative of his employees has been designated by a majority of those employees.
in an appropriate bargaining unit, he is entitled to an official certification of
that representative as the bargaining agent before he is required to bargain
with such representative . The only qualification of this right is that the em-
ployer 's position be taken in good faith and not for the purpose of securing an
HEIDER MANUFACTURING COMPANY 1219
opportunity of undermining and defeating the union.' Good faith or bad faith,
standing alone, as a subjective element, is difficult to determine and must be
determined in the light of an employer's conduct. Where there is no indication,
as is the case here, that the employer attempted to interfere with, restrain, or
coerce his employees in the exercise of their statutory rights in the selection of
a bargaining agent, or to influence their choice in any manner, any finding of
a lack of good faith on the part of the employer in insisting on a certification
would necessarily resolve itself into all analysis of innuendoes and subtleties.
The only real factor here that permits an inference of bad faith on the part
of Respondent is its attempt to provide a place on the ballot for a company
union. It might be argued that this action by Respondent indicated its bad
faith in insisting on a certification and demonstrated its purpose to defeat the
Union by the instigation and support of a company union. That Respondent
would have welcomed a company union in preference to Local 90 as the bar-
gaining agent of its employees is apparent from Heider's testimony. However,
there is no showing that Respondent was guilty of more than a repressed desire
in that respect. True, Respondent may have had no doubt as to the Union's
majority and may have felt that by obtaining an election it might result in an
unexpected windfall. On the other hand, there is some evidence of dissatis-
faction on the part of some of the employees with 1'luckhahn's handling of
union matters, such as a disparity in initiation fees charged, or delay in giving
receipts for the payment of dries. While these matters were satisfactorily
explained by Pluckhahn in his testimony, his explanations do not eliminate
the possibility that Respondent may have assumed that defections had occurred
in the union ranks. It must be remembered that Respondent's experience with
the Union was of relatively short duration as -compared to the Union's
tenure in the plant. There is no way of estimating what independent
knowledge, if any, Respondent had of the Union's strength. Moreover, there
had never been an election and a certification with the resulting recitation of
the tally to indicate by what majority the Union originally had been designated
the bargaining agent. Thus it would appear that when the Respondent asked
for a place on the ballot for a connpa oy union, it may have been motivated by
a sincere conviction a majority of its employees were not union members and
would vote for an independent organization.
At the outset of the negotiations that took place after the certification Re-
spondent took the position that it would not agree to seniority arbitration and
grievance provisions in it new contract. While it is true that such matters
go to the very heart of the bargaining relationship, there is no requirement by
reason thereof that an employer must agree to such proposals. All that is
required is that th(jemployer bargain on all issues in good faith.
It is apparently the General Counsel's contention that Respondent's mind
was closed on the issue of seniority and that this position was taken for the
sole purpose of avoiding an agreement. I am not convinced that the record
supports such a conclusion. The business involved here was relatively small
requiring at its peak no more than 84 employees. Located as it was in a small
agricultural community, Respondent had no reservoir of skilled help to call
upon. Heider testified credibly that most employees calve to Respondent with-
out prior skills in manufacturing and with about the same level of experience;
that it was necessary to evaluate the "`talents of these men" with the ultimate
view of their becoming keymen. It is common knowledge that people's aptitudes
"Joy Silk Mills, Inc ., 85 NLRB 1263; Art craft Hosiery Company, 78 NLRB 333.
917572-51-vol. 91-78
"1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and abilities vary. Under these circumstances Respondent was in a some-
what different position than an employer in an area where a large supply
of skilled and semiskilled labor is available. In such an area some semblance of
prehiring selection can be made even by small employers, whereas Respondent
was more or less in the position of taking what it -could get and developing it
as best it could, its ultimate results depending, in a large measure, on chance.
Thus, by being required to follow seniority it is obvious that it might be neces-
sary for Respondent to lay off newer employees whose aptitudes or performances
were better suited to Respondent's purposes than those of older employees.
Whether Respondent's position in this matter was a generous or enlightened.
.one is, of course, not pertinent. However that it was logical and entirely
plausible under the circumstances, is clear. Accordingly, I am convinced and
find that Respondent's position with respect to seniority was motivated by the
conviction that the absence of such a policy was desirable for the successful
operation of its business, and not as an obstruction to collective bargaining.
That Respondent was desirous of reaching an agreement and negotiated in
good faith is evidenced by the fact that it made a counterproposal offering a
substantial wage increase and later, as another alternative, relaxed its position
on seniority by offering a compromise proposal on that subject. Ultimately, as
the course of events wore on, it offered to accept all provisions originally pro-
posed by the Union. At that time, however, by reason of the settlement of
past grievances clauses contained in this proposal, the Union was not willing
to agree in view of the terminations that occurred on December 6, 1948.
It might be argued by proposing to accede to all of the Union's original re-
quests after these terminations took place it is demonstrated that Respondent's
purpose in its original position was to provide a . means of eliminating the
bargaining committee of the Union, and that having accomplished that purpose
Respondent was willing to agree to a seniority provision. Assuming, arguendo,
such to have been the case, having found that Respondent had valid cause for
the dismissals in question, and that they were not made because of antiunion
considerations, it would seem that Respondent's purpose in that respect was
a valid one, and is not inconsistent with its explanation of its reason for not
wanting seniority. True, where other considerations than proficiency in the
performance of duties entered into the terminations herein; and for that matter
even where the question of proficiency itself was involved, Respondent could
have agreed to grievance and arbitration procedure and attempted to discharge
the four members of the negotiating committee thereunder. But, still arguendo,
Respondent apparently was unwilling to utilize that procedure and preferred to
gamble that the outcome of the bargaining negotiations would develop a more
satisfactory means of accomplishing its purpose. That Respondent may have
been less than candid in its concealment of this objective from the Union is not
startling and certainly was not illegal.
Whatever mental reservations the Union had regarding its part in the wage
increase granted by Respondent January 1, 1949, the record is clear that the
increase was not made without due notice to and prior sanction by the Union.
In the light of the foregoing and based on the record as a whole I conclude
and find that Respondent at no time refused to bargain from September 30, 1947,
as alleged in the complaint.
5. The question raised by Section 10 (b) of the Act
It appears that the original charge in this matter was not filed until February
28, 1949, and was not served on Respondent until March 2, 1949. Section 10 (b)
HEIDE .R MANUFACTURING COMPANY 1221
,of the Act provides , in part, that "No complaint shall issue based upon any unfair
labor practice occurring more than 6 months prior to the filing of the charge with
the Board and the service of a copy thereof upon the person against whom the
charge is made. . . ." This section has been interpreted by the Board as a statute
of limitation . 23 The general rule of law is that statutes of limitation must be
affirmatively pleaded.26 In this case the bar of Section 10 (b) of the Act was
not pleaded by Respondent in its answer nor raised at the hearing , or in its brief.
Had it been pleaded it is clear that the limitation imposed by Section 10 ( b) would
extinguish all liability for acts committed by Respondent prior to September 2,
1948 , which date is 6 months prior to the service of the charge on Respondent.
When a complaint is issued alleging violations beyond the limitation imposed by
Section 10 ( b) of the Act , whether the defense provided by that section must be
raised by a party in order to extinguish liability for acts committed 6 months
prior to the service of the charge , or whether it need not be raised and operates
-automatically as such a bar , is not clear . I am unaware of any case establishing,
the latter principle . In any event , since the evidence regarding Respondent's
.acts and conduct prior to September 2, 1948, was admissible for background pur-
poses,27 I have considered it and made findings thereon . Having disposed of this
case on its merits, and it being my recommendation that the refusal to bargain
allegation of the complaint be dismissed , the resolution of the above question is
not necessary.
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
helpers of America, Local No. 90, affiliated with the American Federation of
Labor, is a labor organization within the meaning of Section 2 (5) of the Act.
2. Respondent , Heider Manufacturing Company, is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
3. Respondent , Heider Manufacturing Company, has not engaged in any unfair
labor practices within the meaning of the Act.
[Recommended . Order omitted from publication in this volume.]
25 Cat hey Lumber Co ., 86 NLRB 157.
20 Clark , on Code Pleading , p. 614; Rule 8 (c), Rules of Civil Procedure for the District
Courts of the United States.
27 Florida Telephone Corporation, 88 NLRB 1429 ; Axelson Mfg . Co., 88 NLRB 761.