Heilig Bros. Co.

National Labor Relations Board - Board Decisions

Jun 10, 1941

32 N.L.R.B. 505 (N.L.R.B. 1941)

In the Matter of HEILIG BROS. Co. and LOCAL UNIoN No. 2151, STEEL
WORKERS' ORGANIZING COMMITTEE
Case No. C-1609.-Decided June 10, 1941
Jurisdiction : screen cloth manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; notices designed
to combat employee-organization ; discriminatory distribution of extra work.
Discrimination: prominent union employee's abusive and indecent retort to
superintendent, when told of transfer to another job for reasons which he
thought invalid, justify discharge.
Collective Bargaining: designation of majority by membership in union-failure
to bargain collectively ; failure to reply to union's requests for a conference ;
refusal to bargain with union's representative under any circumstances ;
failing to communicate with the union after it had indicated to the union that
it would do so; canceling a meeting with the union which it had scheduled;
meeting with the union for the first and only time with a predetermined
intention not to bargain with the union,' and by stating to the union that
because of the strike the union had called there was nothing to bargain about.
Remedial Orders : employer ordered to bargain with union on request; reinstate-
ment of unfair labor practice strikers.
Evidence : union application cards may be duly authenticated by the person to
whom they were delivered by the employees signing them; cross-examination
of employees concerning details of filling in and delivery of union cards, under
the circumstances, does not impair the credibility of their testimony that they
designated the union ; superintendent's denials of anti-union statements not
credited, in view of his misconception of union activity; officials' denials
of anti-union statements not credited, in view of respondent's general
anti-union conduct.
Mr. Jack Davis, for the Board.
Mr. John A. Hoober, of York, Pa., and Mr. John F. Dumont, of
Little Falls, N. J., for the respondent.
Mr. Michael Harris, of Philadelphia, Pa., and Mr. Roy E. Constine,
of Lancaster, Pa., for the Union.
Mr. Milton E. Harris, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF Tf1E CASE
Upon charges duly filed by Local Union No. 2151, Steel Workers'
Organizing Committee,' herein called the Union, the National Labor
1 Pursuant to a motion filed on behalf of Local 2151, Amalgamated Association of Iron,
Steel & Tin Workers of North America , affiliated with the S. W. O. C. and with the C. I. 0.,
32 N. L. It. B., No. 103.
505
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board, herein called the Board, by the Regional Director
for the Fourth Region (Philadelphia, Pennsylvania), issued its com-
plaint, dated April 17, 1940, against Heilig Bros. Co., York, Pennsyl-
vania, herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1), (3), and (5), and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. The complaint, containing a notice of
hearing, was duly served on the respondent and on the Union.
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent (1) on or about January 13, 1940,
discharged and at all times thereafter refused to reinstate Daniel
0. Wagner because he had joined and assisted the Union and had
otherwise engaged in concerted activities; (2) on or about February
2, 15, and 28, and March 11 and 20, 1940, and on various other occa-
sions since on or about February 2, 1940, refused to bargain with the
Union as the exclusive representative of the production and mainte-
nance employees at the respondent's ' plant in York, Pennsylvania,
exclusive of clerical, supervisory and office employees, although such
employees constituted a unit appropriate for the purposes of collective
bargaining and the Union at all the aforesaid times was the designated
representative of a majority of said employees; (3) since December
1939 interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, by the
aforesaid activities and also by urging, persuading, and warning its
employees not to join or assist the Union, by threatening them with
discharge if they did so, by criticizing and questioning them concern-
ing their union activity, by maintaining surveillance over such ac-
tivity, and by making other anti-union statements and engaging in
other anti-union activities; and (4) as a result of such unfair labor
practices caused its employees to go on strike on March 21, 1910.
On or about April 26, 1940, the respondent duly filed its answer,2
admitting the Board's jurisdiction and Wagner's discharge on Jan-
uary 13, 1940, but denying that it had engaged in any of the alleged
unfair labor practices.
Pursuant to notice,3 a hearing was held from May 7 to 16, 1940, at
York, Pennsylvania, before Henry W. Schmidt, the Trial Examiner
the labor organization involved in these proceedings , to substitute for its original designa-
tion the name "Local Union No. 2151, Steel Workers ' Organizing Committee ," the Board on
February 24, 1941, issued and duly served on the parties a notice that it would grant the
motion on March 7 , 1941, or as soon thereafter as might be convenient , unless sufficient
cause to the contrary should then appear No cause to the contrary having appeared, the
Board on March 11 , 1941, issued and duly served on the parties an order granting the
motion and amending the caption and record in accordance therewith
20n April 25, 1940, pursuant to the respondent ' s request, the Regional Director issued
an order granting an extension of time to file the answer to April 27, 1940.
2 On April 20 , 1940, pursuant to the respondent 's request , the Regional Director issued
and duly served on the parties an order postponing the hearing to May ' 7, 1940.
HEILIG BROS. COMPANY 507
duly designated by the Board. The Board and the respondent were
represented by counsel and the_Union by representatives. All parties
participated in the hearing, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. During the hearing, the Trial Examiner
reserved decision on the respondent's motion to dismiss the complaint
in so far as it alleged that Wagner's discharge was discriminatory,
and made various rulings on other motions and on objections to the
admission of evidence. The Board has reviewed all the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
Pursuant to the Trial Examiner's, request at the close of the hearing,
briefs were thereafter duly filed by the respondent and by the attorney
for the Board.
On June 12, 1940, the Board, acting pursuant to Article II, Section
36, of National Labor Relations Board Rules and Regulations-Series
2, as amended, transferred the proceeding to and continued it before
the Board for action pursuant to Article II, Section 37, of said Rules
and Regulations; and further directed that no Intermediate Report
be issued, that Proposed Findings, of Fact, Proposed Conclusions of.
Law, and Proposed Order be issued, that the parties should have the
right, within 20 days from the date of the Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order, to file exceptions
thereto and to request oral argument before the Board, and, within
30 days from the date of the Proposed Findings of Fact, Proposed
Conclusions of Law, and Proposed Order, to file a brief with the
Board.
On December 18, 1940, Proposed Findings of Fact, Proposed Con-
clusions of Law, and Proposed Order were issued, copies of which
were duly served on the respondent and on the Union. In the Pro-
posed Findings of Fact, Proposed Conclusions of Law, and Proposed
Order, it was found that the respondent had engaged in the unfair
labor practices alleged, and the respondent was ordered to cease and
desist therefrom and to take certain affirmative action.
On January 9, 1941, the respondent duly filed exceptions to the
Proposed Findings of Fact, Proposed Conclusions of Law, and Pro-
posed Order.4
Pursuant to notice, a hearing for the purpose of oral argument was
held before the Board in Washington, D. C., on February 4,1941. The
respondent was represented by counsel- and participated therein.
The Board has considered the exceptions, the briefs, and the oral
argument. In so far as the exceptions are inconsistent with the find-
4 Pursuant to the re+pondenl's request , the iime for filing exceptions had been extended
to January 14, 1941.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings, conclusions, and order hereinafter set forth, the Board finds
them to be without merit. For reasons discussed in Section III Al
infra, the respondent's motion to dismiss the complaint in so far as
it related to Wagner is hereby granted.'
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a Delaware corporation, is and since September
30, 1933, has been authorized by the State of Pennsylvania to do busi-
ness therein. The respondent manufactures and sells black-painted,
galvanized, bronze and copper screen cloth at its plant in York, Penn-
sylvania, where it is alleged to have engaged in the unfair labor prac-
tices involved in this proceeding.
The principal- raw materials used- by the respondent at its York
plant are bronze, copper and steel wire, zinc, and paint. The value
of the raw materials purchased by the respondent and used annually
in the manufacture of its finished products at the York plant is
$566,734.71, 98 per cent of which is transported to the York plant from
States other than the State of Pennsylvania. The total value of the
finished products shipped by the respondent from its York plant is
$885,171.41, 85 per cent of which, valued at approximately $752',395.70
is transported in interstate commerce from the York plant into and
through States of the United States other than the State of
Pennsylvania. '
The respondent admitted in its answer and stipulated at the hearing
that at all the, times mentioned in the complaint it was and still is
engaged in commerce, within the meaning of the Act.
IT. THE ORGANIZATION INVOLVED
Local Union No. 2151, Steel Workers' Organizing Committee, is
a labor organization affiliated with the Congress of Industrial Organi-
zations.5 The Union admits to membership employees at the
respondent's York plant.'
8 At the commencement of the hearing , counsel for the respondent and the Board 's attor-
ney stipulated that, "subject to a check by counsel for the respondent as to the date of the
chartering," the Union was a labor organization Near the close of the hearing , counsel
for the respondent stated during his argument that he had entered Into this' stipulation
"with the proviso that the charter be shown to me," but that such had not been done. How-
ever, representatives of the Union testified that the purpose of the Union was to bargain
collectively In its brief , the respondent stated : "It was stipulated that Local 2151 of the
kmalgamated Association of Iron , Steel & Tin workers, affiliated with the S W. O. C. and
with the C 1 0 1 the name of the Union at that time] is a labor organization as we find
[sic I in Section 2, subdivision 5 of the National Labor Relations Act
6 The Union also admits other employees to membership.
HEILIG BROS. COMPANY
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Wagner
509
Daniel O. Wagner was first employed by the respondent at its York
plant in April 1938, as a "warp sticker." 7 Cyrus H. Heilig, the re
spondent's president and superintendent of the plant, testified; and
we find, that on the morning of January 13, 1940, he called Wagner
into the office, told him that his services as a "warp sticker" were
not satisfactory,' and offered him a set of looms instead; that Wagner
at once retorted that his work was good and Cyrus Heilig was a
"damn liar" and could "stick the looms in his ass"; and that Cyrus
Heilig felt that his dignity could not stand such remarks, and
accordingly discharged Wagner.
Wagner claimed that his discharge constituted discrimination in
violation of Section 8 (3) of the Act. It is true that Wagner was
one of the five original organizers of the Union among the respondent's
employees in December 1939; that he was elected chairman of the
Union during that month; and that he had obtained about half of the
Union's 25 members prior to his discharge. It is also true that the
respondent knew of Wagner's union activities prior to his discharge.
However, there was no allegation nor proof that the job on the looms,
to which Cyrus Heilig proposed to transfer Wagner, would have con-
stituted a discriminatory demotion. Regardless of Wagner's opinion
of the invalidity of the reasons which Cyrus Heilig advanced for the
proposed transfer to a job on the looms, Wagner's remarks furnished
cause for his discharge.
In describing his discharge, Wagner testified on direct examination
that, upon entering the office, he was told by Cyrus Heilig that he was
discharged because his work as a "warp sticker" was unsatisfactory,
and that he was then paid off. On cross-examination, Wagner was
twice asked by the respondent's attorney if he cursed and swore at
Cyrus Heilig on this occasion; and each time Wagner failed to give
any answer. Later in the hearing, Wagner was asked if, after being
offered a job on the looms, he told Cyrus Heilig to "stick the looms
up his ass"; but, instead of denying it, he replied merely that he could
7 This position involves installing new warps into the looms when necessary , and seeing
that the looms will then operate in a satisfactory manner.
8 According to several of the respondent 's officials , the screens woven on looms serviced
by Wagner had proved upon inspection to be unsatisfactory , and the defective work was
Wagner's fault in not properly tightening and locking the "heddle hooks" or "heddle nuts"
after installing new warps in the looms.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not recall saying it.' Subsequently, Wagner denied having made any
such remarks to Cyrus Heilig. However, three other employees
testified without contradiction that, immediately upon leaving the of-
fice, Wagner announced to them and several others who had collected
in a group that Cyrus Heilig had offered him a set of looms but that
he had told Cyrus Heilig to "stick the looms up his ass." 10 Further-
more, Wagner failed to mention any offer of a job on the looms when
describing his discharge on direct examination, but testified to it for
the first time on cross-examination 11 In contradiction of Cyrus
Heilig's testimony that this offer was to go into effect at once, Wagner
claimed that he was not offered a set of looms until after being dis-
charged, and that even then the offer was an empty promise, since it
was to go into effect "maybe some day." The inherent improbability
that an employer would hold out to a discriminatorily discharged em-
ployee the hope of obtaining another job even at some indefinite future
date, as Wagner would have us believe, impels us to discredit this
claim. Moreover, Wagner's entire testimony was evasive and, since
we are satisfied that he did not tell the truth with respect to swearing
at Cyrus Heilig, we are not disposed to credit his other testimony
concerning what occurred in the office.
Our conclusion that Wagner was not discharged discriminatorily
is not impaired by the fact that Cyrus Heilig admitted having
decided with Heilig, Sr., on January 12 (the day before the dis-
charge) to discharge Wagner, inasmuch as it is clear that Cyrus Heilig
had changed his mind before actually doing so, and had offered
Wagner a different job instead 12 Nor does the respondent's letter to
the Union on January 15, 1940, in response to the Union's protest
9 Q [By the respondent's attorney.] And at the time Mr. [Cyrus] Heilig told you he was
going to fire you for your inferior work, did you curse and swear at him?
A. [By Wagner.] (No response.)
Q Did you do that, Mr. Wagner?
A. (No response.)
s • • t s s s
Q. And you didn't say to him, after he said he would give you a job on the looms, that
he should take the looms and stick them up his ass 9
A. I can't recall that.
Q. You can't recall that?
A. No.
Q. You don't remember any such conversation?
A. No.
Q. Would you say there wasn't any such conversation?
A. I can't recall that though.
Q. You cannot recall it?
A. No.
'° THere were about five other employees in this group, four of whom had previously tes-
tified as witnesses for the Board, and were still available ; but none of them gave any testi-
mony concerning this incident, nor were they recalled for that purpose after the aforesaid
three employees had testified about it.
11 Wagner's subsequent testimony about the offer of a job on the looms was evasive and
inconsistent
12 Cyrus Heilig testified that, before speaking to Wagner, he thought he had his mind
made up to offer Wagner a set of looms.
HEILIG BROS . COMPANY -511
that Wagner was discriminatorily discharged, impair our conclusion.
This letter, although stating that Wagner was dismissed for inferior
work, was signed by Heilig, Sr., with whom Cyrus Heilig had pre-
viously reached such a decision. The letter merely indicated, that
Cyrus Heilig had not advised Heilig, Sr., of his subsequent change of
mind, which caused him to offer Wagner' a different job instead of
dismissing him, nor of Wagner's remarks,'which had brought about
the discharge.
It is evident from the foregoing facts that the respondent had not
discharged Wagner at the time when Cyrus Heilig discussed with
him the possibility of working on a set of looms. The discharge
came only after Wagner had made the abusive and indecent remarks.
We therefore find that the respondent, by discharging Wagner, did
not discriminate in regard to his hire and tenure of employment to
discourage membership in the Union.
B. The refusal to bargain collectively; interference, restraint,
and coercion
1. The appropriate unit
It was stipulated at the hearing that all the production and main-
tenance employees at the respondent's York plant, exclusive of super-
visory, clerical, and office employees, constitute, a unit appropriate
for the purposes of collective bargaining. We find that the production
and maintenance employees at the respondent's York plant, exclusive
of supervisory, clerical, and office employees, at all times material
herein constituted, and now constitute, a unit appropriate for the
purposes of collective bargaining, and that the said unit will insure
to employees of the respondent the full benefit of their right to col-
lective bargaining and will otherwise effectuate the policies of the Act.
2. Representation by the Union of a majority in the
appropriate unit
The record contains a transcript prepared by the respondent of its
weekly pay roll for the week ending Saturday, January 27, 1940, and
for each subsequent weekly period to and including the one ending
Saturday, April 27, 1940. The, names of 128 employees in the appro-
priate unit were included on the pay roll for the week ending
February 10.13 Two other employees not on this pay roll should be
included in the unit, however : Clarence Albert Emig, who was
13 Alfred H. Malehorn, William R. May , Chester L . Wilt, Russel L Stoppard , Ervin'Ed.
Brenner, and Christian M. Heilig, the nephew of Cyrus Heilig , although Included on the
pay roll , are excluded from the appropriate unit, on the ground that they are supervisory
employees.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
temporarily laid off because of illness, and Roy J. May, who was
omitted from this pay-roll transcript by inadvertence. The number
of employees in the appropriate unit for the week ending February
10 thus did not exceed 130.
By February 6, 66 of these employees, constituting a majority of
the employees in the appropriate unit during the week "ending
February 10, had designated the Union to represent them for the
purposes of collective bargaining.14 By February 17 two more em-
ployees had designated the Union,15 while the respondent's pay roll
for the week ending February 17 shows no increase over the February
10 pay roll.- Thus, 68 of the 130 employees in the appropriate unit
for the week ending February 17 had designated the Union as their
representative for collective bargaining by the end of that week. The
number of employees in the appropriate unit never exceeded 135 at
any time thereafter, and at all such times the unit included the 68
employees on the February 17 pay roll who had designated the
Union by that date. 117
The respondent contends that the Board has failed to establish that
a majority of the employees ever designated or selected the Union
as their representative, on the ground that such employees were not
put on the witness stand to give evidence to that effect. This con-
tention rests on a misconception of the intent of Congress as expressed
in the Act, and is without merit. When an employee delivered a signed
application card to another person for the purpose of having the
card turned in to the Union, he employed a suitable method of des-
ignating the Union as his representative for collective bargaining. It
follows that any witness of this act, although he is not the signer of
the card, may prove the act. In each case where we have found that
1q The names of such employees are hereinafter listed in Appendix A. At the hearing the
Board attorney stated that there might be some difference in the spelling of some of the
names, and the respondent 's attorney agreed to check a list of such employees thereafter
to be furnished him. However , there is no evidence in the record that this was done We
have therefore given all substantial variations in the spelling of these names wherever
possible.
15 John Givens and James Grove.
16 Two of the old employees were dropped from the February 17 pay roll, and two new
ones were added.
17 In addition to the 68 employees above referred to, the following 13 employees in the
appropriate unit also designated the Union on the dates indicated: Clarence Albert (E.)
Emig on February 24, 1940; Paul Frederick Donohoe (Donahue ) on February 28, 1940;
Paul Cullen Edelblute (Edelbute) on February 29, 1940 ; Harold Charles Wolfe on March 1,
1940; Norman A. Baney, Erzy Dull, Charles D. Wilt, and Ray Earl Wilt on March 10, 1940;
Clarence H. Stoppard' on March 12, 1940; Kenneth E. Lint and Horace E. Thomas on
March 15, 1940 ; James Baney on March 16, 1940 ; and Guy W. Hess on March 19, 1940.
The respondent hired George Sipe (spelled "Feitt" by the reporter ) on March 19, 1940;
Earl Hartman and Lester Behler on March 20, 1940 ; Samuel Auchey, Richard Hartman
and Paul Christian (also referred to as Paul Christine in the record ) on March 21, 1940;
and Warren Anderson on March 23 , 1940 However, the four last -named employees were
hired for the first time after the strike , and the other three were first hired a day or two
before the strike and replaced a similar number of former employees who ceased work on
those days . The number of employees in the appropriate unit therefore did not exceed 135
as a result of these events.
HEILIG BROS . COMPANY 513
an.employee'designated the Union to represent him, such representa-
tion was proved by at least one witness to the act of designation;
and we do not consider it significant that in some cases the witness
was not the employee himself, but rather the person to whom the
employee had handed his filled-in application card for the purpose
of delivery to the Union in the regular course of events.18 In addition,
the respondent contends that it impaired and destroyed the credibility
of a material amount of this evidence by its cross-examination of cer-
tain- employees with respect to their recollection of the details of the
filling in and delivery of their application cards. We do` not agree
that the cross-examination indulged in by the respondent succeeded in
accomplishing the result contended for. We are satisfied from the
entire record that the Union was designated as bargaining representa-
tive by a majority of the employees on and at all times after February
6, 1940.19
We find that on and at all times after February 6, 1940, the Union
was the duly designated representative of a majority of the'employees
in the aforesaid appropriate unit, and that, by virtue of Section 9 (a)
of the Act, the' Union at all such times was the exclusive representative
of all the eiilployees in such unit for the purposes of collective bar-
gaining in respect to rates of pay, wages, hours of employment, and
other conditions of employment.
3. The refusal to bargain; interference, restraint, and coercion
On Saturday, February 1, 1940, Roy E. Constine, a representative
of the Union, wrote a letter to the respondent, stating that a majority
of the respondent's employees had selected the "Steel Workers Organ-
izing Committee as their collective bargaining agent" and requesting
a meeting during the following week for the purpose of negotiating
a collective bargaining agreement concerning the terms and conditions
of employment. On February 3 the respondent replied to Constine in
a letter signed by Heilig, Sr., stating that it was going to have a
'$ In the past we have frequently accepted properly authenticated cards as proof of desig-
nation. See Matter of The M. H. Ritzwoller Company and Coopers ' International Union of
North America, Local No. 28 , 15 N L R B . 15, mod'd and enf'd, M. H. Ritzwoller Co. v.
N. L R. B., 114 F. (2d) 432, 438 (C C. A. 7 ) ; Matter of Hartsell Mills Company and
Textile Workers' Organizing Committee , 18 N. L R B. 268, mod ' d and enf ' d Hartsell
Mills Company v. N. L. R. B., 111 F. (2d) 291 (C C. A 4). Moreover, the respondent in
effect conceded the Union 's majority at a meeting on April 18, 1940, hereinafter discussed,
when Heilig , Sr., argued that the employees had been intimidated into joining the Union
against their wishes, but did not deny that a majority . had designated the Union . There is
no evidence to support the accusation of intimidation.
19 The Board attorney stated in substance at the hearing that, with respect to each em-
ployee who testified as to his designation of the Union , the card of the employee was not
the evidence on which the Board attorney relied to prove such designation.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conference with "the National Labor Relations Board" on February 6
and that the Union would "be advised further after this conference." 20
As previously stated, by February 6 a majority of the employees in
the unit had designated the Union to represent them for collective bar-
gaining. However, the respondent did not advise the Union further
after February 6, as its February 3 letter had said it would do. Not
having received any word from the respondent by February 14,21 Con-
stine sent the respondent another letter, requesting the attendance of
four named employees at a "coming conference to take place .. .
Thursday February 15" at Hoober's of ee.22 On February 15, after
receiving this letter, Heilig, Sr., without ascertaining whether it con-
tained any proof of majority, directed that it be returned to the Union
unopened; nor did the respondent meet with the Union at or around
this time. At the hearing, Heilig, Sr., admitted having said to House,
at conferences held during February, that he would not bargain with
Constine under any circumstances," and that he wanted an election.24
Upon receiving his February 14 letter back from the respondent un-
opened, and on being informed by House of the respondent's refusal
to meet with him, Constine turned over to his immediate superior,
Michael Harris, the matter of attempting to obtain a meeting with the
respondent for the purposes of collective bargaining.
On or about February 19 Harris first telephoned Heilig, Sr., who
advised him that the respondent could not hold any bargaining confer-
ence without Hoober, who was not then available ; and on February 21
Heilig, Sr., sent Harris a telegram stating that Hoober was not ex-
pected back'before February 25. Not having received any further word
from the respondent by February 28, however, Harris sent the respond-
ent a letter on that day, repeating the Union's claim that it represented
a majority of the respondent's employees and again requesting a meet-
ing for the purpose of negotiating a collective bargaining agreement,
adding that he hoped for a reply "at your earliest convenience" since
the employees were getting impatient. Six days later, on March 5, the
"'The conference referred to had been arranged between the respondent and Daniel
House, a representative of the Board 's Regional Office, to discuss a charge previously filed by
the Union, alleging that the respondent had engaged in unfair labor practices, within the
meaning of Section 8 ( 1) and (3) of the Act
21 John A. Hoober, the respondent 's attorney , mailed Constine aletter dated February 12,
1940, stating: "Since there has been no facts established of any majority of their employees
being members of any Union , my client , Heilig Bros . Co., will not discuss any matter with
you tomorrow February 13th as previously arranged " Hoober did not testify as to when
lie had mailed the letter , nor did the respondent ask Constine when he had received it. , We
are satisfied that Constine had not received it prior to sending his letter of February 14.
22_Constine testified that House had told him of having arranged such a conference. We,
base no finding on this testimony , however, but set it forth only to explain the reference in
Constme's letter of February 14.
21 The respondent contended that Constine had made himself personally objectionable,
and that its conduct toward the Union during this period was therefore proper We find
no merit in this contention.
21 The respondent also wrote a letter to the Regional Office on February 16 requesting an
election and stating that it was ieadv to "haigain with am cmnmittee they [the employees]
au•ange to come before us"
HEILIG. BROS. COMPANY 515.
respondent replied in a letter stating that Hoober had returned, sug-
gesting the date of March 13 for a meeting "for you [Harris] only,"
and asking to be advised if the suggested date was convenient for
Harris. On March 8 Harris replied, saying that the date of March 13
was convenient, and agreeing to make an exception to the Union's
usual procedure and to attend the meeting' alone on behalf of the
Union, as a special concession to the respondent.
On March 11, Heilig, Sr., sent Harris a letter, canceling the sched-
uled meeting on the ground that John K. Heilig had left town the day
before on a 10-day selling trip, and claiming that his departure was
considered "safe" since no reply had been received from Harris by
that time.25 The-letter continued : "... the best I can safely arrange
would be March 21. Now if this conference can be arranged earlier,
I will call you on the telephone." On March 12 Harris sent a telegram
to Heilig, Sr., protesting the delay, repeating that the employees were
getting impatient, and again expressing the hope that a meeting could
be promptly arranged. On March 13 Harris sent Heilig, Sr., a long
letter, again protesting the delay and the respondent's bad faith,
pointing out that the Union had been trying to arrange for a meet-
ing since the early part of February, requesting a token of the re-
spondent's good faith by the holding of a collective bargaining meet-
ing "even if the discussions at our meetings are subject to the approval
of -a higher managerial body," and asking to be notified "before the
end of this week of a convenient time and place for our meeting."
-One week later, on March 20, Harris had not yet received any reply
to this letter. He then made a person-to-person telephone call to the
respondent on the morning of that day for the purpose .of speaking
to Heilig, Sr.; but, upon being advised by the telephone operator that
neither Heilig, Sr., nor anyone else in authority was available to speak
with him, he left a message that one of the respondent's officials should
call him back at once. Immediately thereafter Harris also sent the
'respondent a telegram, stating that he was convinced that the re-
spondent was "stalling" and adding that the Union would strike the
respondent's plant because of its refusal to bargain and its interfer-
ence, coercion, and discrimination, in
'
the respondent communicated
with him either by telephone or telegraph during the day.
Not having received any response to this telephone message or tele-
gram, the Union struck the respondent's plant at 5 a. in. on the fol-
lowing morning, Thursday, March 21. The strike was participated
23 The respondent contended that it wished John K. Heilig to be present when it met
with the Union , and therefore properly canceled the meeting it had scheduled for March 13
The record does not disclose why a bargaining meeting could not be held without John K.
iieilig ; nor was he present at the only meeting between the respondent and the Union, held
on April 18, as hereinafter described 11oreover, the Union had never been informed that
the mespoudent considered john K neilig's preaenee e-ential We find nl^ mgrjt in this
contention.
4 1801!-42-N of 3121--14
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in by 76 employees who had previously designated the Union -,26 and by
5 more who thereafter did so,27 out of a total of about 135 employees
then in the appropriate unit .211
Not having received any word from the respondent for a week after
the commencement of the strike, Harris telephoned Hoober on March
28, and told him of the Union's desire to meet with the respondent.
Hoober replied that he was very busy, but said that he- might be able
to arrange a meeting around the end of the following week; and he
asked Harris to call again. Harris telephoned Hoober again on April
2, but Hoober said that he was still extremely busy and had not yet
had time to arrange a meeting. Harris spoke to Hoober again on
April 5, and a conference was then arranged between the two men for
April 10. At the meeting on April 10, attended only by Harris and
Hoober, no bargaining of any sort was undertaken; instead, Hoober
stated that the respondent would not reemploy the strikers, and that
it wanted an election to determine the wishes of the employees then
working. Hoober added that he did not know what negotiations
could be entered into. Subsequently, on April 18, pursuant to arrange-
ments made by Hoober, a perfunctory meeting was finally held in
Hoober's office between Harris and the Heilig brothers.2° Heilig, Sr.,
foreclosed any genuine discussion at this meeting by stating that the
employees did not want the Union but had been intimidated into join-
ing it against their will; 30 that the strikers would not be rehired; and
that there was nothing to negotiate about.31 However, Heilig, Sr.,
did not deny that a majority of the employees had joined the Union.
The frustration of the Union's attempts to bargain collectively, as
related above, can be appraised properly only when considered in con-
nection with the respondent's other activities during this period.
From the Union's first appearance in the plant, the respondent, by its
officials and supervisory employees, in addition to its persistent refusals
to meet and bargain with the Union, took other measures to apprise its
employees that their efforts at self-organization were emphatically
disapproved. Fifteen different employees testified' to at least 26 spe-
cificoccasions prior to the calling of the strike on March 21, 1940,
when Cyrus Heilig either questioned or threatened them concerning
their union activities, or indicated that it was useless to join the Union
11 Five members of the Union did not participate in the strike and testified at the hearing
that they no longer wished to be represented by the Union : Emswiler , Grim, Guy Hess,
King, and McWilliams
27 Ralph Edgar Wilderson, Frank Lowe, Albert J. Houston, Clarence W. Bange, and
Charles Clinton Lehman
28 The respondent admitted that a majority of its employees participated in the strike.
21 As previously stated, John K Heilig, whose absence from town was the respondent's
excuse for canceling its meeting with the Union scheduled for March 13, did not attend this
meeting.
30 As previously set forth , the record disclosed no evidence in support of this accusation
"At the hearing Hellig, Sr ., frankly admitted that the respondent had no intention of
bargaining with Harris after the strike.
HEILIG BROS . COMPANY 517
since the Union "could not win," or attempted in other ways to inter-
fere with their self-organization.
Chester L. Wilt, an assistant foreman who was promoted to foreman
early in January 1940, testified that a few days before Christmas 1939,
Cyrus Heilig asked him if he had heard any union talk and told
him to report any talk he might hear on that subject, saying, "We
won't have that talk around the shop." Clarence Albert Keller tes-
tified that Cyrus Heilig, when interviewing him prior to his em-
ployment in December 1939, asked him if he was affiliated with any
labor union or was interested in joining any such organization.
Lewis Lloyd Sullivan testified that Cyrus Heilig asked him about
the first week in January if he had joined the Union. George Keefer
Ford testified that on Monday, January 8, Cyrus Heilig asked him if
he had heard anything "about this union going on in the factory"
and told him to report anything he heard on that subject; and Ford
added that he was positive about the date because he had been ad-
vised at a meeting of the Union on the following day to mark it down.
Ervin M. Deamer testified that, near the end of his 8-hour shift at
7 a. m. on Sunday, January 14, the day after Wagner's discharge,
Cyrus Heilig asked him if any representative of the Union had been
in during the night ; and, upon being told by Deamer that he did
not think so, Cyrus Heilig said, "That is damn funny, we hear it down
in the office." Lewis Sullivan testified that he was told by Cyrus Heilig
about January 15 that the respondent wanted his brother Cloyd,
who had been laid off, to return to work; and that Cyrus Heilig then
asked if Cloyd had joined the Union, saying that he would not take
Cloyd back if he found out that Cloyd had done so. Lewis Sullivan's
brother, Cloyd V. Sullivan, testified that he thereupon went to see
Cyrus Heilig, who asked him if he had joined the Union and told him
that he would not be taken back if he had done so. Donald F. Miller
testified that Cyrus Heilig told him about January 18 or 19 that he
would be transferred to a better position if he would "stick with us
[the respondent] and be loyal to us"; and that about 3 days later
Cyrus Heilig asked if he had heard any more about the Union
and again assured him that he would do well to remain "loyal." Clair
Eyler testified that Cyrus Heilig told him about the last of January
that if the respondent had to recognize the Union the mill would be
run just one shift,32 and that all the employees who joined the Union
would lose their jobs; and that Heilig then asked if Eyler had joined
the Union, saying that if Eyler "stuck" to the respondent he would
never have to worry. Eyler also testified that Cyrus Heilig said
about February 5 that all the employees who joined the Union and
12 At this time the mill ran three shifts.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participated in a strike "would be out," and that he would not take
them back; that a little later in February Cyrus Heilig asked Eyler
if he knew of any employees who had joined the Union, saying that
Eyler should try to get them to drop out; and that around March 16
Cyrus Heilig reproached Eyler for "talking union" and threatened
to discharge him for continuing to do so. Charles S. Bitzel testified
that Cyrus Heilig advised him about February 10 to take a job some-
where else if he had the chance because he was "mixed up with this
Union here." Chester L. Wilt testified that Cyrus Heilig told him
about the middle of February to find some reason to get rid of em-
ployees Deamer, Ford, and Miller, because they were active in the
Union; and on a Saturday around February 21 and - also at other
times asked -him to pick out non-union employees to do overtime work.
Wilt also testified that Cyrus Heilig told him just before the strike
to watch employee Guy Hess and'see that he did not sign up with the
Union, and also told him that any employees who went out on strike
could "consider themselves fired. We will never take one of them
back." Clarence A. Keller testified that Cyrus Heilig asked him about
February 15 if he had been solicited to join the Union; and on March
20, the day before the strike, solicited him to come to work on the
following day, saying, "If you stay out, you will be out." 33 Clarence
A. Emig testified that about February 19 Cyrus Heilig asked him if
he had been solicited to join the Union, and, on getting an affirmative
answer, tried to find out the names of the employees who had done so,
saying to Emig that it was better to "stick to your employer"; and
on March 20, the day before the strike, asked him to come to work
the next day, saying that any employees who participated in the strike
"are going to stay out." Clarence-H. Stoppard testified that Cyrus
Heilig asked him about March 1 if he had joined the Union, and told
him that joining was unnecessary "because we will never have a
union"; and that on March 20, the day before the strike, Cyrus Heilig
solicited him to come to work the following day, saying, "You are
big enough to take care of yourself." 34 William H. (Larry) Petry
testified that Cyrus Heilig asked him on several occasions prior to
about March 7 if he had heard about any union activities in the plant;
and that around March 7 Cyrus Heilig again asked him the same
question, adding that if he would "stick by" the respondent the re-
spondent would "stick by" him, and that the Union "could not win."
While Cyrus Heilig denied having made any statements concerning
a3 Keller also testified that Cyrus Heilig came to his house shortly after the strike began
and again asked him to return to work, repeating that the respondent did not intend to
recognize a union or to take the other strikers back.
- 14 Stoppard also testified that about 5 days after the strike began Cyrus Hellig asked him
to return to work ; and, in response to a question by the respondent's attorney, testified
without objection, that Cyrus Heilig told him that his job was open for him until that time.
HEILIG BROS . COMPANY 519
union activities to any of.the employees at any time,.we are satisfied
that such denials are not entitled to any substantial weight, m view
of his conception of union activities as' hereinafter discussed. We
find that Cyrus Heilig made the statements attributed to him by the
foregoing employees.
Other management officials besides Cyrus Heilig also made anti-
union statements. On or about March 14 Heilig, Sr., told Chester L.
Wilt that if employee Miller caused any more trouble with his union
activities he would be discharged. In February and March, Christian
M. Heilig, whom we have found to be a supervisory employee, ques-
tioned Curvin L. Weaver on several occasions regarding his union
activity and membership.35 In the latter part of February, Russel
L. Stoppard, who the respondent admitted was a supervisory employee,
suggested to employee Bitzel that he form a company union and try
to get the employees into it, saying that the venture would have the
backing of the management officials. Although these statements were
denied by the management officials making them, we are unable to
credit such denials in view of the respondent's general conduct with
respect to the Union.
In addition to the foregoing flagrant attempts by the respondent to
combat the Union and to suppress its employees in their efforts at
self-organization and collective bargaining, the respondent also sought
to accomplish these ends by written notices posted on the plant bulletin
boards. On January 27 the respondent posted the first notice, reading
in part as follows :
NOTICE TO EMPLOYEES
An employee called at this office this morning, and wanted to
know if he must join a Union to continue his service.
Please be advised, no employee can be forced to join any organ-
ization . . . This factory will continue to operate with non-
union and any union employees who attend to their duties and obey
the rules of the company. ANY EMPLOYEE trying to coerce
or threaten a fellow-employee who does not want to join a Union
during working hours will be dismissed. Holding conversations
on all subjects are forbidden during working hours, except condi-
tions applying to the work he is performing. If you violate these
rules you will be dismissed .. .
05 Weaver testified that Christian Heilig, who was the nephew of Cyrus Heilig, the re-
spondent 's president and the plant superintendent , had given him extra work , and added
that the employees considered Christian Heilig to be the boss of the wire drawers, inasmuch
as he issued orders . John B. Heilig, an officer and director of the respondent and assistant
superintendent of the plant , testified merely that he "did not know" whether Christian
Heilig was in charge of the wire-drawing department . Accordingly we do not credit the
testimony of Christian Heilig that he bad no supervisory authority.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This company, however, will not allow any worker to use the
Company's time for Union activities during working hours, nor
for any other activities besides the Company's work.
You are paid to perform a duty, and gossip of all nature must
cease in the factory.-
In view of the respondent's unfair labor practices and its general
policy of opposing the Union, as hereinbefore and hereinafter found,
this notice can only be interpreted as a further attempt by the re-
spondent to combat the efforts of the employees to organize themselves
for the purposes of collective bargaining, and is manifestly an inter-
ference with the rights guaranteed in Section 7 of the Act. By stat-
ing that no employee could be "forced to join any organization" and
that the plant would continue to operate as an open shop; by threat-
ening employees with discharge for soliciting fellow employees in
a manner deemed by the respondent to amount to coercion or threats
(a precaution which, as far as the record shows, was not required to
remedy any past activity but which necessarily suggested to the em-
ployees that such activity was being indulged in on behalf of the
Union) ; and by forbidding all conversations during working hours
unless immediately related to the work being performed '37 the re-
spondent plainly indicated to its employees that the safer course would
be for them to leave the Union alone. For reasons which we have
previously discussed with respect to similar notices'38 we find that
this notice was coercive in intention and effect.
A month and a half later, on March 16, the respondent posted a
more explicit notice in the plant, reading in part as follows :
"This notice was prepared and signed by Heilig, Sr
37 Conversations during working hours had not been previously forbidden where they did
not interfere with work.
98 See Matter of Blue Bell-Globe Manufacturing Company and Amalgamated Clothing
Workers of America, 24 N L R B 126; Matter of Robert Brothers, Inc and Furniture
Workers Union, Local 1561, 8 N. L. R. B. 925 See , also, N. L. R. B. v Elkland Leather
Company, Inc., at al., 114 F. (2d) 221 (C. C. A. 3), cert. denied , November 18, 1940, enf'g
Matter of Elkland Leather Company, Inc . and National Leather Workers' Association,
Local No. 37, 8 N. L. It. B. 519 , where the Court specifically approved a Board finding that
a statement delivered by the employer io each employee with-his pay check , to the effect
that be could not be forced to join a union since the employer would always operate as an
open shop, "was manifestly designed to discourage organizational efforts" and was there-
fore an unfair labor practice , within the meaning of Section 8 (1) of the Act; N. L. R. B
v. Asheville Hosiery Company, 108 F. ( 2d) 288 (C. C. A. 4), mod'g and enf'g Matter of
Asheville Hosiery Company and American Federation of Hosiery Workers, 11 N. L. R. B.
1365; N. L. R. B. v. New Era Die Co., Inc., 8 N. L. R. B. 46 (C. C A. 3), mod'g in immaterial
respects and enf'g Matter of New Era Die Company and International Association of Ma-
chsnists, Lodge 243 (A. F. of L.), etc., 19 N. L. R. B 227; N. L. R B v Pilling & Son
Co., 8 L. R. It. 108 (C. C. A. 3), enf'g Matter of George P. Pilling & Son Co. and Dental,
Surgical d Allied Workers Local Industrial Union No. 119, affiliated with the C. I. 0.,
16 N. L. It. B. 650.
HEILIG BROS. COMPANY 521
TO THE EMPLOYEES OF THIS COMPANY
It has been reported to us that you are being made promises
of an advance in wages. Please be advised there will not be 10
advancement made to any employee....
This plant will continue to operate as a factory where any man
can work, and where he will receive equality of treatment, re-
gardless of color, creed or nationality.
You need not pay dues to be employed by us.
Any employee threatening a fellow-employee or circulating
false statements will be dismissed and prosecuted to the full
extent of the law.
Employees will report if you are being annoyed or threatened
during working hours.
The Supreme Court of the United_ States held, with respect
to the Wagner Act :
"The Act does not compel agreements between employers and
employees. It does not compel any agreements whatever. It
does not prevent the employer from-'refusing to make a collec-
tive contract and hiring individuals on whatever terms' the em-
ployer `may be [sic] unilateral action -determine."'
This is the law on that subject.
We are going to continue to live together, work together, oper-
ate as in the past, give all employment possible at our present
wage which has given you all steady employment.
We will continue to operate and give employment to all those
who report for work down to the last man.
Between the time the first notice was posted, on January 27, and
the posting of this notice, the Union had increased its membership
to a clear majority, and the respondent realized that it must take
drastic measures if it hoped to forestall the imminent threat of a
successful strike. Therefore the respondent tried a new approach,
and in the March 16 notice advised its employees that the Union could
not get them a wage increase or any other improvement in the terms
and conditions of work which would warrant the payment of dues,
since the respondent intended to continue to operate as, it had in the
past, despite the presence of a union. To make its coercion concrete
and immediate, the respondent threatened its employees not only
with dismissal, but also with prosecution "to the full extent of the
law," for "threatening a fellow-employee" or for "circulating false
statements." Nor were the grounds for dismissal and prosecution
limited to activities during working hours. To drive home its oppo-
sition to unionization the respondent then set forth a quotation from
a decision of the Supreme Court of the United States to indicate
522, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that an 'employer might 'by unilateral action lawfully decide not to
negotiate with the representatives of his employees. Having been
repeatedly warned that the employees were getting impatient and that
a strike would be called if it persisted in its belligerent conduct toward
the Union,39 the respondent attempted to forestall a strike of suc-
cessful proportions by ending the notice with a statement that it
would continue to operate and give employment to all who "report
for work down to the last nian." For reasons hereinbefore discussed,
we find that this notice was also coercive in intention and effect.
While admitting the genuineness of the foregoing notices, both
Cyrus Heilig and Heilig, Sr., insisted at the hearing that the re-
spondent had never posted notices referring to union matters, and
that, despite the receipt of the Union's telegram of January 15 and
the letter of February 1, and despite the respondent's own subsequent
replies to the Union on February 3, March 5, and March 11, as well
as its admittedly genuine letter of February 26 to one of its customers,
the respondent had no knowledge of any actual union activity in
the plant until the strike on March 21. Because of their conception
of what constitutes union -activity, as revealed by this testimony, we
are unable to give weight to their denials of knowledge of union ac-
tivities, or to their denials of antiunion statements, in the face of
overwhelming evidence to the contrary, both documentary and oral.
A' few days after the strike began, the respondent posted notices
on the door of its pay office telling the "employees who had quit their
jobs" to go to the office to receive their pay. When the employees
did so, Heilig, Sr., handed them their envelopes and said "good bye"
to each of them because, as he testified, "that is the policy I have when
a man leaves me." The respondent also posted another notice in the
plant about April 1, signed by Heilig, Sr., and reading as follows : 40
NOTICE TO EMPLOYEES
Do not be deceived by Constine's report. The only Meeting I
am going to attend April 3rd. is with my present employees,
letting you nl the door down stairs, not Michael Harris of the
C. I. 0. HEILIG BROS. CO.
(Sgd.) B. F. Heilig.
sa Towards the end of February , Heilig, Sr , exhibited to an employee a copy of a letter
dated February 26, 1940 , which he had written to one of the respondent 's customers , stating
that the respondent had "a very unfavorable labor condition . . . While there has been
no demand made on us to date, we have been informed we are due for a strike . For
some time I have been carefully considering less hours of operating, as it seems my Sunday
work has made us most of our trouble and less hours may keep all better contented "
"" Having consistently denied at the hearing that any notice had been posted after March
16. Heilig, Sr , insisted, when confronted with the April 1 notice , that the typewritten
wording must have been added by someone else above his own signature , which he admitted
was genuine We do not credit his disclaimer.
HEILIG BROS . COMPANY- 523
For reasons hereinbefore discussed, we find that this notice was
also coercive in intention and effect.
In addition to the foregoing measures taken by the respondent for
the purpose of interfering with, restraining, and coercing its employees
in their exercise of the rights guaranteed in Section 7 of the Act, the
respondent also discriminated in distributing extra or overtime work
among the employees on the basis of their membership or non-member-
ship in the Union. Chester L. Wilt testified that, after the Union
had begun to organize the respondent's plant, Cyrus Heilig orally
instructed him on many occasions to pick out non-union employees
for extra work. Cyrus Heilig denied that lie had ever done so. Nev-
ertheless, an inspection of the respondent's pay rolls satisfies us that
none of the employees who received substantial amounts of extra
work were members of the Union. Accordingly, we find that Cyrus
Heilig instructed Wilt to distribute, the extra work to non-union
employees.41
Although Wilt admitted that some of the employees were incapable
of doing extra work, and although the testimony shows that a few of
the employees occasionally declined to accept extra work, we find
that the respondent's pay rolls are decidedly significant with respect
to the manner of distributing extra work. The earliest pay roll in
evidence, the one for the week ending Saturday, January 27, 1940,
shows that there were 124 persons then employed in the unit. The
regular work week at this time consisted of six 8-hour days, on the
basis of which 15 employees received a total of 124 hours of extra
work. Three of these 15 employees joined the Union prior -to January
27, 1940, and the remaining 12 were non-members.42 At the same
time, the Union had 33 members (about 25 per cent of the employees).
The pay roll of the following week, ending February 3, shows that
129 were employed in the unit, and that 16 employees received a total
of 106 hours of extra work. Only two of these 16 employees became
members of the Union before the week ended, and the remaining 14
were non-members. By this time, however, the Union had been desig-
nated by about half the employees. The next pay roll, being the
one for the week ending February 10, shows 130 employed in the unit;
but, as a result of the respondent's reducing the regular work week
from 48 to 40 hours, the number of employees receiving extra work
11 Wilt also testified that Cyrus Heilig gave him a list of six or eight names of non-union
employees who were to be given extra work, saying that wilt should cross off any name on
the list upon finding that the employee had joined the Union. Wilt was unable to produce
any such list, however, claiming that he had destroyed them all shortly after receiving
them. Cyrus Heilig denied that he had ever given wilt such written lists, nor are we
satisfied, under the circumstances, that he had done so.
33 Although Eyler joined the Union on January 26, 1940, he told the respondent, as soon
as he was advised that the respondent knew he had joined, that he intended to resign and
would try to persuade the other members to do likewise. Accordingly, we find that the
respondent did not consider Eyler a member of the Union.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increased to 26 .-ad the total number of hours of extra work increased
to 219. Of the 26 employees, 5 were members of the Union and received
a total of 22 hours (averaging about 41/2 hours), while 21 were non-
members and received a total of 197 hours (averaging about 91/2
hours). At the same time the Union had been designated by more
than half the employees.. The following pay roll, being the one for
the week ending February 17, shows that 129 persons were employed
in the unit; but, due to the respondent's further reduction of the
regular work week to 32 hours, the number of employees receiving
extra work increased to 48 and the total number of hours of extra
work increased to 568. Of the 48 employees receiving extra work,
11 were members of the Union and each received 8 hours of overtime
(which gave them a total of 40 hours for the week) ; and the remaining
37 were non-members, and each received an average of about 13 hours
of overtime (which gave them an average total of 45 hours for the
week).43 At the same time, the Union had further increased the
size of its majority. The number of employees receiving extra work
and the total amount of -such work gradually increased during the
following weeks; and the pay roll for the week ending March 16
(the last pay-roll period before the strike) shows 134 persons employed
in the unit, of whom 116 received a total of 1,139 hours of extra
work. While 91 of the 116 employees received only 8 hours or less
of extra work, thus getting no more time than they obtained as a
hatter of right prior to the second reduction of hours and 8 hours
less time than they had received prior to the first reduction of hours,
the remaining 25 received an average of more than 16 hours of extra
work. Of this latter 25, 6 had joined the Union prior to the end
of the pay-roll period, while the remaining 19 were not members of
the Union. At the same time about 80 of the respondent's 135 em-
ployees had designated the Union.
In the face of the foregoing undisputed figures, the respondent
contends in its brief that "on examination the pay roll indicated that
the [extra] work was evenly divided between union and non-union
men." This contention is clearly without merit. It is apparent that
the respondent reduced its regular work week in order to increase the
amount of available extra work, which it then proceeded to distribute
almost entirely to employees who had not joined the Union, to the limit
of their ability to absorb such extra work, giving only what, was left
over to those employees who had defied its wishes and joined the
Union 44
ss Prior to the week under discussion , 40 hours would have been included in the regular
work week.
as We find that the significance of the pay -roll figures is not affected by testimony of
various employes showing that they did not realize that the respondent was practicing dis-
crimination against them because of their union activity.
HEILIG BROS . COMPANY 525
Shortly before the strike , in a renewed attempt to thwart effective
action by the Union, several of the management officials engaged in
further coercive acts. Cyrus Heilig approached various individual
employees , as previously stated, and requested them not to participate
in the strike, saying that those who did would find themselves per-
manently out . On March 20 , the day before the strike , Heilig, Sr.,
said to Clarence Stoppard that the respondent would not have a union
in its plant , adding, "We will work tomorrow . . . Let them go out
on strike and we will pick out what we want. " 46 Then , within a few
days after the commencement of the strike , several of the management
officials solicited individual strikers to return to work . On or about
March 24, John K. Heilig asked Keller to do so, saying that otherwise
he would be "out" and that the respondent would never recognize a
union. On or about March 25, as we have already found, Cyrus Heilig
also solicited Keller to return to work, saying that the respondent
would. never recognize any union ; 46 and on or about March 26 Cyrus
Heilig asked Clarence Stoppard to return to work. Cyrus Heilig,
Heilig, Sr., and John K. Heilig denied having made the foregoing
statements , but in view of the respondent's entire course of hostile
action toward the Union , we do not credit these denials.
a. Conclusions with respect to interference, restraint, and coercion
On the basis of the foregoing findings and on the entire record, we
find that the respondent, by posting the notices of January 27, March
16, and April 1, by making the various intimidatory and coercive
statements hereinbefore set forth to individual employees, by threat-
ening and urging individual employees to refrain from collective
action and to cease participating therein after they had begun to do
so, by exhibiting to an employee a copy of its anti-union letter of
February 26 addressed to one of its customers, and by its discrim-
inatory distribution of extra work, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
b. Conclusions with respect to the refusals to bargain
It is apparent from what has been set forth above that the respond-
ent, by its course of conduct from February 6, 1940, to the date of the
hearing, has refused to bargain collectively with the Union. This
is evidenced by the following actions : (1) by failing, after February
6, to advise the Union further about the Union's request fora meet-
' At the hearing Hellig, Sr., testified that he would take back the striking employes "if
I have places for them."
46 Cyrus Heilig denied only the statement , not the solicitation.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, as the respondent had assured the Union it would do; (2) by re-
turning a letter from the Union unopened on February 15; (3) by
telling a Board representative, for the purpose of transmittal to the
Union, that it would not bargain with Constine, the Union's repre-
sentative, under any circumstances; (4) by failing to communicate
with the Union around February 25, as it had indicated to the Union
that-it would do by its telegram of February 21; (5) by canceling a
meeting with the Union which it had scheduled for March-13; (6)
by failing to reply to the Union's requests of March 12, 13, and 20; (7)
by meeting with the Union on April 18 for the first and only time
with a predetermined intention not to bargain with the Union, and
by stating to the Union at that meeting that because of the strike
the Union had called there was nothing to bargain about; and (8) by
interfering with, restraining, and coercing its employees as aforesaid.
The respondent does not contest the occurrence of the events
related above with respect to the Union's attempts to bargain, but
argues that its conduct was justified because in February it had
informed House that it wanted an election in order to establish the
Union's majority, and because on February 16 it had written to the
Regional Office requesting that an election be held and professing
a willingness to bargain with any "committee" the employees desig-
nated in the election. The respondent further contends that its
conduct toward the Union was justified because, despite its admis-
sion that it had no intention of bargaining with the Union after the
strike started or of reinstating the strikers, it thereafter, for the first
time, told the Union, as represented by Harris, on two occasions
in April that it wanted an election to prove the Union's majority.
As to the requests for an election made prior to the strike, it is clear
that they were made to third persons and not to the Union. Both
Constine and Harris testified without contradiction, and we find,
that the respondent had not requested the Union to furnish proof of
its majority prior to the strike." Moreover, the respondent not only
had not raised any question as to the Union's majority in its written
communications to the Union dated February 3, February 21, March
5, and March 11, but it affirmatively admitted at the hearing that a
majority of its employees were participating in a strike called by
the Union. Under the 'circumstances, including the respondent's
anti-union conduct hereinbefore described, we are satisfied and find
that the respondent's course of action was dominated, not by any
honest or reasonable doubt of the Union's majority, but by a fixed
+' Hoober's letter dated February 12, 1940, hereinbefore set forth in footnote 21, is.
plainly not a request for proof of majority ; but, regardless of its significance, it was super-
seded by the respondent 's own communications of February 21, March 5 , and March 11.
HEILIG BROS . COMPANY 527.
intention not to deal with the Union at all. For the foregoing
reasons, we find no merit in the respondent's attempts to justify'its
,conduct with regard to the Union's requests for bargaining.48 We
further find that such conduct clearly constituted a -refusal- to
bargain .49
We find that the respondent on February 6, 1940, and at all times
thereafter, has refused to bargain collectively with the Union as
the exclusive representative of its employees in an appropriate unit,
and has thereby interfered with, restrained, and coerced its employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act.
We further find that the strike which began on March 21, 1940,
was caused and prolonged by the respondent's unfair labor practices,
as hereinabove set forth.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent described in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the -several
States, and tend to lead and have led to labor disputes burdening
and obstructing commerce and the free flow of commerce.
THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall require it not only to cease and desist therefrom
but also, in order to remove and avoid the consequences thereof and
to effectuate the policies of the Act, to take the affirmative action
hereinbelow described.
Having found that the respondent refused to bargain collectively
with the Union as the exclusive representative of all its production
and maintenance employees at the York plant, exclusive, of super-
visory, clerical, and office employees, we shall order it to do so upon
request.
We have found that the strike of the respondent's employees was
caused and prolonged by the respondent's unfair labor practices.
We find that the respondent, in order to effectuate the policies of
98 See Matter of Remington Rand, Inc. and Remington Rand Joint Protective Board of
the District Council, Office Equipment Workers, 2 N. L R. B. 626, enf'd National Labor
Relations Board v. Remington Rand, Inc, 94 F. ( 2d) 862 (C. C. A. 2), cert. denied, 304
U. S. 576, 585; Matter of Acme -Evans Company and Federal Labor Union, No. 21873, affil-
iated with the A. F. of L., etc, 24 N. L R B. 112-115, at p. 71.
49 Cf. N. L. R. B. v. National Motor Bearing Co., 105 F. (2d) 652 (C. C. A. 9), enf'g as
mod., Matter of National Motor Bearing Co . and International Union, United Automobile
Workers of American, Local No. 76, 5 N. L. R : B. 409.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act, must restore the status quo which existed prior to the com-
mission of the unlawful acts. We shall order the respondent, upon
application, to offer to its employees who participated in the strike
commencing on March 21, 1940, reinstatement to their former or
substantially equivalent positions, without prejudice to.their seniority
and other rights and privileges, dismissing, if necessary in order to
effect such reinstatement, all employees hired after the commence-
ment of the strike or in anticipation thereof.50 If, by reason of a
reduction in force, there are not sufficient positions available for
the remaining employees, including those who are to be reinstated,
all available' positions shall be distributed among such remaining
employees in accordance with the respondent's usual method of re-
ducing its force, without discrimination against any employee because
of his union affiliation or activity and following a system of seniority
to the extent heretofore applied by the respondent in the conduct
of its business. Those employees remaining after such distribution,
for whom there are then no available positions, shall be placed upon
a preferential list prepared in accordance with principles set forth
in the previous sentence, and shall thereafter, in accordance with
such list, be offered employment in their former or substantially
equivalent positions as such employment becomes available and be-
fore other persons are hired for such work. We shall also order the
respondent to make whole all the striking employees referred to
above for any losses they may suffer by reason of any refusal of
reinstatement or placement upon the preferential list as required
above, by payment to each of them of a sum of money equal to that
which each of them would normally have earned as wages during
the period from 5 days after the date of application to the date of
the respondent's offer of reinstatement or placement upon the prefer-
ential list, less his net earning 51 during said period. 62
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following:
W As previously set forth, the respondent hired George Sipe on March 19, 1940 , and Earl
Hartman and Lester Behler on March 20, 1940. We find that the respondent hired these
employees in anticipation of an imminent strike. •
51 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter,
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590 , 8 N L. It. B. 440. Monies received
for work performed upon Federal, State, county, municipal , or other work-relief projects
shall be considered as earnings . See Republic Steel Corporation v. N. L. If. B., decided by
the Supreme Court of the United States, November 12, 1940.
62 See Matter of Republic Steel Corporation and Steel Workers Organizing Committee,
9 N. L. It. B. 219, mod'd as to other issues and enf'd, Republic Steel Corporation v.
N. L. If. B., 107 F. (2d) 472 (C. C. A. 3), cert. denied as to this issue, 309 U. S. 684,
310 U. S. 655.
HEILIG BROS. COMPANY
CONCLUSIONS OF LAW
529
1. Local Union No. 2151, Steel Workers' Organizing Committee,
is a labor 'organization, within the meaning of Section 2 (5) of the
Act.
2. All the respondent's production and maintenance employees
at its plant in York, Pennsylvania, exclusive of supervisory, clerical,
and office employees, at all times material herein constituted and now
constitute, a unit appropriate for the purposes of collective bar-
gaining, within the meaning of Section 9 (b) of the Act.
3. Local Union No. 2151, Steel Workers' Organizing Committee,
is and at all times since February 6, 1940, has been, the exclusive
representative of all the respondent's employees in such unit for the
purposes of collective bargaining, within the` meaning of Section
9 (a) of the Act.
4. By refusing to bargain collectively with Local Union No. 2151,
Steel Workers' Organizing Committee, as the exclusive representa-
tive of all the respondent's employees in such unit, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing kits employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged,in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
'7. By' discharging Daniel O. Wagner, the respondent has not en-
gaged in unfair labor practices, within the meaning of Section 8 (3)
of the Act.
ORDER
Upon the basis -of the'above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Heilig Bros. Co., York, Pennsylvania, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Local Union No. 2151,
Steel Workers' Organizing Committee, as the exclusive representative
of all its production and maintenance employees at its plant in
York, Pennsylvania, exclusive of supervisory, office, and clerical
employees;
(b) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization,
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or
other mutual aid or protection.
2. Taking the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon application, offer to those employees who participated
in the strike which began on March 21, 1940, immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges,
in the manner provided in the section entitled "The Remedy" above;
and place those employees for whom employment is not immediately
available upon a preferential list in the manner provided in said
section, and thereafter, in said manner, offer them employment as
it becomes available;
(b) Make whole all the employees referred to in paragraph 2 (a)
above for any losses they may suffer by reason of any refusal of
reinstatement or placement upon the preferential list required by
paragraph 2 (a) above, by payment to each of them of a sum of
money equal to that which each of them would normally have earned
as wages during the period from 5 days after the date of application
to the date of the respondent's offer of reinstatement or placement
upon the preferential list, less the net earnings 53 of each during
said period;
(c) Upon request, bargain collectively with Local Union No.
2151, Steel Workers' Organizing Committee, as the exclusive repre-
sentative of all the respondent's production and maintenance em-
ployees at its plant in York, Pennsylvania, exclusive of supervisory,
clerical, and office employees, with respect to rates of pay, wages,
hours of work, and other conditions of employment;
(d) Post immediately in conspicuous places at its York plant,
and maintain for a period of at least (60) consecutive days from
the date of posting, notices to its employees stating (1) that the
.respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a) and (b) of this Order;
and (2) that the respondent will take the affirmative action set forth
in paragraphs 2 (a), (b), and (c) of this Order;
(e) Notify the Regional Director for the Fourth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS YURTHER ORDERED that the complaint be, and it hereby
is, dismissed in so far as it alleges that the respondent violated
Section 8 (1) and (3) of the Act with respect to Daniel O. Wagner.
53 See footnote 51, supra.
HEILIG BROS . COMPANY 531
MR. EDWIN S. SMITH, concurring in part and dissenting in part:
I concur in the Decision and Order of the Board except, in so far as
it relates to Wagner.
- I am of the opinion that the respondent discharged Wagner dis-
criminatorily, and should be required to offer him reinstatement and
back pay in order to remedy its violation of the law and to effectuate
the policies of the Act. I am convinced that Wagner did not make
any abusive remark to Cyrus Heilig in the office on January 13, 1940,
as Cyrus Heilig claimed at the hearing; but even if Wagner did so,
as the majority find, I am satisfied that the remark was not the cause
of the discharge but rather was a result of the respondent's dis-
crimination against Wagner, which the respondent later sought to
use to justify such discrimination.
Wagner was the outstanding leader of union activity at the
respondent's plant,54 and, as the majority find, the-respondent was
fully aware of that fact. Prior to Wagner's discharge on January 13,
1940, the respondent, while the Union was in its formative stages, had
embarked upon a course of conduct designed to eliminate the Union
from its plant. As noted in the majority opinion, this course of
conduct was intensified as the Union gained strength.
On Friday, January 12, 1940, the day prior to Wagner's discharge,
Cyrus Heilig and Heilig, Sr., the respondent's two senior officials, dis-
cussed the allegedly inferior quality of Wagner's work and decided
that Wagner should be discharged immediately. Early on the morn-
ing of Saturday, January 13, Wagner was called into the office by
Cyrus Heilig and was discharged. On Monday, January 15, the next
working day, the Union sent a telegram to Cyrus Heilig asserting
that Wagner and another employee had been discharged for "exer-
cising their right of assisting a labor organization of their own
choosing, namely the Steel Workers Organizing Committee," and
asking for Wagner's reinstatement; and a reply was requested.
Later on the same day, the respondent replied to the Union by letter,
claiming that the reason for Wagner's dismissal was his "inferior
work, which has been his policy for the past several months." 55
u On December 9, 1939, about a month before the discharge, R agner and four other em-
ployees took the first step to organize the workers at the plant At a meeting on December
19, 1939, Wagner signed a membership card in the Union, and was elected chairman of the
local group . By the date of his discharge he had secured about half of the Union's 25
members among the employees.
is This letter was signed by Heilig, Sr , who did not witness the discharge either of Wag-
ner or of the other employee . However, it is clear that Heilig, Sr., had informed himself
about the details of these discharges before replying to the protest addressed to Cyrus
Heilig, in view of the statement in the letter that the other employee bad been "dismissed
for calling a Director of this Company a `little boy' . . . Had the writer been present when
he boisterously pounded on an office desk , he would have been thrown out, not dis-
charged .. " -
44 S f i02-42-v of 32-2,5
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing the' respondent attempted to justify the discharge
of Wagner primarily on the ground that his work was • inferior.
However, Wagner's work was not inferior and the respondent did not
consider it so.56 - In the Proposed Findings; of Fact, Proposed Coil-
clusions of Law, and Proposed Order served on the respondent in
this case, it was found. that Wagner's work was not inferior and that
the respondent did not consider It so. The 'respondent' did,, not
except to that proposed finding: , It is plain, therefore, that Wagner
was .not discharged because of his inferior work. I ,
At the hearing the respondent also asserted that Wagner was dis-
charged because of , certain abusive remarks which he.. allegedly,made
to Cyrus-Heilig at the time that he was discharged, on January 13.
This was the first time that the respondent asserted that Wagner had
been discharged for reasons- other than those contained in its letter
to-the Union dated January 15.•. Cyrus Heilig did not deny any-of
the foregoing evidence that Wagner was discharged-for, allegedly
inferior work; nor did he'attempt to,explain such evidence. He tes-
tified; however, that before speaking to, Wagner on the ,morning of
January 13, he."thought" he had his mind made up to.offer-Wagner
a set of looms; that he therefore told Wagner that he could no,longer
use him.(Wagner) `as a "warp sticker" because of. his unsatisfactory
work, but that he was going to give him a set of loons ; that Wagner
retorted that his work was good, and that Cyrus Heilig was a "damn
liar" and could "stick' his looms in his ass";Wand that, he (Cyrus
Heilig) discharged Wagner because his dignity could not stand that
expression and he could,not deal with a man of that, character. • I
The Board finds, and I agree; that Cyrus Heilig's denial of inter-
ference with union activities is not entitled to any substantial weight
or credit., In addition,,.the Board finds, and I agree, that the re-
spondent embarked on a course of hostility to the ! Union, from its
inception, a month prior to Wagner's discharge, and that-Cyrus Heilig
was extremely active ,in this campaign. Under such circumstances,
-and in view of the respondent's letter to the Union dated January
15, I think that-the testimony, of Cyrus Heilig, with respect to, what
se After many years' experience as a "warp sticker '." at another plant, , Wagner was so
employed for a, year and 9 months by the respondent , and received a wage increase.
months prior to his discharge . Cyrus Heilig admitted that Wagner's work had not changed
during the entire time that Wagner worked at the plant ; that for the most part Wagner
was a satisfactory workman ; and that, although he could have spoken to Wagner about his
work, he did not do so but wrote out certain weekly reports to Wagner's foreman instead,
criticizing Wagner' s work as the result of inspecting screens woven on looms serviced by
Wagner. Malehorn , , Wagner's foreman, testified that he asked Wagner twice in, the year
pieceding his discharge to "better his work,", but did not recommend that Wagner be
discharged. ,
'HEILIG BROS :' COMPANY ' 533
occurred on the morning he discharged Wagner, the Union's most
prominent advocate, is incredible.57 '
The only other witness'to the discharge was Wagner. ^Vagiier's
silences' and 'confused"testimony, on being' cross-examined in connec-
tion with the events in the, office, may indicate that he, like' Cyrus
Heilig, was not telling the truth; or, when considered in the light
of 'his further testimony that the demeanor • and conduct of the re-
spondent's attorney had succeeded in confusing him,- such testimony
may indicate merely that it was not clear to him whether' the' ques-,
tions' which -he failed to answer, or which he' answered evasively,
referred to a remark made' to Cyrus Heilig, or to ' a remark' made
immediately thereafter to a group of fellow employees after he had
left the office. I see nothing "'inherentl° improbable" in' Wagner's
testimony that Cyrus Heilig, after discharging him' oil' the ground
of his, inferior work as a "warp sticker," told him that "maybe' some
day" he ` would be given a: set of looms: ' Under the, circumstances,
this offer clearly held out no real hope of future reemployment. I am
satisfied that, Wagner became angry as a result of his discriminatory
discharge,' and that, upon leaving the office, he gave vent to his' feel-
ings by'telling a group of employees that' Cyrus Heilig could "stick
the looms in his ass"; but I credit Wagner's positive testimony that
he did, not make any such remark to Cyrus Heilig in the office.58'
' But 'the ultimate question to be decided by the Board is not
whether Wagner made the alleged abusive remarks, but rather
whether'such'remarks, if 'made, were 'the cause of his discharge. The
answer' to this question is provided by Cyrus Heilig himself. • Just
before finally leaving the witness stand, under the redirect examina-
tion of the respondent's attorney, Cyrus'Heilig testified that the only
reason that Wagner had been "let , out" was for "inefficiency." 59
Under 'all the circumstances, I am convinced' that Cyrus' Heilig's
earlier testimony that Wagner was discharged "after" or "as a result
57 There was nd evidence of any overt action taken byiCyrus Heilig.to'show his ' asserted
change of intention to offer Wagner a set of looms instead of discharging him , Rather, the
January 15 letter admitted that Cyrus Heilig did not change his ' mind, and that Wagner
was not discharged because of any alleged abusive remarks, since it does not seem , likely to
me that Heilig, Sr., would have -failed to mention the highly objectionable remarks which
Cyrus Heilig claimed' Wagner made to him, if they really had been made. ' .
"The fact that' Cyrus Heilig did not learn until later about Wagner's remark to the
group of employees explains why the respondent did not claim that Wagner was discharged
for abusive ' remarks until the hearing. '
54 Q. [By the respondent 's attorney .] When, Mr. Davis [the Board, attorney ] asked you
on your cross-examination if Mr. Wagner had been employed at the Hanover Wire Mills, or
that be might ' have ' been, - for a period of seven and a half years , you started to answer.
A., [,By Cyrus Heilig.] ,Well, it is ' my version that Mr. , Wagner was let out there for the
same reason we let him out :, inefficiency. -
Mr. DUMONT [ therespondent's attorney]. No further questions
r,1
534 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
of" any improper remarks was an afterthought and an ex post facto
attempt to justify a discriminatory discharge. This conclusion is
confirmed by the respondent's change of position after the- hearing
with respect to the ' cause of the discharge. In its brief before the
Trial Examiner, the respondent, after first discussing the quality of
Wagner's work, added : `•'It is interesting to note that . . . Cyrus H.
Heilig testified that . . . lie told Mr. Wagner that . . . he would
give Min [Wagner] a set of loons to operate. . . . Mr. Wagner
thereupon, according to the testimony of Cyrus H. Heilig, used vile
language and became generally obnoxious as a result of which he was
discharged." [Emphasis supplied.] Thereafter, the Board issued
its Proposed Findings of Fact, Proposed Conclusions of Law, and
Proposed Order in which i0found that Wagner had been discrimina-
torily discharged since the respondent's defense to such discharge,
namely, Wagner's inferior work, was without merit. In its excep-
tions to the Proposed Findings of Fact, the respondent did not men-
tion Wagner's alleged inferior work, but argued merely that "Wagner
was not discharged until such time as he became violent and abusive."
At oral argument, the respondent urged that Wagner was discharged
primarily because of the abusive remark and secondarily because of
inferior work.
Under all of the circumstances I am convinced that Wagner was
discharged because of his membership in the Union and the out-
standing role lie played in the activities of the Union. Accordingly,
I would order the respondent to offer Wagner immediate reinstate-
ment, with back pay from the date of his discharge to the date of such
offer of reinstatement.
APPENDIX A.
1. Russell W. Anstine
2. Francis Daniel Aughen-
baugh
3. Charles Samuel Bitzel
4. Dale Bowers
5. C. David Brandt
6. Chester A. Brandt
7. John Ed. Brown
8. Robert H. Brown
9. Ervin (Erwin) Al.
Deamer
10. Wilmer G. (C) Deardorff
11. Woodrow (Woodward)
W. DeHoff
12. Harry S. Donahue
13. Claude E. Dubbs
14. Ralph Russell Einswiler
(Enswiler)
15. Clair E. (C.) Eyler
16. Jeremiah D. Fauth, 'Sr.
(Jr.)
17. George Keefer Ford
18. Elmer B. Forry 60
19. Jacob H. Frock
20. Lester E. Gentzler
21. Richard H. Gentzler
22. Dale E. Gerber
23. Archie L. Gingerich
(Gingerick)
24. Raymond E. Gingerich
(Gingerick)
25. Lloyd C. Givens
61 Died April 1, 1940.
HEILIG BROS. COMPANY 535
26. Myles Ness Gladfelter
27. Lester Grim
28. Thurlow H. Hauer
29. Richard 0. Herman
30. George W: Hilker, Jr.
31. Clair F. Hively
32. William -Guy Kauffman
33. Clarence Albert Keller
34. Parker King
35. Laurence (Lawrence) L.
Landis
36. Harry W. Lippy
37. Amos McWilliams
38. Roy J.,May
39. Ray M. Meckley
40. Clark A. Miller
41. Donald F. Miller
42. Harrison L. Miller
43. William J. Mummert
44. William' H. Myers
45. Stewart Jacob Newcomer
46. William (Larry) Henry
Petry
47. Eugene Reever
48. George Philip Reinhart
(Rinehart)
49. John W. Rosenberry
50. Earl R. Shearer
51. Chester H. Shermyer
(Shermeyer)
52. Earl Shorts'
53. LeRoy A. Slenker
54. Raymond E. Stambaugh
55. Raymond Storm
56. Wilford (Willard) L.
Strickler
57. Cloyd Vernon Sullivan
58. Lewis Lloyd Sullivan
59. Raymond Sweitzer
60. Curvin G. Toomey
61. Curvin L. Weaver
62. George A. (H.) Weigle
63. Lester Ed. Weigle'
64. Luther Wilt
65. Charles A. Zarfoss-
66. Earl E. Zeigler