Majestic Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 27, 1945

64 N.L.R.B. 950 (N.L.R.B. 1945)

4
In the Matter of MAJESTIC MANUFACTURING COMPANY and STOVa
MOUNTERS INTERNATIONAL UNION, LOCAL No. 34, A. F. L.
Case No. 14-CD54.Decided November 27, 154f5
DECISION
AND
ORDER
On April 23, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth iri the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a supporting brief. On October 16, 1945,
the Board heard oral argument at Washington, D. C. The respondent
appeared by counsel and participated in the argument; the Union did
not appear.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
respondent's exceptions and brief, and the entire record in the case,
and, to the extent consistent with the Decision and Order herein, hereby
adopts the findings and conclusions of the Trial Examiner, and finds
merit in the respondent's exceptions.
1. The Trial Examiner found that the respondent discriminated
against 11 named strikers in regard to their hire and tenure of employ-
ment in violation of Section 8 (3) of the Act. We do not agree. The
Trial Examiner's finding is predicated largely on the fact that the
respondent gave each striker a "Notice of Separation" on April 14,
1944, after the strikers had ignored the respondent's prior communi-
cation to report for work on April 13, under penalty of separation
from the pay-roll. We, however, do not view this conduct as violative
of Section 8 (3) of the Act. The strikers ceased work as a result of
a then current labor dispute 1 and, therefore, retained their status as
1 Because of the strike, the respondent was compelled to suspend operations in the depart-
ment in which nine strikers were employed, necessitating the lay-off of non-strikers who
were also employed there Operations in that department were resumed on May 16, 1944,
when the strikers returned to work.
64 N. L R. B., No. 161.
950
MAJESTIC MANUFACTURING COMPANY 951
employees within the meaning of Section 2 (3) of the Act; yet, as the
Trial Examiner found, they had no intention of returning to their jobs
until the respondent acceded to their economic demands. Conse-
quently, the issuance of the separation notices had no actual effect on
their tenure of employment. As we have previously observed in sim-
ilar cases, such notices are primarily intended, not to effectuate a dis-
charge, but as a tactical maneuver designed to induce the strikers to
abandon the strike and resume work.2
Nor does the record establish that after the issuance of the separa-
tion notices, the respondent discriminated in regard to the strikers'
tenure of employment. As found by the Trial Examiner, the strikers
never offered to return to work unconditionally; instead, the Union
and the respondent resorted to collective bargaining as a means of set-
tling the strike and the grievances which gave rise to it. At a meeting
between the respondent and the Union on April 15,1944, the respondent
agreed, subject to a discussion with the respondent's president who
was then out of the city, that on April 18 the strikers could resume work
upon their own terms. On April 18, however, the respondent's presi-
dent requested further negotiations with respect to the settlement of
the strike, which apparently was not then objectionable to the Union,
thereby postponing the reinstatement of the strikers. The respondent,
thereupon, proposed, as a basis for settling the strike and reinstating
the strikers, that the parties conclude a written agreement which would
define the responsibility for replacing broken enamel, the principal
cause of the strike, and provide for a no-strike pledge and a grievance
and arbitration procedure.3 This proposal was generally acceptable to
the Union and, after several bargaining conferences, culminated in a
signed agreement. On May 16, 1944, during the course of the nego-
tiations, the strikers were reinstated.
Under all the circumstances, we are unable to find, as did the Trial
Examiner, that the respondent discriminated against the strikers in
regard to their hire and tenure of employment, within the meaning
of Section 8 (3) of the Act." Accordingly, we shall dismiss the com-
plaint in its entirety.
2 See Matter of American Manufacturing Concern, 7 N. L. It B 753 , Matter of Rock-
wood Stove Works , 63 N L . R B. 1297
The Trial Examiner made no finding as to whether the respondent 's conduct in this
respect was violative of Section 8 (1) of the Act. Since no exception was taken on this
point , we shall not pass upon it
3 During the meeting , the respondent stated that the strikers had quit their jobs and,
therefore , were no longer employees Although this position was clearly erroneous , as a mat-
ter of law, we are convinced and find that it did not delay or otherwise prejudice the rein-
atatement of the strikers
' The Trial Examiner made no finding as to whether the respondent ' s insistence that the
Union agree to a no-strike pledge and a grievance and arbitration procedure, constituted an
illegal condition of reinstatement No exception was taken , and we, therefore, find it
unnecessary to pass upon this question.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. In view of our determination to dismiss the complaint on the
merits, we find it unnecessary to pass upon the respondent 's special
defenses , discussed in the Intermediate Report, that the striking em-
ployees are not entitled to the protection of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint issued herein against the
respondent, Majestic Manufacturing Company, St. Louis, Missouri,
be, and it hereby is, dismissed.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Joseph Lepie, for the Board.
Lewi9, Rice, Tucker, Allen, & Chubb, by Mr. Robert 7'. Burch, of St. Louis, Mo.,
for the respondent.
Mr. Eugene Ehrhard, of St. Louis, Mo., for the Union.
. STATEMENT Or THE CASE
Upon an amended charge duly filed December 26, 1944 by Stove Mounters
International Union, Local No. 34, A. F. L., herein called the Union, the National
Labor Relations Board, herein called the Board, by its Acting Regional Director
for the Fourteenth Region (St. Louis, Missouri), issued its complaint dated
December 29, 1944, against Majestic Manufacturing Company, herein called the
respondent, alleging that the respondent had engaged in, and was engaging in
unfair labor practices, within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint and notice of hearing thereon were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance:
(1) that on or about April 12, 1944,11 of the respondent's employees' ceased
work concertedly and went on strike; (2) that on or about April 13, 1944, the
respondent discharged said 11 employees because of their foregoing conduct;
(3) that on or about May 12, 1944, the respondent offered reinstatement to each
of the said 11 employees, to begin work on May 16, 1944; (4) that the respondent
has refused to reimburse the said 11 employees for any loss of earnings they may
have suffered by reason of their discharge; and (5) that by said acts the respond-
ent has interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
On January 9, 1945, the respondent filed its answer, admitting the strike and
the offer of reinstatement as alleged in the complaint. but denying the allegation
as to the discharge of the 11 employees The answer also denied that these em-
ployees have suffered any loss of earnings by reason of the respondent's conduct
1 James Wasson , Harry Reitz, Jesse Wasson, George Hoffmann John Kaltschnee, John
Schappacker , Lawrence Dunlap, Bud Calloway, John Siemer , James Miles , and Timothy
Courtway.
MAJESTIC MANUFACTU RING COMPANY 953
or that the respondent has engaged in any unfair labor practices, and further
set forth, as an affirmative defense. several matters which are presented here-
inbelow 2
Pursuant to notice, a hearing was held at St. Louis, Missouri, on January 11,
12, 13, and 15, 1945, before Earl S Bellman, the undersigned Trial Examiner,
duly designated by the Acting Chief Trial Examiner. The Board and the re-
spondent were represented by counsel, and the Union by one of its officers. All
parties participated in the hearing and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues. At the close of the hearing, all parties were afforded an opportunity
to argue orally before the undersigned, and to file briefs. Counsel for the Board
and counsel for the respondent argued orally, said argument being included in
the official transcript. The respondent has filed a brief.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Majestic Manufacturing Company, is a Missouri corporation,
having its principal office and its plant in St. Louis, Missouri, where it is en-
gaged in the manufacture, sale, and distribution of stoves and other cooking
appliances. During 1944, the respondent used at said plant raw materials valued
in excess of $400,000, of which approximately 80 percent was received from
points outside of the State of Missouri. During the same period, the respondent's
manufactured products were valued in excess of $1,000,000; approximately 90
percent thereof was shipped to points outside of the State of Missouri. The
respondent is presently manufacturing stoves and cooking appliances used
directly in the war effort. It concedes that it is engaged in "interstate commerce"
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Stove Mounters International Union, Local No. 34, is a labor organization ad-
Initting to membership employees of the respondent. It is affiliated with the
American Federation of Labor.
III. THE UNFAIR LABOR PRACTICES
A. Introductory statement
The issues in this case arise from a dispute which took place on one of the
respondent's stove assembly lines, the "F" line, on April 11, 1944, regarding the
changing of broken enamel.' The resulting strike which, it is found below, com-
.nienced on April 12, was admittedly an economic strike, i. e., not caused by
unfair labor practices under the Act. After a series of meetings and after inter-
change of correspondence and proposed agreements, the strikers were all offered
full reinstatement on May 12, to begin work on May 16, 1944. Subsequently a
contract was signed by the respondent and the Union. None of the strikers was
2 An amended answer was filed at the hearing on January 13, 1945, at the opening of
the respondent 's case. Said amended answer differed from the original answer only in
that it set out certain additional matter as affirmative defense.
3 Only nine of the complainants herein worked on the "F" line . The other two were
welders in the machine shop.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD)
reimbursed for any loss of earnings be may have suffered from April 12' through
May 16, and the department which includes the "F " line did not operate during-
that period.
In general , as shown by its amended answer, the oi al :ignment , and its brief,
the respondent contends that the strike was not provoked by any act on its
part; that it was a "wildcat " strike not called by the Union ; that it was an illegal
strike because of failure to comply with provisions of the War Labor Disputes
Act requiring notice and a strike vote ; that the strike was in violation of the
Union ' s contract with the respondent ; that while the respondent did not dis-
charge the strikers , it would have been fully justified in so doing because of the
nature of the strike ; that the employment relationship of the 11 strikers ceased
when they "walked off the job " because the strikers thereby violated their r•ou-
tract and the War Labor Disputes Act ; that because of the strike of April 12,
and preceding unlawful strikes shortly prior thereto involving the same em-
ployees, the respondent was unable to and did not operate the department which
includes the "F" line from April 12 to May 15, 1944: that all I lint the respondent
was seeking during the negotiations following the strike was an agreement
with the Union for the orderly settlement of disputes and to end the series of
strikes; that such an agreement satisfactory to all patties was reached through
collective bargaining : and that there have been no strikes at the plant since the
strikers resumed work.
In substance , the Board contends that the strike occurred spontaneously be-
cause on April 11 the respondent arbitrarily modified, adversely to its employees,
its long-established practice with respect to the responsibility for changing
broken enamel ; that two welders in the machine shop honied the strike because
of their unsettled grievances ; that the strikers weie discharged by the respond-
ent at the outset of the strike because they had gone on an economic strike;
that the strikers thereafter unconditionally applied for reinstatement ; that the
respondent then took the position that it would not reemploy the strikers, whom
it contended were no longer its employees , unless the Union would enter into an
agreement containing arbitration and no-strike provisions ; that the respondent's
discharge of the strikers was in violation of the Act as was its position following
the application of the strikers for reinstatement : and that the 11 strikers are
entitled to reimbursement for any loss of earnings suffered from the date of their
discharge to the date of their reinstatement.
B. Labor relations p) !o), to the Atoll /I dispute
1. Contractual relations
For over 40 years the employees of the respondent, s plait who come under
its jurisdiction have been organized by the Union' During most of this period,
these employees have been covered by successive written contracts The last
general contract signed by the Union and the respondent prior to the strike of
April 12, 1944, was dated January 1, 1941, and provided that it continue in effect
from year to year unless notice in writing of desire to change the agreement be
given thirty (30) days before the annual expiiation date. Autong other things,
the agreement provided that the respondent would employ only members of the
Union in good standing and that preference would he given when addition,il help
was needed to "card men" who were acceptable to the respondent This agree-
* Four other groups of employees, polishers, machinists, oilers, and watchmen, are lint
have been for varying periods of time, covered by four other affiliates of the A F L.
MAJESTIC MANUFACTURING COMPANY 955
meat contained no provision as to the responsibility for changing damaged
enamel. It did contain, however, the following provision as to the settlement of
disputes:
Article 11 In case any dispute cannot be settled between the Management
and the Shop Committee, it shall be referred to the executive committee of
the S. M I. U of N. A. and the Firm In the event no settlement is reached,
it shall be referred to the National Officers of the S 17 I U. of N. A and the
Majestic Manufacturing Company. In case of dispute, both parties are to
continue operation in the usual manner pending settlement, as prior to the
dispute.'
On Match 6, 1942, the respondent and the Union reached the following under-
standing which was thereafter confirmed by embodying said undelstand mg in a
letter dated March 24, 1942:
The 1941 agreement continues in force in it's (sic) entirety except for the
provision of 10% increase in day and piece rates effective February 2nd,
1942.
Early in 1943, the Union presented the respondent with a proposed agreement
for 1943, similar in all respects material herein to that of 19,41 as extended through
1942 6 While the respondent later submitted some counterproposals and the
parties were in substantial agreement as to terms in general, no agreement was
executed, as certain matters concerning wage rates were pending before the
National War Labor Board which were not decided until early in April 1944.
Thus, from the beginning of 1943 until a general agreement was again signed in
October 1944 after the strike,' there was no signed agreement. However, it is
clear that the parties continued to work under the conditions previously estab-
lished by agreement and, upon occasions, the 1941 agreement as extended and the
Union's proposed 1943 agreement would be referred to when questions concerning
conditions of employment arose. In short, while both the respondent and the
Union considered that the Union had a closed-shop contract, and dealt with each
other on that basis, no written contract had in fact been executed.'
In addition to their general agreements, discussed above, the i espondent and
the Union have executed from time to time agreements covering piece rates and
conditions of operation, including the replacing of enamel, on certain specified
types of ranges Under such agreements as were received in evidence, it would
appear that the responsibility for replacing damaged pacts during the pericd when
5 An agreement signed January 1, 1940, had contained an almost identical provision
It is the above quoted provision which respondent contends was in effect at the time of the
strike and was violated by the strikers
6This proposal contained an almost identical article on the employment of union
members, and an identical article on the settlement of disputes There is no contention
that failure to give timely notice of desire to change the 1942 agreement automatically
extended it through 1943
' This agreement, much more detailed than any of its predecessors, was signed October
25, 1944, effective fioni September 1, 1944, to December 31, 1944 It has been extended
with modifications as to wages and is now in effect.
s Although the evidence clearly shows that the respondent and Union considered that they
were working under an agreement during the above discussed period, there is no con-
filet in the testimony as to the absence of a signed agreement Thus, the Union's presi-
dent, Eugene Ehrhard, testified that, while no agreement was signed, they worked on the
basis of "an understanding between the firm and its " Similarly, the respondent's presi-
dent, John E Russell, testified concerning the period. 1943 to October 25, 1944
There was no contract during the interval except by general agreement and under-.
standing as to what our piactices were.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the range was being assembled was entirely on the employees ° However, regard-
less of such prior agreements, it is apparent from the uniformity of the testimony
that the actual practice concerning the changing of enamel, for at least a sub-
stantial period prior to April 11, 1944, had been for the mounters on the lines who
were engaged in the assembly of the various ranges to change only such enamel
on their own time as they chipped or damaged through their own fault, and for
the respondent to have defective enamel or enamel which chipped or cracked
through no fault of the linemen, who worked on a piece work basis, changed at
the respondent's expense by employees not working on a piece work basis. Fur-
ther, for sometime prior to the dispute of April 11, it is evident that on the F line,
which was under the supervision of Foreman Albert Manning, the foregoing
practice was very liberally interpreted, and much, if not all, of the enamel dam-
aged even through the fault of the assemblers themselves was being changed by
an apprentice at the respondent's expense.10
2 Labor disputes during early 1944
Two or three days before February 25. Jesse Wasson, the Union's steward in
the F department,11 reported to President Ehrhard that two women employees in
that department, Mary Moore and Virginia Proffer, were making reports to
Manning on the conduct of other employees in the department 12 Ehrhard told
Wasson that he did not think that anything could be done until it was known
whether or not the accusations were true Thereafter, about 9 o'clock, Ehrhard
was called from his department and met the employees of the F department as
they were walking out in a body, apparently without previous warning to any
one.13 Ehrhard asked what the trouble was and was informed that the employees
were being watched too closely and that the two women were "snitching to the
foreman everything going on."
° Two such agreements , one dated September 5, 1933, a nd the other January 1, 1937,
were introduced in evidence . Both were of indefinite duration . As to changing enamel.
the 1933 agreement covering piece rates and conditions on AE ranges provided :
Also , as has been the custom on the day work basis , the mounters will replace the
fronts when defective or chipped , until the range is turned over on the line and will
replace the ends when defective or chipped until the range is ready to have top put on
The January 1, 1937 , agreement contains the following piovisions as to the piece price
set for the complete mounting of all types of AE and AB ranges :
Included in this price , the mounters will replace all front castings when defective
or chipped until the range is turned over on the line and will replace the ends when
defective or chipped until the range is ready to have the top put on , and will replace
any defective or chipped bottom bands , and corner pons until the iange is accepted
by foreman or inspector.
10 The above finding as to the F line practice is based upon testimony given by Manning
who was called as a witness for the respondent . Manning had worked on the F line
himself and had been a member of the Union for about 20 years before becoming foreman
of the F department on October 1, 1943.
11 This department , tinder Foreman Manning , then had a total of 33 employees, of
whom 9 of the 11 coin plainants herein constituted the assemblers or mounters on the F
line. Their work consisted essentially of putting the parts of the F type kitchen iange
together with nuts , bolts and screws . The remainder of the 33 employees did various
other types of work in the department , such as sub-assembly work preparatory to the
work of assembling the ranges on the F line.
13 The complaints were that these two women were reporting to Manning whenever
employees "stood and chewed the rag" for a few minutes and that Manning thereupon
would come right over to where the employees were standing, and that these women also
looked up under the partition in the women ' s rest room to see if any smoking was
taking place outside of the regularly permitted period.
13 Nothing said hereinafter should be interpreted as condoning this action of the F
department employees taken so shortly after the department 's steward had reported the
alleged grievances to the Union ' s president
MAJESTIC MANUFACTURING COMPANY 957
Ehrhard immediately went with a union committee to the office of Gilbert S.
Morley, the respondent's production manager, explained the situation to him,
and asked Morley for permission for the Union's Executive Board to meet with
the whole F department to try to settle the matter. Motley granted this per-
mission and a meeting was held. At this meeting the two accused women were
questioned and while they admitted certain occurrences they claimed that these
were "just coincidental" and that they "did not snitch to the boss." The em-
ployees decided that they would not work with the two women and this decision
was reported by Ehrhard to Morley. Morley asked if there was any objection
to the two women being transferred to another department. Ehrhard returned
to the F department employees and put M'lorley's question to them. The em-
ployees objected to such a transfer on the grounds that the two women would
do the same thing in any other department. Ehrliard then retui ned to Morley's
office and stated the position of the employees. Morley agreed that Friday
afternoon to discharge Moore and Procter and thereafter did discharge them.
The F department employees were told to return to work on Monday, February
26, and on that day operations were resumed Evidently none of the F depart-
ment employees was disciplined either by the Union or by the i espondent for
walking out on February 23 and the evidence on this episode, in the opinion
of the undersigned, shows that the officers of the Union acted diligently, and in
cooperation with the respondent, in dealing with a labor dispute which arose
out o1' suspicions of employees about two fellow eniployees and their foreman "
On March 31, the mounters on the F line began i omplaniing to Manning that
some of the nuts nn ould not fit on the bolts and bed sharp corners which were
cutting their fingers. Some of the men did get "cut fingers" which were "backed
up a little " Eventually the F line mounters quit work and started going
around the plant. The move to stop work spread until the stoppage became
general President Ehihard sent for the Union's International Secretary-
Treasurei, Edward Kaiser, who. upon his ai rival, tried to discuss the matter
with the employees, who were also dissatisfied with the delay in the National
War Labor Board's proceedings involving their rates of pay. The employees
aigued with Kaiser and "would not give him a chance to even speak." 10
Ehihard, other members of the Union's committee, and Kaiser then went
to Morley's office and asked "petmisston to call a holiday' that afternoon in
eider to discuss with the employees the nut and bolt situation and the reasons
Ion' the delay fit the decision of the National War Labor Boar d This permission
nn as granted and a union meeting was held all that aftei noon. This meeting was
adjourned until the next day, Satuiday, April 1, and continued all that day
until about 6 o'clock that evening The respondent's watchman was then notified
later that en erring that the employees would be ready to return Monday, April 3,
but the infoi maition was not relayed to the proper authorities of the respondent.
"No attempt is made herein to determine what justification, if any, there was for such
sasprrions Manning denied that either of the two women had been "stooges or snitches
It should be noted that Mosley testified that after the discharge of Moore and Proffer it
request nas made of hint by the Union that two other women be discharged , that he refused
to do so and told the committee that he had made a mistake-in discharging Moore and
I'rotler. and that none of the employees left their Rork on the latter occasion.
it Manning so testified. However, Manning also testified that the men might have
wrapped 1o1ie tape around their fingers and kept on woikrng as had been done before. An
F line mounter, John Faltsehree, testified that nuts and bolts had been getting gradually
worse and had sharp corners on them which, when the nuts stuck on the bolts, would spin
and cut the worker's fingers and that eventually the men said that they could not work
because the nuts were tearing their fingers to pieces The same kind of nuts were being
used throughout the plant without complaint before the protest arose on the P line.
1" Ehrhard so testified.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while some employees resumed work on April 3, at least some of the stove
mounters did not. However, they returned shortly thereafter when they were
informed that new nuts bad been secured, such nuts having been borrowed by
the respondent from a competitor. Again, there is no evidence that any dis-
ciplinary action against any of the employees who stopped work on March 31
was attempted either by the Union or by the respondent The undersigned is
of the opinion that the evidence as a whole shows that the officers of the Union
with the cooperation of the respondent acted diligently in handling a labor
dispute which arose spontaneously among employees who were dissatisfied with
conditions of employment iz
Prior to the strike of April 12, discussed below, grievances on the part of
two welders in the machine shop who are complainants herein, John Miles and
Timothy Courtway, had arisen and had not been fully adjusted About the
middle of March, Miles, the shop steward in his department, complained to the
machine shop foreman, Albert Sebifterdecker, and to Morley about the con-
dition of two so-called emery wheels, one of which Miles said caused too much
vibration on the wooden floor next to his place of work As to the other wheel,
Miles complained two or three times that its operation produced too much dust
The first wheel, a grinding lathe with an eatery wheel on each end, was torn
down and new bushings put in. However Miles felt that this (lid not do much
good. Thereafter this wheel was shut down As to the second wheel, a belt
driven sander, a guard was placed on it for protection and Miles was informed
by Morley that the respondent would endeavor to secure an individual dust
collector for that wheel. Because of war conditions, the respondent experienced
difficulty in securing such new equipment, while Miles desired prompt action
It should be noted that the conditions pertaining to the wheels were not satis-
factorily remedied until after the strikers had returned to work, when both
wheels were moved to new positions in the plant where the one creating the dust
nuisance could be connected to the plant's already existing dust collecting
system.1e
C. The dispute of April 11, 194!i
About 8 o'clock on Tuesday, April 11, a dispute on the F line arose between
Foreman Manning and mounter Dunlap over the completion of a range which
Dun'ap had worked on the day before.19 This caused what Manning character-
ized in his testimony as "another discussion " -0 Shop steward Wasson was
17 The findings in the above paragraph are made upon the undersigned's analysis of the
testimony of six witnesses, Ehrhard, Manning, Russell, Morley, Kaltschnee, and Hai ri
Haug, an employee of the respondent, financial secretary-tieasurer of the Union, and a
member of its executive hoard The testimony of these six witnesses is essentially supple-
mentary rather than contradictory.
is The above findings are made upon the undersigned's analysis of the testimony of
Morley, Miles, and Schiffeidecker
19 According to Manning, Dunlap refused to set some top plates eehicli Manning did not
consider so crooked as to be unusable Dunlap did not testify According to Haug ei to
was called in as the union representative, it was a broken enamel end which Dunlap refused
to change because he d.d not feel that the breakage was his fault it is unnece9sary to
resolve this conflict, since on either version it was a iefusal on Dunlap's part to follow
Manning's instructions which precipitated the dispute of Api it 11
10 The other discussion arose in relation to a previous incident as to which Manning s
and Haug's testimony is in partial conflict. However, from their testimony it is evident
that sometime previously one of the mounters broke a cast iron pact of a iange when the
range was nearly completed Haug was called in on the dispute eehich thereupon developed
between Manning and the mounter as to whose responsibility it e.cs to replace the broken
casting' A compromise was reached whereby an apprentice woiked with the nioeuiter in
replacing the casting and completing the stove
MAJESTIC MANUFACTURING COMPANY 959
called in on the dispute between Manning and Dunlap, and Manning told
Wasson:
I have changed all of your enamel up to now regardless of how it is broken
and you are breaking a lot of cast iron pieces I have been taking off too,
and the apprentices are absolutely working over here all day and I cannot
allow it for it is costing too ilsuch s: * * you are going to have change
your enamel if this continues, if you do not cooperate with me 21
As Manning testified, the situation "caused a general discussion on the line."
Ehrhard and Haug both came to the department and discussed the matter with
Manning. About 9 o'clock, a union committee and Manning went to Morley's
office, where a conference took place. By or before 11 o'clock, work on the line
ceased completely, although the men remained to the plant the rest of that day
for a conference between management and the Union which took place on the
F line that afternoon. At the time work ceased, there were 19 ranges on the line,
1r3 of which had the enamel broken at the point where a screw fastens the upper
rear corner of the left end panel to the frame of the range This extensive break-
age of the same panel, identified by the stock number, F 2'W, in the same place,
had evidently occurred in the period immediately preceding April 11 and on the
morning of April 11 and was entirely out of proportion to plant averages for
enamel breakage.22
21 The above quoted matter is from Manning's testnony
It is the respondent's contention that all of the 13 pieces of enamel were broken on the
nioiunig of April 11 and that after Manning took the position lie did that morning "the
inen brought the issue into prominence by breaking, either deliberately or carelessly, 13 ends
on 19 ranges " It is evident fiom Manning',, above quoted statement to Wasson that
bt sometime shortly after 8 o'clock on April 11 the question of changing broken enamel
had become a significant problem in Manning's Hind Ac(ouhng to John Siemer and
John Kaltschnee, two F line mounters who were called by the Board, the enamel at
the upper rear corners of left end panels had been breaking more ficquently than usual
±or some days before April 11 when the screw in that corner, the last one of six sciews
usually inserted, was tightened It is noteworthy that according to Manning's testimony,
his statement to Wasson "caused it general discussion on the line" on the morning of
April 11 Also a committee of the Union, including one or two F line niounters, met
shortly after 9 that morning with Morley in his office and Manning met with them
It was Manning who testified that no work was performed on the F line after 11 o'clock.
In contrast, Siemer testified that work stopped that morning after about an hour and
a half, or around 9 o'clock, when the men leas ned of the position Manning had taken
concerning changing enamel It is undisputed that when Rork did cease, there were on the
line 19 ranges, on 13 of which the enamel was bioken on panel F 207 Since it takes
mbout one hour and 35 minutes to complete it u nge, to complete if) ranges would re-
quire about 30 man hours of work Hence, ton the 9 assemblers to have completed 19
tang" that morning would have required the substantially uninterrupted efloits of all 9
of them fiom starting time at 7 30 until about 11, o clock that morning However,
it is clear that work was nteriupted, at least to some e'Lent, beginning sometime afer
8 o'clock and that Manning was out of the department for a period beginning about 9
o'clock Further, the tespondent's records on bioken enamel which were produced at the
hearing are compiled at irregular intervals, whenever Manning checks the truck upon
which broken parts are placed The last such check made piuir to April 11 was made
on April 7. It covered the period beginning March 30 and ending April 7 During that
period, a considerable part of which the department Ras not tit o,,e a,ion because of the
above discussed stoppage beginning on March 31, there were 4 pieces of the F 207 panel
broken Since no check was thereafter made during the intervenin , i eriod before April
11, naturally no broken pieces of the end panel in question wear ecoided for April 8
or April 10, April 11, falling on Sunday. From fits consideration of all of the evi-
dence, the undersigned is convinced that some of the 13 broken left end panels on the 19
ranges on the line after work had stopped on Apui 11 had been broken (luring work
on those tanges performed before the morning of April 11. However, whenever the 13
faeces were actually broken, there can be no doubt that the bieaka:e of the panel here
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the conferences on April 11 between the Union and the respondent
which took place, first on the F line, then in Motley's office, and then again on
the F line, the respondent took the position that it was the fault of the mounters
that the enamel was breaking and that the men would have to change all of the
enamel. The Union took the position that the breakage was not the fault of the
men and that it was the respondent's responsibility to change it. During the
afternoon conference on the F line, there was extensive discussion of what was
causing the breakage and several proposals were made as to how it might be
avoided, including the proposal of leaving out the screw in the upper rear corner.
During this afternoon conference, Morley displayed a 1939 contract between the
respondent and the Union which required the mounters to replace all enamel
chipped or broken in the process of assembly.2a While the 1939 contract thus
exhibited clearly covered ranges no longer being inanufactuted,24 during the dis-
cussion Morley's stereotyped answer to questions addressed to hint was that the
Union would have to live up to that contract on changing enamel25
From Morley's admitted emphasis on the provisions of the 1939 agreement,
and from the consistent and credible testimony of several Board witnesses
that the respondent took the position on April 11 that the mounters would have
to change all damaged enamel on their own time regardless of how the damage
was caused,2' the undersigned is convinced and finds that the respondent on
April 11 did in fact take the foregoing position concerning, the responsibility for
changing enamel, and that this position constituted a clear change in the
under consideration was extremely high in ielatmn to previous hieak.rge The iesiond-
ent's records for the entice F depart merit show that univ (;3`•pieces or this same panel
had been broken in the piecedmg period of more than 3 mouth liom January 1 to April 7,
during which period 2 737 F ranges had been a,sembled At, to whether.the large
amount of breakage appeasing on April 11 was due to dehbinatenesr. or carelessness on
the part of the men or to defects in of maltoruialion of ni,itciiii, the conlradictosv evi-
dence is not conclusive It is clear that enamel i.in be hioken bi dunvnig up screws
too tightly and there are seveial fact,iis ni ilie .ituation whn.h could have, and evi-
dently did, lead Russell. Morle' and Manning in ,hoiiii Iii then testonony to suspect
that either carelessness or deliberateness on the pail of n;mie sit the eniplo^ees was a
substantial factor in causing the bieakage In ant event it is clear that at no time on
April 11, or at any time thereafter, were any of the striking mounters or the Union in-
formed that they were being disehaiged toi bicakiirg enamel either caielessly or delib-
erately. Hence, while this extensive enamel Ineakage was a ]actor entering into the re-
spondent ' s considerations during negotiations following the strike, the respondent did
not dicharge any of the mounters for this bie.ikage, whatever the respondent's suspicions
may have been.
23 When Morley first testified as to this agreement on dnect examination he described
its provisions as follows
This agreement stated that it was the linemen's responsibility to replace chipped or
broken enamel from the starting jig to the crate In other words, that was covering
the period of the time that the assemblers were working on the range Haug testified
that the contract which Morley exhibited on April 11 required the mounters to change
all enamel no matter how it was broken, and Ehriiard corroborated that testimony
While the agreement thus exhibited by Morley could not be found at the time of the
hearing, it is apparent that its provisions were similar to those of previous contracts
cited hereinabove.
"President Russell , who took no part in the April 11 conferences , testified that the con-
tract which Morley informed him that lie showed to the men covered AE and AB ranges
which had been discontinued before September 1940 ; those ranges had in turn been suc-
ceeded by the IR range which also had been discontinued
25 For instance , in reply to the question as to what he had said when a mounter had asked
him whether, under one of the proposed procedures, the niounters would have to change
enamel if it were broken through no fault of their own , Morley testified .
I think niy stereotyped answer was, "You will have to live up to the agreement
26 Ehrhard , Siemer , Kaltschnee , and Haug so testified
MAJESTIC MANUFACTURING COMPANY 961
respondent's general policy thereon and an especially sharp change as to the
practice on the F line." As to the 13 broken panels on the 19 ranges, the respond-
ent insisted that the mounters would have to change them while the Union insisted
that the men were not responsible for the breakage. Thus, when the mounters
left at the end of the day, this specific question as to changing the 13 already
broken panels, as well as the question of general policy as to changing enamel,
remain unresolved "
D The strike of Api i,l, 12. 1 ltli, and neyotiattons thereafter
On the morning of April 12, the F line mounters assembled at the plant gate
where they met Ehrhard and asked him if there had been any change in the
respondents position. Ehrhard replied that he did not know of any change At
that juncture, Miinning came down the street and Ehrhard asked hint if there
had been any change in the respondent's position. Manning replied that he aid
not know of any. The mounters thereafter did not go in to work because they
were unwilling to work on the respondent's terms that the niounters would be
responsible for changing all enamel damaged during the period when ranges
were being assembled. The undersigned finds that by their actions on the morning
of April 12, the nine mounters on the F line engaged in an economic strike because
the respondent had altered its customary practice concerning changing enamel.
About 9 o'clock on the morning of April 12, the remaining two complainants,
the two welders in the machine shop whose grievances had not been satisfactorily
adjusted, left their work. The undersigned finds that by so doing, these two
welders joined the strike.20
At 4:36 on the afternoon of April 12, the respondent sent to each of the 11
strikers identical telegrams which read as follows:
PLEASE REPORT FOR WORK TOMORROW THURSDAY MORNING Olt
PRESENT SATISFACTORY EXCUSE IF YOU FAIL TO COMPLY WITH
THIS REQUEST YOUR NAME WILL BE REMOVED FROM OUR PAY-
ROLL AND SOME ONE ELSE WILL BE HIRED IN YOUR PLACE.
MAJESTIC MFG CO.
On the morning of April 13, at least one of the strikers came to the plant.
Upon learning from Ehrhard that there had been no change in the respondent's
position, such strikers as came did not report for work. At 9: 40 a. in. on April
2' In making the above findings, the undersigned has considered, but does not believe,
testimony of Morley and Manning to the effect that they did not take the position on April
11 that the mounters would have to be responsible for changing all enamel
Ytl The above finding is made upon the weight of the evidence. For instance, Manning
gave credible testimony that no decision was reached on April 11 as to who was responsible
for changing the 13 ends , that part of the argument was to find out who had to change
them ; and that, "We figured they should have changed them" while "they figured they did
not have to change them " Similarly, Siemer testified that no agreement whatever was
worked out with the respondent that afternoon on the F line Eventually Manning himself
changed most of the broken panels on the following day. It should be noted that Morley
testified that during the conferences of April 12, no question was raised as to breakage
being caused by negligence, incompetence, or wilfulness on the part of the mounters
29 The undersigned deems it unnecessary to resolve the contradiction in the evidence cre-
ated by Machine Shop Foreman Schifferdecker's denial of Shop Steward Miles' testimony
that, before he and Courtway left the plant, he again took up with Schiffeidecker, without
satisfaction , the question of dust collecting equipment for the emery wheel discussed
above , since it is clear that the two welders then had unsettled grievances , that they
actually did go on strike ; and that the 2 welders and 9 mounters were thereafter treated
as one group of 11 strikers in the negotiations which followed.
670417-46-vol 64-62
,962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13, the respondent sent a telegram to the International office of the Union, which
usually supplied replacements, requesting nine assemblers and two welders "to
replace workers who have quit" and stating that if the Union was "unable to
supply the help requested within three days," the respondent would be "obliged
to supply its own relief " Russell also talked with Kaiser by telephone concerning
replacements and Kaiser informed him that the Union had no men it could send
and did not know when it could get any Thereafter, the respondent made other
attempts to secure replacements, but was unable to do so. At no time was any one
hired to fill the position of any striker. The entire F department was closed
from approximately the inception of the strike until operations were resumed on
May 16 when the strikers returned 30
On April 13, Morley sent for the Union's committee and intoimed the commit-
tee, which included Ehrhard and Haug, that a meeting had been arranged for
Saturday morning, April 15 " Ehrhard told Morley that "the men were ieady to
come back to work any time they changed that ruling." Morley made no reply.
The undersigned is convinced and finds that at no time on April 13, or during
the negotiations thereafter, did the strikers offer to ieturn unconditionally upon
the basis of the respondent's altered practice of April 1] concerning changing
enamel."
On Friday, April 14, when the strikers were handed their respective pay checks,
each was handed an employee's copy of a NOTICE OF SEPARATION on the
standard form of, the Unemployment Compensation Commission of Missouri.
These notices of separation bore the signature, J. E Russell, President, and were
dated as issued on April 13, 1944 In the space on the form reading "Date of
Separation" was inserted "April 11. 1944" Of the four statements provided for
checking to show "Reason for Separation," the one which was checked read. 'Quit
voluntarily without good cause." In the space provided for `Explanation" was
inserted the following:
30 Manning testified that he thought it was on the evening of April 11 that he laid off
the sub-assemblers in the F department, telling them that they were being laid off until
further notice, and that during the intervening period only a few laborers came in to do
such work as unloading enamel.
31 The undersigned is of the opinion that a Conciliator of the United States Department
of Labor, C A LaValley, who thereafter attended the meeting of April 15, and who had
been called In from time to time by both the respondent and the Union during the labor
disputes earlier that year discussed above, was instrumental in arranging this meeting.
President Russell testified that on April 12 and 13, the respondent had been in contact
with LaValley about the situation, and Morley testified that he thought that LaValley
had arranged the meeting. '
31 Counsel for the Board sought to prove that unconditional applications for reinstate-
ment of the strikers had been made upon several occasions, the first of which was at the
above meeting of April 13 The evidence does not establish any such unconditional appli-
cations for reinstatement. Morley testified that lie could not recall being told on April 13
that "the men were willing to cone back to work under a status quo condition " The
above finding as to Ehrhard's statement is quoted from credited testimony of Haug given
in response to a question by counsel for the Board Upon questioning thereafter by the
undersigned, Haug erplaincd that the strikers were ready to return if the respondent
changed the rule about their having to replace all the enamel while Ehrhard testified
that he told Morley on April 13 that "the men were ready to go back at any time under
the same conditions they left under," it is clear from his testimony on cross-examination
that the strikers were unwilling to return at any time under the new enamel iule of
April 11. Thus, Ehrhard admitted that on April 13 the men were not willing to return
"under the new order " He also testified that throughout the controversy the strikes s
were willing to return if the respondent would change its rule about enamel but that they
were never willing to return to work "if they had to change the enamel on their own
initiative."
MAJESTIC MANUFACTURING COMPANY 963
Left job and failed to report back to work after our telegraphic request fe
On Saturday, April 15, the previously arranged meeting was held in the office
of Production Manager Morley from about 10 o'clock in the morning unti14 o'clock
in the afternoon. In addition to the shop committee, Kaiser was present to repre-
sent the Union. Conciliator LaValley also attended In addition to Morley and
Manning, the respondent was represented by Plant Superintendent Kurtz and
one of its officers, Assistant Secretary and Assistant Treasurer Harrington, who
was representing President Russell, then out of the city. At this conference there
was considerable discussion as to who had been responsible for the breakage of
the enamel and how such breakage could be avoided in the future Kurtz also
brought up a number of matters which had occurred sometime previously for
which the Union disclaimed responsibility. There was also discussion of who
should be responsible for changing damaged enamel. Eventually it was agreed
orally that the respondent would return to its former general practice of hold-
ing the mounters responsible for changing only such enamel as was damaged
through their own fault, and that the respondent would be responsible for chang-
ing enamel damaged through no fault of the mounters Improved conditions as
to the welders, including installation of dust collecting equipment as quickly as
it could be secui ed, also were agreed upon during these negotiations 3i When
it appeared that an understanding had been reached concerning all pending mat-
ters, it was agreed that all the strikers would report for work Monday, April 17.
At this point, Harrington said that he had a technical matter that he wanted to
take up with President Russell upon his return, and that It would be better
to arrange for the strikers to report back Tuesday. Thus, the meeting of April
15 terminated in a negotiated settlement, involving concessions by the respondent
on the matters in dispute at the time the strike took place, and an understanding
that the strikers would resume work on April 18.
Instead of the strikers resuming work on April 18, a further meeting was
held between the Union and the respondent in Russell's office. At this meet-
ing the respondent's representatives of April 15 were augmented by Pi esident
Russell, Vice President Phillips, and the respondent's attorney, Robert T Lurch
The Union's committee included, among others, Ehrhard and Haug, and was
supplemented by Kaiser Conciliator LaValley also attended At this meeting
I'iesident Russell injected a new element into the situation by taking the post-
tiori that the strikers were no longer employees of the respondent because their
employee status had been severed. At this meeting the respondent's position was
essentially that the strikers would not be reemployed until an agreement had
been executed defining the responsibility for replacing enamel, piohibitiug strikes,
and providing for a grievance procedure and arbitration In pressing the respond-
ent's position, Russell stated that something would have to be done to eliminate
"In connection with the above, it should be noted that the three unchecked reasons for
separation were "Discharged for misconduct connected with work" , "Unable to work be-
canse of ph%sical condition" , and "Other (Explain) " Such terms as strike and labor dis-
pute are not presented for checking as reasons for separation, nor did the respondent inseit
iineli terms anywhere on the separation notices On May 2, 1944, after a representative
of the Unemnlovment Compensation Commission of Missouri had called at the respondent's
office and asked that such a report be filed, the respondent filed the regular commission
form entitled, NOTICE OF LABOR DISPUTE The form thus filed on May 2, upon re-
quest of the Commission, gave notice of a "labor dispute" on April 11 involving the It
loniplainants hcieui According to this form, it is required order law that said form be
bled by the einplor ce "unmedi,rtely after a labor dispute occurs "
"The finding as to agreement on conditions concerning the two striking welders, one of
lihom was piesent at this conference, is based upon credited testimony of Haug
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work stoppages. The Union insisted that their attoi ney would have to be present
to confer in drawing up any such agreement . Russell suggested that Morley and
Haug get together to "draw up something that would bind both parties on this
enamel question." n Thereafter, following the foregoing meeting and before the
next meeting which was held on April 21, Haug went to Morley's office and the two
drew up a statement concerning changing enamel which was thereafter sub-
mitted to the parties on April 21.
The next meeting between respondent and the Union took place on April 21
at the office of the respondent's attogney.ae Morley and Haug presented the pro-
vision which they had drawn up concerning -enamel.. This provision, set out
below, was acceptable to the parties." While the Union presented its proposals
for a general 1944 contract, it was agreed that no attempt would then be made
to negotiate a complete contract but that rather a supplemental agreement
would be drafted which would later be incorporated into a general agreement
At the end of the meeting such a draft was completed, and the Union agreed
to present it to its members for their approval Upon such approval, the strikers
were to return to work
The preface to the Supplemental Agreement drafted on April 21 stated that
the provisions thereof would be incorporated into an agreement for 1944 which
the parties were then "engaged in negotiating " The first article consisted of
the enamel agreement drawn up by Morley and Haug and a statement that
disputes arising as to breakage would be submitted to the grievance procedure
which followed The only remaining article, entitled "Grievance Procedure,"
provided in its general introduction that if differences of any kind should arise,
"there shall be no suspension of work on account of such differences " A
detailed grievance procedure, including provisions for arbitration, was then
set out in eight subdivisions. A ninth subdivision prohibited work stoppages and
placed in the respondent's hands complete authority to discharge striking em-
ployees. The language of this section read :
(i) It is mutually agreed and understood that during the period of this
agreement there shall be no strike, lock-out, cessation of work or any other
stoppage of work, pending the handling of any matter under this agreement.
The violation of this provision shall be grounds for discharge of any em-
ployee participating and any persons so discharged shall not be entitled
to reinstatement as a result of arbitration or otherwise.
Within a day or two alter the above conference. the Union held a meeting at
which the Supplemental Agreement, including arbitration procedure, was ac-
cepted, except for the above provision against strikes which was rejected
Shoitly thereafter Russell was informed of the Union's ,action. About this time
Russell and Kaiser discussed the situation by telephone Russell explained to
Kaiser that the respondent believed that it had to have a "plan of arbitration
and a no-strike clause" in order to stop the series of strikes which had been
disrupting work on the F line as
This quotation is from Haug ' s testimony
ao At this meeting the respondent was represented by Russell Morley a nd Burch The
Union was represented by a local committee of five , including Ehrhaid and Haug , by Kaiser
from the International, and also by its attorney , Herbert King
17 This provision read as follows
It is the lineman' s responsibility to furnish his o,vn labor free in replace broken
enamel and castings from the starting dig to the crate when such breakage is the result
of his own negligence , incompetence , or wilful misconduct otherwise the Company
will assume all responsibility.
as Russell testified that the respondent had taken such a position on the advice both of
its attorney and of Conciliator LaValley. Kaiser Burch . and LaValley (lid not testify
MAJESTIC MANUFACTURING COMPANY 965
On April 25, the Union wrote the respondent that, as had previously been
offered on April 13, 15, and 21, the 11 strikers, whose names were set out, were
"willing and ready to return to work under the same conditions they had worked
under before they struck" (Italics supplied.)" The letter further stated that
the Union intended to file charges with the Board to protect the strikers and
recover back pay "due them" as a result of the respondent's refusal to reinstate
the strikers on April 13 and at all times thereafter.
Under date of April 28, the respondent wrote a 3-page letter over the signature
of President Russell reviewing the negotiations beginning with the meeting of
April 18. At the outset, this letter stated, in response to the Union's inquiry as
to when the respondent would be ready to put the 11 complainants back to work :
As you know, these men are no longer employed by us.
In the closing paragraph the respondent stated that it remained willing to submit
to arbitration the Union's "claim that the 11 men should be reinstated" or to
`reinstate the 11 men with full seniority" upon the execution of the agreement
drafted on April 21.4°
On May 10, the Union, over the signature of Ehrhard, replied to the respond-
ent's letter of April 28, informing the respondent that charges had been filed
with the Board.41 The second paragraph of this letter stated the Union's position
on the employment status of the strikers in the following language :
We do not agree with you that these eleven (11) men are no longer employed
by your Company, but, on the contrary, we take the position that they are
still your employees, and, from the date they offered to return to work, we
are expecting you to pay them for all loss of time at their regular rate of pay.
In this letter, the Union also stated that it was ready to begin negotiating an
agreement for 1944, and therewith enclosed a copy of its proposed contract 42
39 It has been found above that the mounters were never willing to return upon conditions
imposed by the respondent at the time they went on strike , and that on April 15, a nego-
tiated settlement was reached providing for a return to the practice which existed before
the strike At the time the above letter was written, this general before the strike practice
as to enamel had been spelled out in writing in the proposed supplemental agreement of
April 21, but the Union ' s letter of April 25 made no reference to the Union 's action on that
agreement Nor did the letter propose any further negotiations . It pertained solely to
reinstatement of the strikers and was signed by Ehrhard.
90 The respondent sent a copy of the above letter to LaValley.
41 The formal file in the instant matter shows that a charge was filed on May 1, 1944. It
alleged that because of a labor dispute a strike had occurred on April 12 ; that on April 13
the strikers had offered to return to work under the conditions which had existed "prior
to the strike " ; that on April 15 and thereafter the respondent had refused to reinstate
the strikers under conditions existing "prior to the strike" ; and that at all times since
April 13 the strikers had been willing to return under conditions existing "prior to the
strike ." The first amended charge of December 26, 1944, upon which the complaint herein
is based , alleges discharge of the 11 named strikers on April 13 ; an offer of reinstatement
on May 12 to begin work on May 16 ; and failure to reimburse the strikers for loss of pay
suffered.
42 This proposed contract was a revision by the Union 's attorney of the proposals first
submitted by the Union on April 21, the day it was agreed to work out a supplementary
agreement on immediate matters before attempting to negotiate the remainder of the con-
tract. It should be noted that in the meantime the National War Labor Board had acted
early in April on wage matters , the pendency of which had delayed the signing of an agree-
ment. The Union 's revised proposal thus submitted on May 10 contained a provision like
Article I on enamel breakage in the April 21 supplement and also a provision like Article II
on grievance procedure in the April 21 agreement except that the final section, ( i), quoted
above , prohibiting work stoppages and giving the respondent absolute rights as to dis-
charging strikers , did not appear . It should be noted that the general agreement later
signed on October 25 , 1914, effective as of September 1, 1944 , and presently in effect with
modifications only as to rates of pay, contains the identical language of April 21 as to re-
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent, over Russell's signature, acknowledged the Union's foregoing
letter by a letter dated May 12, in which the respondent stated that it would sub-
mit its contract proposals in a few clays and would "be very glad" to meet to
discuss the contract. This letter also stated that since the Union's proposed
contract contained "provisions for grievance procedure and arbitration," the
respondent assumed that contract provisions on this subject would be worked
out which would be "mutually satisfactory" and had decided "to offer reinstate-
ment to the eleven men mentioned in your letter." A copy of a letter being
forwarded that salve day to each of the 11 strikers was enclosed"
The body of the respondent's letter of May 12, which was sent individually
to each of the 11 strikers, read as follows.
You are hereby offered reinstatement to your employment with this
company under the same conditions which existed at the time you left work.
Please report for work Tuesday, May 16, 1944, at 7: 30 A. Al.
In response to the above letter, eight strikers reported for and resumed work
on May 16, and two others reported for and resumed work sometime shortly
thereafter. The remaining striker has never reported for work." The conditions
about which the welders had protested were remedied shortly after their return.
Immediately upon the return of the mounters, the metal screw was left out of
the upper rear corner of the left end panel, the corner at which the enamel on that
panel had been breaking (luring the period shortly preceding the strike That
screw was still being left out at the time of the hearing. The practice as to
changing damaged enamel which has been followed since the return of the strikers
is that which had been generally followed prior to the change instituted on
April 11.
E. Concluding findings
Upon his analysis of the contentions of the parties as in the light of the facts
hereluabove found, the undersigned makes the following concluding findings
The strike of the 9 mounters which started on April 12 was occasioned by
the respondent ' s change on April 11 in its practice as to replacing damaged
enamel . The mounters were joined on April 12 by two welders who had un-
settled grievances . The strike was thus an economic strike of 11 employees
While the strike was not called by the Union , the Union, as it had done in pre-
vious situations involving spontaneous work stoppage , undertook to reach a
settlement of the labor dispute causing the strike While no unconditional ap-
plication for reinstatement under conditions existing at the time the employees
struck was ever made, a negotiated settlement of the issues precipitating the
strike, which involved concessions by the respondent , was reached at the meeting
sponsibility for replacing broken enamel, and a grievance and arbitration procedure similar
to that provided in the Apiil 21 propo'al except for the final provision quoted above which
the union membership rejected shortly after April 21. However, the following provisions
as to work stoppages and discharge of employees are contained in Article XVII of the
current contract
Section 5 The UNION agrees that dunng the terns of this contract there shall he no
strike, Blowup, sit-down, holiday (other than those specified herein), sympathy strike,
stoppage of work, or any other torm of interference with production or other operations
of the employer. Any individual or group taking part in or responsible for violating
the foregoing provision may be discharged
Section 5 The COMPANY agrees there shall be no lockout (luring the term of this
Agreement
43 The respondent sent a copy of its letter of May 12 to the Board' s Regional Office.
"This individual has gone into business for himself
11 See the section entitled, "Introductory Statement."
MAJESTIC MANUFACTURING COMPANY 967
of April 15 How•e\ er. on April 18, when the men were to have returned' to work
according to the settlement of April 15, the respondent failed to resume opera-
tions and injected into the situation the untenable contention that the strikers
were no longer its employees. It is evident from the negotiations and the cor-
respondence which followed that the delay in resuming operations resulted in
large part from the Union's justifiable refusal to accept the respondent's position
that the strikers were no longer its employees When the respondent abandoned
this contention and offered reinstatement to the strikers, work was forthwith
resumed and negotiations went forward which resulted in a signed agreement
which was mutually satisfactory
While the series of strikes in the F department afford a reasonable basis for
the respondent's desire to secure contract provisions for the settlement of dis-
putes without work stoppages, there is nothing in this case to justify the re-
spondent's discharge of the strikers46 In fact, the respondent contends that it
did not discharge the strikers, although the facts clearly establish the contrary.
In any event, it is apparent from the respondent's telegrams of April 12 to the,
strikers, requesting them to report for work the, following day, that the respond-
ent did not then consider the strikers undesirable as employees because of any
previous actions Further, it is evident from the separation notices, given the
stiikeis with their pay checks on April 14, that the respondent was separating
said strikers from its pay roll solely because they remained on strike. That
the respondent was then taking the erroneous position that these men were no
longer its employees because of their failure to return as requested, rather than
that a labor dispute was in progress. is apparent also from the fact that the
respondent failed to file a Notice of Labor Dispute with the Unemployment Com-
pensation Commission of Missouri until requested to do so, about 21 weeks after
the separation notices were given to the strikers, although such a form should
have been filed immediately In addition, it is clear that throughout the nego-
tiations beginning with the meeting on April 18, and continuing until its letter
of May 12. the respondent took the position that the strikers were no longer its
employees and sought to use this erroneous position to gain concessions from
the Union. It is undisputed that no striker was ever actually replaced. While
under the 1llackuy case," the respondent in the economic strike involved herein
would have had a right to replace the strikers in order to continue its operation
of the F department, having been unable actually to make such replacements,
the respondent could not, simply by its own fiat, declare the positions vacated
and the strikers no longer its employees. Section 2 (3) of the Act provides that
the term "employee" shall include "any individual whose work has ceased as a
consequence of, or in connection with any current labor dispute " The re-
spondent 's error in the instant matter was in attempting by unilateral action 48
4e The facts in this case are clearly distinguishable from the facts in cases cited by the
respondent in support of its contention that the strikers herein were subject to discharge
because of the unlawful nature of the strike . Further , it should be noted that since the
strikers have already been offered reinstatement , there is no question in the instant matter
as to* whether the strikers engaged in activity which would warrant the respondent in
refusing them reinstatement . Contrast , for instance, the facts as to the strikes in the
instant matter with the facts as to the strikes in such eases as the following cited by the
respondent . Matter of The American News Company , Inc, 55 N L R B 1302; N L R B
v. Fansteel Metallurgical Corp., 306 U. S. 240 ; and Southern Steamship Co v. N L. R B.,
316 U. S 31.
4Q N L R B . v Mackay Radio i Telegraph Co, 304 U. S. 333
48 Whatever is assumed as to the existence of an oral contract in April 1944, it is clear
that any provision thereof, to the effect that "both parties are to continue operation In the
usual manner pending settlement " of any labor dispute, did not provide for the discharge of
striking employees , as does the current agreement signed by the parties in October 1944
'68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to terminate the employee status of the strikers whose work had ceased in
connection with a current labor dispute and in thereafter attempting to gain
concessions from the Union upon the basis of this erroneous position.
The undersigned finds to be without merit the respondent's contention that the
strikers ceased to be employees because by striking they violated their contract.
While it is evident that the respondent and the Union operated after 1942 on the
assumption that they were under an Oral agreement, no written agreement had
been signed. Further, assuming an oral agreement to have been in existence,
this agreement provided that "both parties" should continue to operate in the
usual manner if case of disputes. From the facts set out above concerning the
inception of the strike of April 12, it is clear that the respondent first violated
any such provision of any oral contract by changing on April 11 its traditional
practice as to replacing broken enamel. In addition, in the instant matter, in
contrast to the Sands case cited by the respondent,49 the Union was not insisting
that the respondent operate under conditions at variance with provisions of any
then current contract, since the contract of 1939 as to replacing enamel shown
to the mounters by Morley on April 11 applied to ranges no longer being produced
and since the general contract of 1941 as extended through 1942, which the re-
spondent claims was still in effect as an oral contract, contained no provision
as to replacing enamel.
The undersigned also finds that the respondent's contention that the strikers
ceased to be employees because they violated provisions of the War Labor Dis-
putes Act 60 is without merit. It is provided among other things in Section 8 of
that Act that for 30 days after notice of a labor dispute is given "the contractor
and his employees shall continue production under all the conditions which pre-
vailed when such dispute arose, except as they may be modified by mutual agree-
ment or by decision of the National War Labor Board." The manner in which
the labor dispute herein was precipitated in response to the respondent's changed
enamel practice of April 11 confronted the Union with a spontaneous strike which
it did not call and which it thereafter attempted to settle. However regrettable
the strike may have been, the undersigned finds nothing in the War Labor Dis-
putes Act, or in the decisions of the National Labor Relations Board which would
warrant withholding from the complainants in the instant matter the protection
to self-organization provided by Congress in the National Labor Relations Act.
Finally, as to the decision of the Fourth Circuit in the Draper case,°' cited by the
respondent, it should be noted that the decision in that case evidently turns upon
the finding that a minority of the employees in the appropriate unit was attempt-
ing to usurp the collective bargaining prerogatives of the Union which was the
duly designated bargaining agent in the unit, and that to permit such usurpation
would disrupt the fundamental bargaining process which the Act seeks to protect.
In the instant matter, the strikers did not attempt to usurp the bargaining pre-
rogatives of the Union. On the contrary, the Union, through its duly designated
committees and officers, took up the grievances of the striking employees and
negotiated said grievances until a settlement was eventually reached.
Upon all of the foregoing, the undersigned concludes and finds that the
respondent, by discharging the strikers, by taking the untenable position on
April 18 and thereafter that the strikers were no longer its employees, and by
seeking to utilize the reemployment of the strikers, which it had no right to
withhold after the strike had been settled, as a leverage to give it additional
bargaining power, discriminated in regard to the hire and tenure of employ-
49 N L. R. B. v. Sands Mfg. Co., 306 U . S. 332.
60 57 Stat. 163.
61 N. L. R. B. v. Draper Corporation, 145 F. (2d) 199 (C. C. A. 4).
MAJESTIC MANUFACTURING COMPANY 969,
ment, and terms and conditions of employment, of the 11 complainants herein,"
and by so doing, interfered with, restrained and coerced its employees in the-
exercise of rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondent set forth in Sec-
tion III above, occurring in connection with the operations of the respondent
described in Section I above, 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.
0 V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and take certain
affirmative action which the undersigned finds necessary to effectuate the
policies of the Act.
Having found that the respondent has discriminated in regard to the hire
and tenure of employment of James Wasson, Harry Reitz, Jesse Wasson;
George Hoffmann, John Kaltschnee, John S-chappacker, Lawrence Dunlap, Bud
Calloway, John Siemer, James Miles, and Timothy Courtway by discharging
them, the undersigned will recommend that the respondent make whole the
foregoing 11 named employees for any loss of pay which each may have suffered
by reason of the respondent's discrimination against him by payment to each
of a sum of money equal to the amount which lie normally would have earned-
as wages from April 18, 1944, the date upon which work would have been re-
sumed in the absence of said discrimination, to May 16, 1944, the date upon
which reemployment was available, less his net earnings" during said period.
Upon the foregoing findings of fact and upon the entire record in the case,.
the undersigned makes the following :
CONCLUSIONS OF LAW'
1. Stove Mounters International Union, Local No. 34, affiliated with the-
American Federation of Labor, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
James Wasson, Harry Reitz, Jesse Wasson, George Hoffmann, John Kaltschnee,-
John Schappacker, Lawrence Dunlap, Bud Calloway, John Siemer, James Miles
and Timothy Courtway, and thereby discouraging membership in Stove
Mounters International Union, Local No. 34, affiliated with the American Federa-
tion of Labor, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
5i The names of these complainants are set out in footnote 1, above.
as 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, 8 N. L. R B. 440. Monies received for work performed
upon Federal, State, county, municipal, or other work-relief projects shall be considered
as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in and is engaging in unfair liibor practices within the meaning of Section 8 (1)
of the Act.
4 The aforesaid labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Majestic Manufacturing Com-
pany, its officers , agents, successors , and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Stove Mounters International Union, Local
No. 34, affiliated with the American Federation of Labor, or any other labor
organization of its employees , by discharging any of its employees or by refusing
to reimburse said employees for any loss of earnings they may have suffered
by reason of their discharge or in any other manner discriminating in regard
to hire or tenure of employment , or any term or condition of employment;
(b) In any other manner interfering with, restraining , or coercing its em-
ployees in the exercise of the right to self-organization , to form labor organiza-
tions, to join or assist Stove Mounters International Union , Local No. 34,
affi'iated with the American Federation of Labor, or any other labor organiza-
tion, 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 , as guaranteed in Section 7 of the Act
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Make whole James Wasson, Harry Reitz , Jesse Wasson , George Hoffmann,
John I{altschnee„ John Schappacker , Lawrence Dunlap, Bud Calloway, John
Siemer , James Miles , and Timothy Courtway for any loss of pay each may have
suffered by payment to each of a sure of money equal to the amount which
he normally would have Partied as wages during the period from April 18, 1944,
to May 16, 1944 , less his net earnings during said period;
(b) Post at its plant at St Louis, Missouri, copies of the notice attached
hereto , marked "Appendix A" Copies of said notice , to be furnished by the
Regional Director of the Fourteenth Region, shall , after being duly signed by
the respondent 's representative , be posted by the respondent immediately upon
receipt thereof, and maintained by it for sixty ( 60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by the respondent to insure
that said notices are not altered , defaced, or covered by any other material;
(c) File with the Regional Director for the Fourteenth Region, on or before
ten (10 ) days from the (late of the receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that unless , on or before ten (10 ) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it has complied with the foregoing recommen-
dations, the National Labor Relations Board issue an order requiring the re-
spondent to take the action aforesaid
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended , effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board , pursuant to
MAJESTIC MANUFACTURING COMPANY 971
Section 32 of Article II of Said Rules and Regulations, file with the Board,
Rochambeau Building, Washington, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director. As farther provided in said Section 33, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing within ten (10) days from the date of the order
transferring the case to the Board.
EARL S BELLMAN,
Trial Examiner.
Dated April 23, 1945
"APPENDIX A"
NOTICE TO ALL EMPLOYEES
Pursuant to recommendations of a trial examiner 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:
We Will Not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist STOVE MOUNTERS INTERNATIONAL UNION, LOCAL
NO. 34, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR,
or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection
We Will Offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as it result of the
discrimination.
James Wasson Lawrence Dunlap
Harry Reitz Bud Calloway
Jesse Wasson John Siemer
George Hoffmann James Miles
John Kaltschnee Timothy Courtway
John Schappacker
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of,employment against
any employee because of membership in or activity on behalf of any such labor
organization.
MAJESTIC MANUFACTURING COMPANY
Employer
Dated-------------------- By ----------------------------------
(Itepreseutative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material