Myers Products Corp.

National Labor Relations Board - Board Decisions

Jun 9, 1949

84 N.L.R.B. 32 (N.L.R.B. 1949)

In the Matter Of MYERS PRODUCTS CORPORATION and INTERNATIONAL
ASSOCIATION OF MACHINISTS, DISTRICT No. 101
Case No.13-03017.Decided June 9, 1949
DECISION
AND
ORDER
On December 6, 1948, Trial Examiner John Lewis issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices in violation
of Section 8 (1) of the Act and recommending that it cease and desist
therefrom, as set forth in the copy of the Intermediate Report at-
tached thereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices in violation
of Section 8 (3) of the Act as alleged in the complaint and recom-
mended dismissal of these allegations. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a supporting
brief.'
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the Board has delegated its powers in connection with this case to a
three-member panel [Members Reynolds, Murdock, and Gray].
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 exceptions and briefs, and the entire record in the case, and
hereby adopts the findings and conclusions of the Trial Examiner,
insofar as they are consistent with our Decision and Order herein.
The Trial Examiner found that the Respondent was not aware of
the concerted activities of the polishers or that Bevan was acting as
their spokesman. We agree. Furthermore, we are of the opinion
that when Bevan asked for a raise, on the day of his discharge, there
was nothing in the context of events to indicate that he was speaking
3 Those provisions of Section 8 (1) and 8 (3) of the National Labor Relations Act which
the complaint alleged were violated, are reenacted in Section 8 (a) (1) and 8 (a) (3) of
the Act as amended by the Labor Management Relations Act, 1947.
84 N. L. R. B., No. 8.
32
I
MYERS PRODUCTS CORPORATION 33
in the capacity of a' representative of his coworkers or that his em-
ployer believed or had reason to believe he was so acting. Accord-
ingly, we find that Bevan was not discriminatorily discharged within
the meaning of Section 8 (3) 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 Respondent , Myers Products Corpora-
tion, and its successors and assigns , shall :
1. Cease-and desist from:
(a) Threatening to discharge, or attempting to treat as new em-
ployees or as having terminated their employment, or otherwise
attempting to penalize in their employment status, any of its em-
ployees on account of their membership in International Association
of Machinists, District No. 101, or in any other labor organization,
or for otherwise engaging in concerted activities; and
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist International Asso-
ciation of Machinists, 'District No. 101, or any other labor. organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual air or protection, as guaranteed
in Section 7 of the Act and the amended Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post immediately at its plan in Rockford, Illinois, copies of
the notice attached hereto, marked "Appendix A." Copies of said
notice, to be furnished by the Regional Director for the Thirteenth
Region, shall, after having been signed by Respondent's representa-
tive, be posted by the Respondent and maintained by it for sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by other material.
(b) Notify the Regional Director for the Thirteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleged that the Respondent committed an unfair
labor practice by unlawfully discharging or discriminatorily refusing
,34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to reinstate John Bevan, Everett Peterson, Elmer Hills, T. R. Jacobs,
Ellsworth Brickson, and Oscar Haeggquist.
APPENDIX A
NOTICE TO. ALL EMPLOYEES
Pursuant to a Decision and Order of, the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we,hereby notify our, employees that :
WE WILL NOT threaten-to discharge, or attempt to treat as new,
employees or as having terminated their employment, or other-
wise attempt to penalize in their employment status, any of our
employees on account of their membership in INTERNATIONAL
ASSOCIATION OF MACHINISTS, DISTRICT No. 101, or in any other
labor organization,. or for otherwise engaging in concerted
activities.
WE WILL NOT. in- any like or related 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
INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 101,
or any other labor Organization,, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
MYERS PRODUCTS CORPORATION,
Employer.
Dated---------------------- By-------------------------------
(Representative ) (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.
INTERMEDIATE REPORT
Mr. Robert Ackerberg, for the General Counsel.
Large, Reno and Zahm, by Mr. Shelby L. Large, of Rockford, Ill., for the
Respondent. •
Mr. Jack J. Denny, of Chicago, Ill., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge filed November 29, 1946, by International Asso-
elation of Machinists, District No. 101, herein called the Union, the General Coun-
sel of the National Labor Relations Board,' by the Regional Director of the
I The General Counsel and the attorney representing him•at the hearing will be referred-
to-'herein as the General Counsel The National Labor- Relations Board will be called the
Board.
1
MYERS PRODUCTS CORPORATION 35
Thirteenth Region (Chicago, Illinois'), issued a complaint, dated March 17,,1948,'
against Myers Products Corporation, 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) and (3) of the National
Labor Relations Act,2 and Section 8 (a) (1) and (3) of the Labor Management
Relations Act, 1947,8 and Section 2 (6) and, (7) of the Act and the Amended Act.
Copies of the complaint, the second amended charge, and notice of hearing were
served upon the Respondent and the Union on March 17, 1848.
With respect to the unfair labor practices the complaint alleges, in substance,
that the Respondent terminated the employment of six named employees on, or
about, August 22, 1946, and thereafter failed and refused and continues to, fail
and refuse to, reinstate, such employees 4 for the reasons that they joined and
assisted the Union and engaged in concerted activities for the purpose of collec-,
tive bargaining with regard to rates of pay, hours of employment, or other con-
ditions of employment.
Respondent in its answer denied the various allegations of the complaint,
including the allegations with respect to the jurisdictional facts, as well as those
pertaining to the commission of the unfair labor practices. The answer also
alleged affirmatively that each of the employees mentioned in the complaint vol-
untarily terminated his employment with the exception of John Bevan, and that
he was discharged for good cause.
Pursuant to notice, a hearing was held at Rockford, Illinois, from August 24
to' 26, 1948, inclusive, before the undersigned, John Lewis, the,Trial Examiner
designated by the Chief Trial Examiner. The General Counsel and the Respond-
eht were each represented by counsel and the Union was represented by a Grand
Lodge Representative. All parties participated in the hearing and were afforded
full opportunity to be heard, to examine and cross-examine witnesses,,and to in-
tioduce'evidence bearing oii the issues. At the conclusion of the General Coun-
sel's case-in-chief, the Respondent moved to dismiss the complaint on the ground
that the evidence adduced failed to support the allegations of, the complaint,
either with respect to the jurisdictional facts or the commission of any unfair
labor practices by the, Respondent. This motion was denied by the undersigned;
At the 'conclusion of the entire case, Respondent renewed its previous motion,
Ruling on such motion was reserved by the undersigned and such motion I is dis-
posed of in accordance with the findings, conclusions, and recommendations
hereinafter made. During the course of the hearing the undersigned granted a
motion by Respondent for the separation of witnesses, including those alleged
in the complaint to have been discriminatorily discharged. At the conclusion
of the hearing, the undersigned granted motions by the General Counsel and
the Respondent to conform the pleadings to the proof as to formal matters. The
undersigned also advised the parties that they could make oral argument before
him, and file briefs or proposed findings of fact and conclusions of law, or both.
The Respondent stated, that it did not desire oral argument since it had already
stated its position in connection with its motion to dismiss the complaint. The
General Counsel also declined an opportunity for oral argument. Memoranda
2 49 Stat. 449, herein called the Act.
61 Stat. 136, herein called the Amended Act.
4 The employees alleged to have been discharged and refused reinstatement are Everett
Peterson,., Elmer Hills, John Bevan, T. R. Jacobs, Ellsworth Brickson , and Oscar
Haeggquist.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in'the nature of briefs were subsequently filed with the undersigned by the General
Counsel and the Respondent.
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, Myers Products Corporation, is a corporation organized under
the laws of the State of Illinois, with its principal office and place of business at
Rockford, Illinois. It is engaged in the manufacture of soda fountain appliances,
and more specifically ice cream dippers and dishers. The principal raw material
used in the manufacture of such appliances is stainless steel, which is procured
principally from the Central Steel and Wire Company of'Chicago, Illinois, sales
agent for the Carnegie-Illinois Steel Corporation. These materials are shipped'
to'Respondent from Chicago. Approximately 5 percent of the raw materials used
by Respondent is shipped directly to Respondent from outside the State of
Illinois.`
The parties stipulated that in the year 1947, the products of Respondent were
purchased by the Myers Products Sales Division of the Albert Pick Company, Inc.;
to the extent of $626,673.46 and that these purchases were fully consummated
within the State of Illinois ; that in the year 1947, the Myers Products Sales
Division of the Albert Pick Company, Inc., sold such products to its customers
located through the United States and other countries in the amount of $562,-
864.72, of which amount $51,005.65 were sold to customers located in the State
of Illinois.
In the year 1946, according to the testimony of Myers, all of Respondent's
products were sold, under contract, to Franklin Products Corporation, which
it was stipulated is a wholly owned subsidiary of the Albert Pick Company, Inc.
According to Myers' testimony, such sales amounted to between $ 50,000 and
$60,000 in 1946. Respondent's products are sold under the name of Myers De
Luxe Dishers and, according to the testimony of Myers and his brother, David
Myers,' are distributed by the Myers Products Sales Division all over the
United States.
Respondent in its brief contends that it is not engaged in commerce since 95
percent of its raw materials are purchased within the State of Illinois and all
of its sales are consummated within that State. Irrespective of whether Re-
sondent's extra-State purchases are, sufficient to constitute engagement in com-
merce within the meaning of the Act,' it is clear that by virtue of its sales to
the Albert Pick Company, Inc., and/or the Franklin Products Corporation, the
Respondent is engaged in a business affecting commerce within the meaning
of the Act. It is not necessary, as Respondent apparently contends, to a finding
of engagement in commerce that Respondent directly ship its products out of
the State of Illinois, but it is sufficient to sustain such a finding that the major
portion of such products is shipped out of the State by the Albert Pick Company,
5 The above findings are based principally upon the testimony of Marvin Myers, secretary
of the Respondent corporation
6 David Myers is vice president in charge of sales
' There was no showing as to the origin of the great bulk of the raw material used by
Respondent, consisting of stainless, steel, except that it was purchased from the Central-
Steel and Wire Company of Chicago.
MYERS PRODUCTS CORPORATION 37
Inc. and/or the Franklin Products Corporation, with which Respondent has a
contractual arrangement for the distribution of its products 8 The undersigned
concludes and-finds that the Respondent, at all times material, was and is en-
gaged in commerce within the meaning of the Act and the Amended Act.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, District No. 101, is a labor organiza-
tion admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and issues
During the period here involved the 6 individuals alleged in the complaint
to have been discriminatorily discharged were employed as polishers in the
polishing department of the Respondent's plant. There were about 10 polishers
employed in the department at the time, supervised by a foreman, one Swen
Benson ° The department was under the over-all supervision of the factory
superintendent, Marvin Myers.10 The work of the men in the polishing depart-
ment involved the completion of metal ice cream dippers or dishers by a polish-
ing and buffing process.
The General Counsel attempted to show by the testimony of his witnesses
that the polishers were dissatisfied with their system of pay and formed a
group for their mutual protection in dealing with management on the pay ques-
tion ; that one of the, polishers, John Bevan, was discriminatorily discharged on
August 22, 1946, because of his participation in concerted activity with the other
polishers and for seeking a pay increase; that the other polishers were discharged
on the same day because of their support of Bevan, or, in the alternative, that
the other polishers struck because of the discharge of Bevan ; and that all of
the employees involved were discriminatorily refused reinstatement when they
sought to return to work. The Respondent's position, in brief, is that it knew
nothing of the concerted activity of these employees; that Bevan voluntarily
quit or, in the alternative, that he was discharged for loafing and inefficiency ;
that the other employees voluntarily quit their employment because of a pre-
arranged secret understanding that they would walk out if one of their number
was discharged ; that such walk-out was not a labor dispute ; and finally, that
they failed to apply for reinstatement after respondent had offered to reinstate
them.
The testimony as it developed at the hearing revolved mainly about the
following items: (1) the various changes in the pay system prior to August 22,
1946, and the formation of a group by the polishers during this period, (2) the
events of August 22, 1946, including the alleged discharge of Bevan and the walk-
out by the other polishers, (3) the various efforts to reinstate the polishers after
August 22, 1946.
8 N L R B. v Sunshine Mining Company, 110 F (2d) 780 (C. A. 9) ; Matter of Unique
Ventilation Co , Inc, 75 N L R B 325; Matter of Trinidad Brick and Tile Company, 67
N L R B 1351 ; Matter of Shore Products Company, 55 N L R B. 431
0 Benson was still employed by Respondent as foreman at the time of the hearing and
was,one of the main iitnesses called in its behalf
10 As previously mentioned, Marvin Myers is also secretary of the Respondent corpora-
11tion He is also son of its president, Louis Myers. -
853396-50-vol. 84-4
38 DECISIONS OF ^ NATIONAL LABOR RELATIONS BOARD
B. The discharges; the interference , restraint , and coercion
1. Events leading .up to August 22, 1046; the pay changes and the inception
of employee concerted activity
Several changes were made,in the method of paying the polishers prior to
the August 22 walk-out. Up until May 1946, the polishers were paid on a
straight hourly basis, the. rate having been increased at various times not here
material: Sometime around May ;1946, the. polishers were placed on a group
incentive system, under which they would all receive a bonus of 20 percent, in
addition to their regular straight time hourly earnings, if the group produced
1,500 dishers a day. The men worked as a unit under this system with each
man performing a specific part of the finishing operation. After several weeks
the men were taken off this group system and placed on an individual incentive
system. Under this system each man was responsible only for his own produc-
tion and would receive a'20 percent bonus in addition to his hourly rate earnings
if he produced 150 dishers a day." Although there was some suggestion in the
testimony of. employee dissatisfaction with the various changes in the pay
system, there is no evidence of any improper motives on the part of Respondent
in changing, from one system to another. Moreover, the evidence discloses that
any dissatisfaction which may have existed was not shared. by all of the
polishers 12 .
.
However, since the change from the group to the individual system did not
result in any increase in the basic rate of pay there was some dissatisfaction
among the polishers, and a group of them discussed during their lunch hour the
desirability of obtaining an increase in their take -home pay.13 , Information as
to the desire of the polishers to increase their earnings came to the attention of
Superintendent Myers," and several weeks before the walk-out of August 22,
1946, Myers proposed to'the polishers a change in their pay system 1° The new
proposal involved abandonment of the incentive system, and payment on a straight
piecework basis. The polishers were to be paid 7 cents per disher or dipper, and
","'Under both the group and the individual incentive systems the men would receive no
more of a bonus if they exceeded the group quota of 1,500 dishers a day, or the individual
quota of 150 dishers per day. Their average earnings . under . both systems was $1 05 per
hour , plus the 20 percent bonus.
The testimony of employees Oscar Haeggquist and Elmer Hills disclosed that most of
the employees had been satisfied with the group system but that some of the polishers did
not like working as a group . Haeggquist testified that after the men tried the individual
system they were generally satisfied with it. According to the testimony of Superintend-
ent Myers , the men had been put on the group system because early postwar shortages pre-
vented the company from giving each man sufficient equipment to perform all the nine
operations involved in the finishing process The employees were taken off the group
system, according to Myers , because some of the men complained that they were doing all of
the work and others were shirking , and because the company had obtained sufficient equip-
ment to permit each man to perform the complete operations
13 This group, which ate together during the lunch period, included, in addition to the
six employees named in the complaint, another polisher referred to by the others as "Tex"
Hatfield
. 14 Although there was no direct testimony by the employees of their having spoken to
Myers about an increase prior to August 22, 1946, Myers testified that several of the
employees had spoken to him about increasing their earnings.
1s The exact date of this proposal cannot be fixed with precise accuracy The employees
who testified fixed it, variously, from a week and a half to 3 weeks before the August 22
walk-out, 'and Myers estimated that the proposal was made about a month before that
date. The precise date is not material to the issues , but the undersigned fixes it as
approximately 2 to 3 weeks before the employees walked out on August 22, 1946.
MYERS PRODUCTS CORPORATION 39
Myers estimated that they could produce 200 units per day which would result
in an increase, in, their hourly rate earnings to $1.40 per hour. Employee John
Bevan suggested that the polishers be, permitted to think over this proposal and
Myers.agreed, no definite date being fixed for putting it into effect.
As -previously mentioned, during this period a group of the polishers regularly
ate their lunch together at the plant, and it was their custom to discuss informally
the question of wages and other matters of common interest. - At about- the
time of the new pay proposal by Myers this group organized itself on a some-
what more formal, basis and it was agreed that John Bevan would be their
spokesman for the purpose of taking up with management the question of a` wage
increase and, other matters which might be the subject of'any grievance. ' It was
also agreed that if one of their number was discharged, the others would walk
out in sympathy.10 The testimony of the employees discloses, however, that up
until the August 22 walk-out they had not advised anyone connected with man-
agement,of the fact that they had formed this group or had appointed a spokesman.
The undersigned finds, as a fact, that Respondent was unaware of the existence
of the group prior to August 22, 1948. The testimony further discloses that
although the employees in the group had reached a decision at their lunch hour
meetings -not to accept Myers' pay proposal," this fact was not communicated
to Myers, to Foreman Benson, or to any other responsible agent of the company
prior to August 22, 1946.
2. The events of August 22, 1946
,On the morning of August 22, 1946, employees John Bevan and Elmer Hills were
standing at their machines discussing the fact that they and some of the other
employees had been getting back a number of completed dishers to be reworked
because of alleged imperfections in the finishing process 18 While this conversa-
16 There is some question as to the precise date when the group organized itself on this
more formal basis The General Counsel contends , and some of the testimony suggests,
that it was formed prior to the proposal by Myers for a change In the pay system from
an incentive to a piece -rate basis . However, the consensus- , of the testimony of the em-
ployees involved is that the appointment of Bevan as their spokesman ,, and the agreement
to walk out if any of them were discharged, took place after Myers had made the
proposal in question .' Although the precise date is not material to the issues in this
ease, the undersigned finds that the more formal stage of the group 's organization occurred
after the last Myers pay proposal.
'7 The employees ' decision not to accept the proposal was based on their belief that it
actually resulted in a decrease in their rate of pay. According to their computations,
under the pay system then in effect they were getting 8 cents per unit produced , while
under the Myers proposal they would receive 7 cents per unit. - The increase In their
take-home pay would result not from any increase in their basic rate of pay but from the
fact that their daily quota of production was increased from 150 to 200 units. Myers
testified that this proposed increase in production was feasible because improvements in
dies, equipment , and material over that used in the early postwar period had made it
possible for the employees to readily increase their daily production . The undersigned
finds it unnecessary , for purposes of the conclusions hereinafter reached, to determine
the merits of this controversy.
'8 Several of the employees testified that during the period following the making of the
Myers' pay proposal there was a marked increase in- the number of fishers rejected for
imperfections in the finishing process and sent back to be redone by the polishers. How-
ever, although they could see nothing wrong with the rejected dishers, they never com-
plained to the foreman or to Myers about this . Two of the employees , Ellsworth Brick-
son and Everett Peterson , testified , on the other hand , that they experienced no increase
in the number of dishers sent back for rework during this period. Myers denied ordering
any increase in the number of dishers sent back for rework , and testified that he had
40 DECISIONS : OF NATIONAL LABOR . RELATIONS BOARD
tion was going on another of the polishers, Ellsworth Brickson, came over and
joined in the discussion. After about 5 minutes the foreman, Benson, walked
over and told them to get back to work, stating that he was tired of being
"bawled out" by Marvin Myers on account of their "loafing." 1p Bevan denied
that he was loafing, stating that he was making his quota of 150 dishers per day.
Bevan then proceeded to tell Benson that the polishers wanted a raise. Benson
replied, according to Bevan's testimony : "Well, he told me we had our chance
for the raise when Marvin offered it to us that day, and I told him that it was
a cut instead of a raise. He told me if I didn't like it here to get my check."
Bevan then retorted that if he (Benson) was not satisfied with Bevan' s services,
he could get Bevan's check.20 At this point, Benson left and went up to the front
office to report to Superintendent Myers about the incident` The latter in-
structed him to get Bevan's check.
After an interval of about 20 minutes Benson returned to the polishing depart-
ment with Bevan's check and with a statement of the amount of his 1946 earnings
that had been withheld for income tax purposes. He laid them on Bevan's
bench, who, by that time, was back at his machine working." According to
Bevan's credited testimony, he asked the foreman why he had been fired and
the latter did not at first reply. Bevan, testified that then, "I told him the only
received no complaints on this score. On this state of the record the undersigned is
unable to find that there was any substantial increase in the number of dishers sent
back for rework after the Myers' pay proposal or that any increase which might have
occurred was the result of a deliberate policy by Respondent to harass its employees
because of their failure to accept the pay proposal.
"Benson testified, that he had talked to Bevan about loafing on two prior occasions,
the first being 2 or 3• weeks before! August 22,5and, the second -about a week prior to
August 22. Benson was unable to recall, on cross-examination, any of the details of
these prior incidents. He was somewhat confused as to whether Bevan had or had not
told him to "go to hell" on one of these prior occasions. He conceded that these were
the only two times when he ever had occasion to admonish Bevan, and that all during
this period Bevan and the other polishers were meeting their quota of 150 dishers per day.
Bevan denied that Benson had ever previously spoken to him about loafing. Although
Benson did not strike the undersigned as being a particularly reliable witness, it is
unnecessary, for purposes of this proceeding, to determine whether Benson previously
admonished Bevan for loafing or not.
20 The foregoing is based on the credited testimony of Bevan, Hills, and Brickson, which
is mutually corroborative in all material respects. It is partially confirmed by the
testimony of another of the polishers, Ted Jacobs, who heard the latter part of the conver-
sation in which Benson told Bevan to get his check and the latter replied, according to
Jacobs : "If you want me to have my check, go get it yourself." Foreman Benson's
testimony differed somewhat from that of the other employees. According to his version,
Bevan became angry when he was told to go back to work and told Benson to "go to
hell," at which point he (Benson) told Bevan, "Well, if you don't want to go to work
you will have to get your check" and Bevan replied, "You go get it " Benson also denied
that there was any talk of a raise during the conversation. As previously indicated, the
undersigned did not find Benson to be a reliable witness. His manner of testifying was
flat and unconvincing When he left the safe moorings of his direct examination, which
was conducted to a large extent by leading' questions, his testimony on cross-examination
consisted of an amazing series of "I don't knows" and "I don't remembers," regarding
the details of the matters as to which he had previously testified.
21 According to Benson's testimony : "I told him I had a fellow back there by the name
of John Bevan who refused to work and that I wanted his check." It will be observed
that in this account of what happened Benson made no mention of Bevan's having told
him to "Go to hell." In Myers' testimony of what Benson had reported to him there is
likewise no mention of Bevan's having used this profanity. In a statement which Benson
gave to a Board field examiner there is likewise no mention of Bevan's use of profanity.
22 Both Bevan and. Benson testified that, the former had returned to his machine and
was working when the latter returned with the check and-w'ithliolding statement.
MYERS PRODUCTS CORPORATION 41
reason he fired me was because I had asked for a raise, and he told me I couldn't
do that here or any place." 23
At this point Benson turned to walk back to his desk. Bevan picked up the
check and withholding statement from the bench and started to leave the plant.
The other polishers in the group, some of whom had overheard parts of the ex-
change between Bevan and Benson, left their machines and gathered around
Bevan who told them he had been fired. Benson then walked over and attempted
to get the men to return to work,24 and when they refused to do so he went to get
Superintendent Myers. In a few minutes Myers appeared on the scene. The
conversation which took place from this point on was testified to by Bevan as
follows :
Q. Upon Marvin's arrival, what happened next?
A. Marvin asked what the trouble was, and I told him there was no
trouble with me, that I had been fired.
Q. Anything else said at that time? And if so, who said what?
A. Marvin told me, he said, "You asked for your check, didn't you?" and
I said, "No."
Q. Was there anything else said?
A. I said that we wanted a raise. I asked for a raise. I told him I had
asked for a raise.
Q. Tell us everything that was said, if anything else was said.
A. He told me that I was supposed to take it up with him, and I said that
I thought there was a law to the effect that we were supposed to take it up
with our foreman first, and he said that he had one law here, and that was
either to get back to work or get the hell out.
Q. To whom did he say that?
A. To all of us.
Q. And following that statement was there anything else said?
A. Oscar Haeggquist told him that the only thing we could do was to go
out on strike and picket the place.
Q. Was there anything else said at that time?
A. Marvin said that that was our privilege.
Thereupon, Bevan, together with the other six polishers in the group, walked
out of the plant 2B It being about lunchtime they ate their lunch in a nearby
28 Benson denied having said anything to Bevan when he laid the latter's check on his
bench, and was unable to recall whether Bevan had said anything to him at that time.
Benson's testimony as to this incident is not credited. Considering the probabilities of-
the situation it appears unlikely that nothing would have been said when a man was given
his check terminating his employment.
24 Benson testified that his direction that the men return to work included Bevan as
well as the others. However, he admitted that he did not ask Bevan to return his check
or specifically tell him that he could go back to work. Considering the words which had
just passed between them, and the fact that Benson had given Bevan his check after having
received Superintendent Myers' approval, the undersigned is satisfied that Bevan was not
included in the request for the men to return to work.
21 Bevan's testimony was corroborated in all material respects by the other polishers
who testified. Superintendent Myers in his testimony stated that none of the men said a
word to him or offered any explanation in answer to his inquiry as to what was wrong.
According to his testimony, they didn't tell him they were walking out because Bevan was
fired, but "just said they were all sticking together " Despite the fact that no one had
told him what had happened, he claimed that he told the men, "what happened to Bevan
and the foreman will be taken up later," and that he then told them to go back to work,
including Bevan. Myers further testified that, despite his statement that Bevan could go
back to work, employee Haeggquist turned to him and said that they were going out to
picket the place. Since it is obvious from all the surrounding circumstances that the men
were walking out because of Bevan's apparent discharge, the undersigned finds it difficult
42 DECISIONS OF NATIONAL LABOR 'REL'ATIONS BOARD
park and then proceeded to picket the plant.' The following day the other
polishers received their pay checks and 1946 withholding statements in the mail:
3. Efforts at reinstatement ; the Union enters the picture
On the afternoon of the walk-out, Robert K. Gustafson, an organizer for
District 101, International Association of Machinists, went out to the plant and
talked to the employees on the picket line, after having received word of the,
walk-out through the wife of a union member. The strikers authorized him to
represent them in negotiating a settlement of their dispute with Respondent-
The following day, the Union through B. C. Bailey, business representative,
wrote a letter to Respondent advising it that a majority of the employees in the
plant were members of the Union and had authorized the Union to represent
them as their exclusive bargaining agent. Respondent was requested to advise
Bailey as to time, date, and place that the matter could be discussed. No.
reply was received to this letter. In addition to writing this letter, the Union,
through Gustafson, attempted to secure the assistance of the United States Con-
ciliation Service in effecting a settlement of the dispute. At the suggestion of
a representative of the Conciliation Service who had spoken to Respondent's
attorney, Shelby L. Large, Gustafson called at the plant to talk to Superin-
tendent Myers about 2 days after the walk-out.
This meeting at Respondent's plant was the first of three meetings between
representatives of the employees and of management. It was attended by
Marvin Myers and by his brother David 26 on behalf of Respondent, and by
Gustafson on-behalf of the Union. Myers told Gustafson that he would not
recognize him as a representative of the majority of the employees in the plant,
unless the latter could prove that a majority of the employees had authorized
him to represent them. Gustafson replied that he was not there as a repre-
sentative of the other employees in the plant, but as a representative of the
people who were out on strike, and that he had come to try to get them back on
the job, and to arrange for some sort of understanding on the wage question.
He proposed specifically that the company put Bevan back to work and that
the rest of the employees would then return, after which they could sit down
and discuss the wage-piece rate proposal. Myers replied that as far as he was
concerned, the employees had "quit" but that he would consider rehiring them if
they would "re-apply" for their jobs. This would involve their coming to his
office individually for a talking to. The offer to take the men back did not,
however, include Bevan, nor did it include Hills and another employee by the
name of Carlson," whom Myers informed Gustafson he would not rehire. Gus-
tafson replied that the men would not consider returning to work unless they
were all taken back. The meeting finally broke up with no definite decision
to believe that the men would have persisted in this action' after Myers had' made it appar,
ent that Bevan could go back to work. Considering-the, probabilities of the situation,
and based on his observations of the demeanor of these witnesses , the undersigned does
not credit Myers ' version of this incident ; but finds that Bevan ' s testimony more nearly
accords with what actually happened on this occasion
26 David Myers testified that he was vice'president of the company in charge of sales
and of the office. He 'will be referred to hereafter as D. Myers . His brother is referred
to throughout as Superintendent Myers or as Myers.
27 Carlson , although an employee of the Respondent , was not one of the polishers and
did not walk out with the other men. His connection with the strike arose from his
refusal to cross the picket line He is not named in the complaint as one of the employees
'who had been discharged or refused reinstatement.
MYERS''PRODUCTS CORPORATION 43
reached28 The strikers continued to picket the plant after this meeting and
were joined by a few of the other employees, including several female workers.
About a week and a half later, on September 4, 1946, representatives of the
parties had occasion to meet again at the local office of the United States Employ'
ment Service. This meeting was called by a Mr. Springer, of the United States
Employment Service, in response to Respondent's request that that agency refer
to it applicants for polisher jobs The Myers brothers attended on behalf of
Respondent ; Gustafson and B - C. Bailey, of the Union, and employee Hills,
appeared on behalf of the striking employees. According to the testimony of both
the General Counsel's and Respondent's witnesses, the parties were informed by
Springer that under that agency's procedure, the United States Eniploylnent
-Service would be unable to refer any job applicants to the Respondent if its lack
of help was due to a pending labor dispute at the plant. Most of the discussion
related to the question of whether there was or was not a labor dispute at the
plant. Myers contended that there was no labor dispute involved. According to
the credited testimony of Hills and Gustafson, Myers at first took the position
.that the men had all quit and later modified his position by stating that Bevan
had been discharged and that the others had quit. Springer advised the parties
that as far as he could see there was a labor dispute at the plant and that he would
be unable to refer any polishers to Respondent.
During the course of the discussion at the United States Employment Service
Office, the subject of taking the men back to work was raised. At one point in the
discussion, Myers offered to take back the women who were out on strike but later
agreed to take back everyone, except Bevan, Hills, and Carlson20 The repre-
sentatives of the employees made no response to this offer.
About a week after this meeting the Union filed an unfair labor practice charge
with the Board against the Respondent. In the meantime, the strikers continued
their strike and continued to picket the plant. Actual picketing continued until
about October 25, 19400
- 28 The foregoing findings are based on the testimony of Gustafson which was largely
corroborated by Myers. The only substantial difference in their testimony was with regard
to the condition attached to the men's being taken back Gustafson testified that Myers
would not take back Bevan, Hills, and Carlson, but that he would consider rehiring the
others after a talking to if they reapplied individually. According to Myers' testimony,
he agreed to take back all of the employees "if they were willing to re-apply for work," but
"that there were three men among this group, namely, Carlson, Bevan, and Hills, whom I
wanted to talk to when they came back to apply for work, and I wanted to see them and
talk to them for reasons of my own." Since the testimony discloses that the discussion
between Gustafson and Myers involved, primarily, the issue of getting the men back to
work, it seems unreasonable to suppose that the employees would have declined to accept
a proposal to take all the men back. There was no claim by Myers or by his brother that
Gustafson wanted to discuss the wage question or any other possible grievance at this
meeting, or that the latter insisted on settlement of other issues before the men returned.
According to Myers' own testimony, Gustafson did not insist on any discussion as the repre-
sentative of a majority of Respondent's employees but only on behalf of those men on
strike Myers agreed to recognize him in that capacity. Considering the probabilities of
the situation, the nature and quality of the testimony of these witnesses and their de-
meanor on the stand, the undersigned is satisfied that the testimony of Gustafson more
accurately represents what actually occurred on this occasion.
29 Myers could not recall that there wag any conversation at this conference as to taking
back any of the employees. His brother, David, however, testified that Myers had stated
he would take all the employees back, the only reservation that be could recall was that
his brother wanted to talk to three of the men . Gustafson and Bailey both testified that
Myers offered to take back all of the employees, except the three mentioned above, and their
testimony in this respect is eredited.
3° Haeggquist testified that since the other men were married and he was not, he told
them to get other jobs, but that they were expected to help out on the picket line from
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The final meeting between representatives of the company and of the employees
occurred sometime in November 1946. This meeting was arranged by Mrs. Jewel
Briggs, a Field Examiner of the Board, and was held in Respondent's office. In
addition*to Mrs. Briggs, there. were , present. Gustafson of, the Union,, the, Myers
brothers and their attorney, Shelby Large. The subject of taking the strikers
back occupied a considerable portion of the discussion at this meeting After
some talk, the company agreed that it would take back all of the striking em-
ployees, including Bevan, Hills, and Carlson 81 , At that time, 50 to 60 percent of
Respondent's other employees were idle due to a shortage in steel but Myers stated
that as soon as normal operations were resumed he would take back all of the
strikers who wished to return. According to Myers' uncontradicted testimony,
Briggs informed Respondent's representatives that in addition to taking the strik-
ing employees back, a settlement of the matter would involve payment to them
of the money lost during the period that they were not working.' Although
Respondent's representatives were agreeable to taking the employees back, they
were unwilling to agree to any money payment. The employees, on the other
hand, were unwilling to come back' unless the payments were made to' them.
The meeting finally broke up without any definite conclusions having been
reached' No further meetings or discussions were held regarding the reinstate-
ment of the strikers.
C. Concluding liulings
1. The discharge of Bevan
A determination of the nature of Bevan's termination of employment on
August 22, 1946, involves a consideration of the following questions: (a) Was
Bevan discharged when he was given his check by the foreman or had he volun-
tarily quit? (b) If he was discharged at that point, was he on the same day
reinstated or offered reinstatement by the foreman and/or by Myers? (c) As-
suming that Bevan was discharged on August 22, 1946, did such discharge have
a discriminatory genesis? The undersigned's conclusions on these essential issues
are as follows :
(a) The undersigned finds and concludes that Bevan was discharged on August
22, 1946, by Respondent when he was given his check and withholding statement
by the foreman, Benson.' The uncontradicted testimony shows that Benson
reprimanded Bevan, Hills, and Brickson, for allegedly "loafing," that in the
verbal exchange which followed between Benson and Bevan the former finally
time to time. According to his uncontradicted testimony he remained on the picket line
until October 25 or 27, 1946.
81 Gustafson testified that a considerable part of the discussion pertained to taking
Carlson back, that Respondent contended he had nothing to do with the dispute of the
polishers, but that it finally agreed to take him back along with the other employees
s'' The testimony of Myers and Gustafson was substantially in accord that the company
had offered to take back all of the employees. There was some discrepancy on the figure
which the Respondent would be required to pay before the men would return According
to Myers, this amounted to $2,000, while Gustafson testified that $850 was the amount to
be paid. It is immaterial, for present purposes, to determine the actual figure mentioned
at the meeting.
0 According to Gustafson's testimony, when the meeting broke up the Respondent,
through its attorney, Mr. Large, was supposed to inform the Field Examiner whether it
would be willing to make any payment. Myers did not recall that Respondent was to
inform Briggs of its intention in this respect. For purposes of the conclusions hereinafter
reached, it is unnecessary to determine whether the Respondent's representatives had prom-
ised to communicate to Briggs their intention with respect to the making of payment to the
employees.
MYERS PRODUCTS CORPORATION 45
told Bevan to get his check" Bevan's reply- to this, as testified to by both parties
to the argument, was, in effect, that he wouldn't get his check, and that if Ben-
son wanted him to have it, he (Benson) would have to get it. When Benson
went to the office he told Myers, according to his own testimony, "I had a fellow
back there by the name of John Bevan who refused to work and that I wanted
his check." When Benson returned and gave Bevan his check and withholding
statement, he found that the latter had already returned to work. These facts
all point clearly to a discharge rather than to a voluntary quitting.
Myers' position as to whether Bevan had quit or been discharged was some-
what confused and faltering. At one point he testified as follows :
Q. Is that your contention now, that he quit?
A. Well, realizing the facts, yes, so far as I know, he quit. The circum-
stances are that he asked the foreman for his check. It was his own volun-
tary action. We did not force it on him.
Q. You had no cause for discharging him at that time?
A. I don't think so, no. We had had two reports against him , and if I
had received that third report I would have had a nice long talk with him
which might have resulted in his being discharged.
In its answer the Respondent specifically alleged, as a "further answer to said
complaint" that :
Each of the employees mentioned in the complaint voluntarily terminated
their employment with the exception of one John Bevan, and that the said
John Bevan was discharged for inefficiency, failure to perform his work,
and on account of insubordination.
When this statement in the answer, which bore Myers' signature, was called
to his attention on cross-examination, he stated : "Well, he was guilty of all
these charges, whether you want to call it voluntarily quitting or discharged,
it doesn't make any difference. He was certainly guilty of all these charges
you have mentioned." Under all the circumstances, the undersigned is satis-
fied that Bevan's termination of employment was in fact and in law a discharge,
and did not result from any voluntary quitting on his part ee
(b) Respondent endeavored to show through its witnesses, Benson and Myers,
that irrespective of whether the circumstances attendant upon Bevan ' s receiv-
ing his check amounted to a discharge or a quit, he was immediately thereafter
offered an opportunity to return to his job, first by Benson and then by Myers.
Benson testified that when the other men gathered around Bevan after he
had received his check and was starting to leave the polishing room, that he
(Benson ) asked the men to go back to work. He stated that his direction also
included Bevan. Myers similarly testified that his request, when he arrived
on the scene, that the men either get back to work or get out was directed to all
the men including Bevan. However, the undersigned is satisfied, as previously
indicated, that any request that the men get back to work was directed to the
other polishers and was not intended or understood as including Bevan. Bevan
u There is no substantial disagreement between the two participants in this exchange
that Benson instructed Bevan to get his check. According to Bevan's testimony , Benson
told him, "If I didn't like it here to get my check." According to Benson's version, he told
Bevan, "If you don't want to go to work , you will have to get your check."
as According to Bevan's testimony, if an employee quit it was the usual practice for him
to get his own check , while if he were discharged , the foreman got his check for him.
Benson confirmed this by his testimony that he got the checks only for discharged
employees
'1 Whether the discharge was of a discriminatory nature is hereafter discussed.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had, at that time, received his check and so far as Respondent was concerned
his employment relationship was terminated, whether it be designated a dis-
charge or a quit. Under such circumstances, it seems evident that if manage-
ment wanted to restore matters to the status quo, it would have, in substance,
told Bevan to return his check and forget about the incident. Yet, it is con-
ceded that neither Benson nor Myers told Bevan to return his check or other-
wise specifically indicated that the termination of employment would be re-
voked. Indeed, considering the unpleasant argument which had just taken.
place, and Respondent's claim of Bevan's insubordination, it is unlikely that
management was then in any mood to forgive and forget.
As far as the other men were concerned, they were unanimous that they
walked off the job because they believed Bevan had been fired. Since the im-
mediate occasion for their threatening to walk out was Bevan's discharge, it is
incomprehensible that they would have left work if Bevan had been permitted
to return. Under these circumstances, the walk-out of the men can be referable
only to the termination of Bevan's employment and this, the undersigned finds,
resulted from Bevan's unrevoked discharge by the foreman, Benson, which was
confirmed by Myers.
(c) The discharge of Bevan would not, however, result in a violation of Sec-
tion 8 (3) of the Act and 8 (a) (3) of the Amended Act, unless the discharge
was discriminatory in character. In this connection, the General Counsel claims
that Respondent was aware of the concerted activities of the polishers (includ-
ing Bevan), and that Bevan was discharged because he asked for an increase
in wages on behalf of the group. The General Counsel bases his claim that Re-
spondent was aware of the concerted activities of the polishers on the fact
that the various changes in the pay system "necessarily involved consideration
of the ten polishers as a group," as well as on the fact that the "concerted stop-
page of work on account of Bevan's termination and the subsequent conduct of
the polishers could leave no doubt about their taking concerted action over
working conditions."
The testimony of the polishers reveals that up until August 22, 1946, none
of them had ever revealed to either Benson, Myers, or anyone else connected
with management, the fact that they had formed a group for their mutual pro-
tection or that Bevan had been appointed as their spokesman." When Benson
talked to Bevan and the other two employees on August 22, 1946, about loafing,
and Bevan brought up the question of a raise, there was no mention of the fact
that he was acting as spokesman for a group of employees." There was nothing
in what he said which would have suggested to the foreman that the request for a
raise arose out of the group action of Respondent's employees.
The fact that the various proposals for change in the pay system were made
to all of the polishers does not, in the opinion of the undersigned, indicate as
contended by the General Counsel, that management was aware of the group
activities of its employees at the time of Bevan's discharge. Some of the
polishers did not belong to the group that had been formed, and it is clear that
the various proposals were made to all of the polishers as employees in the
polishing department and not as members of a group engaged in concerted activ-
ity. The fact that the other six polishers walked out on August 22, 1946, after
97 Bevan, whoowas supposed to be the'spokesman for the group, specifically testified that
he had never informed management about the fact that the employees had formed a group
and were holding meetings, or that he had been appointed spokesman for the group.
ae Bevan testified that this was the first time he, or any of the other employees, had spoken
to management about the question of a raise.
MYERS PRODUCTS CORPORATION 47
Bevan's discharge, made it evident that this group of polishers was then acting
in concert, but it does not prove that management was aware at the time of
Bevan's discharge that the employees had theretofore formed a group, nor does
it prove that Bevan was discharged because he was acting as spokesman for the
group. On the contrary, the evidence discloses, and the undersigned finds, that
management had no knowledge of the formation of the group when it discharged
Bevan and that his discharge had no connection with his membership in the group
or .the fact that he had been appointed as its spokesman. The undersigned is
convinced that Bevan's discharge arose primarily out of the unpleasant argument
between himself and Benson in which neither would give quarter. and that
Myers sustained Benson's action to save face for his foreman." If Bevan's
asking for a raise played any part in the discharge, the undersigned is satisfied
from the testimony that it was not because he purported to be acting for the
group or in concert with others. Under the circumstances, the undersigned will
recommend dismissal of that portion of the complaint which alleges that Bevan
was discriminatorily discharged.
2. The alleged discharge of the other polishers, and the refusal to reinstate
The General Counsel contends that the August 22 walk-out resulted either from
a discharge of the employees (actual or constructive), or, in the alternative, that
it was a strike. Under the first alternative, it is contended that Myers' "ultima-
tum" to the employees on August 22 amounted to a discharge, and that this was
motivated by the concerted activities of the employees at that time and was
therefore discriminatory in character. Under the second alternative, it is claimed
that the strikers unconditionally requested reinstatement and that the offer
to reinstate them contained discriminatory conditions which the employees
were not obliged to accept. Respondent, on the other hand, contends that the
polishers "quit their employment and terminated their employment relationship
without just cause, and under such circumstances, the company is under no
obligation to reinstate them. ..."
Taking up Respondent's contention first, it is too apparent to require any ex-
tended discussion that the action of the employees in walking out on August 22
was not a quit but constituted concerted activity of the type protected by the
Act. There is no question but that the employees walked out because they thought
John Bevan had been wrongfully discharged. Respondent concedes that the
polishers told Myers that they were going to strike and picket the plant as they
walked out. A strike by employees in sympathy with a discharged employee is
no less a "labor dispute" within the meaning of Section 2 (9) of the Act 40
Striking employees, under such circumstances, are entitled to the protection of
the Act even though the strike is unprovoked by any unfair labor practice and
may even be ill-advised." It is also well settled that individuals engaged in a
current labor dispute retain their status as employees under Section 2 (3) of, the
Act." Although Respondent could, without violating the Act, discharge Bevan
8B According to Haeggquist's testimony, during the course of the interchange between
the polishers and Myers, the latter stated that "he would have to stick with his foreman,
right or wrong, and that the only thing we had to do was to go back to,work or get out."
4° Matter of Spencer Auto Electric, Inc., 73 N. L. it. B. 1416; Firth Carpet Co. v, N. L.
R. B., 128 F. (2d) 633 (C. A. 2).
41 Matter of Draper Corporation, 52 N. L R B 1477; Firth Carpet Co. v. N. L. R. B.,
supra ; Matter of Auto part Manufacturing Company, 78 N. L. R. B. 461.
42 N. L. R. B. v. Mackay Radio t Telegraph Co., 304 U. S. 333 ; N. L. R. B. v. Remington
Rand, Inc., 130 F. (2d) 919 (C. A. 2) ; Matter of Draper Corporation, supra; Matter of
Clem D . Johnston d/b/a Roanoke Public Warehouse, 72 N. L. it. B. 1281.
48 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
under the circumstances related above, when the other employees chose to walk
out( in sympathy with him, Respondent could not regard them as having quit
or consider their employment relationship as terminated. As strikers they were
entitled to the protection of the Act, as more fully discussed below.
Coming then to the General Counsel's contentions, the undersigned does not
believe that his argument that the polishers were discharged on August 22
by Myers' "ultimatum" is worthy of serious consideration. Since they were
offered the alternative of going back to work or getting out, there was clearly
no actual discharge ; nor may Myers' conduct be deemed a constructive discharge.
While the 'action of an employer in subjecting his employees to a "relentless
course of persecution" so as to force them to quit may, under some circumstances,
amount to a constructive discharge," the statements by Myers to the polishers
on August 22 can hardly be said to fall within this category. While the em-
ployees had a right to cease working in sympathy with Bevan, Respondent was
justified in requesting them to work or leave the plant. That Myers' language
may not have been that of the drawing room does not alter this conclusion.
Although there was some suggestion, in the testimony adduced by the General
Counsel at the hearing, of a constructive discharge based on Respondent's sup-
posed action of deliberately increasing the number of items sent back for-
rework after the polishers, had failed to accept Myers' pay proposal, the Gen-
eral Counsel has apparently abandoned any such contention" In any event,
as the undersigned has previously found, there is no evidence to support a find-
ing that Respondent deliberately increased the number of items sent back to
be reworked by the polishers nor is there any evidence that any such policy was
embarked upon to discourage concerted activity among its employees.45
Deserving of more serious consideration is the General Counsel's contention
that the employees were discharged on August 23, 1946, by the action of Respond-
ent in mailing them their pay checks and withholding statements, and that this
discharge was further evidenced by Myers' statement to Gustafson when the
employees applied for reinstatement that the men had already quit and would
have to reapply individually for reinstatement. The fact that the employees
were sent their pay checks through the mails on a day other than the regular
pay day and that such checks were accompanied by a statement of the amount
withheld from their earnings for income tax purposes suggests that Respondent
intended to terminate their employment. The procedure of sending employees
their withholding statements was, according to Myers' own testimony, used
only when employees quit or were discharged. The undersigned recognizes, of
course, that Myers took the position that the men had quit. However, in view of
the admitted fact that they informed him they were going out on strike and to,
picket the plant, it is inconceivable that Myers could have seriously believed that
the men intended to quit Moreover, the fact that 2 days later Myers, in the
face of an actual picket line, still maintained that the men had quit and would
have to re-apply as new employees and be interviewed individually, is additional
evidence of his intention to terminate their employment relationship on August
23, 1946, because of their concerted activities.
43 Matter of Palm Beach Broadcasting Corporation, 63 N. L. R. B. 597, 613 See also
Matter of Kalamazoo Coaches, Inc , 66 N. L. R. B. 171 ; Matter of A. Sartomus d Co., Inc.,
40 N. L. R. B 107, enforced 140 F (2d) 203 (C. A. 2).
44 In his brief, the General Counsel refers to the increase in the number of items sent
back for rework as resulting in a "fancied but psychologically real grievance "
45 As previously found, Respondent was not aware, until, the August 22 walk-out, of any
concerted activity among these employees.
MYERS PRODUCTS CORPORATION 49
However, the Board has taken the position that the action of an employer, under
similar circumstances, in purporting to discharge his employees is not seriously
Intended to effectuate a termination of the employment relationship but is a
mere "tactical maneuver" designed to induce the strikers to abandon the strike
and resume work.' In the Majestic Manufacturing Co. case, supra, the employer
advised his employees by telegram on the day they walked out that unless they
reported back to work the next day their names would be removed from the pay-
roll and someone else would be hired in their place. The employees did not
comply with this ultimatum Two days later they received their pay checks
with a "Notice of Separation" containing the notation "Quit voluntarily without
cause." During the negotiations which took place thereafter for the return of
the strikers and settlement of the issues, the company took the position that
the strikers were no longer its employees because their employment status had
been severed. In reversing the Trial Examiner's finding that the strikers had
been discharged by the employer, the Board stated :
The strikers ceased work as a result of a then current labor dispute and,
therefore, retained their status as 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. Consequently, the issuance of the separation notices had no actual
effect on their tenure of employment. As we have previously observed in
similar 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.
In the Indiana Desk case, supra, the Board upheld the Trial Examiner's hold-
ing that the Respondent's purported discharge was a mere "tactical maneuver,"
despite a factual showing that each striker was given a separation notice stating
that he had "voluntarily" left Respondent's employ "without good cause," was
paid his accrued wages in advance of the regular pay period (a procedure ad-
mittedly used only when men permanently left Respondent's employ or were
discharged), and in the face of the fact that when the strikers reapplied a week
later they were told they would only be given consideration if they made applica-
tion as new employees. In the Pullman-Standard Car case, supra, the Board over-
ruled the Trial Examiner's holding that the employees were discharged, and
found the employer's action to constitute a tactical maneuver rather than a
discharge, although the strikers were told that if they did not resume work
they would be regarded as having quit, were instructed to call at the office for
their "drop cards," and when they applied for reinstatement were informed that
they would have to go through the employment office individually and be inter-
-viewed by the superintendent.
It may be observed that in a number of the cases cited the circumstances sur-
rounding the initial purported severance of the employment relationship pointed
even more strongly than in the present case toward a real rather than a tactical
46 Matter of Majestic Manufacturing Co., 64 N. L. R. B . 950; Matter of Indiana Desk Co.,
Z6 N. L R . B. 76, Matter of Rockwod Stove Works , 63 N. L R B. 1297 , Matter of Home
Beneficial Life Insurance Co., Inc, 69 N . L R B 32, modified, 159 F ( 2d) 280 (C. A. 4) ;
Matter of Clem D. Johnston , d/b/a Roanoke Public Warehouse, supra; Matter of American
Manufacturing Concern, 7 N. L. R B. 753; Matter of Stackpole Carbon Co , 6 N. L R B.
171; Matter of Pullman -Standard Car Manufacturing Co, 76 N. L. R. B . 1254; Matter of
Aldora Mills , 79 N. L. R. B. 1.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge , in that the strikers were given formal discharge or separation notices"
Likewise , as indicated in the cases discussed above, the fact that the employer
took the position when the employees applied for reinstatement that they would
have to apply individually or as new employees has been held by the Board not
to be necessarily inconsistent with the theory that the employer was engaging
in a tactical maneuver and did not actually intend to sever the employment rela-
tionship. In the light of these and the other cases cited above, the undersigned
feels obliged to hold that the purported termination of employment of the polishers
who participated in the August 22 walk-out did not constitute a discharge but was
a tactical maneuver designed to induce them to abandon the strike and return to
work."
Since the undersigned has concluded that the employees who walked out on
August 22 were not discharged , it is next necessary to consider the General Coun-
sel's alternative contention that they were strikers who were improperly refused
reinstatement upon an unconditional request to be reinstated in their jobs. As
has already been noted , the employees who walked out in sympathy with Bevan
did not quit their jobs but struck because of Bevan's discharge . Since the under-
signed has concluded that the discharge of Bevan was not discriminatory in char-
acter , it is clear that the other employees who struck in sympathy with him were
economic , rather than unfair labor practice , strikers . As economic strikers they
retained their status as employees within the meaning of Section 2 ( 3) of the Act
and when they made an unconditional offer to return, the Respondent would be
under a duty to rehire them unless they had been permanently replaced 48
The difficulty with the General Counsel's position in this respect is that the
strikers never made an unconditional offer to return . The offer to return, accord-
ing to Gustafson ' s own testimony , was conditioned on Bevan being restored to his
job. Without Bevan's restoration , the other employees refused to return to work.
It is well settled that the insistence by strikers that an employee previously dis-
charged be reinstated or that other grievances be remedied as a condition to their
return is not an unconditional application for reinstatement °0
It may be urged that although the offer by the employees to return to work was
conditional, the reply to this offer by Myers that he would only take them back as
new employees and that he would decline to take back not only Bevan, but Hills
and Carlson as well, was discriminatory in effect and relieved the employees of
any further obligation to make an offer to return. However, in similar situations,
the Board has held that an unconditional offer to return is a sine qua non to putting
an employer in the position of discriminatorily refusing to reinstate strikers, even
though the employer's reply to such an offer may contain discriminatory condi-
tions. Thus, in the Indiana Desk Company case, supra, where the employees'
offer to return to work was conditioned on the employer's complying with their
47 Matter of Majestic Manufacturing Co , supra ; Matter of Rockwood Stove Works,
supra; Matter of American Manufacturing Concern, supra; Matter of Indiana Desk Co,
supra
9s As to whether such action constituted interference, restraint, or coercion, see the dis-
cussion below
99 N. L R. B v Mackay Radio it Telegraph Co, supra; Matter of Auto part Manufacturing
Company, supra ; Matter of Roanoke Public Warehouse , supra. According to Myers' testi-
mony, the strikers had not been replaced down to the time of the last meeting with
management.
5° Matter of Wilson & Co, Inc, 77 N. L R B 959 (request for reinstatement conditioned
on reinstatement of discharged employee ) ; Matter of Horace G. Prettyman, et at., 12
N L R B 640, 670 ( offer to return conditioned on rehiring employees previously dis-
charged and recognition of union ) See also Matter of V. 0. Milling Co., 43 N L. R B.
348, Matter of Albert Love Enterprises , 66 N. L. R B. 416.
MYERS PRODUCTS CORPORATION 51
wage demands, the Board held that the employer's insistence that he would only
take them back as new employees was not discriminatory." Similarly, in the
Majestic Manufacturing Company case, supra, the Board refused to find a viola-
tion of Section 8 (3), based on the employer's insistence that the strikers would
have to come back as new employees, where the strikers conditioned their return
to work on a settlement of the issues responsible for the strike. Since the Re-
spondent, in the instant case, in the absence of an unconditional offer by the
strikers to return to work, did not discriminatorily refuse to reinstate them,52
and since the undersigned has already found that the Respondent did not dis-
charge them, it will be recommended that the allegation of the complaint that
they were discriminatorily discharged and refused reinstatement be dismissed.
3. Interference, restraint, and coercion
Although Respondent's action in threatening and purporting to terminate the
employment relationship of the strikers by sending them their pay checks and
withholding statements, and by taking the position that they had quit and would
have to return as new employees did not constitute a discharge, the Board has
held that such tactical maneuvering is coercive in effect and therefore, a viola-
tion of Section 8 (1) of the Act. Thus, in the Rockwood Stove case, supra, the
Board, after holding that the purported discharge was a tactical maneuver and,
therefore, not a violation of Section i8 (3), stated :
Inasmuch as the purpose and effect of the Respondent's action in threaten-
ing discharge and purporting to discharge the strikers was to restrain them
from engaging in concerted activity for their mutual aid and protection, the
Respondent thereby interfered with, restrained and coerced its employees
in the exercise of the rights guaranteed by Section 7 of the Act in violation -
of Section 8 '(1) thereof. We find that the strike was prolonged by this
conduct of Respondent and hence from then on became an unfair labor
practice strike.63
However, unlike the Rockwood Stove case, the undersigned does not find that
such conduct by Respondent induced or prolonged the strike. In view of the
testimony by Gustafson that the employees refused to return to work unless
Bevan was reinstated, it is clear that the employees' insistence in the reinstate-
ment of Bevan was the primary cause for prolonging the strike rather than
Respondent's purported discharge or insistence that the employees come back
as new employees." Likewise, since the employees walked out before the
coercive action occurred, it is clear that the strike was not induced thereby.
Accordingly, the undersigned finds and concludes that the strike of Respondent's
In that case the employees subsequently made an unconditional application for rein-
statement, and the employer continued to insist that they apply as new employees. The
Board held this subsequent conduct of the employer to be discriminatory
62 It may be observed that despite the lack of an unconditional offer to return by the
strikers, Respondent did in November 1946, at the meeting conducted by Mrs. Briggs, offer
unconditionally to take back all of the employees The refusal by Respondent to pay the
amount claimed to be due as back pay did not affect the unconditional character of
Respondent's"offer, since the employees could not condition their return upon the payment
to them of the amount due as back pay. (N. L. R B. v. Riverside Manufacturing Co., 119
F (2) 302 (C A 5)).
w To the same effect see Matter of Roanoke Public Warehouse, supra; Matter of Ameri.
can Manufacturing Concern, supra; Matter of Aldora Mills, eupra.
"See Matter of Majestic Manufacturing Co., supra, where the Board found that while
Respondent 's action in advising the strikers that they had quit and were no longer its em-
ployees was erroneous as a matter of law, it did not delay or otherwise prejudice the rein-
statement of the strikers.
I
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees did not become an unfair labor practice strike but retained its eco-
nomic character.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities set forth in Section 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 such of them as have been found to be unfair labor practices tend to lead to
labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Since it has been found that Respondent interfered with, restrained, and
coerced its employees in the exercise of their rights under the Act by its conduct
during the period they were on strike, the undersigned will recommend that
Respondent cease and desist from such activities and from engaging in any
like or related acts or conduct, and take certain affirmative action designed to
effectuate the policies of the Act.
Since it has been found that Respondent did not discriminatorily discharge or
refuse to reinstate the employees named in the complaint, the undersigned will
recommend that the complaint be dismissed in this respect. Moreover, since it
has been found that the strike of Respondent's employees was not induced or
prolonged by any unfair labor practices, the undersigned will not recommend
that the strikers be unconditionally reinstated upon application to the positions
which they held prior to the strike. However, since it has been found that the
strikers ceased work as the result of a current labor dispute, they retained their
status as "employees," within the meaning of Section 2 (3) of the Act 65 Accord-
ingly, the Respondent is under an obligation not to discriminate in reinstating
them upon application 68
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Association of Machinists, District No. 101, is a labor organi-
zation within the meaning of Section 2 (5) of the Act and the Amended Act.
2. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act and the Amended Act, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (1) of the Act and Section 8 (a) (1) of the Amended Act.
66 This does not include John Bevan, who, it has been found, was discharged prior to the
strike.
w The obligation of an employer with respect to striking employees was summarized in
the case of N L. R. B. v. Remington Rand, Inc, 130 F (2d) 919, 927 (C. A. 2), as follows:
In the Mackay Radio case, [304 U S. 333] the Supreme Court held that an em-
ployer whose employees have struck and who has committed no unfair labor practice
is not obliged to discontinue his business but may hire others in the place of these
strikers. The employer's obligation to reinstate in such case extends only to such
of the striking employees as have not been replaced during the strike. . . .
Thus, in the instant case, the polishers having gone on strike in a current labor
dispute, retained their status as employees for the purposes of the Act and its pro-
tective provisions. As such they had a right to apply for and he reinstated If re-
spondent was guilty of an unfair labor practice, this right was unconditional. If it
was guilty of no unfair labor practice, the right existed, nevertheless, subject, how-
ever, to the condition that only such strikers could seek and get reinstatement as had
not already been replaced during the strike.
f
MYERS PRODUCTS CORPORATION 53
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act and the
Amended Act.
4. The Respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (3) of the Act and Section 8 (a) (3) of the Amended Act, by
discharging Everett Peterson , Elmer Hills , John Bevan , T. R. Jacobs , Ellsworth
Brickson , and Oscar Haeggquist , or by refusing to reinstate them.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Respondent , Myers Products Corporation, its
officers, agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Threatening to discharge , or attempting to treat as new employees or
as having terminated their employment , or otherwise attempting to penalize in
their employment status, any of its employees on account of their membership
in International Association of Machinists , District No. 101, or in any other
labor organization , or for otherwise engaging in concerted activities ; and
(b) In any like or related manner, interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization, to form labor or-
ganizations, to join or assist International Association of Machinists , District
No. 101, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection , as guaranteed
in Section 7 of the Act and the Amended Act ;
2. Take the following affirmative action which the undersigned finds will
effectuate the purposes of the Act :
(a) Post at its plant in Rockford, Illinois, copies of the notice attached hereto,
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Thirteenth Region, shall , after having been signed by Respond-
ent's representative , be posted by the Respondent and maintained by it for
sixty ( 60) consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered , defaced, or
covered by other material; and
(b) Notify the Regional Director for the Thirteenth Region, in writing within
twenty (20) days from the date of the service of this Intermediate Report, what
steps Respondent has taken to comply with the foregoing recommendations.
It is further recommended that unless on or before twenty ( 20) days from
the date of the receipt of this Intermediate Report, the Respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the Respond-
ent to take the action aforesaid.
It is further recommended that the complaint be dismissed , insofar as it
alleges that the Respondent discriminatorily discharged Everett Peterson, Elmer
Hills, John Bevan, T. R. Jacobs , Ellsworth Erickson , and Oscar Haeggquist, and
failed and refused and continues to fail and refuse to reinstate said employees
in violation of Section 8 (1) of the Act and Section 8 (a) (1) of the Amended
Act.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
853396-50-vol 84-5
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Rochambeau Building, Washington 25, D. C., an original and
six copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report and Recommended Order 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 six copies of a brief in support thereof ; and any
party may, within the same period, file an original and six copies of a brief in
support of the Intermediate Report and Recommended Order Immediately upon
the filing of such statement of exceptions and/or briefs, the party filing the
same shall serve a copy thereof upon each of the other parties Statements of
exceptions and briefs shall designate by precise citation the portions of the record
relied upon and shall be legibly printed or mimeographed, and if mimeographed
shall be double spaced. Proof of service on the other parties of all papers filed
with the Board shall be promptly made as required by Section 203.85. As further
provided in said Section 203 46, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of service of the order transferring the case
to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 6th day of December 1948.
JOHN LEWIS,
Trial Examiner.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the 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 threaten to discharge, or attempt to treat as new employees
or as having terminated their employment, or otherwise attempt to penalize
in their employment status, any of our employees on account of their mem-
bership in INTERNATIONAL AssoCIATION OF MAOHINIsrs, DISTRICT No. 101, or in
any other labor organization, or for otherwise engaging in concerted activities.
WE WILL NOT in any like or related 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 INTERNATIONAL ASSOCIATION OF
MACHINISTS, DISTRICT No. 101, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
MYERS PRODUCTS CORPORATION,
Employer.
Dated------------------------------- By---------------------------------
(Representative ) (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.