The L. Hardy Co.

National Labor Relations Board - Board Decisions

Oct 10, 1942

44 N.L.R.B. 1013 (N.L.R.B. 1942)

In the Matter of THE L. HARDY COMPANY and STEEL WORR:ERs'
ORGANIZING COMMITTEE, (CIO)
Case No. C-2175.Decided October 10 , 1941
Jurisdiction : machine knives manufacturing industry.
Unfair Labor Practices.
Interference , Restraint , and Coercion : questioning employees as to their union
membership and activities ; threatening employees ' with curtailment of their
privileges if they joined the union ; anti-union statements.
Discrimination: refusal to reinstate unfair labor practice strikers.
Collective bargaining : majority established by membership cards-refusal to bar-
gain by:-dilatory tactics ; strike caused and prolonged by refusal ' to bargain.
Remedial Orders : order to bargain collectively ; reinstatement and back pay
awarded unfair labor -practice strikers.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees exclusive of executives , office and clerical employees , supervisory
employees , and shipping clerks.
Mr. Robert E. Greene, for the Board. '
Mr. Ernest L. Anderson , of Worcester , Mass., for the respondent.
Grant & Angoff, by Mr. Sidney S.,Grant, of Boston, Mass., for the
Union. -
Mr. Reynolds C. Seitz, of counsel to the Board.
DECISION
AND"
ORDER
STATEMENT `OF THE CASE
. Upon an amended charge 1 duly filed by Steel Workers Organizing
Committee, affiliated with the Congress of Industrial Organizations,
herein, called the Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the First Region (Bos-
ton, Massachusetts), issued its complaint dated March 14,1942, against
The L. Hardy Company, Worcester, Massachusetts, herein called the
respondent, alleging that the respondent had engaged in and was
engaging in. unfair labor practices affecting commerce, , within
The original charge was filed on August 2, 1941, and amended' charges were filed on
September 19, 1941, and November 26, 1941.
44 N. L. R. B, No. 197. .
1013
ill
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies-of the complaint and accompanying notice of hearing
were duly served on the respondent and-the Union.
The complaint -alleged' in substance (1) ,that from July'15, 1941, to',',
the date of the complaint, the respondent questioned employees about
their union membership, threatened its employees with discharge and
the curtailment of privileges if they joined the Union, expressed hos-
tility to the Union, and requested the employees to desert the Union
and to return to work during the pendency of a strike; (2) that on
or about July 28, 1941, and at all times thereafter, the respondent re-
fused to bargain collectively with the Union, although the Union had
been designated as bargaining agent prior thereto by-a majority of the
respondent's employees in an appropriate bargaining unit; (3) that
because of the commission oftlie above acts, on August 4, 1941, the
respondent's employees went off strike,, which • strike was prolonged
by unfair labor practices committed by the respondent during the
course of the strike; (4) that on October 17, 1941, the strike terminated
and the application for reinstatement of 26 named employees was re- -'
fused by the respondent because said employees joined and assisted the
Union and engaged in concerted activities for their mutual aid and
protection; 2 and (5) that-by the above acts, the respondent interfered
with, restrained, and coerced its employees in-the exercise of the rights
guaranteed in Section 7 of the Act.
On March 25, 1942, the respondent filed its answer to the complaint,
denying that it had engaged in'the upfair,labor'practices alleged, and
asserting that it refused the strikers reinstatement because their places
had been filled by permanent employees.
Pursuant to notice, a hearing was held in Worcester, Massachusetts,
on March 30, 31, and April 1 and 2, 1942, before Frank A. Mouritsen,
the Trial Examiner duly designated by the Chief-Trial Examiner.
The Board, the respondent, and the Union were represented by counsel -
and all participated in the hearing. Full opportunity to be heard; to
examine and cross-examine witnesses, and to, introduce evidence bear,
ing upon the issues was afforded all parties. At the beginning of the
hearing, the Trial Examiner denied the respondent's petition for a-
bill of particulars, previously filed with the Regional Director, but
not disposed of by him. At the conclusion of the hearing, counsel
for the Board moved to amend the complaint to conform to the proof,
and counsel for the respondent moved to dismiss the complaint. The
Trial Examiner granted the motion to conform, but denied-the motion
to dismiss. During the hearing the Trial Examiner made rulings on
numerous other motions and-on-objections-to the-admission of-evidence.
2 One of the employees was reinstated on,November 11, 194T ; the others had not been
reinstated at the time of the hearing '
'THE L. HARDY COMPANY 1015
The Board had reviewed the rulings ofjthe Trial Examiner' and finds
that no pt6j udicial' errors were committed. . The rulings are hereby
affirmed.
Shortly after the close of the hearings the respondent filed a brief
with the Trial Examiner. On April 27, 1942, the Trial Examiner
issued his Intermediate Report, copies of which were duly served upon
the parties, in which he found that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7)
of the Act. He recommended that the respondent cease and desist from
its unfair labor practices and that it take certain affirmative action
including reinstatement with back pay of the 26 named employees who
had gone out on strike on August 4, 1941. Thereafter, the respondent
filed exceptions to the Intermediate Report, and subniitted a brief in
support-.of the,,exceptions. The Union filed a brief in support of the
Intermediate Report. Pursuant to"notice duly served on the parties, a
hearing for the purpose of,oral argument was held before the Board
in Washington, D. C., on June 18, 1942. The respondent was repre-'
seated` by counsel and participated in the argument. The Union was
not represented.
The Board has considered the respondent's exceptions to the Inter-
mediate Report and the briefs of the parties and, insofar as the excep-
tions are inconsistent with the findings of fact, conclusions'of law; and
order set forth below, finds them without merit. '
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. TIIE BUSINESS OF THE RESPONDENT
The L. Hardy Company is a Ma'ssachusettes corporation engaged
in 'the manufacture,, sale; 'aiid°`d'istribution- of machine 'knives. Its
office and principal place of business is in Worcester, Massachusetts.
The principal raw material used by'the respondent in the operation
of its business is steel. During the calendar year 1941, the respondent
purchased in excess of 200 tons of steel, valued at more than $100,000,
over 50, percent of which was shipped to the Worcester plant from
points outside Massachusetts. During 1941'the respondent manufac-
tured knives valued at more than $300,000. ' Over one-third of such
knives was shipped to points outside Massachusetts. During July
1941 the respondent employed approximately 50 production and main-
tenance employees. The respondent' concedes that it' is engaged in
commerce within the meaning of the Act. '
I
1016 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
II. THE-ORGANIZATION INVOLVED
Steel Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, is a labor organization admitting to
membership employees of ,the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In June or July 1941, Fred Jarvis, one of the respondent's em-
ployees, invited'Phillipe Ferland, voluntary organizer for the Union;
to try to organize ' the respondent's employees. Ferland agreed to
do so. As his first act he gave Jarvis some application cards and
told him to see whether other employees of the respondent were inter-
ested in becoming members of the Union. Shortly afterwards, the
respondent's president, Thomas Moor, learned that the Union was
attempting to organize the employees: He thereupon called into his
'office -Harry Hanson, one of .the, employees, and, according to Han=
son's testimony, began interrogating him in the following manner in
regard to.the Union. Moor'asked if Hanson was organizing the
Union, and when Hanson replied that he was not, Moor questioned
him as to whether he knew who started the Union. Hanson answered
that he did not know, and that even if he did he would,not divulge
the name. Moor then said that Hanson should show more loyalty
to the respondent, and that the respondent had been in existence for
a long time without a union. He then told Hanson to go back to
work. Moor did not testify at the hearing. Belmont, superintendent
of the plant, 'was present' when Moor talked to Hanson.* Belmont
testified that Hanson replied to Moor's question relative to whether
he had organized the Union by saying that although ,he was a mem-
ber he had not organized the Union. Belmont further testified that
Hanson continued his answer by saying "something about feeling bad
about the thing or something about loyalty."- Then, according to Bel-
mont, Moor responded with the remark that he "expected greater
things," and told Hanson to go back to work. In view of the fact
that Belmont did not deny that Moor said that the respondent had
been in existence for a long time without a union, and the fact that
Belmont admitted that there was.some talk about loyalty and that
Moor said that he "expected greater things" of Hanson, we, as did
the Trial Examiner, credit the* testimony of Hanson in respect to
Moor's conversation with him.,
On July 20, 1941, a meeting was held at the union office, and at_that
time' 28 of the respondent's employees signed cards- designating the
'THE L. HARDY COMPANY 1017
Union as their bargaining agent.3 According to the',testimony of
employee Forsberg, Foreman Daniel Stenlund told him, during the
week following the union meeting ,of July '20, that if the Union came
into the shop the respondent would make a sweat shop out of it, and
would take away certain privileges that the men had, such as smoking
and eating meals in the shop. Stenlund testified that he did not
"recall" making the statement attributed to him by Forsberg. Em-
ployees Racicot, Mallet, and Robert Johnson all testified that Foreman
Boss asked them if they had joined the Union. Mallet further testified
that when he replied that he had not, Boss said that he would take
good care of Mallet. Boss did not testify. We, as did the Trial Ex-
aminer, credit the testimony of Forsberg, Racicot, Mallet, and Johnson.
We find, as did the Trial Examiner, that the respondent, by its course
of conduct in questioning its employees about their -union membership
and activities, in threatening the employees with curtailment of their
privileges if they joined the Union, and in the utterance of anti-union
remarks at the advent of union organization, has interfered with,
restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
B. The refusal to bargain collectively; the strike; the refusals
to reinstate
1. The appropriate unit
The complaint alleges that all production and maintenance em-
ployees of the respondent employed at the Worcester plant, exclusive
of executives, office and clerical employees, supervisory employees,
and shipping clerks, constitute an appropriate bargaining unit. The
respondent's answer denied the above allegation "in order to save the
respondent's'rights to have the National Labor Relations Board deter-
mine the appropriate unit by an ordered election...." At a con-
ference on August 13, 1941, between' representatives of the respondent
and the Union, which was conducted before a field, representative of
the Board, the respondent contended that its two shipping clerks and
a 67,-year-old pensioner should be included in the unit. The unit for
which the Union contended was of the customary type which the Union
attempted to. organize in plants of the same type and size as the
respondent's. -
Since the pensioner obviously has no vital interests to be served
through collective bargaining, and since the shippin' clerks are not
• production and maintenance employees, we shall exclude them from
the,appropriate unit. We therefore find that all production and main-'
' Some employees who had signed cards prior to the meeting signed new cards because
their former cards were not correctly filled out.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenance employees of the respondent employed .at the Worcester plant,
exclusive of executives, office and clerical employees, supervisory em-
ployees, and shipping clerks, at all times material herein constituted
and that they now constitute a unit appropriate for the purposes of
collective bargaining with respect, to rates of pay, wages, hours of
employment, or other condition's- of,°elrlployment, and that_said -unit -
insures to employees of the respondent the full benefit of their right
to self-organization and to collective bargaining and otherwise effectu-
ates the policies of the Act.
2. Representation by the Union of a majority in the appropriate -unit
The respondent's pay rolls for the period from July 19 to August
2, 1941, show that the respondent had in its employ 47 employees within
the unit appropriate for collective Wrgaining. On August 4 the
respondent hired 3 additional employees within said unit, raising the
total to 50, and on August 7 another employee was hired, raising the
total-to, 51.
On July 20, 1941, 28 of the employees of the respondent within the
appropriate unit designated the Union' as their collective bargaining
agent. On August 6, one and, on August 11, two additional employees
within the unit designated the Union as collective bargaining agent.4
As did the Trial Examiner, we, find that on and at all times after
July 20, 1941, the Union was the duly designated representative of a
majority of the employees in the aforesaid appropriate unit, and that,
by virtue of Section 9 (a) of the Act, the Union at all such times
has been the exclusive representative of all the employees in such unit
for the purpose of collective bargaining in respect to rates of .pay,
wages, hours of employment, or other conditions of employment.
3. The refusal to bargain;,,the strike; the refusals to reinstate
a. Sequence of events
On Sunday, July 27, the Union elected officers and a grievance com-
mittee. The next day the-grievance committee, which was composed
of employees Hanson, Dwyer, Jarvis, Murray, Sundberg, and Racicot,
requested and were granted a meeting with Superintendent Belmont.
The meeting.'took'place in-Belmont's..officei.and-was. attended by Louis
Boss, a foreman, and a non-union employee, Corriveau, in addition to
the members of the grievance committee. Hanson, speaking for the
committee, announced that they were a union committee who repre-
4 Thirty-one application-for-membership cards were introduced in evidence to substanti-
ate the Union's claim to represent a majority in the unit claimed. Organizer Ferland
testified that all 31'of the cards were signed in his presence by the individuals whose
names appear thereon. The respondent' did not except to, the finding of the Tnal Exam-
iner that the Union represented a majority in the appropriate unit
THE L. HARDY COMPANY 1019
rented ' a. majority of the employees , and that they wished to discuss
grievances . He then asked Belmont if he would deal with the com-
mittee. According to the. testimony of Murray and Racicot , Belmont
-replied that he would not meet with the grievance committee as a union
but only as employees of The L. Hardy Company . Hanson, Murray,
and Racicot also -testified that Boss questioned the employees as•to,.why
they needed a union, and that, when Hanson - answered that they
"wanted legal and binding representation ," Boss asked the assembled
employees if they were too ignorant to' 'represent themselves. Bel-
niont's account of the meeting did not include the statement that he
would not deal with the committee as a union but only • as employees.
Belmont testified that he listened attentively to the complaints of the
grievance committee , that the meeting was a model of what a meeting
should be, and that everyone on the grievance committee signified his
satisfaction when he left the room. At the time of the hearing Boss
was no longer employed by the respondent , and he did not appear as
a -witness . We, • as, did , the Trial ' Examiner who; observed the wit-
nesses, credit the testimony of Hanson , Murray,, and Racicot, as set
forth above , and find that Belmont and Boss made the statements
attributed to them.
Ferland, the union organizer , testified that on either July 28 or, 29,
1941 , as,a result of the report to him by - the grievance committee con-
cerning the unsatisfactory treatment accorded them by Belmont, he
met with Belmont, protested against the reception given the grievance
committee , and asked for a meeting with President Moor for the pur-
pose of negotiating a contract . Ferland disclosed to Belmont that he
was a representative of the Union and that it represented a majority
of the employees , in the shop . Belmont informed - Ferland that he
had' no authority to negotiate with the Union , but that he would
attempt to arrange a conference with Moor.
On July 28 a number of the employees, including Robert Johnson,
commenced to wear their union buttons in the plant . Johnson testi-
fied that when Superintendent Belmont saw him wearing the button he
asked his age and when he replied that he was 66, Belmont remarked
that he was old enough to know better . Although Belmont did not
directly deny the 'above statement attributed to him, he did testify that
Robert Johnson came to him, stated he did not know what to do about
joining the Union, and he thereupon said to Robert Johnson, "You are
an elderly man; you know your own mind; you act whatever way you
decide; it has nothing to do with me one way or the other." We, as did
the Trial Examiner who observed the witnesses , credit the testimony
of Robert Johnson as to Belmont's conversation with him.
The following Friday , August -1, 1942, Ferland ' and the committee
again met with Belmont , pursuant to appointment . Upon the basis
of all the testimony we find that the following events occurred at this
1020 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
conference. At the outset, Ferland'again informed Belmont that the
Union represented a majority of the employees and handed Belmont-
a list of the matters about which the Union desired to negotiate. Bel-
mont pushed the list aside without examining it, and stated that he
would agree to nothing unless the Union demonstrated its majority. He
suggested that an election be held and to this Ferland agreed. Where-
upon, Belmont ignored Ferland's acceptance of his suggestion and
abruptly turned to the members of, the grievance committee. To them
Belmont declared that he would listen to their grievances at any time,
but would not recognize the Union as the bargaining agent of the
employees nor would he deal with Ferland as an outside representa-
tive of the Union. He also added that the employees did not need
Ferland to represent them, -that, by his presence at the conference
Ferland. was trespassing, and that he could have Ferland ejected.
Thereupon, Ferland stated that in view of Belmont's position nothing
could be accomplished, and the conference concluded with Belmont
returning to Ferland, without having read it, the memorandum con-
taining the Union's proposal.5
Hanson, Racicot, and Murray testified, and we'find, that on Sunday,
August 3, 1941, at a union 'meting, Belmont's treatment of the griev-
ance committee and the Union's request to Belmont for bargaining
rights- were discussed, as well as the anti-union statements and- acts of
the foremen alluded to previously in this decision. The grievance com-
mittee was then authorized to call a strike if the respondent continued
to refuse to deal with the committee.
The next day Belmont called the grievance committee into his office,
and told them that he had a grievance to take up with them. Ac-
cording to the testimony of Hanson, Belmont stated that he had been
informed that a slow-down strike was in progress. Racicot testified
that Belmont accused the Union of -slowing down production. Both
Hanson and Racicot testified that Belmont then said, that if produc-
5 The findings of this paragraph are in substantial agreement with those made by, the
Trial Examiner . They are based upon the testimony of Hanson , Racicot , Murray, and
Ferland , all of whom attended the conference and whose testimony we credit, as did the
Trial -Examiner . The findings are in part corroborated by the testimony of Belmont
According to Belmont's version , Ferland did not tell'him that the memorandum which he
placed on Belmont's desk contained a list of matters for negotiation . , Belmont testified
that he did not look at the memorandum because he was distracted by the fact that at
the very moment Ferland stepped into the room Ferland started "hollering and yelling"
and displayed a "hot" disposition Belmont related that in order to calm Ferland's
display of temper he finally was compelled to threaten Ferland with the consequences of
trespassing . Belmont conceded that Ferland agreed to his proposal for ari election, but
asserted that Ferland's acceptance of the election procedure displeased the employee
members of the- grievance committee Thereupon Ferland became so,angry at , his own
committee, according to Belmont , that he ' seized the memorandum he had placed on Bel-
mont's desk and departed precipitately before Belmont had had opportunity to examine
it. The Trial Examiner .- did - not - credit, nor do we , the testimony of Belmont inso-
far as it conflicts with' the'substantially consistent account of the conference as related
by lfauson , Racicot, Murray , and Ferland. , - „
THE L. HARDY COMPANY 1021
Lion did not increase, they would all lose their jobs. Racicot related
that Hanson replied, on behalf of the committee by stating that "as
far as he knew there was no slow-down in production," and that
"there were some days you could keep up a pretty good rate and there
were other days you couldn't." Robert Johnson, one of the union men
seeking reinstatement, testified that a slow-down was general 'in the
shop. Belmont testified that all the foremen in the plant told him,
about the slow-down. The evidence discloses three cards from the
Company's files which show individual production records for August
1, 1941, which Belmont testified he inspected in order to satisfy him-
self as to the matter of the slow-down. . All three cards indicated a
substantial decrease in production below the job standard, and they
were all cards of union members. Belmont presented the three cards
to the grievance committee when he called them to the meeting. We
find'that there was a slow-down in production in which union mem-
bers were participating.
Shortly after the grievance committee left Belmont's office they
gathered in the plant and voted to call a strike. Racicot and Hanson
testified that in connection with the strike vote the members of the
committee discussed Belmont's attitude toward the Union and toward
Ferland on the occasions heretofore described. The members of the
committee told the other employees of their action, and the strike
'began. Hanson stated that the reasons given the employees for the
calling of the, strike were that "Mr. Ferland wouldn't be recognized
as bargaining agent for our Union ; that Belmont wouldn't recognize
the grievance committee as a union ; and that Mr. Belmont had coerced
one of the members, Mr. Johnson." Substantially all the production
and maintenance employees went on strike. During the strike the
employees picketed the plant.
Within a day or two, after the commencement of the strike, the
Union appealed to the Massachusetts Board of Conciliation and Arbi-
tration and the "National Labor Relations Board for assistance in
settling the strike. The Massachusetts Board' called- a conference of
representatives of the Union and the respondent for, August 7, 1941.
The union representatives attended, but nothing could be accom;
plished for, although Belmont attended, he claimed to have no' au-
thority to make any disposition of the matter.
On August 13, a conference was held in the office of the National
Labor Relations Board in Boston. It was attended by representa-
tives of the,Union, Belmont, and Attorney Anderson, who had been
retained by the respondent as counsel and was admittedly fully au-
thorized to make final disposition of the controversy. At the confer-
ence, the respondent maintained that the Union had not shown that it
had a majority. The suggestion was made by the Union that the
1022 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
signatures on the authorization'cards of the Union be checked against.
the signatures of' such' employees in the possession of the respondent-
Anderson suggested that the check be made by a Judge John C. Ma-
honey or, a Mr. Prince, a bank teller. The Union refused, contending
that a check of cards would be satisfactory only if made by the Board
as an impartial party. A transcript which appears in evidence and
which Field Examiner Murphy testified at the hearing was a true
stenographic record of what was said at the meeting of August d3,
,substantiates, Ferland's testimony that there was considerablei.discus-
sioii ,about which employees should be included in the appropriate
unit which culminated in thg Union's representative, Attorney Angoff,
stating that he would accept the bargaining unit proposed by the
respondent 6 although he did not consider it the proper unit. The
transcript also, discloses that Attorney Angoff insisted that the re-
spondent advise the Boston Regional Office of the Board in writing
that it would bargain with the Union in the event a check demon-
strated that the Union had been designated by a majority of the
respondent's employees, and that Anderson promised to -send such
a letter to the Regional Office. Anderson denied that a conference
was held in the Boston Regional Office of the Board on August 13,T
and that the Union 'agreed to the unit 'proposed by the respondent.
Anderson never did send the letter which the transcript indicates he'
promised to send. Instead, on September 22, 1941,,despite the fact'
that Anderson had been fully empowered by the respondent to make
full disposition of the dispute, he sent a letter to the Regional Office
asserting that he was unable to state the policy of the respondent
because President Moor had been absent from his office in Worcester.
We find, as did the Trial Examiner, that the facts in respect to the
meeting of August 13 occurred as disclosed by the transcript and by
the testimony of Ferland, which we credit.
Subsequent to August 13, a. conference for the purpose of settlin'
the strike was held by the Mtlssachusetts Board on August 15, 1941.1
According to the testimony of Martin J. Walsh, New England Direc-
tor of the Steel Workers Organizing Committee, the Union suggested
that,the question of majority be resolved-by a check of the signatures.
on the Union's authorization cards against the employees' signatures
in the respondent's possession or by a consent election, the check or
election -to be conducted by representatives either of the Massachusetts.
Board or the National Labor Relations Board. Walsh further' testi'
9 The Union thereby agreed to permit a pensioner and two slipping clerks to be included
in the unit. '
T Anderson alleges that the transcript is a fabricated document. As hei etofore related.
Field Examiner Murphy testified, and we find, that the transeupt is a true stenographic
record of the August 13 conference
8 The grievance committee attended the meeting . Walsh s testimony is in part corrobo-
rated by momoers of"the grievance committee.
THE L. HARDY COMPANY 1023
fled that the proposals were rejected by the respondent' with the state-
ment that it preferred to have the question settled by a formal pro-
ceeding before the Board in the form of an ordered election. .Ander-,
son denied that any such proposal was made until after the middle of
September when conditions had materially changed because men had
been hired to replace, the strikers.0 Walsh testified that, at the next
meeting which was held in the middle of September, the Massachusetts
Board suggested that the matter of majority be settled by a check of
the Union's authorization cards to be conducted by a panel-consisting
of William Horneman, representing the Massachusetts• Boards Mr.
Prince or Mr. Prentiss of the Worcester County Institution of Sav-
ings, and Mr. Jarvis, representing the employees. The testimony is
substantiated by a typewritten statement carrying the date Septem-
ber 15, 1941, appearing in evidence, which sets forth an agreement
to the above effect and makes provision for signatures of the inter-
ested parties. Walsh testified that General Cole, the chairman of the
Massachusetts Board, had the proposed agreement drawn up at the
time of the meeting. Walsh related that he accepted for the Union,
and that either immediately or a few days thereafter the respondent
rejected the proposal.. 'We , credit, the above testimony, of Walsh,. as,
did the Trial Examiner, and find as fact his account of the conferences
of August 15 and September 15, 1941:
In a further effort to settle the controversy, General Cole, represent-
ing the Massachusetts Board, wrote the respondent iinder date of Sep-
'tember 26, 1941, adopting the earlier suggestion of the respondent that
a check be made by Judge Mahoney. The letter, -,i•hich appears in
,evidence, contains a statement of the fact.that the Union agreed to
permit Judge Mahoney to do the cheeking. Anderson replied for the
respondent by letter dated October 2, 1941, which appears in evidence.
He rejected the proposal because conditions had "materially changed"
inasmuch as new-workers ha& been`•hired to fill'the positions of 'those
employees on strike. Anderson's letter also states that the only way
to determine the Union's majority was through an election ordered
by the National Labor Relations Board.
At a final conference on October 10, 1941, the Massachusetts Boar&
suggested that it be permitted to arbitrate the matter. The Union
agreed, but the respondent rejected the offer.10
On October 17, 1941, the Union terminated the strike and, by letter
to the respondent which was received on October 20, 1941, the en l2
ployees listed in Appendix A unconditionally applied for'reinstate-
ment. The respondent refused, to reinstate them, stating that their
9 The hiring of new men wao begun on September 16, 1941
10 Anderson denied at the hearing'that there was any proposal to arbitrate, but a tran-
senpt of pi oceedinngs, introduced in evidence discloses that there was such a suggestion
and that Anderson rejected it We therefore do not credit Anderson's denial
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
positions had been filled by permanent 'employees. Subsequently, on
November 11, it did, reinstate Albert Mallett. The other employees
named in Appendix A had not been reinstated at the time of the
hearing.
b. Conclusions
As we have found above, the Union represented a majority of the
respondent's employees in an appropriate unit at all times ' after July
20, 1941. Although we recognize that an employer need not bargain
with a union if he entertains a genuine doubt that it represents a
majority in an appropriate bargaining unit, the evidence in this case
convinces us that the ' respondent was not motivated by any genuine
doubt of the Union's majority, but on the contrary sought by various
means to destroy the Union, and to frustrate the efforts of its em-
ployees to exercise the rights guaranteed them in the Act. Thus, at the
outset of 'the Union's organizational efforts, President Moor questioned
Hanson in regard to the organization of the Union, warned Hanson td
show more loyalty, and cautioned that the respondent had been in exist-
ence for a long time without a union; Foreman Stenlund threatened
,that if the Union,came into the shop the respondent would' make a
sweat shop out of it and -would curtail privileges; Foreman Boss ques-
tioned union members in regard to their membership, offered to "take
good care" of Mallett who said he did not belong to the°Union, and
taunted the employees at the meeting with the respondent on July 28,
1941, by suggesting that they were too ignorant to represent them-
selves; and Superintendent Belmont told Robert Johnson, when he
saw the latter wearing a union button, that he thought Johnson was
old enough to know better. By these acts, which we have heretofore
found constituted interference with and restraint and coercion of the
employees in the exercise of their right to self-organization, the re-
spondent plainly sought to destroy the majority status of the Union
and thereby,avoid its duty to bargain collectively.
The respondent's attitude at the meeting's of July 28 and August 1,
1941, toward the grievance committee of the Union gives, additional
support to the conclusion that the respondent's conduct was not moti-
vated by an honest doubt about the Union's majority status, and that
it did not intend to bargain collectively with the-Union. Superintend-
ent Belmont insisted at the meeting of July 28 on dealing with the
members of the grievance committee as individuals, and refused to
deal with them as union representatives. On August 1, Belmont first
asserted that he would not agree to any contract proposals unless the
Union demonstrated its majority in an election, but immediately
changed his position when lie learned that Ferland would agree to an
election, and reverted to his former attitude of insisting upon dealing .
with the committee as individuals. Moreover, Belmont refused to
treat Ferland as the representative of the Union, and sought to create
THE L. HARDY COMPANY 1025
dissension between the members, of the committee and Ferland. Such
conduct, we find, belies the claim of the respondent that it entertained
genuine doubt that the Union represented a majority of employees in
an appropriate unit. The subsequent conduct of the respondent during
the strike confirms this finding. We conclude that the respondent's
course of conduct was in no way motivated by any genuine doubt of
the Uliion's majority status but was part and parcel of a deliberate
policy and plan based upon 'rejection of the principle of collective
bargaining.1", , . - I .
'
1, ..
In view of these facts, we- find that by its-refusals on July 28 and
August 1 to deal with the grievance committee members as representa-
tives of the Union, by its further refusal on August 1 to recognize
Ferland as a representative of the Union, and by its threat to eject Fer-
land as a trespasser; the respondent refused to bargain within the
meaning of the Act.
The respondent's opposition to the Union is significant in another
aspect. It convinces is as to the truth of the testimony of Committee-
men Hanson, Racicot, and Murray that such opposition motivated the
members of the Union, at the meeting of August 3, 1941, to authorize
the grievance committee to call a. strike if the respondent continued
to refuse to bargain. We are also of the opinion, and we find that,
while the strike was called on August 4, 1941, shortly after Belmont
called the grievance committee to listen to his accusation and threats
of discharge in connection, with the slow-down, the primary reason
for the calling of the strike, as evidenced by the testimony of Hanson
and Racicot, which, we have heretofore .found credible, and by the
statements made to the men at the time they were asked to go out on
strike, was the respondent's past failure to bargain with the Union.
Superintendent Belmont's treatment of the union representatives, and
his anti-union conduct.12 ' We further find, as did the Trial Examiner,
that the anti-union conduct of President Moor, and Foremen Stenlund
and Boss, which we have heretofore found ',to constitute a violation
of Section 8 (1) of the Act, were contributing factors in the calling of
the strike. We find, as did the Trial Examiner, that the strike was
caused by, the respondent's unfair labor practices. '
The respondent's duty to bargain with the Union continued during
the progress of the strike .113 The, record clearly discloses that the re-
'See Matter of Stehli and Co. Inc and Textile Workers Union of Lancaster, Penn-
s+ih,ania and Vicinity, Local # 83, 11 N L R. B. 1397, 1425-27.
12In making this finding the Board does not condone the slow-down . The respondent's
protest-oven the slow-down was, however, not the cause of the strike
18Matter of Louisville Refining Company and International Association, Oil Field, Gas
Well and Refinery Workers of America , 4 N. L. R. B 844, enf'd as mod. National Labor
Relations Board v Louisville Refining Co , 102 P. ( 2d) 678(C C. A. 6 ), cert . denied 308
U S. 568 ; Matter of Hopwood Retinning Company , Inc., and Monarch ,Retinasng Company,
Inc. and Metal Polishers, Buffers, Platers and Helpers International Union , Local No 8
41 Matter of Sanco Pierce Dye Work's, Inc, William F. Larkin and' Federation of Dyers,
Relations Board v . Hopwood Rctinnsng Co., 98 F. (2d) 97, (C. C. A 2).
487498-42-vol. 44-65
1026 DECISIONS OF-NATIONAL--LABOR'' RELATIONS BOARD
spondent did not fulfill that duty. With respect to, ascertaining the
Union's majority status in an appropriate unit, - the respondent
,adopted, at the various conferences beginning with that of August
7, 1941, a technique of vacillation in order to avoid the presentation of
,proof of majority and its duty to bargain. At the conference of
August 7, the respondent was represented by Belmont who was not
authorized to enter into any kind of an agreement. During the meet-
ing of August 13, 1941, in the Regional Office of the Board, the Union
agreed to a check of membership cards by the Board, but the respond-,
ent at that time insisted that the check 'be made by certain named
private individuals.14 Two days later at the meeting of August 15i
1941, before the Massachusetts Board, when the Union suggested that
-a consent election or a check of the signatures on the authorization
cards be conducted by either the Massachusetts Board or' the National
Labor Relations Board, the respondent stated that it -preferred a for=
mil election. Again at the meeting of September 15, before the Mass-
achusetts Board, that body suggested that a check of the cards be made
by an impartial panel composed of a representative of the Board, a
bank teller, and Jarvis, the president of the Union. The Union ac-
cepted, but the respondent rejected the proposal. On October 2, 1941,
the respondent refused to accept the Union's offer of September 26 to
let Judge Mahoney check the cards-a procedure which the respondent
itself, had previously suggested. Finally on October 10, 1941, the
respondent rejected the offer of the Massachusetts Board to arbitrate
the matter.'
The' respondent's whole course'of conduct during the strike dis=
closes'a studied intent to prevent the Union from furnishing reason-
able proof that it represented a majority in the appropriate unit. In
'the light of'all'the above-described, circumstances, we find, as did the
,Trial' Examiiier,,Ahat, while the respondent did state that it desired
to lave the matter of majority, settled by a' formal election conducted
by the Board, the respondent did not fulfill its duty to accept reason-
able proof on the majority question.15 We further find, as did the
Trial Examiner, that the respondent's failure to cooperate in the res-
olution of the majority question raised by it constituted continued
refusals to bargain which-prolonged the strike.
In addition to its failure to bargain, the respondent has also violated
the Act by its refusal to reinstate the striking employees listed in
Appendix A when they notifiedthe respondent of the termination of
11 Further evidence of the respondent's lack of good faith in its dealings with the Union
is found in the fact that, although the respondent's attorney, Anderson, agreed to write
a letter to the Board's Regional Office, promising that the respondent would recognize the
Union if a proposed card check disclosed the Union to be the majority representative,
Anderson failed to keep his promise, and at no time did the respondent agree in writing
to abide by the results of its own proposed check of union cards. - _
. 15 Alatter of dance Piece Dye Works, Inc, lhallaam, F Larkin and Federation of Dyers,
Finishers, Printers & Bleachers of America, 38 N. L. R. B. 690.
11
THE t . HARRDY - COMPANTY 1027
-the strike, and requested on October 20, 1941, to be reinstated in''their
• former • employment. Inasmuch as the strike was caused and pro'-
'longed by the respondent's unfair labor practices, the striking em-
'ploye'es are entitled to reinstatement to their former positions upon
'request, even though the respondent hired new employees during the
strike."
We find that at all times on 'and after July 28, 1941, the respondent
refused to bargain collectively with the Union as the exclusive repre-
sentative of its employees in an appropriate unit with respect to rates
of pay, wages, hours of employment, and other conditions of employ-
ment, and that thereby the respondent caused and prolonged the strike,
and interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act. We'further find
that the respondent, by refusing on October 20, 1941, and thereafter
to reinstate the strikers listed in Appendix A,17 discriminated in regard
to the hire and tenure of their employment, and that the respondent
thereby discouraged membership in the Union and interfered with,
restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occur-
ring 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.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist from such prac-
tices and to take certain affirmative action designed to effectuate the
policies of the Act. We have found that the respondent refused to
bargain collectively with the Union as the exclusive representative of
its employees within an appropriate unit. Accordingly we shall order
the respondent, upon request, to bargain with the Union- as such
representative. , , '
10 Black Diamond Steamship Corporation v. N. L R. B, 94 F . ( 2d) 875 ( C. C. A. 2),
cert. den. 304 U S. 579 ; Matter of McKaag -Ilatch, Inc. and Amalgamated Association of
Iron, Steel, and Tan Workers of North America ' Local No 1139 , 10'N. L. R. B . 33 N. L.
R. B. v. Remington Rand Inc, 94 F. (2d) 862 (C. C. A. 2 ), cert. den. 304 U. S. 576;
Stewart Die Casting Corporation v. N. L. R.B., 114 F (2d) 849 (C. C. A. 7) ; Matter of
Rapid Roller Co., a corporation and' Local 120,'linited Rubber Workers of America, Affili-
ated with the C. I. 0 ., 33 N. L. It. B . 557, enf'd but remanded on another issue in 126 F.
(2d) 452 (C. C. A. 7) ; Matter of Shenandoah -Dives ' Mining Company and Mine, Mill
Smelter Workers , etc., 35 N. L. It. B.,1153.
17 See footnote ` 19, infra.
1028 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
. We have found that the respondent discriminated against the strik-
ing employees in regard to their hire and tenure of employment. - We
shall, therefore,' order the respondent to offer those employees who have
not already been reinstated immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to their
seniority and other rights and privileges.' The reinstatement shall be
effected in the following manner:, all employees hired by the respond-
ent after August 4, 1941, the -date of the commencement of the strike,
shall, if necessary to provide employment for those to be offered rein-
statement, be dismissed. If, however, despite such reduction in force
there is 'not sufficient employment available for the employees to be
offered reinstatement, all available positions shall be distributed among
the remaining employees, ii.cluding those to be offered reinstatement,
Without discrimination against any employee because of his union
membership or activities, following such system of seniority or other
practice as has heretofore been applied in the conduct of the respond-
ent's business. Those employees, if any, remaining after such distri-
bution, for whom no employment is immediately available,- shall be
placed upon it preferential list and offered employment in their former
or substantially equivalent positions as such employment becomes
available and before other persons -are hired for such work, in. the
order determined among them by such system of seniority or other
practice as has heretofore been followed by the respondent.
We shall also order that the respondent make whole the striking
employees, who are listed in Appendix A, for any loss of pay they
,may have suffered by reason of the respondent's refusal to reinstate,
-them, by the payment to them of a sum equal to the amount which
they normally would have earned as wages from the date of-the appli-
cation for reinstatement oli- October 20,A941" to 'the date of the re-
spondent's offer of reinstatement or placement upon the preferential
'list hereinabove described, less their net earnings 18 during said
period."'
Even if we were to assume that the respondent's denial of reinstate-
ment to the striking employees did not constitute discrimination, as
-contended by the respondent, we' would nonetheless under the circum-
stances award reinstatement and-pack pay to the employees listed in
"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 the unlawful
discrimination against him and 'the consequent necessity of his seeking employment else-
where See Matter of Ciossett'Lumber Company and United Brotherhood of Carpentevs
and Joiners of America, Lumber and Sawmill TVorkeis Union, Local 2590, 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
National Labor Relations Board, 311 U S. 7.
in The record 'discloses that one of the striking employees, Albert Mallett, was reinstated
on November 11, '1941. ` We shall order that Albert, Mallett. be 'made -,roholel for any
loss of pay he may have suffered between October 20 and November' 11, 1941. .
,THE - L. HARDY' COMPANY ;
Appendix A in- the manner set forth above. Assuming that the re-
spondent denied the named employees reinstatement because their jobs
were occupied by strikebreakers, and for no other reason, and assuming
that a denial of reinstatement on such around alone was not a violation'
of Section 8 (3) of the Act, nevertheless, the entire situation was
brought about by the unfair labor practices of the respondent in inter-'
fering with, restraining, and coercing the employees in the exercise of
the rights guaranteed in Section 7 of the Act and in refusing to bar-
gain in good faith with the Union. In this situation the ordinary
right of an employer to select its employees is qualified as a result of
the unfair labor practices causing the strike, and not only are the strik-
ing employees entitled to reinstatement upon application 20 but also
any refusal by the employer of their request for reinstatement subjects
him to liability for loss of wages sustained by virtue of the refusal.21
Under substantially similar circumstances and in language equally
applicable here, we stated the basis for such order in Matter of Western
Felt Works, a corporation and Textile Workers Organizing Com-
mittee, Western Felt Local."
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CoNCLusioNs of LAW
1. Steel Workers Organizing Committee, affiliated with the Con-
gress of Industrial Organizations, is a labor organization, within the
meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the respondent
employed at the Worcester plant, exclusive of executives, office and
clerical employees, supervisory employees, and shipping clerks, at all
times herein material constituted and now constitute a unit appropri-
ate for the purposes of collective bargaining, within the, meaning of.
Section 9 (b) of the Act.
3. Steel Workers Organizing Committee is, and at all times since
July 20, 1941, has been, the exclusive representative of all employees
in the above unit, for the purposes of collective bargaining, within the
meaning of Section 9 (a) of the Act.
20 See, for example , National Labor Relations Board v . Remington Rand , Inc., 94 F. (2d)
862 (C C. A 2 ), cert denied, 304 U S . 576, enf'g as mod 2 N. L R . B. 626 •
21 See , for example , Black Diamond S. S. Corp v. National Labor Relations Board, 94 F.
(2d) 875 ( C. C A 2 ), cert denied , 304 U. S. 57, enf'g 3 N. L R B . 84; The M H. Ritz-
woller Co v. National Labor Relations Board , 114 F. ( 2d) 432 (C. C. A. 7), enf'g as mod.
15 N. L R B 15 ; Rapid Roller Co. v National Labor Relations Board, 126 F. (2d) 452
(C. C. A 7), enf'g and remanding on another point , 33 N. L R . B. 557.
22 10 N L R B 407, enf 'd, by consent decree, Western Felt Works V. National .Labor
Relations Board, March 25, 1939 (C. C. A. 7). See also ,,Matter of Mountain City Mill
Company, etc and Bakery and Confectionery Workers ' International Union of America,
Local No 25, 25 N. L. R. B 397, enf ' d sub. nom. National Labor Relations Board v. Chatta-
nooga Bakery , decided April 15. 1942 ( C. C. A 6 ) ; Rapid Roller Co v. National Labor
Relations Board, 33 N . L R. B. 557, enf'd in 126 F. ( 2d) 452 (C. C. A. 7).
'41030 ' DECISIONS OF NATIONAL LABOR . RELATIONS BOARD
4. By refusing on July. 28, 1941 , and at all times thereafter, to bar-
gain collectively with Steel `Yorkers Organizing Committee, affiliated
with the Congress of Industrial Organizations, as the exclusive repre-
sentative of its - employees in such unit, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (5) of the Act. - '
5. By discriminating in regard to. the hire and tenure of employ-
ment of the striking employees .listed in Appendix A attached hereto,
thereby discouraging membership in Steel Workers Organizing Com-
mittee, affiliated with the Congress of Industrial Organizations, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
6. By. interfering with, restraining, and coercing its employees in
the exercise of the rights guaranfeed in Section 7 of the Act, the
respondent has,engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
- 7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
The L. Hardy Company, Worcester, Massachusetts, and its officers,
agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Steel Workers Organiz-
ing Committee, affiliated with, the Congress of Industrial Organiza-
tions, as the exclusive representative of its production and maintenance
,employees at its Worcester plant, exclusive of executives ,' office and
clerical employees , supervisory employees, and shipping ' clerks;
(b) `Discouraging ' membership 'in Steel Workers Organizing Com-
mittee, affiliated with the Congress of Industrial Organizations; by
discharging or refusim to reinstate any of its employees , or in any
other manner discriminating in regard 'to their hire or tenure of em-
ployment, or .any terms or conditions of their employment';
(c) In any other manner interfering with; restraining , or coercing
its employees_ iii the exercise of the right t'o,self-organization , to form,
join , or assist labor organizations , to bargain collectively through
representatives , of their oWn choosing, or to engage in con' certed'. ac-
tivities for the purpose of collective bargaining or other mutual, aid or
protection , as guaranteed in Section 7 of the National Labor , Relations.
Act.
{,, , ; " _ . THE, L. HARDY..'COMPANY• - . , ' ' ' - 1031
2. Take the following affirnfati--e actioii ;,which the Board finds will
effectuate the policies of the Act;
(a) Upon request ;- bargain collectively with Steel Workers Or-
ganizing Committee , affiliated with the Congress of Industrial Or-
ganizations ,. as the exclusive representative of its production and
maintenance employees at its Worcester plant, exclusive of executives,
office and clerical , employees , supervisory employees ; and shipping
clerks, in respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(b) Offer to the striking-employees listed in Appendix A, attached
hereto, excepting Albert Mallett who has already been reinstated, im-
mediate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights or
privileges, in the manner set forth in the section entitled "The remedy"
above; and place those employees for whom employment is not im-
mediately available upon a preferential list in the manner set forth
in said section, and thereafter in said manner, offer them employment
as it becomes available;
(c) Make whole the striking employees listed in Appendix A, at-
tached hereto, other than Albert Mallett, for any loss of pay they may
have suffered by reason of the respondent's discrimination in regard to
their hire and tenure of employment, by payment to each of them of
a such of money equal to that which he normally would have earned as
wages during the period from the date of the application for rein-
statement on October 20, 1941, to the date of the respondent's offer
of reinstatement or placement on the preferential list as set forth in
the section entitled "The remedy" above, less his net earnings during
such period; and in the case of Albert Mallett, by payment to him of
a sum of money equal to that which Mallett normally would have earned
as wages during the period from October 20, 1941, to November 11,
1941, less his net earnings during such period;
(d) Post immediately in conspicuous places in its Worcester plant,
and maintain for a period of not less than sixty (60) consecutive
days from the date of posting, notices to its employees stating (1) that
the respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a), (b), and (c) hereof; (2) that
the respondent will take the affirmative action set forth in paragraphs
2 (a), (b), and (c) hereof; -and (3) that its employees are free to
become or remain members of Steel Workers Organizing Committee,
affiliated with the Congress of Industrial Organizations, and that the
respondent will not discriminate against any employee because of
membership or activity on behalf of that organization ;
(e) Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
1032 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Robert Johnson
E. Johnson
Everett Racicot
Fred Jarvis
H. French
E. Peterson
Henry Porter
H. Hanson
G. White
Paul Dwyer
Edward Palm
Berger Sundberg
Clarence Sundberg
1. Morin
W. Murray, Sr.
W. Murray, Jr.
A. Forsberg
J. Taylor
F^. Taylor
John , Stenlund
F. Langton
Pher Anderson
G. Zimmerman
P. Gustafson
J. Errickson
Albert Mallett
I