Thompson Cabinet Co.

National Labor Relations Board - Board Decisions

Mar 14, 1939

11 N.L.R.B. 1106 (N.L.R.B. 1939)

In the Matter of THOMPSON CABINET COMPANY and COMMITTEE FOR
INDUSTRIAL ORGANIZATION , LOCAL INDUSTRIAL UNION No. 115
Case No. C-629.-Decided Mardi 14,1939
Cabinet Manufacture Industry-Interference, Restraint, and Coercion-Com-
pany-Dominated anion: domination of and interference with formation and ad-
ministration; activities of supervisory employees; activities on company time
and property ; disestablished, as agency for collective bargaining-Discrimvna-
tion: discharges and refusal to reinstate ; for union activities ; charges of, not sus-
tained as to four employees-Strike: in protest against discharges-Reinstate-
ment Ordered: discharged employees and those refused reinstatement by re-
spondent ; dismissing newly hired employees, if necessary ; preferential list
ordered;. to be followed in further reinstatement-Reinstatement Denied: one
employee who offered respondent services as labor spy-Back Pay: awarded to
employees discharged and refused reinstatement.
Mr. Earl R. Cross, for the Board.
Mr. K. B. Matthews and Mr. A. A. Keiser, of Ludington, Mich., for
the respondent.
Mr. Willard Young Morris, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges duly filed by Committee for Industrial
Organization, Local Industrial Union No. 115,1 herein called Local
115, the National Labor Relations Board, herein called the Board, by
Frank H. Bowen, Regional Director for the Seventh Region (Detroit,
Michigan), issued its complaint against Thompson Cabinet Company,
Ludington, Michigan, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1), (2),
and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act.
1 The original charges were filed by United Automobile Workers of America before Local
115 had received its charter from the Committee for Industrial Organization.
11 N. L. R. B., No. 99.
1106
THOMPSON CABINET COMPANY ET AL. 1107
Concerning the unfair labor practices, the complaint, in substance,
alleges that the respondent discharged eight employees for the reason
that they had joined and assisted Local 115; refused to reinstate four
other employees who walked out in protest against certain of the
alleged discharges; dominated and interfered with the formation and
administration of The Union of the Employees of the Thompson
Cabinet Company, of Ludington, Michigan, a labor organization,
herein called the Employees' Union; and by these and other acts in-
terfered with, restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act. The complaint and ac-
companying notice of hearing were duly served upon the respondent,
Local 115, and the Employees' Union.
On March 2, 1938, the respondent filed its answer to the complaint,
denying the unfair labor practices.
Pursuant to notice, a hearing was held in Ludington, Michigan,
from March 10 to 12, 1938, before James L. Fort, the Trial Examiner
duly designated by the Board. The Board and the respondent were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded all parties.
The respondent moved to dismiss the portion of the complaint
relating to one of the allegedly discharged employees, Morgan
Mason, on the ground that no evidence was adduced to support the
allegation. The Trial Examiner granted the motion. During the
course of the hearing the Trial Examiner made various other rulings
on motions and objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On March 21, 1938, the respondent filed its brief, which the Board
has considered.
Thereafter, the Trial Examiner filed his Intermediate Report.
He found that the respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (1), (2),
and (3) and Section 2 (6) and (7) of the Act; recommended that the
respondent cease and desist from such unfair labor practices and take
certain affirmative action remedial of their effect; and recommended
the dismissal of the complaint with respect to Lawrence Betka, Henry
Zachaw, and Robert Lee, alleged in the complaint to have been dis-
criminatorily discharged. The respondent thereafter filed exceptions
to the Intermediate Report. The Board has fully considered the
exceptions and, in so far as they are inconsistent with the findings,
conclusions, and order, hereinafter set forth, finds them to be without
merit.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a Michigan corporation engaged, at its plant
in Ludington, Michigan, in the manufacture and sale of furniture,
printing equipment, poster blocks, drawing boards, slats, and similar
products. The principal raw materials used by the respondent are
wood and steel. During the year ending February 28, 1938, the re-
spondent obtained, outside the State of Michigan, 445,280 feet of
lumber at a cost of $26,556.60 and 499,568 pounds of steel at a cost
of $17,373.15 and, within the State of Michigan, 657,696 feet of lum-
ber at a cost of $36,101.44 and 485,018 pounds of steel at a cost of
$19,187.91. During the same year the respondent shipped outside
the State of Michigan products valued at $250,611.51. The respond-
ent's products sold within the State of Michigan during the same
period were valued at $27,202.49. Thus, on the basis of value, approx-
imately 43 per cent of the wood and steel used in the respondent's
plant were purchased outside the State of Michigan and approxi-
mately 90 per cent of the respondent's products were shipped to points
outside *the State of Michigan.
H. THE ORGANIZATIONS INVOLVED
Local Industrial Union No. 115 is a labor organization affiliated
with the Committee for Industrial Organization. It admits to mem-
bership employees of the respondent.
The Union of the Employees of the Thompson Cabinet Company
of Ludington, Michigan, is an unaffiliated labor organization admit-
ting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The first group of discharges
Immediately prior to May 14, 1937, an organizational movement
began among the respondent's employees. On May 14, 1937, Michael
Zywicki, Edmund Neuman, Lowell Phillippo, Robert Ehrenberg,
and Richard Peterson, all employees of the respondent, decided to
go by automobile to Muskegon, Michigan, to enlist the aid of an
organizer of the United Automobile Workers of America in forming
a labor organization. Their intention to go to Muskegon was known,
not only to many of their coworkers, but also to John Wagner, the
foreman in the cabinet department who assisted in the supervision
THOMPSON CABINET COMPANY ET AL. 1109
of the entire plant. Phillippo testified that Wagner approached
him late in the afternoon of May 14 and asked whether he and others
were going out of town that evening , where they were going, their
reason for going , and who were going. Phillippo testified that he
told Wagner that he and other employees were going to Muskegon,
but avoided answering the other questions . Wagner testified that
as he passed Phillippo he said : "I hear you are , going out of town
tonight," and denied asking if they were going to Muskegon. He
explained his passing remark to Phillippo as mere coincidence. We
accept the version of the conversation presented by Phillippo.
The above-named employees went to Muskegon as planned. The
following morning they reported for work at the usual hour to
learn that , with the exception of Peterson , they were all discharged.
The discharged employees left the plant , returning a little later in
search of E. J. Thompson , president and manager of the respondent.
When Thompson arrived at the plant , they confronted him, asking
the reason for their discharge . The testimony of the four discharged
employees may be summed up to the effect that Zywicki, the first to
speak, asked Thompson why they had been discharged ; that Thomp-
son rebuked them for having gone to Muskegon ; that Zywicki in-
sisted they had a right to go anywhere after working hours; that
Thompson said he wanted to know where they went 24 hours of the
day; that in answer to further questions Thompson made lame ex-
planations as to the discharge of two of them; that Zywicki warned
Thompson that the government was behind them; and that Thomp-
son made an obscene response and walked away.
Thompson denied having knowledge of their trip to Muskegon
or making any allusion to it. He testified that when he met the dis-
charged employees in the morning of May 15, Zywicki asked why
they had been discharged ; that he answered by saying they had
"gone over that" the preceding day; that he told Ehrenberg to take
the matter up with his foreman ; that he spoke to Phillippo about
his "running around;" and that to Neuman he said, "Well you know
all about it." We credit the version of the incident related by the
discharged employees.
Thompson further testified that at that time he was deeply har-
assed by litigation and financial problems involving the entire future
of the respondent company; that on May 14, 1937 , Zywicki's fore-
man reported that Zywicki had been insubordinate ; that he had been
receiving complaints concerning the work and attitude of the three
other discharged employees ; and that in the afternoon of May 14
his patience was exhausted and he decided to "clean house" by dis-
charging these four employees.
We shall briefly review the record in so far as it bears upon
Thompson 's contentions . Phillippo entered the respondent's employ
164275-39--vol. xi-71
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in July 1935. He worked in the wood department. His foreman,
Merrell Campbell, testified that he was frequently absent from work
and that when at work he talked too much with his coworkers.
Campbell further testified that he had reported these things to
Thompson some time during the week of the discharge. He ad-
mitted, however, that he did not know whether that was the cause
of the discharge, stating that he did not learn of Phillippo's dis-
charge until after it was effected. Phillippo admitted being absent
from work because of sickness from time to time and said that Camp-
bell resented it. Phillippo further testified that the only other criti-
cism he had received was to the effect that he had the saws sharpened
too often.
Neuman was employed in the respondent's steel department. He
worked for the respondent for a little less than 2 years. His fore-
man did not testify. Thompson testified that Neuman "folded up
steel wrong and spoiled the steel more or less ; running around, try-
ing to kill time, it seemed." Thompson did not testify to any de-
ficiency in Neuman's work immediately prior to discharging him.
Neuman, in testifying, denied receiving any complaints on his work
immediately prior to his discharge. He had received an increase in
pay only 2 months earlier.
Zywicki was in the respondent's employ for nearly 11 years,
Ehrenberg for 11/2 years. Both worked under Foreman Wagner in
the cabinet department. Concerning Ehrenberg, Wagner testified
that he habitually took Saturdays off, and that he was too nervous
to work on hard wood and sometimes spoiled the slats he worked on.
Ehrenberg, in testifying, stated that he worked for the respondent
for about 11/2 years and that the only complaint he received on his
work was that he "ran the slats through" too fast. He admitted not
working on Saturday afternoons. He received an increase in pay
approximately 1 month before being discharged.
Wagner testified that he often had trouble with Zywicki, and in
April 1937, had threatened to discharge him, but that Thompson
had spoken to Zywicki and exacted a promise of good behavior from
him; that on May 14, 1937, Zywicki had been insubordinate to such
a degree that Wagner reported the matter to Thompson. Zywicki,
when questioned as to having trouble with his foreman a day or so
before his discharge, denied remembering it and stated that he did
not believe the incident occurred.
It is not necessary to determine to what extent the respondent's
criticism of the work and behavior of the four men is justified. The
men were notified of their discharge immediately after their trip to
Muskegon and were censured by Thompson for making it. We are
convinced that whether Thompson first determined to discharge them
on Friday night or on Saturday morning, he did so because they
THOMPSON CABINET COMPANY ET AL. 1111
went to Muskegon to consult a union organizer, not because of their
alleged inefficiency and derelictions. Our finding, hereinafter made,
that the respondent also discriminated against Peterson, the fifth
man who went to Muskegon, supports our view that Thompson's
purpose was to discourage independent action toward self-organ-
ization.
Zywicki was receiving approximately $30 a week at the time of his
discharge. From the date of his discharge to the date of the hear-
ing he earned $62.70. He seeks reinstatement.
Neuman was receiving $27.14 a week at the time of his discharge.
From the date of his discharge to the date of the hearing he earned
between $400 and $500. At the time of the hearing he was employed
at a lower rate of pay than he received when he worked for the re-
spondent. He seeks reinstatement.
Phillippo was receiving $23.60 a week at the time of his discharge.
From the date of his discharge to the date of the hearing he earned
$244.50. At the time of the hearing he had not obtained regular
employment. He seeks reinstatement.
Ehrenberg was receiving between $23.50 and $24.00 a week at the
time of his discharge. From the date of his discharge to the date of
the hearing he earned $23.75. At the time of the hearing he was
unemployed. He seeks reinstatement.
Upon all the evidence, we find that the respondent has discrim-
inated in regard to the hire and tenure of employment of Michael
Zywicki, Edmund Neuman, Lowell Phillippo, and Robert Ehren-
berg, thereby discouraging membership in a labor organization, and
interfering with, restraining, and coercing its employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act.
B. The strike and the refusals to reinstate
On May 15, 1937, when the respondent's other employees reported
for work, they learned of the discharges described above. Resent-
ment against the discharges was immediately shown, demonstrating
the interpretation put on the discharges by the respondent's em-
ployees themselves. Eleven employees, including Anthony Smith,
Earl Boertman, Clyde Gust, and Richard Peterson, alleged in the
complaint to have been discriminatorily refused reinstatement,
walked out in protest. They returned at noon to get their pay, it
being a regular pay day.
The time cards of Smith, Gust, Peterson, and Boertman were not
in their usual places in the rack. Gust, Peterson, and Boertman re-
ceived two checks instead of the usual one, evidencing an intention
on the part of the respondent to pay them off. Sharp conflict exists,
however, as to what was said by Thompson on this occasion.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boertman testified merely that Thompson told him he was
discharged.
Smith testified that Thompson said that all those whose time
cards were in the rack should report to work on Monday; that he
asked Thompson whether he was discharged; and that Thompson
told him he could get his final check on Monday and stated that he,
Boertman, Gust, and Peterson were "through" and should not step
on his property again.
Gust testified that Thompson said "... all those sons of bitches
whose cards are out of the rack are fired and I don't want them on
this property." He testified further that upon finding two checks
at his place in the card rack he had asked the timekeeper whether
there would be a card for him and was told that orders had been
given not to put his card there.
Peterson, one of those who had gone to Muskegon on the pre-
ceding day, testified that he, Smith, Gust, and Boertman came in
together at noon and that Thompson pointed to them and said they
were "through."
Thompson, on the other hand, testified that he said, "All those
that are back on the job Monday morning can go to work; if you
don't come back on the job, it will be understood that you don't want
to come to work." He was not sure whether all of the 11 employees
who had struck were present and he denied making any statement
about time cards. He testified that he assumed all the cards were in
the rack.
The.strike terminated on the same day, and the remaining seven
strikers resumed work on the following Monday, but Smith, Gust,
Peterson, and Boertman did not. There is no suggestion that they
remained on strike. Moreover, the respondent failed to offer any
corroboration of Thompson's testimony as to what occurred at the
-pay-off. Gust's testimony that LeRoy Ball, the timekeeper, had told
him that upon orders his time card would be withheld from the rack
was left unchallenged. Ball, although present at the pay-off, was
not called to clarify the conflict in testimony or to explain the ab-
sence of the four time cards or the circumstances resulting in the
issuance of final checks to Gust, Peterson, and Boertman. Upon
the entire record, we conclude that Thompson told the four men that
they would not be reinstated.
The respondent contends that Boertman was drunk at the time of
the pay-off. Boertman testified that he had been drinking but was
not drunk. In any event, we do not believe that Boertman's con-
dition at the time was determinative of Thompson's announcement
that he would not be reinstated.
Smith's case requires further consideration. Thompson testified
that on the afternon of May 14 Smith had an altercation with his
THOMPSON CABINET COMPANY ET AL. 1113
foreman and quit. Smith was not recalled to the stand to answer
Thompson's assertion. He testified merely that he reported for
work on Saturday, the 15th, and struck in concert with 10 others
upon learning of the discharge of Zywicki, Neuman, Phillippo, and
Ehrenberg. Thompson admitted that Smith walked out with the
others on the morning of May 15 and was later present at the
pay-off, where according to our finding, he received treatment simi-
lar to that accorded Gust, Peterson, and Boertman, except that he
was given one check, while the others received two. Smith's be-
havior on the day of the strike is inconsistent with Thompson's
contention that Smith had resigned. The strike was shown to have
been unpremeditated, and under the circumstances Smith's presence
at the plant on Saturday can only be explained by an intention on
his part to work as usual.
Thompson further testified that early during the following week,
when Smith returned for his final check, Thompson urged him to
return to work and that Smith refused, saying he had a job in
Detroit. Smith testified that Thompson, although asking what
he would do now, did not offer reinstatement. Smith's testimony
concerning his employment since May 15, 1937, shows no employ-
ment in Detroit. We find that Thompson did not offer him rein-
statement.
The strike was provoked by the respondent's unfair labor prac-
tices. The respondent was, therefore, under obligation to reinstate
the strikers on application.2 Of the four, only Boertman is shown
to have applied for reinstatement. However, Thompson's announce-
ment that Smith, Boertman, Gust, and Peterson would not be re-
employed served as a constructive refusal to reinstate them and
rendered subsequent application on their part unnecessary.3
Smith entered the respondent's employ in July 1935 and worked
in the steel department. At the time of his discharge he was re-
ceiving a few cents more than $23 a week. At the time of the hear-
ing he was temporarily employed at a lower rate of pay. From the
date of the respondent's refusal to reinstate him to the date of
the hearing he earned $391.41. He seeks reinstatement.
Gust had been in the respondent's employ for approximately 1
year and worked in the steel department. He was receiving ap-
proximately $23 a week at the time of his discharge. From the
date of the respondent's refusal to reinstate him to the date of the
hearing he earned $663.58. Of this amount, $99.60 was received
2Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel, and Tin
Workers of North America, Local No. 1139, 10 N. L R. B. 33.
8 Matter of Douglas Aircraft Company, Inc. and United Automobile Workers of America,
International Union, Douglas Local No. 214, 10 N. L . R B. 242.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for work performed on a Federal relief project. At the time of
the hearing he was temporarily employed. He seeks reinstatement.
Peterson was employed by the respondent in February 1937. He
worked in the steel department. At the time of his discharge he
was receiving approximately $20 a week. From the date of the
respondent's refusal to reinstate him to the date of the hearing he
earned $589.77. At the time of the hearing he had obtained steady
employment and testified that he no longer desired reinstatement.
Earl Boertman was receiving approximately $27 a week at the time
of the respondent's refusal to reinstate him. At the time of the
hearing he was unemployed. He seeks reinstatement.
Upon all the evidence we find that the respondent refused to re-
instate Anthony Smith, Clyde Gust, Richard Peterson, and Earl
Boertman because they engaged in concerted activities for the pur-
pose of mutual aid and protection, thereby discriminating in regard
to their hire and tenure of employment, discouraging membership
in a labor organization, and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
C. Subsequent alleged discrimination
Lawrence Betka had been in the respondent's employ about 8
months when he was laid off on June 12, 1937. At the time of his
lay-off, he was told that it was due to slack work. He testified
that work was slack in his department at that time. There is no
evidence of outstanding union activity on his part. At the time of
the hearing he had found other work of a permanent nature and
did not desire to be reinstated. The evidence does not support the
allegation that he was laid off or discharged because of union
activities.
Henry Zachaw was laid off May 28, 1937, after being in the re-
spondent's employ for approximately 15 months. Slack work
was the reason given him for the lay-off. He testified that he did
not know whether work was slack at that time. There is no showing
of any outstanding union activities on his part. The evidence does
not support the allegation that he was laid off or discharged be-
cause of union activities.
Robert Lee had been employed by the respondent for a little over
a year when discharged on June 20, 1937. In the morning of that
day he smashed a die worth approximately $300. At quitting time
his foreman handed him his pay, indicating that he was discharged.
The foreman made no explanation, and Lee asked no questions.
Lee testified, when asked about his discharge. ". . . You couldn't
say anything." There had been previous complaints about Lee's
THOMPSON CABINET COMPANY ET AL . 1115
work. Although it was shown that on May 17, 1937, Lee advocated
an outside union, in opposition to a "shop union" which was being
urged by one of the respondent's foremen at a meeting of the re-
spondent's employees, the record does not sustain the allegation that
he was discharged because of union activities.
D. Domination of the Employees' Union
On Monday, May 17, 1937, the first working day following the
strike, Merrell Campbell, foreman in the wood-cutting department,
with the aid of an employee, named Fonnesbeck, notified all the
respondent's employees that a meeting would be held that afternoon.
At 5: 30 in the afternoon, Campbell shut off the blower system for
the whole plant and all the respondent's employees assembled for
the meeting. Campbell presided and explained that the purpose of
the meeting was to determine whether the employees wanted a "shop
union" or an "outside union." Campbell urged the formation of a
"shop union" and spoke of the "underhand work" of the employees
dicharged on May 15, a statement which throws further light upon
the respondent's hostility toward self-organization of its employees.
A vote taken pursuant to Campbell's suggestion resulted in the ex-
pression by an overwhelming majority of a preference for a "shop
union." Departmental representatives were then elected. There
was no deduction in pay for the time the employees spent at this
meeting, although the regular quitting time was 6:00 p. m. A week
or so later, Campbell obtained E. J. Thompson's permission to hold
a second meeting in the plant. At this meeting, which was held
after working hours, officers were elected and committees appointed.
A committee later met with the respondent's officers and an agree-
ment was reached, whereby the respondent's employees obtained im-
proved working hours. At the time of the hearing no further bar-
gaining had been engaged in by the Employees' Union and the
respondent.
E. J. Thompson testified that he did not learn of the meeting held
on May 17 until the following day; that he did not "like the idea
of shutting down the plant," but after deliberation decided not to
reprimand Campbell. Campbell admitted that his shutting down
the plant without Thompson's permission was without precedent. It
is significant that none of the other foremen, including Wagner, ob-
jected to Campbell's highly irregular conduct. Asked about this at
the hearing, Wagner testified that he "didn't care."
The pattern presented in the instant case is one common to cases
in which the employer resists the right of employees freely to organ-
ize and independently to choose their bargaining representatives.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon learning of the organizational activity among its employees,
the respondent promptly discharged four of its employees who were
most active in the movement. When other employees went on strike
to protest this unlawful action, the respondent determinedly pursued
its course and refused to reinstate four of the strikers. The strike
broken, the respondent, by its foremen, fostered a movement to form
an unaffiliated labor organization. At a meeting called and presided
over by a foreman and held on company time and property, the Em-
ployees' Union was launched. It would be plainly impossible, under
such circumstances, for an employee freely to exercise his judgment
and independently to express his desires.
We find that the respondent has dominated and interfered with the
formation of the Employees' Union and contributed support to it,
thereby interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III A, B, and D, 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 have led and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent dominated and interfered with
the formation and administration of the Employees' Union, and con-
tributed support to it. Because of such domination and interference,
the Employees' Union cannot serve the respondent' s employees as a
genuine agency for collective bargaining. We shall order the re-
spondent to cease and desist from such domination and interference,
and to disestablish the Employees' Union as an organization repre-
sentative of its employees for the purpose of dealing with it concern-
ing grievances, wages, hours of employment, and conditions of work.
We have found that the respondent has discriminated and is dis-
criminating in regard to the hire and tenure of employment of
Michael Zywicki, Edmund Neuman, Lowell Phillippo, Robert Ehren-
berg, Anthony Smith, Clyde Gust, Richard Peterson, and Earl
Boertman.
At the hearing Boertman admitted having been convicted of crim-
inal offenses "considerably more than once." He testified that from
July 19, 1937, to February 15, 1938, he was in the Ionia Reformatory
THOMPSON CABINET COMPANY ET AL. 1117
under conviction of a felony. While in the reformatory Boertman
wrote a letter to E. J. Thompson, part of which we set out below :
Suppose you will be rather surprised to hear from me but
would like to explain about last summer. When I came to work
that Saturday morning (May 15, 1937) I found all the boys in
the steel department talking together. I asked them what was
wrong and they told me that you had fired some of the boys for
attending a union meeting and that they were going to strike.
One of them asked me what I was going to do and I said, "Noth-
ing." Then I heard some of the polacks talking together about
me. They said "Hell that Ed's stool peigon (sic), he won't do
anything." Well they made me plenty angry and I figured if
that was what they thought of me that was just what I would
do. Well when the others walked out I did too because I figured
I could find out more that way. Well I strung along with them
until I had all the dope on what they were going to do to cause
you trouble. You remember the night I called you on the tele-
phone and asked you to come over to the Hickory Inn? ... I
could have showed you how you could have straightened every
thing out. But when you wouldn't come'I was very discouraged
and dissappointed (sic) that you didn't have more confidence in
me because I had always counted you as one of the best friends
I ever had ...
Although we have found that Boertman was discriminatorily re-
fused reinstatement, we do not believe that his reinstatement should
now be ordered. Quite aside from his criminal record, Boertman's
letter to Thompson indicates that he offered the respondent services
the acceptance of which would have constituted an unfair labor prac-
tice. We are of the opinion that his reinstatement would not effectu-
ate the policies of the Act and we decline to order it.
Since Richard Peterson does not desire reinstatement, we shall not
order the respondent to reinstate him but we shall order it to pay
to him an amount of money equal to that which he would have earned
from May 16, 1937, to the date he secured the employment enjoyed
by him at the time of the hearing, less his net earnings 4 during that
period.
* By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It. B. 440. Monies received for
work performed upon Federal, State, county, municipal , or other work-relief projects are
not considered as earnings , but as provided below in the Order, shall be deducted from the
sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal
agency of the Federal, State, county, municipal , or other government or governments
which supplied the funds for said work -relief projets.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall order the reinstatement of Zywicki, Neuman, Phillippo,
Ehrenberg, Smith, and Gust to their former or substantially equiva-
lent positions, with back pay to each in the amount he would nor-
mally have earned from the date on which the respondent discrim-
inated in regard to his hire or tenure of employment to the date of
the offer of reinstatement, less his net earnings in the meantime. Such
reinstatement shall be effected in the following manner: All new
employees hired after May 15, 1937, shall, if necessary to provide
employment for those ordered to be reinstated, be dismissed. If,
thereupon, by ; reason of a reduction in force there is not sufficient
employment immediately available for the remaining employees, in-
cluding those ordered reinstated, all available positions shall be dis-
tributed among the remaining employees in accordance with the re-
spondent's usual method of reducing its force, without discrimination
against any employee because of union affiliation or activities, follow-
ing a system of seniority to such extent as has heretofore been applied
in the conduct of the respondent's business. Those employees remain-
ing after such distribution, for whom no employment is immediately
available, shall be placed upon a preferential list prepared in ac-
cordance with the principles set forth in the previous sentence, and
shall thereafter, in accordance with such list, be offered employment
in their former or in substantially equivalent positions, as such em-
ployment becomes available and before new persons are hired for
such work.
Upon the basis of the foregoing findings of fact and upon the
entire record in this proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. Committee for Industrial Organization, Local Industrial Union
No. 115 and The Union of the Employees of the Thompson Cabinet
Company of Ludington, Michigan, are labor organizations, within
the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of The Union of the Employees of the Thompson Cabinet
Company of Ludington, Michigan, and contributing support to it, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Michael Zywicki, Edmund Neuman, Lowell Phillippo, Robert
Ehrenberg, Anthony Smith, Clyde Gust, Richard Peterson, and Earl
Boertman, and thereby discouraging membership in Committee for
Industrial Organization, Local Industrial Union No. 115, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
THOMPSON CABINET COMPANY ET AL. 1119
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
6. By laying off Lawrence Betka and Henry Zachaw and by dis-
charging Robert Lee, the respondent has not engaged in unfair labor
practices, within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Thompson Cabinet Company, and its agents, successors, and assigns
shall :
1. Cease and desist from :
(a) In any manner dominating or interfering with the administra-
tion of The Union of the Employees of the Thompson Cabinet Com-
pany of Ludington, Michigan, or the formation or administration of
any other labor organization of its employees, and from contributing
financial or other support to The Union of the Employees of the
Thompson Cabinet Company of Ludington, Michigan, or to any other
labor organization of its employees;
(b) Discouraging membership in Committee for Industrial Organi-
zation, Local Industrial Union No. 115, or any other labor organization
of its employees, by discharging or refusing to reinstate any of its
employees or in any other manner discriminating in regard to their
hire or tenure of employment or any terms or conditions of their
employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives 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 National Labor
Relations Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw recognition from The Union of the Employees of
the Thompson Cabinet Company of Ludington, Michigan, as a repre-
sentative of its employees for the purpose of dealing with the respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment, or conditions of work, and completely disestablish
The Union of the Employees of the Thompson Cabinet Company of
Ludington, Michigan, as such representative;
(b) Offer to Michael Zywicki, Edmund Neuman, Lowell Phillippo,
Robert Ehrenberg, Anthony Smith, and Clyde Gust, immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges,
in the manner set forth in the section entitled "The remedy" above,
placing those employees for whom employment is not immediately
available upon a preferential list in the manner set forth in said sec-
tion, and thereafter, in said manner, offer them employment as it
becomes available ;
(c) Make whole the employees named in paragraph (b) above for
any loss of pay they have suffered by reason of the respondent's dis-
crimination in regard to their hire and tenure of employment by pay-
ment to each of them, respectively, of a sum of money equal to that
which he would normally have earned as wages during the period from
the date of the respondent's discrimination to the date of the offer of
reinstatement, less his net earnings during that period, and make
whole Richard Peterson for any loss of pay he has suffered by reason
of the respondent's refusal to reinstate him, by payment to him of a
sum equal to the amount he would normally have earned as wages dur-
ing the period from May 15, 1937, the date of the respondent's refusal
to reinstate him, to the date he commenced the employment in which
he was engaged at the time of the hearing, less his net earnings during
that period; deducting, however, from the amount otherwise due to
each of the said employees, monies received by said employee during
said period for work performed upon Federal, State, county, munici-
pal, or other work-relief projects, and pay over the amount, so de-
ducted, to the appropriate fiscal agency of the Federal, State, county,
municipal, or other government or governments which supplied the
funds for said work-relief projects;
(d) Post immediately in conspicuous places throughout its Luding-
ton plant, and keep posted for a period of at least sixty (60) consecu-
tive days from the date of posting, notices to its employees, stating
that the respondent will cease and desist in the manner set forth in
paragraphs 1 (a), (b), and (c), and that it will take the affirmative
action set forth in paragraphs 2 (a), (b), and (c), of this Order;
(e) Notify the Regional Director for the Seventh Region, in writing,
within ten (10) days from the date of this Order what steps the re-
spondent has taken to comply herewith.
AND rr Is FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent has discriminated in regard to the hire or tenure
of employment of Lawrence Betka, Henry Zachaw, Robert Lee, and
Morgan Mason, be, and it hereby is, dismissed.