Aurora Wall Paper Mill Inc.

In the Matter of AURORA WALL PAPER MILL INC. and UNITED WALL PAPER CRAFTSMEN & WORKERS OF NORTH AMERICA, AFFILIATED WTTH THE A. F. OF L.1 Case No. 13-C-2747.-Decided April 8,1947 Mr. Benjamin B. Salvaty, Jr., for the Board. Messrs. Sears and Streit, by Mr. Barnabas F. Sears, of Aurora, Ill., for the respondent. Mr. Joseph M. Jacobs, by Messrs. Jacob N. Gross and Rudolph Heinl, both of Chicago, Ill., for the Union. Mr. William C. Baisinger, Jr., of counsel to the Board. DECISION AND ORDER On September 25, 1946, Trial Examiner W. P. Webb issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. There- after, the Union and counsel for the Board filed exceptions to the Intermediate Report and supporting briefs, and, by permission of the Board, the respondent filed a reply brief.2 The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as noted below : On November 7, 1945, the complainant Thomas and other em- ployees violated a well-established plant practice concerning work assignments, by refusing to unload clay unless the respondent paid i Local No. 12, which was established in August 1945, has jurisdiction over employees of wall paper manufacturers in the Aurora, Illinois, area. 2In addition to its reply brief, the respondent , on January 15, 1946, filed a written re- quest for permission to argue orally before the Board. In view of our disposition of the case herein, we find that no purpose would be served by granting the respondent's untimely request. Accordingly, it is hereby denied. 73 N. L. R. B., No. 33. 188 AURORA WALL PAPER MILL INC. 189 them additional compensation. The respondent did not then take any severe disciplinary action against these employees, but sent them home for the remainder of the day. At a meeting held in the plant the following morning, the respondent afforded them an opportunity to recant from their position and to commit themselves to unload clay in the future in accordance with the established plant practice. The record shows, as found by the Trial Examiner, and contrary to the contention of the Union, that at this meeting Thomas refused to commit himself, affirmatively indicating that he would continue to refuse to unload clay at his prevailing rate; 3 immediately thereafter, his employment with the respondent was terminated. We find un- convincing the Union's contention that Thomas was unlawfully dis- charged because he had attempted to engage in collective bargaining and protected concerted activity. The record satisfies us, and we find, that, in requiring Thomas to agree to follow the existing plant prac- tice with respect to unloading clay, the respondent did not foreclose collective bargaining as to changes in such practice or otherwise inter- fere with his right to bargain collectively through the Union, which was currently negotiating with the respondent on a proposed agree- ment. For these reasons, we agree with the Trial Examiner's con- clusion that the respondent's treatment of Thomas was not violative ,of the Act ,4 and therefore find it unnecessary to pass upon the other reasons given by the Trial Examiner to reach this conclusion. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint herein against Aurora Wall Paper Mill Inc., Aurora, Illinois, be, and it hereby is, dismissed. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Benjamin B. Salvaty, Jr., for the Board. Messrs. Sears and Streit , by Mr. Bainabas F. Sears, of Aurora, Ill., for the Re- spondent. Mr. Joseph M. Jacobs, by Messrs. Jacob N. Gross and Rudolph Heinl, both of Chicago, Ill., for the Union. ' The stenographic transcript of the proceedings at the meeting, referred to in the Inter- mediate Report as Appendix A thereto, reads in part : Mr. ATWELL ( the respondent's counsel ). Well, Mr. Thomas , the point I am trying to raise is will you retract your actions of yesterday , that is, will you continue to take the same position in the future? Mr. TnoreAS I certainly will, sir. 4 Cf. Matter of Mt. Clemens Pottery Company, et al., 46 N. L. R B. 714, enf'd as modified. 147 F. ( 2d) 262 (C. C. A. 6). 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE Upon a charge duly filed by United Wall Paper Craftsmen & Workers of North America, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Re- gional Director for the Thirteenth Region (Chicago, Illinois), issued its com- plaint, dated July 1, 1946, against Aurora Wall Paper Mill Inc., Aurora, Illinois, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint and the charge, accompanied by notice of hearing thereon, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance : (1) that on or about November 8, 1945, the Respondent discharged Walter D. Thomas and thereafter refused to reinstate him for the reason that he joined and assisted the Union and engaged in concerted activities with other employees of the Respondent for the purpose of collective bargaining or other mutual aid or protection ; (2) that on and after November 8, 1945, and continuing to the date of the complaint, the Respondent warned and threatened its employees with dis- charge and other disciplinary action if they engaged in concerted activity ; and (3) by such acts and statements the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On July 8, 1946, the Respondent filed its answer, in which it admitted cer- tain allegations of the complaint in respect to the operation of its business, but denied that it had engaged in or was engaging in the alleged unfair labor practices. Pursuant to notice, a hearing was begun at Chicago, Illinois, on July 16, 1946, and continued at Aurora, Illinois, on July 18, 19, and 20, 1946, before the undersigned, W. P. Webb, the Trial Examiner duly designated by the Chief Trial Examiner The Board, the Respondent, and the Union were represented by counsel and participated in the hearing Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the Board's case in chief and again at the conclusion of the hearing, counsel for the Respondent moved to strike paragraphs 4 and 6 of the complaint and also to dismiss the entire complaint. Ruling on these mo- tions was reserved. They are now disposed of by the undersigned as indicated below. At the conclusion of the hearing, a motion made by Board's counsel to con- form the pleadings to the proof in respect to formal matters was granted with- out objection. At the conclusion of the hearing, the parties argued orally on the record before the Trial Examiner. The parties waived the privilege of filing briefs with the Trial Examiner. I The hearing was opened at Chicago, Illinois , on July 16, 1946. At the request of coun- sel for the Respondent, an adjouinnient was granted until July 18, on which date, the hearing was resumed at Aurora , Illinois , where the plant is located and where the wit- nesses reside. AURORA WALL PAPER MILL INC. 191 Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT' The Respondent, Aurora Wall Paper Mill Inc., is an Illinois corporation, hav- ing its principal office and place of business of Aurora, Illinois, where it is en- gaged in the manufacture, sale and distribution of wall paper. The principal raw materials used at the plant are paper, clay and paint. The annual purchases of such material by the Respondent exceed $90,000, in value, of which 90 per- cent or more is transported to the plant from points outside the State of Illinois. The Respondent's annual output of finished products at the plant exceeds $150,000 in value, of which more than 50 percent is shipped to points outside the State of Illinois. The normal number of employees in the plant is approximately 20. The Respondent concedes that it is engaged in commerce within the meaning of the Act and the undersigned so finds. II. THE ORGANIZATION INVOLVED United Wall Paper Craftsmen & Workers of North America, affiliated with the American Federation of Labor, is a labor organization admitting to member- ship employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events According to Rudolph Hein], business agent and organizer for the Union, the Union has a contract with the Wall Paper Institute, which represents approxi- mately 75 percent of the wall paper manufacturers of the United States. This contract was negotiated by representatives of the International Union. The Respondent is not a member of the Wall Paper Institute and therefore is not a party to the contract, hence the Union conducted an organizational campaign at the plant. Heinl began this campaign in 1938. He first took the matter up with Harry D. Mombleau, president of the Respondent, and Richard Hamper, the Respondent's attorney. The latter is the son of H. D. Hamper, superintendent of the plant. Heinl was told by Mombleau and Attorney Hamper that they were interested in having the employees organized by the Union, but requested that it be delayed until they could build up the business to a point where the Respondent could afford to pay union wages. At that time, the Respondent was employing a number of people who lived in the rural districts and, although their wages were not very high, they were sufficient. Heinl made a number of subse- quent visits to the plant, but it was not until the spring of 1942 that he began organizational work among the employees themselves. On May 14, 1942, the Union filed a charge with the Board alleging that the Respondent had discriminatorily discharged Employees Walter Thomas and Wendell Burkholzer (Case No. 13-C-1875). However, no complaint was ever issued. The case was settled by a written agreement dated November 19, 1942, which was approved by the Board.' 2 The following facts were alleged in the complaint and admitted in the Respondent's answer. 3 Thomas was immediately reinstated and paid the sum of $300 ; Burkholzer was paid $200 and was to be offered reinstatement after his discharge from the armed forces The usual notice in respect to non -inteiference and non -discrimination was posted in the plant and the charge was withdrawn by the Union. 739926-47-vol. 73-14 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . On or about December 8, 1942, the Union filed with the Board a Petition for Investigation and Certification of Representatives pursuant to Section 9 (c) of the Act, claiming that the appropriate unit consisted of all production and maintenance employees, excluding clerical, office and supervisory employees and truck drivers, and that the approximate number of employees in the unit was 18, all of whom had designated the Union as their representative for collective bargaining. (Case No. 13-R-1553) On December 14, 1942, the Respondent advised the Board, by letter, that it recognized the Union as the exclusive representative of the employees in the unit claimed by the Union. The letter reads as follows : This is to inform you that the Aurora Wall Paper Mill, Inc., recognizes the United Wall Paper Craftsmen and Workers of North America, AFL, as the exclusive bargaining representative for purposes of collective bargaining in reference to wages, hours, and conditions of employment for all production and maintenance employees excluding clerical, office, supervisory employees and truck drivers employed by the Aurora Wall Paper Mill, Inc., at their plant located on Jackson Street, Aurora, Illinois. The Union has evidence to the effect that it represented a majority of the employees in the appropriate unit, by submitting authorization cards of employees whose names appear on our payroll as of December 10, 1942. These authorization cards were checked by Mr. Ogden W. Fields, Field Examiner, who reported to us that 17 of the 19 cards submitted by the Union, bear apparently valid genuine original signatures of employees whose names appealed on the payroll in the unit petitioned for on the Company's payroll as of December 10, 1942. After the receipt of this letter by the Regional Director, no further action was taken on the Petition, and the Union and the Respondent immediately began a series of bargaining conferences, which have continued up to the date of the instant hearing. Joseph M. Jacobs, general counsel for the Union and Heinl, business agent and organizer for the Union, represented the Union at these conferences, and Attorneys Charles H. Atwell and Richard Hamper, together with Superintendent H. D. Hamper, represented the Respondent. The Union has endeavored to get the Respondent to agree to their standard form of con- tract which they have with the Wall Paper Institute, but without success, so far. In the early part of 1943, the Union referred the matter to the United States Conciliation Service in Washington, D. C. and, as a result, Commissioner Egan was assigned to the case. Several meetings were held with Egan and certain points were agreed upon by the conferees, but no complete meeting of the minds was reached. Thereupon, at the request of the Union, the matter was referred to the National War Labor Board. In May 1944, the War Labor Board issued a directive, ordering the Respondent to take certain affirmative action. At a hearing before the War Labor Board held in Chicago, Illinois, on or about March 30, 1945, the Respondent notified W. L. B. that it would not comply with the Order, as W. L. B. had no power to enforce its directives. It appears that no further action was taken in the matter by W. L B. On January 2, 1946, the Union filed charges against the Respondent, alleging violations of Section 8 (1) and (3) of the Act. However, the Union has never filed a charge with the Board alleging that the Respondent has refused to bargain collectively with it. B. The alleged disclaniinatory discharge of Walter D. Thomas The complaint alleged that the Respondent, on or about November 8, 1945, discharged Walter D. Thomas and, at all times thereafter, refused to reinstate AURORA WALL PAPER MILL INC . 193 him because he joined and assisted the Union and engaged in concerted activi- ties with other employees of the Respondent for the purpose of collective bar- gaining or other mutual aid or protection, thereby discouraging membership in the Union. The undersigned finds that the evidence does not substantiate these allegations. Thomas was first employed by the Respondent in the spring of 1941, as a car- penter and general utility man at the rate of 36 cents an hour. Some months later he became an operator of a "reeler" and a "grounder" and his pay was gradually increased to 60 cents an hour. As related above, in February 1942, he was discharged by the Respondent and, on November 19, 1942, was reinstated under a settlement agreement, approved by the Board. According to Thomas, he became active in the Union and in organizing the Respondent's employees prior to his reinstatement. According to Heinl, during the years 1942, 1943, and 1944, the Union did not have a local in Aurora, since there was not a sufficient number of eligible employees in the Respondent's plant to justify establishing a local, according to the Union's constitution. These employees were carried as members of the local at Joliet, Illinois, which is about 22 miles from Aurora. However, in August 1945, the Union organized the employees of the United Wall Paper plant at Montgomery, Illinois, located about 2 miles from Aurora, which employed over 100 employees. Local No. 12 was then chartered at Aurora by the International Union. When Local No. 12 was organized, all of the officers, such as president, vice president, secretary, treasurer etc. were chosen from among the employees of the larger plant at Montgomery, as the Respondent's employees represented a small minority ,of the total memberhip. Thomas was the only employee in the Respondent's plant who held any sort of office in the Union. He was a member of the Union grievance committee.' His union activities were confined to handling grievances arising among the employees in the Respondent's plant. He was not a member of the total membership. Thomas was the only employee in the Respondent's Respondent in respect to rates of pay, wages, hours of employment or other conditions of employment. Representatives of the International Union con- stituted the sole bargaining personnel for the'Union. The Respondent uses a certain amount of clay at the plant and normally re- ceives one railway freight car of clay every 6 weeks. The clay is packed in 100 pound paper bags. It usually requires six employees about 5 hours to unload one car. The bags are loaded on small trucks at the car and the trucks are then pushed into the plant where the bags are stacked up. Ever since the Re- spondent's plant has been in operation, it has been the practice and custom for the employees on the day shift, which was from 7: 00 a. in to 3: 00 p. in., to unload these cars. If they were unloaded during the shift, the employees received their regular wages, plus any bonus they might have earned if they had worked at their regular jobs. But if the unloading was done after the day shift ceased work, it was considered overtime, the same as any other work after 40 hours had been worked during the week. According to the credited testi- mony of H. D. Hamper, superintendent of the plant, the unloading of these cars was usually done during the day shift, but on a few occasions, it has been done after 3: 00 p. in. When the unloading was done after the day shift had ceased work at 3: 00 p. in, it was optional with the employees whether they did it or not. Usually they did not object as they were paid time and one half for it. But when the unloading was done during the day shift, that is, between 7: 00 a. m. and 3:00 p. m., it was not optional and those selected by the foreman to do the job had to obey his orders unless they were physically unable to do the * Thomas is referred to in the record as "Chairman" of the grievance committee. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work. It was considered somewhat harder work than the ordinary work in the plant. Employees on the night shifts were not required to do this work. With respect to' unloading clay, Foreman Futterer testified as follows : Certain times if the weather wasn't too hot and so forth we unloaded it after working hours. I would make the rounds in the day time and ask certain ones if they would like to help unload clay. They aren't obligated to, no one was forced to after working hours if they didn't wish to unload clay. If they were physically unfit and so forth, they were excused, but in the morning sometimes we unloaded raw stock in the morning and sometimes we unloaded clay. If they had an excuse they weren't obligated to. Now, Mr. Whitlatch had a double rupture, and I didnt' call on him to unload clay. Certain ones if I knew their physical defects and could get enough men without calling on those men, I didn't ask them, and a lot of times I helped unload myself. Futterer further testified that when an employee was told to unload clay during the day shift, it was his duty to obey the foremen's orders, unless his physical condition at the time was such as to excuse him; and that clay had always been unloaded by the employees in the manner described ever since the plant has been in operation. According to Thomas, on November 6, 1945, the day on which a carload of clay arrived at the plant, he had a conversation with Employee James Brame, during which, Brame told him that Foreman Walter Futterer had remarked to him that it was Thomas' fault that the employees were not paid higher wages while unloading the cars of clay. Thomas' testimony in this respect reads as follows : Well, he [Brame] said that Walter Futterer told him it was all my fault that they didn't get more money for unloading the clay. Thomas further testified that just before quitting time on that clay, November 6, he spoke to employees John Penrod, Sam Thorpe, Harry Eggleston, Joe Whit- latch and Hugh Whitlatch, all of whom worked on the clay shift,' and told them what Brame had said. and asked them if they did not want more than their regular wages for unloading the clay during the shift hours, and that they said they should get SO cents an hour, because employee Nielsen sometimes helped to unload these cars and they thought that his regular wage was SO cents an hour' Brame denied that he told Thomas that Foreman Futterer had said it was Thomas' fault that the employees did not secure higher wages while unloading clay He also denied that Foreman Futterer had said anything like that to him. Foreman Futterer flaty denied having said anything to Brame about it. Thorpe denied having had any conversation at all with Thomas on that day. Penrod, Eggleston, Joe and Hugh Whitlatch all testified at the hearing, but no one of them made any mention of Thomas having told him what Thomas claims that Brame had said The undersigned finds that Foreman Futterer made no such statement to Brame, and that Brame did not make the statement accredited to him by Thomas. Penrod testified that on November 6, Thomas asked him how much an hour did he want for unloading clay, and he replied that he thought it was worth 80 At that time the day shift consisted of Foreman Futterei and 10 or 12 employees The record shows that at that time employees on the day shift were receiving 60 cents an hour, except Nielsen who was getting 75 cents and Thorpe 70 cents Both Nielsen and Thorpe usually helped unload clay. The other employees thought that when either Nielsen or Thorpe helped, all should be paid at the higher rate, as they were all doing the same job AURORA WALL PAPER MILL INC. 195 cents. As related above, Thorpe denied having had any conversation with Thomas on November 6. Both Eggleston and Joe Wlutlatch testified at the hear- ing, but neither one made any mention of having had a conversation with Thomas on November 6, in regard to unloading clay. Hugh Whitlatch testified that on November 6 Thomas spoke to him about unloading the clay and he told Thomas that he would not help unload it if there was any one else helping who was getting a higher wage rate than he, and he understood that Nielsen and Thorpe were higher paid employees. Brame testified that on November 6 Thomas came to him and said, "The boys are not going to unload this carload of clay. What do you want to do about it?", and he replied that whatever the majority of the employees on the day shift decided to do about it would be all right with him. At starting time the next morning, November 7, Foreman Futterer told the day shift not to start up their machines, as they were first going to unload the car of clay, which had arrived at the plant on the clay before. When this an- nouncement was made, Thomas spoke up and said that they had decided not to help unload the clay unless they were paid at the rate of 80 cents an hour, which -was the rate they thought Nielson and Thorpe were receiving. Futterer then told them that they might as well operate their machines until Superintendent Hamper arrived at the plant, and he would submit the matter to him. About ,9: 15 a. in, Superintendent Hamper arrived at the plant and was informed of the incident. He instructed Futterer to inform those who had refused to comply with the foreman's orders, that they could either help unload the clay as they had always done in the past or they could go home until the car was unloaded. Six of the employees then left the plant. They were Thomas, Penrod, Eggleston, Brame and Joe and Hugh Whitlatch. Before leaving the plant, they went to the ollice and asked Superintendent Hamper when they should return to work. Hamper replied "as soon as the clay is unloaded." They made no complaint to either the Respondent or the Union about being laid off. All of these employees belonged to the Union except Joe Whitlatch. They did not work any more that clay. The car of clay was unloaded that day by Foreman Futterer and employees Thorpe, Nielsen and Getz. The 6 laid off employees returned to work, at the usual time, the next morning, November 8. Superintendent Hamper testified that the reason he sent these 6 employees home was because they had refused to unload the clay as ordered by their foreman, and he did it in order to discipline them for refusing to obey orders. Also "We only had a small num- her of men. While the car of clay was being unloaded we couldn't run the mill anyway." According to Charles H. Atwell, member of the law firm of Hamper and Atwell, general counsel for the Respondent, after having been informed by Foreman Futterer as to what had transpired on November 7 in respect to unloading the clay, he decided to call a general meeting of all the employees involved. His testimony in this respect, reads as follows : After the matter was fully brought to my attention, the circumstances surrounding it, either Mr. Hamper, Jr, or myself, or both of us, decided that we would call a general meeting of all of the employees who were involved in the day shift when this incident took place . . . Because we felt that it was necessary. That in order to have an orderly operation of the plant in the future the policy of the company must be maintained . . . The policy of the company to my understanding based on instructions that had been given to me in the past and with the familiarity of their practices and procedure was that when the able-bodied men in that plant were called upon to unload a car of clay during regular working hours they were required as a matter of company policy to do so. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 10:00 a. in. on November 8, all of the employees on the day shift were instructed to close down their machines and proceed to another room of the plant for the purpose of attending a meeting with management. The meeting was held and those present for the Respondent were Harry D. Mombleau, president of the Respondent, Attorney Atwell, Superintendent Hamper, and Foreman. Futterer. Mrs. Gertrude H. Lindstedt, secretary and stenographer for Hamper and Atwell, was present and took down the proceedings in shorthand. A complete transcript of her notes is attached to this Intermediate Report as "Appendix A" which is self-explanatory. There is no dispute as to the accuracy of "Appendix A," except that Thomas, Hugh Whitlatch, Penrod, and Brame testified that after Atwell had told Thomas he could get his hat and coat and go home, Thomas said, "Does that mean I am fired?" and Atwell replied, "absolutely that." This question and answer do not appear in "Appendix A." Attorney Atwell, President Mombleau, Foreman Futterer, and employee Nielsen denied that it was said. Mrs. Lindstedt testified that she has had over 25 years' experience as secretary and stenographer and considers herself an expert in writing shorthand ; that she was instructed by Atwell to take down everything that was said at the meeting, which she did; and that "Appendix A" is a true and correct copy of her notes as taken on that occasion The undersigned finds that it is unnecessary to resolve this conflict in testi- mony, since it is immaterial whether it occurred or not, because Atwell testified that he had decided if the employees signified at the meeting that they would not obey orders in the future with respect to unloading clay, they would be dis- charged. His testimony in this respect reads as follows : . . . The purpose in going out there was to find out whether or not the men were going to take a similar stand on unloading clay during normal working hours in the future. I was perfectly willing at the time that meeting was called that if any one recanted or retrenched from their position the day before, that words of discipline would be used but everything would be for- gotten. But I determined that if the men elected of their own volition and free choice to refuse to unload a car of clay in the future, that they would be dismissed, based upon their refusal to do what they were expected to do. It will be noted from "Appendix A" that the employees who had refused on the day before to unload the clay unless they were paid higher wages were given an opportunity at that meeting to recede from their position of refusing to obey the legitimate orders of the Respondent, and to continue working in the plant as they had for the past several years, or, of course, until the Respondent and the Union had agreed on a contract. Thomas flatly refused to change his position, therefore he virtually asked for his dismissal and he got it. Thorpe, it will be noted, said to Thomas that it was not a union matter- at all, and that Thomas was wrong. Thomas then left the meeting Penrod, who had refused to change his position with respect to unloading clay, also left the meeting, and never returned to work in the plant thereafter. However, the complaint contains no allegation in respect to him. Thomas testified that soon after that meeting, he telephoned to union head- quarters and informed the lady secretary as to what had transpired, but he did not request the Union to make any effort to get him reinstated in the plant, and if the Union did make any such effort, he knew nothing about it. Thomas did not apply for reinstatement. AURORA WALL PAPER MILL INC. 197 Concluding findings Thomas testified that he had never received any instructions or authority from either the International Representatives of the Union or the officials of Local No. 12 in Aurora, to take any action on behalf of the employees with respect to secur- ing more pay for unloading clay ; and that he did it entirely on his own account. He further testified that he had been instructed by the Union to "go along with the Company." At that time, the bargaining committee of the Union, which was composed solely of representatives of the International Union, was endeavoring to get the Respondent to sign their standard form of contract, and they did not desire to create any condition in the plant that would interfere with this program. Therefore Thomas was acting contrary to the best interests of the Union. What- ever action Thomas took in the matter of influencing the other employees to refuse to obey the Respondent's orders, was done without the knowledge or consent of the bargaining committee. According to Heinl, business agent and organizer for the Union, the matter of unloading cars of clay had been discussed during bargaining conferences between the International Representatives of the Union and the Respondent and it was understood that if the Respondent signed the Union's standard form of contract, the Union would not interpret the contract so strictly as to prevent any employee from unloading cars of clay. When the Union was selected by the employees and recognized by the Respond- ent as their bargaining agency in its letter to the Union dated December 14, 1942, it was understood and agreed by all parties that collective bargaining with respect to rates of pay, wages, hours of employment or other conditions of em- ployment would be carried on between the Union and the Respondent by the International Representatives of the Union which constituted the duly accredited bargaining agency of the Union ; that the employees would acquiesce in action taken by this committee and that they would not undertake independent action with respect-to matters they had committed to the Union as their authorized bargaining agency and that not only did the Respondent agree to bargain solely with the Union, but the employees agreed to bargain only through the Union. Thomas and the other employees who endeavored to force the Respondent to pay them higher wages for unloading clay, violated this agreement. They were not mem- bers of the bargaining committee of the Union and had no authority to usurp the powers of the committee, which was composed of International Representa- tives of the Union. They were not acting for or on behalf of the Union, and indeed they had no power to do so. The Respondent was under no obligation to bargain with these employees in respect to wages. In fact if it had done so, thereby bargaining directly with the individual employees, instead of with the Union which it had recognized as the statutory representative of all the employees in the unit, it would have subjected itself to a charge of refusal to bargain, within the meaning of the Act. The principal question involved in this case is whether the discharge of Thomas on November 8, 1245, and the subsequent refusal to reinstate him were unfair labor practices, within the meaning of the Act. The Board contends that Thomas and the other employees who demanded higher wages for unloading clay were engaged in "concerted activities for the purpose of collective bargaining or other mutual aid or protection," within the meaning of Section 7 of the Act, and that the discharge and refusal to reemploy Thomas on this account constituted inter- ference, restraint, and coercion with respect to the right to engage in such con- certed activities, denounced as an unfair labor practice by Section 8 (1) of the Act. The Board also argues that by the discharge and subsequent refusal to reinstate Thomas, the Respondent discriminated against him in regard to his hire 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and tenure of employment, and discouraged membership in the Union thereby engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. The record is clear and the undersigned finds that in the discharge and refusal to reemploy Thomas there was no intent to discourage membership in the Union, within the meaning of Section 8 (3) of the Act. All of the other members of the Union, except Penrod, continued to work in the plant and the Respondent con- tinued to recognize the Union as the bargaining representative These employees were not acting as members of the Union. Indeed Joe Whitlatch, one of them, was not a member of the Union. The demand for higher wages for unloading the clay was not authorized or approved by the Union, and was not used to further any purpose of the Union. The employees were acting as individuals, outside the Union, and apart from any labor organization In respect to whether the action of the Respondent amounts to an unfair labor practice, within the meaning of Section 8 (1) of the Act, this depends upon whether or not the refusal of these employees to perform a reasonable order of their foreman falls within the protection of Section 7 of the Act. If it does, a discharge on that account would constitute interference, restraint, or coercion in respect thereto, within the meaning of Section 8 (1) of the Act If it does not, the discharge and failure to reemploy Thomas would be justified and would furnish no basis for a finding of an unfair labor practice. The undersigned is of the opinion and finds that the lay-off of these six employees for one day was justified by their insubordinate conduct in refusing to unload the clay when ordered to do so Also the conduct of these employees in refusing to do this work unless they were paid higher wages, was not such a concerted activity as falls within the protection of Section 7 of the Act, but was the action of a minority group of employees in an effort to interfere with the collective bargaining by the duly authorized bargaining agent selected by all of the employees The purpose of the Act is not to guarantee to employees the right to do as they please but to guarantee to them the right of collective bargaining for the purpose of preserving industrial peace. Section 9 (a) of the Act provides: Representatives designated or selected for the purposes of collective bar- gaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to-their employer A Union selected as bargaining agent is thus made the exclusive representative of all the employees in the unit for the purposes of collective bargaining The Act imposes the affirmative duty on the employer to bargain only with the true representative and hence the negative duty to bargain with 'no other.' In N. L. R. B. v. Diaper Co?poattoz, 145 F (2d) 199 (C C A 4), the Court said: The employees must act through the voice of the majority or the bargain- ing agent chosen by the majority . Minority groups must acquiesce in the action of the majority and the bai gaining agent they have chosen ; and just as a minority has no right to enter into separate bargaining arrangements with the employer , so it has no right to take independent action to interfere ° See McQuag-Norris Mfg Co v N L R B, 116 F (2d) 748 (C C A 7) ; Texarkana Bus Co. v N. L. It. B, 119 F. (2d) 480, 484 (C C. A. 8) ; North Electric Mfg. Co. v. N. L. R. B, 123 F. (2d) 887, 890 (C C. A. 6). AURORA WALL PAPER MILL INC. 199 with the course of bargaining which is being carried on by the duly author- ized bargaining agent chosen by the majority, the proviso to Section 9 above quoted, preserves to individuals or groups of employees the right to present grievances to the employer, negatives by necessary inference the right on their part to call strikes for the purpose of influencing the bargaining being carried on by the chosen representatives of all the employees Upon the entire record in the case, the undersigned concludes and finds that the Respondent terminated the services of Walter D Thomas on November 8, 1945, not for the reasons alleged in the complaint, but because of his insubordination in expressing his intention to refuse to obey legitimate and reasonable orders of the Respondent, and that by such termination of the services, the Respondent has not engaged in unfair labor practices within the meaning of Section 8 (1) or (3) of the Act. The following cases are cited in support of this finding. In the Keystone Steel d Wire Company case,' which appears to be on all fours with the instant case, the Board held that the Respondent had not violated the Act by discharging eight employees, which included two union officials and the chief stewai d, because they refused to accept transfers fi om one department to less desirable positions in another department The Board said that, "The record, although replete with evidence showing that the respondent was opposed to its employees belonging to the Union, does not support the allegation of the com- plaint, as amended, that the eight named employees were demoted and sub- sequently discharged because of their union membership or activities." The evidence in that case showed that the respondent's reason for demoting and subsequently discharging these employees was not "trivial or fanciful," but was because they had refused to perform the work assigned to them. In The Ohio Calcium Company case,' the Board dismissed the 8 (3) allega- tions of the complaint in respect to eight employees who were discharged by the respondent for insubordination in refusing to work after the respondent's re- fusal of their demands for an increased crew, and where their refusal to work was not authorized by the union, which was their statutory representative op- erating under an exclusive recognition agreement with the respondent. The Board said, inter aha : Thereupon, without any recourse to or authorization from the Union, which was their statutory representative operating under an exclusive recognition agreement with the respondent, or even from the full union grievance coin- mittee, the eight miners delivered an ultimatum to the respondent and re- fused to work when the respondent adhered to its position. Because the eight miners refused to work, they were told to leave the premises and col- lect their wages on the following day. They were in effect discharged for not obeying their superiors' instruction and going to work 10 . . . Upon the entire record we find that the respondent terminated the services of the eight miners on May 22, 1938, not because they engaged in concerted activity protected by the Act, but because of their insubordination in refusing to obey a legitimate order of the respondent." On June 27, 1946, the Board, in its decision in the Arnolt Motor Company and S. H. Arnolt, doing business as Atlas Steel and Tube Coin-pany case's stated in respect to one of the alleged discharges, as follows : 8 Matter of Keystone Steel & Wire Company, 62 N. L. R. B. 683. 'Matter of The Ohio Calcium Company, 34 N. L R B 917 10 Matter of the Firth Carpet Company and Textile Workers Union of America, 33 N. L. R. B. 191. "Matter of the Firth Carpet Company and Textile Workers Union of America, ibid. 12 Matter of Atlas Steel and Tube Company , 68 N. L. IT. B. 868. 200 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD The Trial Examiner found that the respondent discharged Troy Stamper, in violation of Section 8 (3) of the Act. The respondent contends that Stamper was not discharged but voluntarily quit, and that it was justified in refusing to rehire him on the next day. In our judgment, whether Stamper was discharged or whether he quit and was denied reemployment, the respondent cannot be said to have violated the Act. The facts, fully set forth in the Intermediate Report, show that the respondent discharged and refused to rehire Stamper because, after refusing to perform a task reasonably assigned to him by his foreman, he walked off the job without permission and in face of a warning by his foreman that his leaving the plant would be regarded as a quitting. The Trial Examiner finds these to be the facts, but he concludes that, notwithstanding Stamper's dereliction, the respondent would have retained Stamper in its employ, subject to a reasonable penalty, except for the fact that Stamper was an active union member. With this conclusion, we do not agree We shall accordingly order that the complaint be dismissed insofar as it alleges that the respondent violated the Act in discharging, or refusing to rehire, Troy Stamper. We do not agree with the Trial Examiner's conclusions that the respond- ent discharged Harvey Headlee and Virgil Shirey because of their union activity, in violation of Section 8 (3) of the Act. The evidence shows that they were discharged because they refused to accept a transfer to the job of "hustling," or helping, on the night shift in the automatic shop. At the time of these discharges, all three of these employees were union committeemen and were active members of the union. The Board held that the refusal to perform reasonable assignments by these employees justified the respondent in discharging and refusing to reinstate them. In N. L. R B. v. Western Cartridge Company etc. case," the Court in denying enforcement of the Board's order in respect to the discriminatory discharges found by the Board said: . . . Furthermore, the striking employees were not acting as members of the Union. They expressly disclaimed any such action. The strike was not authorized or approved by the Union and was not used to further any purpose of the Union. [Italics supplied ] It was a "wildcat" strike. The employees were acting as individuals, disclaiming any standing as members of any labor organization. No organizational work of the Union was going on at the time in the Cupping Department. The workmen therein were almost all members of the Union The employees were acting outside the Union. The strike was a thing apart from any labor organization. In N. L. R. B. v. Williamson-Dickie Manufacturing Company, the Court," In denying enforcement of the Board's order in respect to the discriminatory discharges found by the Board said, in part : ... As between employer and employee the statute [N. L. R. B. Act] confers no right of action triable by jury or otherwise. No provision in it authorizes an employee to make claim. The act does not purport to confer, it does not confer, private rights . . . The procedure the statute outlines is not designed to award, the orders it authorizes do not award, damages as such. The proceeding is not, it cannot be made, a private one to enforce a private right. It is a public procedure, looking only to public ends. The statute has in mind the maintenance and furthering of industrial amity, N. L. R. B. v. Western Cartruige Company, 139 F (2d) 855 (C. C. A 7), enf'g as modified 48 N. L. R B 434. 14 N. L. it. B. v. Willsamson-Dickie Manufacturing Company, 130 F. (2d) 260 (C. C A 5). AURORA WALL PAPER MILL INC. 201 and therefore peace, the prevention of industrial war ... The statute authorizes reparation orders not in the interest of the employees , but in the interest of the public . A cease and desist order operating retrospectively is not a private award . . . It is a public reparation order, operating retro- spectively by way of an order to cease and desist as to unfair labor practices, from their beginning ; practices as to which , because forbidden in the interest of industrial amity, and therefore peace, Congress has the right to eradicate them as from the beginning., Agwilines, Inc. v. N. L. R. B., 5 Cir. 87 F. (2d) 146 at page 150, 151 . . . Orders for reinstatement of employees with back pay are somewhat different . They may impoverish or break an employer, and while they are not in law penal orders, they are in the nature of penalties for the infraction of law. The evidence to justify them ought therefore to be substantial , and surmise or suspicion , even though reasonable, is not enough . . . So far as the National Labor Relations Act, 29 U. S. C . A. 151, et seq., goes, the employer may discharge , or refuse to reemploy for any reason, just or unjust , except discrimination because of union activities and relation- ships. N. L. R. B. v. Tex-O-Kan Flour Hills Co., 5 Cir., 122 F. 2d 433 at page 438. [Italics supplied.] In N. L. R B. v. Riverside Mfg. Company, 5 Cir., 119 F. ( 2d) 302 at page 307, we said of a discharge : "The only facts found, which at all tend to support the Board's conclusions that he was discharged for union activity are that he was a member of the union , and the management did not like the union or his belonging to it, and had said so. If real grounds for dis- charging him had not been shown , or if he had been discharged for trivial or fanciful reasons, the facts would have supported an inference that he was discharged for union activity, but when the real facts of the discharge appear, these facts are stripped entirely of probative force. For it is settled by the decisions that membership in a union is not a guarantee against dis- charge [italics supplied], and that when real grounds for discharge exist, the management may not be prevented, because of union membership, from discharging for them." In respect of the unfair practices in question, the controlling fact question is whether the evidence supports the ultimate findings that the employees in question were discriminated against, that is, were treated differently from employees similarly situated , in order to dis- courage membership in a labor organization. In Humble Oil it Refining Company v. N . L. R. B., 5 Cir., 113 F. (2d) 85, 88, and other cases, we have pointed out that the statute does not make the Board either "guardian or ruler" over employees or employer ; it does not authorize it to substitute its judgment for that of the employer as to what is sufficient cause for discharge. It empowers it only to deliver the employees from acts and restraints forbidden by the statute , and to reinstate them when they have been discriminatorily discharged. C. The alleged intei ference , restraint, and coercion The complaint alleged that on November 8, 1945, and continuing to the date of the instant complaint, the Respondent warned and threatened its employees with discharge and other disciplinary action if they engaged in concerted activity. In view of the findings above made that the discharge of Thomas was not discriminatory, and since there is no evidence in the record of warning or threatening its employees with discharge or other discriminatory action, the undersigned finds that these allegations of the complaint are not sustained by the evidence, therefore the undersigned finds that the Respondent has not engaged in any unfair labor practices within the meaning of the Act with respect to such allegations. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the case , the undersigned makes the following: CONCLUSIONS OF LAW 1. The Respondent, Aurora Wall Paper Mill Inc., Aurora, Illinois, is engaged in commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. United Wall Paper Craftsmen & Workers of North America, affiliated with the American Federation of Labor, is a labor organization, within the meaning of Section 2 (5) of the Act. 3. The aforesaid Respondent has not engaged in unfair labor practices, within the meaning of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, the undersigned hereby recommends that the complaint herein be dismissed in its entirety. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.38 of said Rules and Regulations, file with the Board, Rochambeau Building, Wash- ington 25, D. C , an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 65. As further provided in said Section 203 39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board W P. WEBii, Trial Examiner-. Dated September 25, 1946 APPENDIX A Meeting held at the Aurora Wall Paper hill Inc, on the morning of November 8, 1945, at which the day shift (7: 00 a. in. to 3: 00 p in ) employees were present, as well as Mr Mombleau and Mr. Atwell. Mr. ATWEI.r, Boys, this meeting has been called as a result of an incident that happened yesterday, that we want to discuss with all of you men. I have a statement here that was given by Mr. Futterer, Walt, which I will read: "On the morning of November 7, 1945, at 7:00 a in. I went to Thomas and told him not to start the grounder, that we wanted to unload the car of clay first. He said that the boys took a vote and would not unload it unless they received the money per hour as Nielsen is getting. I told him that we would not put Nielsen with them to unload the car and he said it would not make any difference, because we would put Sam with them, and he is .AURORA WALL PAPER MILL INC . 203 making more money than any of them. He said that they voted to unload it at 80¢ per hour. I was told by Mr. Hamper to tell them if they wanted to unload the car as we previous did to unload, or go home, till the car of clay was unloaded. They refused to do so and went home. Penrod Charles Eggestein Brame Walter Thomas Hugh Whitlatch Joe Whitlatch (Signed) WALTER FUTTERER." I would like to ask that group if it is substantially correct. Mr. THOMAS. I think it is, sir. Mr. ATWELL. The only reason we called this meeting is to try to establish a policy here, and I would like to ask not only those that took that position yester- day, but any of the other boys, if they are in a position at this time to state whether or not that is going to be their permanent policy-is that clear? In other words, we will probably have another car of clay coming in here within the next two or three weeks or so, and we might just as well find out now if that is going to be the policy of the men. Mr. THOMAS. Mr. Atwell, what are you going to do, take a vote on it now? Mr. ATWELL. You can either retrench from your position or reaffirm-I would like to know if you are. Mr. PENROD. I will not back down. Mr. ATWELL. Brame, in the future are you going to do what you did yesterday? Mr. BRAME. My understanding is that they had some sort of an agreement with the fellows about unloading cars-I do not know what they asked for but was told to go home. Mr. ATWELL. I will ask the men that are here-how long have you unloaded clay in this way? Mr. THOMAS. As long as the company has been here. Here is the point, I be- lieve, it was young Hamper, Ken, or someone that was out here and they promised to make a different price when we did unloading of clay. Mr. ATWELL. When did that happen? Mr. THOMAS. That happened when you put us on piece work, I mean when you put us on piece work on the machines. Mr. MOMnLEAU. No you weren't put on piece work, you were put on a bonus plan and that was about four years ago? Mr. ATWELL. In other words, you are really acting on an alleged promise that was made three or four years ago. Mr.'THOMAS. That is right sir. Mr. ATWELL. This is the first time you have taken any stand on the matter? Mr. THOMAS. Yes Sir. Mr. ATWELL I would like to restate my question, which does not call for any argument, but just a yes or no Mr. THOMAS. I am a chairman and cannot vote, but leave it up to the men. Mr. EGGLESTON. I will do what the majority do. Mr. ATWELL. Does it offend anyone's wishes that I ask for an informal opinion here at this time? Mr. THOMAS. I think the whole matter is out of order sir. Mr. ATWELL. That is a matter of opinion. Mr. THOMAS Why not let us bring Jacobs or Jameson in on this meeting? Mr ATWELL. We are not operating under any agreement ; we are running this Company and will continue to do so. I will affirm my statement that the Aurora Wall Paper Mill is going to direct the policy here and when we can no longer do 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so we will no longer be in business. As American citizens, we have a perfect right to work for anyone ; there is no coercion attempted in this country, and we hope it will never come to that. There is nothing very profound in what I say, that you can work for anyone you please, and that it is your privilege to work where you can obtain the highest rate of pay ; and there is nothing that I have to say to attempt to change that privilege of the employee, but I would like to know whether or not when a car of clay comes in here tomorrow or any other day, if this condition is going to repeat itself. A stand is going to be taken here, not three months from now. I do not think this is an unfair question-If that is the kind of a stand you are going to take when another car of clay comes in we would like to know it, as a matter of policy-There isn't any severe or unkind measure we are taking. Mr. THOMAS. I tell you Mr. Atwell, let us vote on it-You have a lady here taking down what is said. Let the boys vote on it. I did not vote on it yester- day, I am a chairman. Let us drop it today and let us vote on it after working hours, and we will give you an answer tomorrow. Mr. ATWELL. I am very sorry Mr. Thomas, I am running this meeting. Mr. THOMAS. That is all I have to say. Mr. ATWELL. Then Mr. Thomas you refuse to operate under these conditions? Mr. THOMAS. I did not say that sir, but we should vote on it. I won't change my stand. Mr. ATWELL. Well Mr. Thomas, the point I am trying to raise is will you retract your actions of yesterday, that is will you continue to take the same position in the future? Mr. THOMAS. I certainly will sir. Mr. ATWELL. Then Mr. Thomas you may put your hat and coat on and leave. Mr. THOMAS. I will if you have my check-have you my check? Mr ATWELL. If you cannot abide by rules that hale been in force and effect for three or four years, we are taking the position that you refuse to do what is asked. Mr. THOMAS. That is it. All the boys can quit or stay on the job; stay on the job boys, go ahead boys stay pn the job, I am going to get my hat. Mr. THORPE. Thomas you have taken the wrong stand, this is not a matter of Union at all, you are entirely wrong. Why there is only a sixty cent difference in three months time. It is no stand to take, there is not a bit of sense to it. Mr. EGGLESTON. Addressing Mr. Futterer-You told us to go home. Mr. FUTTERER That was yesterday. Air. MOMBLEAU. Addressing Mr. Thomas-I will bring your check over to your house. Mr. THOMAS. I thought you had my check. Mr. MOMBLEAU. I do not have the time books in my pocket, but your check will be prepared and I will mail it to you. Mr. THOMAS. Leave it with the Mrs. Mr. ATWELL. I want you men to feel that we are trying to do our best. I think you who have been with us some three or four years know this. Why if I were to meet any of you men on the street, you would be just another man, the same as I am. I personally do not see why two or more men cannot get together, lay their cards on the table and discuss the matter in a friendly manner. Those of you fellows who own property would not sanction someone coming in and telling you how to run it, and certainly if the Aurora Wall Paper Mill is not going to be presumed to run its own business, then business in this country has gone a hell of a lot further down than I thought it had. The door to the office here is open at all times to anyone who thinks he is being treated unfairly, go into the office AURORA WALL PAPER MILL INC. 205 and tell them-Then if you still think you are being treated unfairly, the door to my office in the Keystone Building is open, where you can come, and where any- thing that isn't fair and proper will be corrected. One of .the, employees spoke up. I was not here when the bonus was put in effect. Mr. ATWELL. I was not here either. Mr. ATWELL. I want you men to know that we do not know who belongs to the Union; I assumed that you all belong, and it is perfectly all right for anyone or all to belong. However, this is not a Union matter, it concerns only the matter of Company policy, but I want to ask you now, if you would tolerate the insub- ordination of Mr. Thomas. Mr. EGGLESTON. Perhaps I would if I were Chairman Mr. ATWELL. Furthermore men, if we tolerated it, there isn't very much fun in being in business , and if you would apply the same logic to your own homes and property I doubt that anyone of you men would tolerate it-why, it is unfair to American Citizenship. Mr. JOE WHITLACH. You can't tell me anything about American Citizenship-I'm an American citizen-I am working for Uncle Sam. Mr. ATWELL. The question of citizenship isn't being raised, Son, it is only a question of insubordination that is raised Mr. JOE WHITLATCH. We are all good American citizens that work here. Mr. ATWELL. That is right-Now if anyone has anything to ask I would like to hear about it. What do you think about it Son ? ( addressing Joe Whitlach). Mr. JOE WHITLATCH. I am not talking. Mr. MOMBLEAU. Addressing Mr. Atwell-He is in the service. Mr. ATWELL. I see-Does anyone want to ask any questions? Mr. JOE WH1TLATCH. I am not talking. Air ATWELL. You have a right to your opinion. Mr. MOMBLEAU. You (addressing Hugh Whitlatch). HUGH WHITLATCH The only thing I do not see is why we should work along for less money, that is the only thing I have to talk about. Mr. MOMBLEAU Let me understand you clearly. Answer. The same work for less pay, that is what I mean Mr MoMBLEAU. Of course you were not in on all of the meetings when the matter was discussed, but due to a peculiarity in our operations we have felt it best to handle the matter in this way, and about every 45 clays or so a car of clay has to be unloaded and also about once a week a car of paper, and because of our peculiar situation all agreements heretofore have been made on that basis. Mr. HAMPER That is you would get the same wages when unloading clay as when you run your machine. Air. H WHITLATCH I expect the boss or Superintendent to get more money. Mr. HAMPER But he is always willing to help Mr. ATWELL. Of course I do not understand everything here in the way of wages, but as an outsider, that isn't the tragedy here. It seems to me that the nasty situation is that you feel you are receiving unfair treatment, and why in a mill as small as this one, the cards cannot be put on the table, I cannot understand. Mr. EGGLESTON. The only thing I have to say is that we do the same work for less money. Mr. ATWELL. I can't see why we cannot all put our cards on the table ; why there is any disagreement, with some on one side of the fence and others on the other side-don't you thing the Company has been fair and reasonable? 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. BRAME. I have had to unload clay, and I think the company has been good to the fellows. Some of the fellows aren't able to do all kinds of work for some reason or other, but the fellows have never agreed on what they want, and yes- terday they said they wanted 800 per hour. Mr. HAMPER. I never heard it, but they are getting just the same as though they were on their machines. Mr. ATWELL. Well is there any better feeling or is there anything else you want to say? If there is any other question for God's sake say so-At least if we cannot have decent working conditions between employer and employee, I do not see what fun anyone gets out of working, and certainly there is no pleasure in running a business. Mr. BRAME. I have to work and want to work-There are some things I can't do and there are some things I can do, but I can do this and it isn't pleasant having to go home every two or three days. Mr. ATWELL. Well I don't know how you men feel but this Company is too small to have two sides of the fence ; of course, I do not feel that condition should exist in any place, but the tragedy is where some place themselves on one side of the fence and some on the other. Mr. S. THORPE. There are some men here that have been here three or four years and some work is too heavy for them and I know they have been given other work to do. Mr ATWELL. Addressing Joe Whitlatch-Has the Company ever been unreason- able in asking you to do certain work? Mr JOE WHITLATCH. I can do any work that anyone else can do, and apparently addressing Sam Thorpe-"I can work you down any time". Mr. ATWELL. We didn't say that at all boy. Mr. JOE WHITLATCII. I am getting tired of that. Mr. HAMPER. I did not ask this boy to unload clay. Mr. JOE WHITr.ATCH. You can get my check too Dir. ATWELL. I am sorry Mr. MOMBLEAU. Any further questions? Jim, Russ, Sam? Answer. No. I, Gertrude H. Lindstedt, certified that I was present at a meeting held at the Aurora Wall Paper Mill on the morning of November 8, 1945, and took down the proceedings of said meeting in shorthand, and that the above and foregoing is a true and correct transcript of said proceedings (Signed) GERrRIJDE H. LINDSTEDT. We, the undersigned, do hereby certify that we were present at a meeting held at the Aurora Wall Paper Mill Inc., on the morning of November 8, 1945, on or about 9.00 o'clock a. in., and that the above and foregoing is a correct transcript of the proceedings which took place at said meeting, to the best of my knowledge and recollection. (Signed) WALTER FUTTERER. ( Signed ) RUSSELL NIELSON. ( Signed ) SAMUEL L. THORPE. ( Signed ) JAMES BRAME. ( Signed ) GABOR GETZ. ( Signed ) HUGH WHITLATCI. (Signed) HARRISON EGGLESTON.