Harnischfeger Corp.

In the Matter of HARNISCHFEGER CORPORATION and AMALGAMATED ASSOCIATION OF IRON, STEEL & TIN WORKERS OF NORTH AMERICA, LODGE 1114 Cases Nos. C-323 and R-076.-Decided November 8, 1938 Steel Products Manufacturing Industry-Unit Appaopnate for Collective Bar- gaining: plant-wide unit of all employees except operating engineers in power plant, salesmen, indentured apprentices, probationary, and supervisory em- ployees; operating engineers in power plant held separate unit; past bargaining history ; desires of employees-Representatives: proof of choice : membership cards checked against pay roll-Collective Bargaining: refusal by employer, re- gardless of terms; employer ordered to grant recognition of union-Coinpany- Dominated Union: formed at suggestion of supervisors ; company assistance in solicitation for membership ; company ordered to refrain from recognizing as collective bargaining agency-Discrimination: union officers discharged for in- stituting partial strike-Reinstatement Ordered: with back pay from date of discharges to date of receipt of Intermediate Report finding no discrimination, .and from date of Decision to offer of reinstatement herein ordered ; company permitted to place one employee at other work in plant, due to his negligent handling of valuable machine, which was discovered after his discharge for -union activity-Cert?ficatwon of Representatives: of craft union, upon proof of majority ; finding of majority in plant-wide unit for industrial union in connec- tion with refusal to bargain, held to serve in lieu of certification of that union. Mr. S. G. Lippman, and Mr. Robert M. Rissman, for the Board. Lines, Spooner & Quarles, by Mr. Leo Mann, and Mr. J. T. Guy, of Milwaukee, Wis., for the respondent. Mr. W. O. Sonnemann, of Milwaukee, Wis., for the Amalgamated. Alexander, Burke cC Clark, by Mr. Giles F. Clark, of Milwaukee, Wis., for the Independent. Mr. A. G. Goldberg, of Milwaukee, Wis., for the International. Mr. Melvin S. Frazier, and Mr. Lewis M. Gill, of counsel to the Board. DECISION ORDER AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE Charges and amended charges having been duly filed by Steel Workers Organizing Committee , herein called the S. W. O. C., affil- =iated with the Committee for Industrial Organization , herein called 9 N. L. R. B., No. 64. 676 DECISIONS AND ORDERS 677 the C. I. O., the National Labor Relations Board, herein called the Board, by Nathaniel S. Clark, Regional Director for the Twelfth Region (Milwaukee, Wisconsin), issued and duly served its com- plaint dated July 31, 1937, against Harnischfeger Corporation, Mil- waukee, Wisconsin, 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), (3), and (5) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On June 4, 1937, Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1114, herein called the Amalga- mated, affiliated with the C. I. 0., filed with the Regional Director for the Twelfth Region, a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On July 26, 1937, the Board, acting pursuant to Article III, Sec- tion 10 (c), (2), and Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered a consolidation of the two cases and authorized the Regional Director to conduct an investigation of representatives and to provide for an appropriate hearing upon due notice. The respondent filed a motion to dismiss the complaint and peti- tion for investigation and certification of representatives on the grounds that "as sought to be applied to said Harnischfeger Cor- poration, respondent herein in this proceeding, the said National Labor Relations Act is unconstitutional and void and that by reason thereof the matters involved in this proceeding and the respondent are not subject to the jurisdiction of the National Labor Relations Board." The respondent, reserving its legal objections, filed an answer in which it denied, in substance, that it had committed any of the unfair labor practices alleged in the complaint. Pursuant to notices of hearing duly served upon the respondent, the Amalgamated, and the Independent Union of Harnischfeger Employees, herein called the Independent, a labor organization claiming to represent employees of the respondent, a hearing on the consolidated cases was held at Milwaukee, Wisconsin, on August 12, 13, 14, 26, 27, 28, 30, 31, September 1, and 2, 1937, before James C. Batten, the Trial Examiner duly designated by the Board. During the hearing the Independent and the International, affiliated with the American Federation of Labor, herein called the A. F. of L., were permitted to intervene. All parties were represented by coun- sel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and introduce evidence bearing on the issues was afforded all parties. 678 NATIONAL LABOR ILLATIONS BOAR]) During the course of the hearing the Trial Examiner made several rulings on motions, on requests for the issuance of subpenas, and on objections to the admission of evidence. At'the conclusion of the hearing the complaint was amended to conform to the proof. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On November 24, 1937, the Trial Examiner issued 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 (5) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from dominating and interfering with the formation and administration of the Inde- pendent and furnishing support thereto; that it cease and desist from refusing to bargain collectively with the Amalgamated; and that it cease and desist from interfering with, restraining, and co- ercing, its employees in the exercise of the rights guaranteed in Section 7 of the Act. He found that the respondent had not dis- criminated in regard to hire and tenure of employment and recom- mended that the allegations of the complaint that Fred S. Stein, Arthur Schmittinger, and John Chaloupek had been discharged be- cause of their activity on behalf of the Amalgamated be dismissed. Thereafter, the respondent,, the Amalgamated, and the Independent filed exceptions to the Intermediate Report. Oral argument as held before the Board on June 16, 1938, following notice duly served upon all parties. The Amalgamated participated in the oral argu- ment, but neither the respondent nor the Independent appeared. The Board has fully considered the exceptions to the Intermediate Report and finds that, except as otherwise pointed out below, they are without merit. As set forth below we find that the Trial Exam- iner's failure to find that the respondent discriminated in the dis- charge of Stein, Chaloupek, and Schmittinger was incorrect. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE RIJSTNESS OF THE RESPONDENT A stipulation was entered into by counsel for the Board and counsel for the respondent in which certain facts concerning the nature and extent of the operations of the respondent were set forth. The stipulation shows that the respondent is a corporation organized and existing under the laws of the State of Wisconsin with its principal place of business and manufacturing plant in Milwaukee, Wisconsin, and that it is engaged in the manufacture, assembly, sale, and distribution of electric motors, electric overhead cranes and DECISIONS AND ORI)ERS 679 hoists, are welders, position finders, gasoline, Diesel, and electric power shovels, drag lines , clamshells, trenching machines, bag fillers, truck cranes , and single line grab bucket. In 1936 the respondent's total purchases of raw materials and supplies, consisting principally of steel, wood, copper, tin, coal, tires, and motors, were in excess of $2,500,000 in value, of which 75 per cent originated outside the State of Wisconsin. Likewise in 1936 the respondent's total sales were susbtantially in excess of $5,000,000 in value, of which 90 per cent were to customers in States other than the State of Wisconsin. II. THE ORGANIZATIONS INVOLVED Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1114, is a labor organization affiliated with the Committee for Industrial Organization. It admits to membership all employees in the respondent's Milwaukee plant except salesmen, apprentices, temporary employees, probationary employees and super- visory employees. Independent Union of Harnischfeger Employees, an unaffiliated labor organization, is incorporated under the laws of the State of Wisconsin . It admits to membership all employees of the respondent, exclusive of officers, executives, assistant officers, assistant executives, superintendents , assistant superintendents , foremen, and assistant foremen. International Union of Operating Engineers, Local 311 , is a labor organization, affiliated with the American Federation of Labor. It admits to membership all of the respondent's operating engineers. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that all the respondent 's employees at its Milwaukee plant, except supervisors , constitute a unit appropriate for the purposes of collective bargaining. However, the record indicates that in addition to the supervisory employees, salesmen, indentured apprentices, temporary employees, and probationary employees are ineligible to membership in the Amalgamated. It appears, therefore, that the Amalgamated desires the exclusion of these employees from the bargaining unit. The respondent claims that the clerical employ- ees, engineering employees, and the operating engineers in the power plant should also be excluded from a general plant-wide unit. The International seeks a separate unit composed of the operating engi- neers in the power plant. 680 NATIONAL LABOR RELATIONS BOARD The respondent has, approximately 375 clerical and engineering de- partment employees, of whom about 65 are members of the Amalga- mated. There are 10 operating engineers in the power plant, which is located in a separate building. One of the 10 is the chief engineer, who supervises the work of the other 9, all of whom are members of the International. As to the operating engineers in the power plant, we are of the opinion that they could appropriately be included either in a plant- wide unit or in a separate unit of their own. They affiliated them- selves with the International shortly after the Amalgamated's plant- wide organization had been instituted. It appears that early in 1937, the International engaged in successful collective bargaining on their behalf with the respondent in regard to a reduction in their working hours. Because of this and the fact that they have indicated a desire for separate representation by the International, we believe that they should be excluded from the general plant-wide unit. The only other substantial question as to the unit concerns the cleri- cal employees and the other engineering department employees. Since the Amalgamated desires to represent them and since a number of them have affiliated themselves with the Amalgamated, we are of the opinion that they should be included within the general plant-wide unit. We find that all the respondent's employees at its Milwaukee plant, exclusive of operating engineers in the power plant, salesmen, inden- tured apprentices, probationary employees, temporary employees, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and will otherwise effectuate the policies of the Act. 2. Representation by the Amalgamated of ati majority in the appro- priate unit The Amalgamated presented its membership records at the hearing and such records were checked against the pay rolls of the. respondent for the months of May and July 1937 by a committee including repre- sentatives of both the Amalgamated and the respondent. This check revealed that the total number of employees in the appropriate unit was approximately 1,495 in May and approximately 1,560 in June. Of this number, a desire for representation by the Amalgamated had been shown,, either by_ paid-up membership or by applications for membership, by 1,169 employees in May and 1,173 in June. It is clear that at both times the Amalgamated represented a large majority of the employees in the appropriate unit. The evidence does not'show any intermediate or subsequent loss of such authority to represent. DECISIONS AND ORDERS 681 We find that during May 1937, and at all times thereafter, the Amalgamated was the duly designated representative of a majority of the employees of the respondent in the appropriate unit. Pursuant to Section 9 (a) of the Act, the Amalgamated was and is, therefore, the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain The first attempt on the part of the Amalgamated to bargain with the respondent occurred about February 10, 1937. A substantial membership had been obtained in the plant by that time, and the Amalgamated demanded recognition as the bargaining agent for its members only. It also demanded reinstatement with back pay for six or seven employees allegedly discharged in December 1936 for their union activity. The respondent's president, Walter Harn- ischfeger, refused to reinstate the discharged employees and advised the Amalgamated committee that the respondent would recognize a committee of its employees but would not recognize the Amalga- mated. The following day a committee from the Amalgamated advised Menck, the respondent's works manager, that a strike would be called unless the respondent acceded to the Amalgamated's de- mands. Menck told them to "go ahead and strike." On February 12 Harnischfeger called a general meeting of em- ployees. After calling their attention to some of the benefits which the management had voluntarily given employees in the past, he told them that he thought they should continue along the same lines. He also called the Amalgamated stewards "self-appointed," stated that the stewards were bargaining only for themselves, and con- cluded with a statement that the "soviet system" was not desired in the United States. Upon the conclusion of Harnischfeger's talk, Carl Quast, president of the Amalgamated local in the plant, asked permission to speak in reply, and did so although permission was refused. He pointed out that the stewards were not self-appointed but had been duly selected by the employees, that the Amalgamated represented a large majority of the employees, and that while the Amalgamated did not seek to dictate to the respondent, it' wanted its rights "as provided by law." He stated that the respondent could have until the following Monday to grant the Amalgamated's demands, failing which a strike would be called. Despite Harnischfeger's attempt to discredit the Amalgamated, the respondent, through Coppin, its secretary and general counsel, conferred with the Amalgamated the next day and agreed to rein- state the discharged men with back pay. It also, by letter, recog- 682 NrATIONAI. LABOR RELATIONS BOARD nized the Amalgamated as the collective bargaining agent for its members only. Negotiations were then instituted between the Amalgamated and the respondent concerning wage adjustments. A number of in- creases in individual pay rates were agreed upon. About the middle of March, the Amalgamated committee submitted a proposed con- tract to the respondent for consideration. There were several meet- ings at which the question of a signed agreement was discussed. The provisions of various contracts submitted by the Amalgamated were taken up, but the negotiations finally collapsed upon the re- spondent's refusal to enter into any kind of a signed agreement, regardless of the terms proposed. This led to a strike by the Amal- gamated, beginning on April 19, 1937. The strike shut down the plant for 8 days, and was finally settled upon the respondent's agree- ment to issue a "statement of policy." The men returned to work on April 27. There is a sharp conflict in the testimony as to whether this statement of policy was to be signed by Harnischfeger in his own handwriting. Quast, president of the Amalgamated local, testi- fied that Harnischfeger promised to sign it; Harnischfeger testified that he did not. The agreed settlement apparently contemplated a "signed" statement of policy. The point was regarded as highly important by the Amalgamated membership; in fact, before the body of the union accepted the statement of policy and returned to work, Quast was compelled to assure the men at a meeting that Harnisch- feger would personally sign the statement. Harnischfeger had left the city immediately following the strike settlement, and had left to Coppin the details of issuing the state- ment of policy. Coppin had it printed and it was promptly passed out to the employees. Harnischfeger's name was printed at the bottom of the statement of policy. On April 28 the respondent sent a letter to its customers which reads in part as follows : As you probably know, we had a strike at our plant from April 19 to April 26, and we believe you may be interested in learning of the facts connected with this strike and the settle- ment effected. On February 13, 1937, we recognized Lodge No. 1114 of the Amalgamated Association of Iron, Steel and Tin `Yorkers as the collective bargaining agency for its members. We met at frequent intervals with the bargaining committee of the Union, and various matters having to do with wages and working conditions were satisfactorily adjusted. The Union then demanded a signed contract, which we, as a matter of policy, refused to grant, on the theory that a contract inevitably leads to a closed shop. DECISIONS A ND ORDERS 683 After our definite refusal to sign a contract, the Union called a strike on April 19, resulting in a complete stoppage of all production and shipments. * * * You will be interested to know that we did not capitulate to the Union's demand for a signed joint agreement. We did, however, publish a restatement of our Employee Rela- tions Policy, and Ave are pleased to hand you a copy such as was given to each of our employees individually, and which con- stituted the sole basis of settlement. Doubtless the official in your company who handles labor rela- tions will be interested in reading this Statement of Policy, and we draw particular attention to the safeguards contained in the first and last sections. The membership of the Amalgamated immediately became anxious as to whether Harnischfeger was going to affix his personal signa- ture to a copy of the statement. On the night of the settlement, Coppin was asked by John Weber, secretary of the Amalgamated local, whether Harnischfeger was going to sign one copy of the statement, and lie replied that he saw no objection to that and that he would recommend it to Harnischfeger when he returned. Upon Harnischfeger's return, Coppin did advise him to sign a copy of the statement for the Amalgamated. On May 1, Quast requested Har- nischfeger to sign a copy, and Harnischfeger refused to do so. The only explanation for this refusal is afforded by Harnischfeger's testimony that he "took a definite position" in order to "put an end to this continuous bickering." On May 2 a meeting of the Amalgamated membership was held, and Quast reported that Harnischfeger had refused to sign the state- ment. The men were "riled up generally" at Harnischfeger's action. On May 10 a meeting of the Amalgamated stewards was held and it was decided to renew the Amalgamated's demand for a signed con- tract, due to Harnischfeger's refusal to sign the statement of policy.' The next morning a committee from the Amalgamated informed Merck, the works manager, that the statement of policy was repudi- ated and that the committee desired to reopen negotiations for a signed agreement. Menck flatly rejected the proposal for a signed contract. It appears from the above facts that the respondent has at all times refused to enter into a binding agreement with the Amalgamated, regardless of the terms proposed. Indeed, it affirmatively is shown that there was no substantial difficulty, if any at all, as to terms, since an understanding thereon was easily reached for the purposes I The stewards also decided to mfonn the men to NN oik only 8 hours theieafter, as a protest This phase of the case is discussed subsequently. ,684 NATIONAL LABOR RELAT102\8 BOARD of the statement of policy which was designed to settle the strike. It is clear that the Amalgamated's acceptance of the statement of policy cannot be regarded as precluding any further demand for a signed agreement. Such acceptance by the Amalgamated was con- ditioned upon the definite understanding on its part that Harnisch- feger would affix his personal signature to the statement. We need not decide whether Harnischfeger in fact did promise to sign the statement as the Amalgamated thought he had. His refusal to do so led the Amalgamated to believe that the understanding had not been carried out in good faith, and we cannot say on the facts that the Amalgamated precluded itself from raising again the issue of a binding agreement. We accordingly need not decide whether, in the absence of a dispute on the question of Harnischfeger's signature, the agreement on the statement of policy would render it inappro- priate for the Board to decide the question of whether the respondent has failed to bargain in good faith by refusing to enter into an agreement. It is clear that the respondent, while willing to discuss matters of mutual concern with the Amalgamated, has at all times been adamant in its refusal to enter into a binding contractual relationship with that organization. The respondent's philosophy of collective bargaining was quite candidly expressed by Coppin at the hearing. He testified that the respondent objected to a joint agreement because "in order to change it, there, must be a meeting of the minds." He went on to state that the respondent wanted to be free to make changes in its working conditions without the consent of the union, if that consent could not be obtained. The issue so presented is simple. The respondent contends that collective bargaining is in some manner different from normal busi- ness relationships, in that it does not connote the negotiation of bind- ing agreements. It would be ridiculous for the respondent to assert, to a customer proposing to contract for a purchase of its products, that it did not see fit to make a binding commitment because it,wanted to be free to alter the terms if the occasion arose. An essential pur- pose of collective bargaining is to stabilize labor relations, so that workers may deal as business equals with their employers as to their terms and conditions of employment. If the employer is at all times to be free to change such terms and conditions unilaterally, collective bargaining will have failed to achieve one of its fundamental aims. And it seems to us that by the plain meaning of the term "collective bargaining," a willingness to reach a bargain or binding agreement is essential if an employer is to carry out the duty imposed by the Act.2 This is not to say that an employer is bound to accept whatever 2 See Matter of St. Joseph Stock Yards Company and Amalgamated Meat Cutters and Butcher Workmen of North America, 2 N. L. R. B. 39. DECISIONS AND ORDERS 685 terms the union proposes to include in the agreement. There is no obligation to agree to any particular terms, but only to negotiate on the terms in good [with in an effort to make an agreement. Here we are not confronted with any such question, and we conclude that the respondent has refused to bargain collectively with the Amalgamated. This conclusion is unaffected by the respondent's constant assertion that a contract with- the Amalgamated would lead to a closed shop. That is a mere speculation which cannot be regarded as relevant. It merely amounts to a fear that the Amalgamated might become a stronger organization if the respondent entered into contractual re- lationships with it, and might some time ask for a closed shop and be in a position to press that demand with some effectiveness. We view the argument as without merit. The respondent might just as well argue that recognizing the Amalgamated as the representative of its employees, and meeting with it as such, would be an opening wedge for a closed shop, and that the respondent is therefore under no duty to take such action. We find that the respondent has refused to bargain collectively with the Amalgamated as the representative of its employees in the appro- priate unit in respect to rates of pay, wages, hours of employment, and other conditions of employment. We also find that by such re- fusal the respondent interfered with, restrained, and coerced its em- ployees in the exercise of their right to self-organization and to collective bargaining through representatives of their own choosing, as guaranteed in Section 7 of the Act. B. The discharges We have already noted that on May 10, 1937, the Amalgamated stewards held a meeting to consider Harnischfeger's refusal to sign the statement of policy. In addition to deciding to renew the demand for a signed agreement, the stewards determined to institute an im- mediate protest by instructing the membership to work only 8 hours on a single shift. The meeting was concluded about 11: 30 p. in. and the six stewards who were on the night shift returned to the plant. Admittedly, at least three of these stewards advised the men in their departments that the Amalgamated had decided that its members were to work only 8 hours per shift. The respondent was not noti- fied of the contemplated protest. On May 11, the next day, the night shift came to work at 4 p. m., earlier than the regularly scheduled time. It appears that the respondent had been operating most of its departments on an overtime basis, with the day shift stopping work at from 5 to 6 p. in., depending on the department, and the night shift beginning at the corresponding hours. The arrival of the night shift at 4 p. in. caused considerable confusion in the plant. Menck, the 686 -NATIONAL r.ABOB i;i.r,^'PIOys BOARD works manager for the respondent, was greatly disturbed by this action, and on the same afternoon notified an Amalgamated comiiiit- tee that he proposed to discharge all the stewards responsible for the instructions to the night shift. He learned from other supervisory officials that six stewards on the night shift had left the plant on the evening of May 10. On May 12 he called four of the men to his office, one at a time, and told them he would discharge them if they ad- mitted giving the instructions which brought on the interruption of the usual hours. Three of them admitted giving such instructions- Chaloupek, Stein, and Schmittinger. They were thereupon dis- charged by Menck. The fourth, Weber, denied it, and was not dis- charged. The other two night stewards did not come to work on May 12, but were questioned by Menck when they came in later. Both denied giving the instructions in question, and neither was dis- charged. Menck testified that he did not discharge those who denied giving the instructions because he did not want to ask the night shift employees to serve as informers on their fellow workers; this would have been necessary to check the denials. The respondent readily concedes in its brief that the principal cause for the discharge of all three men was the same, namely, that they instructed the men to work only 8 hours. It asserts that the stewards thereby usurped the functions of the management and that their discharge was necessary if plant discipline was to be maintained. This presents a proper question of interpretation under the Act. The instructions given the men were designed to carry out a program of the Amalgamated; this being so, there is no question but that the action bringing about the discharges was union activity. Section 7 of the Act expressly guarantees employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We do not interpret this to mean that it is unlawful for an employer to discharge an employee for any activity sanctioned by a union or otherwise in the nature of collective activity. The question before us is, we think, whether this particular activity was so indefensible, under the circumstances, as to warrant the re- spondent, under the Act, in discharging the stewards for this type of union activity. We do not think it was. It is true that the refusal to work overtime and the early arrival of the night shift occasioned the respondent considerable difficulty. However, calling a strike would have occasioned much more serious difficulty, and it cannot be contended that employees may properly be discharged for calling a strike. The action here was, in effect, a partial strike. It should be added that the respondent contends that other causes existed which would have justified it in discharging the three men. It is asserted that Stein and Chaloupek left the plant on May 10 with- out securing permission from their foremen as required by the plant DECISIONS AND ORDERS 687 rules; -' that Chaloupek negligently damaged a valuable machine ;4 and that Schmittinger violated the respondent's rules as to altera- tion of time carcls.° However, as we have previously noted, the re- spondent in its brief concedes that the primary motivating factor in the discharges was the fact that the stewards gave the instructions concerning working hours, and we find that to be the case. Accord- ingly, in considering whether the discharge of the men constituted an unfair labor practice, we are not concerned with the other matters referred to above. We find that the respondent on May 12, 1937, discriminated in regard to the tenure of employment of Arthur Schmittinger, John Chalonpek, and Fred Stein, thereby discouraging membership in the Amalgamated, and has thereby engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. We also find that by such action, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. Domination of and support to the Independent The Independent appeared on the scene in the latter part of May 1937 and was incorporated under the laws of the State of Wisconsin early in June. The evidence clearly shows that the respondent, through its supervisory officials, suggested the formation of an inde- pendent union in the plant. Around the first of May, a foreman by the name of Nemoir told Employee Kitowski that he thought there were "plenty of brains" in the plant-to form their own union. On May 13, in the course of a temporary stoppage of work in one of the departments,' the respondent's general manager, Erkelenz, told the amen that in place of the Amalgamated they should have a union of their own in the shop, rather than listening to an "outside organizer." The record also reveals that adherents of the Independent solicited membership and engaged in other activities on behalf of the Inde- pendent in the plant during working hours, without interference by 3 The evidence shows that Stein informed Marshall, an employee in a semisupervisory position, that he was leaving the plant on May 10 ; and that Chaloupek unsuccessfully attempted to locate a foreman to inform him that he was leaving to attend the stewards' meeting 4The respondent discovered the injury to the machine subsequent to Chaloupek's dis- charge It appeals that Chaloupek was negligent and that his negligence did cause con- siderable damage to the machine 6 Schmrttinger's duties involved the repair of time clocks, and lie was authorized to cor- rect time cards of employees, but not his own card. He punched his so as not to show his absence from the plant on May 10, and thereafter erased the punched figures and substi- tuted the correct figures The authorized method of correction was to draw a line through the punched figures and add the correct figures in pencil In short, it appeals that lie changed his own card without authority, and also changed it in an improper manner. 'The stoppage was held as a protest against the discharge of the three stewards discussed above. 688 NATIONAL LABOR RELATIONS BOARD the respondent . Another foreman , Zittner, lent his support to the movement by telling Employee Neuhaus that he thought the Inde- pendent was "the better of the two organizations." Later, when Neuhaus asked hint whom he should see if he wanted to join the Independent , Zittner directed him to Wearing and Kovachs, two other employees. The leading figure in the formation of the Independent was one George Sievers , a machine operator . Although it does not appear affirmatively that he was directly influenced by the above -mentioned suggestions of Nemoir and Erkelenz , it is obvious that their actions in urging the formation of an inside union must have had the effect of lending support to the movement. The Independent has not been very active. So far as the record shows, it has not attempted to institute any negotiations with the respondent. Menck, works manager of the respondent , testified that when he was informed by the Amalgamated bargaining committee that fore- men were soliciting for the Independent , he called a meeting of the foremen and instructed them not to do it. While the Independent does not appear to have amounted to a very effective rival group to the Amalgamated , at least up until the time of the hearing, we think that the respondent must be held responsible for assisting in its formation and growth. The sug- gestions made by Nemoir and Erkelenz, the allowance of Independent solicitation on company time, and the aid of foremen in such solici- tation, all show favoritism and support for the Independent. Fur- thermore, Menck's instructions to the foremen not to solicit for the Independent obviously did nothing to remove the effects which their prior solicitation must have had on the men. We find that by the foregoing acts the respondent has dominated and interfered with the formation and administration of the Inde- pendent and has contributed support thereto. IV. TIIE EFFECT OF TIIE UNFAIR LAI3OR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occuring in connection with the operations of the respond- ent described in Section I above, have a close, intimate , and substan- tial relation to trade, traffic , and commerce among the several States, and have led and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY We shall follow our usual practice and order the respondent to cease and desist its unfair labor practices and to restore, as far as possible, the situation which existed before the commission of the Di CI SIONS AND ORDERS 689, unfair labor practices. To do this, it is obviously necessary that the respondent be required to bargain collectively with the Amalga- mated as the exclusive representative of the employees in the appro- priate unit described above. Also, since the respondent has dominated and supported the Independent, it is clear that such organization is incapable of acting as a true representative of the employees in deal- ing with the respondent; we shall order the respondent to refrain from recognizing the Independent as representative of any of its employees for the purpose of dealing with the respondent concern- ing grievances, labor disputes, rates of pay, hours of employment, or other conditions of employment. We have found that the respondent, by discharging Stein, Sclunit- tinger, and Chaloupek, engaged in unfair labor practices. We have pointed out above that Stein and Chaloupek left the plant on May 10 to attend the stewards' meeting without securing permission from their foremen, that Schmittinger improperly altered his time card, and that Chaloupek negligently damaged a valuable machine. The respondent was aware, at the time of the discharges, of the matters complained of in regard to Stein and Schmittinger._ They were discharged, how- ever, not because of these matters, but because of their part in bringing about the partial strike. Under these circumstances, we consider it necessary, to effectuate the policies of the Act, that the men be rein- stated without prejudice based on their misconduct prior to their being discharged for union activity. In the case of Chaloupek, the respond- ent did not discover that he had negligently damaged his machine until after his discharge. The discharge constituted an unfair labor practice, and we believe that the policies of the Act will best be effectu- ated by ordering him reinstated. However, it may be that the re- spondent is justifiably reluctant to return him to work as an operator of the valuable type of machine which his negligence damaged. We believe that for this reason our order should not compel the respondent to restore him to the same work he was doing before his discharge, if it does not desire to do so. Accordingly, we shall merely order him reinstated to some substantially equivalent employment in the plant. We shall also order the respondent to make whole these employees for any loss of pay they have suffered by reason of their respective dis- charges by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earn- ings 7 during said period. However, in view of the Trial Examiner's T 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 elsewhere 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 Josners of America, Lumber and Sawmill Workers Union, Local `~590, 8 N L. R B. 440. 690 NA-hIONAf, LABOR 1,ELATEONS BOAIii) finding that the discharges did not constitute unfair labor practices, we will not require the respondent to give back pay to the men for the period from the date of the respondent's receipt of the Intermediate Report to the date of this decision." VI. THE QUESTION CONCERNING REPRESENTATION We have found in Section III above that all the employees of the respondent at its Milwaukee plant, exclusive of salesmen, operating engineers in the power plant, indentured apprentices, temporary em- ployees, probationary employees, and supervisory employees constitute an appropriate bargaining unit. Our findings in that section that the majority of the employees in said unit have designated the Amalga- mated as their representative for the purposes of collective bargain- ing will serve in lieu of a certification of representatives. However, as also noted in Section III above, the International seeks a separate unit composed of operating engineers at the power plant of the respondent and requests that it be certified as the exclusive representative of such employees. That issue still remains for consideration. We find that a question has arisen concerning the representation of employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE APPROPRIATE UNIT For the reasons set forth in Section III A (1) above, the operating engineers in the power plant, exclusive of the supervisor, could appro- priately be+ included in a bargaining unit with other employees of the respondent or could in themselves constitute a separate- bargaining unit. Under circumstances similar to those here presented, we have allowed the desires of the- employees to be determinative."' As pointed out above, the evidence presented shows clearly that all the said operating engineers desire representation by the International. We find that the operating engineers in the power plant, exclusive of the supervisor, constitute a unit appropriate for the purposes of 8 See Matter of F R. Haffelfinger Company, Inc and United Wall Paper Crafts of North An8erica, Local No 6, 1 N I. R B 760 9 See Matter of The Globe Machine aad Stampnnq Co and Metal Polishers Union, Local No 3, Intrnnational Association or Machinists. Distinct No ii. Fedmal Labor Union 18788, and United Automobile Wonkens of America, 3 N L R B 294 DECISIONS AND ORDERS 691 collective bargaining and that said unit will insure to employees of the respondent the full benefit of their right to self-organization and otherwise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES As pointed out above, the evidence shows clearly that all the oper- ating engineers in the power plant, exclusive of the supervisor, de- sire representation by the International . We find that the Interna- tional has been designated and selected by a majority of the employees in an appropriate unit as their representative for the purposes of collective bargaining. It is, therefore , the exclusive representative of all the employees in such unit for the purposes of collective bargain- ing, and we will so certify. Upon the basis of the foregoing findings of fact and upon the entire record in the proceedings , the Board makes the following : CONCLUSIONS OF LAW 1. Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1114, Independent Union of Harnischfeger Employees, and International Union of Operating Engineers, Local 311, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. The respondent, by dominating and interfering with the forma- tion and administration' of, and contributing support to,the Inde- pendent Union of Harnischfeger Employees, has engaged in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the tenure of employment of Arthur Schmittinger, Fred Stein, and John Chaloupek, thereby dis- couraging membership in the Amalgamated , the respondent has en- gaged in and is engaging in unfair labor practices , within the mean- ing of Section 8 (3) of the Act. 4. The ,employees of the respondent at its Milwaukee plant, exclu- sive of salesmen, indentured apprentices, temporary employees, pro- bationary employees, operating engineers in the power plant, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning''of Section 9 (b) of the Act. 5. Amalgamated Association of Iron, Steel & Tin ' Workers of North America, Lodge 1114, having been designated as their repre- sentative by a majority of the employees in the above unit, was on May 1, 1937, and at all times thereafter has been, the exclusive rep- resentative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 6. The respondent, by refusing to bargain collectively with the Amalgamated Association of Iron, Steel & Tin Workers of North 134068-39-vol ix-45 692 NATIONAL LABOR RELATIONS BOARD America, Lodge 1114, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 7. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 9. A question affecting commerce has arisen concerning the rep- resentation of the respondent's employees within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the Act. 10. The operating engineers of the respondent at its Milwaukee power plant, exclusive of the supervisor, constitute a unit appropri- ate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 11. International Union of Operating Engineers, Local 311, is the exclusive representative of all the employees in such unit for the pur- poses of collective bargaining, within the meaning of Section 9 (a)- of the National Labor Relations Act. ORDER Upon the basis of the foregoing 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 re- spondent, Harnischfeger Corporation, Milwaukee, Wisconsin, and its officers, agents, successors, and assigns shall: 1. Cease and desist : (a) From in any manner dominating or interfering with the ad- ministration of the Independent Union of Harnischfeger Employees or with the formation or administration of any other labor organiza- tion of its employees, and from contributing support thereto; (b) From discriminating in regard to the hire and tenure of em- ployment of any of its employees and thereby discouraging member- ship in the Amalgamated or any other labor organization of its employees; (c) From refusing to bargain collectively with the Amalgamated as the exclusive representative of all of its employees in its Milwaukee plant except salesmen, indentured apprentices, temporary employees, probationary employees, operating engineers in the power plant, and supervisory employees; (d) From 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 representatives of their own choosing, and to engage in con- DECISIONS AND ORDERS 693 certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Arthur Schmittinger and Fred Stein immediate and full reinstatement to their former positions, and to John Chaloupek immediate reinstatement to his former position or to substantially equivalent employment, without prejudice to their seniority and other rights and privileges; (b) Make whole Arthur Schmittinger, John Chaloupek, and Fred Stein for any loss of pay they may have suffered by payment to them, respectively, of a sum of money equal to that which each would nor- mally have earned as wages from the date he was discharged to the date of the respondent's receipt of the Intermediate Report and from the date of this Order to the date of such offer of reinstatement, less his net earnings during such periods; (c) Refrain from all recognition of Independent Union of Harnisch- feger Employees as representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (d) Upon request, bargain collectively with the Amalgamated As- sociation of Iron, Steel & Tin Workers of North America, Lodge 1114, as the exclusive representative of all of its employees in its Milwaukee plant, exclusive of salesmen, indentured apprentices, temporary em- ployees, probationary employees, operating engineers in the power plant, and supervisory employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (e) Post immediately notices to its employees in conspicuous places throughout its Milwaukee plant stating that the respondent will cease and desist as aforesaid, and that the Independent Union of Harnisch- feger Employees will not be recognized as representative of any of its employees for the purposes of dealing with it with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (f) Maintain such notices for a period of at least thirty (30) days from the date of the posting; (g) Notify the Regional Director for the Twelfth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act 694 NATIONAL LABOR RELATIONS BOARD and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that International Union of Operating Engi- neers, Local 311, has been designated and selected by a majority of the operating engineers in the Milwaukee power plant, of the Harnisch- feger Corporation, Milwaukee, Wisconsin, excluding the supervisor, as their representative for the purposes of collective bargaining, and that pursuant to the provisions of Section 9 (a) of the Act, Interna- tional Union of Operating Engineers, Local 311, is the exclusive repre- sentative of all such employees for the purposes of collective bargain- ing in respect to rate of pay, wages, hours of employment, and other coiiditions of employment. MR. EDWIN S . SMITH, dissenting in part: I dissent from that portion of the decision which finds that the operating engineers in the Milwaukee power plant constitute an appro- priate bargaining unit; consequently I do not approve the certification of the International Union of Operating Engineers, Local 311, as the representative of the majority in such a unit. The operating engineers ' union began its organization in this plant after the industrial union had started organizing . Following the strike conducted by the Amalgamated the operating engineers' union succeeded in bargaining successfully with the management for a re- duction in the hours of work of the operating engineers . I do not find, however, that this brief history of bargaining, coming on the heels of the organization of the plant generally into an industrial union, is sufficient to warrant separating the operating engineers from the main body of production and maintenance workers. The disad- vantages to which such cutting off of a craft group would expose the main body of the workers who are attempting to bargain through an industrial unit have been pointed out by me in previous dissents, par- ticularly in Matter of Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 248, 4 N. L. R. B. 159.