AAA Dental Laboratory

National Labor Relations Board - Board Decisions

May 26, 1942

41 N.L.R.B. 263 (N.L.R.B. 1942)

.In the Matter of R. M. JOHNSON AND G. F. SHARP, A PARTNERSHIP
DOING BUSINESS AS AAA DENTAL LABORATORY, AAA DENTAL LABORA-
TORIES, INC., AND UNITED STATES DENTAL COMPANY and DENTAL
MECHANICS, LABORATORY TECHNICIANS, ASSISTANTS AND HELPERS
UNION -
Case No. C-9016.-Decided May 26, 194:2
Jurisdiction : artificial denture manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements ; individual wage
increases; inviting unauthorized employees to bargaining conferences; indi-
cating preference for individual bargaining ; threats to discharge unfair labor
practice strikers ; attempts to "undercut" the authority of bargaining repre-
sentative.
Discrimination: refusal to reinstate two unfair labor practice strikers ; charges
of discrimination dismissed as to one striker whose conduct during strike
justified Company in concluding he was not a trustworthy, employee.
Collective Bargaining: majority established by application cards-refusal to bar-
gain ; lack of good faith by refusing demands because of preference for indi-
vidual bargaining and by attempting to discredit bargaining representative;
refusal to continue negotiations or enter into written contract covering terms
agreed upon after unsuccessful strike caused by Company's unfair labor
practices.
Remedial Orders: upon request bargain collectively with union; reinstatement
and back pay awarded. -
.Definitions: a partnership and two corporations engaged in a single enterprise
held jointly liable for unfair labor practices ; individual, even though not an
officer or stockholder of corporations or a partner, held to be an "employer"
where he furnished substantial amount of capital and exercised ultimate
control in the management of the enterprise.
Mr. Stephen M. Reynolds, for the Board.
Mr. Voyle C. Johnson and Mr. Lynn W. Beman, of Chicago, Ill.,
for the respondents. -
Granata & Schiller, by Mr. Sidney S. Schiller, of Chicago, Ill.,
for the Union.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Dental Mechanics,
Laboratory Technicians, Assistants and Helpers Union, herein called
41 N. L. R. B., No. 61.
263
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Thirteenth Region (Chicago,
Illinois), issued its complaint, dated July 28, 1941, -against R. M.
Johnson and G. F. Sharp, a partnership doing business as AAA
Dental Laboratory, and against AAA Dental Laboratories, Inc., and
United States Dental Company, all three companies herein jointly
called the respondents, alleging that the respondents had engaged in
and were engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1), (3), and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint, accompanied by notice of
hearing, were duly served upon the respondents and the Union.
With respect to the unfair labor practices, the complaint alleged
in substance : (1) that the respondents, on December 27, 1940, and
on a number of specified dates thereafter, refused to bargain col-
lectively with the Union as the exclusive representative of a majority
of the employees in an appropriate bargaining unit; (2) that on or
about March 6, 1941, the respondents discharged and/or refused to
reinstate, and at all times thereafter refused to reinstate, E. E.
French, Charles Paetow, and Irving Tatkin because they joined and
assisted the Union; and (3) that the respondents, by warning and
discouraging their employees against affiliation with or activities on
behalf of unions, by questioning employees about their union mem-
bership and activities, by soliciting one employee to resign from-
the Union, by reducing the pay of one employee to discourage his
union activities, by granting various individual wage raises while
the Union was endeavoring to,bargain collectively, in order to weaken
the bargaining position of the Union, by inviting unauthorized em-
ployees to sit in on the bargaining conferences, by sending out letters
to employees misrepresenting the bargaining negotiations and warn-
ing them against taking strike action, and by soliciting employees to
return to. work individually during a strike caused and prolonged
by the unfair labor practices of the respondents; interfered with,
restrained, and coerced their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On August 5, 1941, the respondents filed an answer admitting the
jurisdiction of the Board, denying that any of the respondents except
the partnership was the employer of the employees involved, denying
that the respondents, or, any of them, had engaged in unfair
labor practices, and making certain affirm^tt ive allegations discussed
hereinafter.
Pursuant to notice, a hearing was held at Chicago, Illinois, from
August 11 to 14; 1941, before Henry J. Kent, the Trial Examiner
AAA DENTAL LABORATORY -265
duly designated by the Chief Trial Examiner. The Board, the
respondents, and the Union were represented by counsel and partici-
pated 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.
During the course of the hearing the Trial Examiner refused to
admit into evidence a work sheet offered by the respondents., This
ruling was reversed by the Trial Examiner in his Intermediate Re-
port. The ruling as made in the Intermediate Report is hereby
affirmed. The Trial Examiner also refused to admit into evidence
an affidavit made by Robert Jackman, a member of the union nego-
tiating committee, and offered by the respondents.2 The Trial Ex-
aminer reaffirmed this ruling in his Intermediate Report. For rea-
sons stated below, the ruling of the Trial Examiner is reversed and
Respondent Rejected Exhibit No. 6 is hereby admitted into evidence
and made part of the record in the case. Various rulings were made
by the Trial Examiner during the course of the hearing on other
motions and on objections to the admission of evidence. The Board
has reviewed these rulings and finds that no prejudicial, errors were
committed. With the exception of the ruling above referred to, the
rulings of the Trial Examiner are hereby affirmed.
After the close of the hearing the respondents filed a brief with
the Trial Examiner.
` On November 21, 1941, the Trial Examiner filed his Intermediate
Report, finding that the respondents had engaged in unfair labor
practices affecting commerce, within the meaning of Section 8 (1),
(3), and (5) and Section 2 (6) and (7) of the Act, and recommend-
ing that the respondents cease and desist therefrom and take certain
affirmative action deemed necessary to effectuate the policies of the
Act. Thereafter the respondents filed exceptions to the Intermediate
Report, and a brief.
On January 27, 1941, pursuant to notice duly served upon the
respondents and the Union, a hearing for the purpose of oral argu-
ment was held before the Board in Washington, D. C. The re-
spondents were.represented by counsel and participated in the hearing.
The Union did not appear.
The Board has considered the respondents' exceptions to the In-
termediate Report and their brief and, insofar as the exceptions are
inconsistent with the findings, conclusions, and order set forth below,
finds them to be without merit.
1 Respondent Rejected Exhibit No. 5
2 Respondent Rejected Exhibit No. 6
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
AAA Dental Laboratory, a partnership, and United States Dental
Company and AAA Dental Laboratories, Inc., Delaware corporations,
have their offices and places of business at 1555-1557 Milwaukee Ave-
nue, Chicago, Illinois, and, as shown in Section III-D, below, jointly
form a single enterprise, engaged in the manufacture and sale of
artificial dentures.
In 1940 the respondents purchased raw materials valued at about
$40,000, approximately 40 percent of which represented materials se-
cured from sources outside the State of Illinois. During the same
period the respondents' net sales were approximately $254,000, ap-
proximately 80 percent of which represented sales to customers out-
side the State of Illinois.
The respondents admit that they are engaged in commerce within
the meaning of the Act. _
.II. THE ORGANIZATION INVOLVED
Dental Mechanics, Laboratory Technicians, Assistants and Helpers
Union is an unaffiliated labor organization admitting to membership
laboratory employees of the respondents.
III. THE UNFAIR LABOR PRACTICES
A: The refusal to bargain and other acts of interference with
self-organization
1. The appropriate unit
The complaint alleges, and the'answei of the respondents admits,
that all laboratory workers engaged in the manufacture and repair
of artificial dentures at the Chicago plant of the respondents, exclud-
ing the foreman, assistant foreman, inspector, and all other employees
at the plant, constitute a unit appropriate for the purposes of col-
lective bargaining.3 As stated below,. the respondents have recog-
nized the Union as,the representative of employees in this unit.
3A stipulation entered into by the parties at the hearing, as recorded in the official
transcript describes the unit agreed upon as consisting of "all laboratory workers
taking part in the repair and manufacture of artificial dentures ,. excluding the foreman,
assistant foreman, inspector and including all other employees now employed by the
company ' s plant in Chicago " ( Underscoring supplied ) It is ' clear from the entire
record , however , that the unit agreed upon included only non -supervisory laboratory
workers.
AAA DENTAL LABORATORY 267
We find that all laboratory workers engaged, in the manufacture
and repair of artificial dentures at the Chicago plant of the respond-
ents, excluding the foreman, assistant foreman, inspector, and all
other employees at the plant, at all times material herein constituted
and now constitute a unit appropriate for the purposes of bollective
bargaining, and that said unit insures to employees of the respondents
the' full benefit of their right to self-organization and to collective
bargaining, and otherwise effectuates the policies of the Act.
2. Representation. by the Union of a majority in the appropriate
unit
The first general organizational meeting of the respondents' em-
ployees was held on December 26, 1940. According to the testimony
of Irving Tatkin, recording secretary of the Union, and according
to' union records, 31 employees in the appropriate unit signed appli-
cations for membership in the Union at that meeting.
At a_ conference at the Board's Regiol ial Office on February 8,
1941, the respondents and the Union agreed upon the appropriate
unit, and further agreed that there were 42 employees in such unit.
A check of the Union's cards against company records made by a
Field Examiner of the Board disclosed that as of February 8, 1941,
34 employees within the appropriate unit had signed union cards.
The respondents did not except to the Trial Examiner's finding that
on December 26, 1940, and thereafter a majority of the employees in
an appropriate unit had selected the Union as their bargaining rep-
resentative.4 -
We -find that on December 26, 1940, and at all times thereafter,
the Union has been the duly designated representative of a majority
of the respondents' employees in an appropriate bargaining unit, and
that, pursuant to Section 9 (a) of the Act, the Union was and is
the exclusive representative of employees in such unit for the pur-
4 As is hereinafter stated , a strike was • called, on February - 24, 1941 , as a result of
the respondents ' unfair labor practices Operations were continued during the strike,
some new employees being hired The strike was terminated by the Union on March
5, 1941 , without remedy of the unfair labor, practices , and thereafter substantially all
the employees still on strike were reinstated Some of the persons hired during
the strike were also retained Undcf'these'circumstances , any possible loss of majority,
by the Union clearly resulted from the respondents ' unfair labor practices , and we so
find. Such a loss cannot operate to change the bargaining representative once freely
selected . National Labor 'Relations Board v Bradford Dyeing Assoomatson, 310 U. S, 318,
enf'g Matter pf Bradford Dyeing Association ( U. S. A ) (a corporation) and Textile
Workers ' Organizing Committee of the C . 1. 0, 4 N L' R `B 604; Windsor Manufacturing
Co Y. National Labor Relations Board, 118 F. (2d) 494 (C C. A 3) enf'g Matter of
John J. Oughton, et at. and Textile 'Workers Organizing ' Committee ( C. 1 0.), 2d,
N L R B. 301, National Labor Relations Board v. Chicago Apparatus Company, 116
F. (2d) 753 (C. C. A..7), enf'g Matter of Chicago Apparatus- Company and Federation of
Architects, Engineers , Chemists and Tech niemans;. Local 107, 12 N L R B. 1002.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poses of collective bargaining in respect to rates of pay, wages, hours
of employment, and other conditions of employment.
3. The refusal to bargain and other acts of interference
a. Chronology of events
Discontent concerning wages produced a move toward organiza-
tion by the laboratory employees during the summer of 1940.
Ernest E. French, supervisor of the work , was aware of this dis-
content and discussed the matter with' Voyle C. Johnson 5 on several
occasions. In October some of the employees, including French
and Charles Paetow, testified in the respondents' behalf at a hearing
held by the Post Office Department, on charges alleging that the
respondents were using the mails to defraud. Just prior to the hear-
ing Johnson told French that if the respondents successfully de-
fended the suit, wage increases would be given. Johnson further
stated that the respondents would probably be advised within 30
days after the hearing of the decision in the cases When no wage
increases were forthcoming, the employees decided, in the latter part
of November or early in December, to form an unaffiliated union.
Several meetings were held in French's apartment, at least one
of which was attended by Foreman Maski. Petitions were also
circulated among the employees and signed by substantially all the
laboratory workers.
On December 12, 4 employees received wage increases and subse-
quent to December 26, when the incipient organization took form,
the respondents made 16 further wage adjustments.7
On December 22 the employees secured legal advice and were
instructed by counsel to call a general meeting and to secure applica-
tion for membership cards to be signed by the employees. At the
meeting, held on December 26, a majority of the employees signed
cards and officers were elected : French, president; Paetow, vice
president; Tatkin, secretary; and Albert Mutton, treasurer.
On December 23, 24, and 27 a committee of the employees at-
tempted to secure a meeting with Johnson. Elizabeth Klingler,
e As appears in Section III-D , infra, Voyle C. Johnson, hereafter referred to as
Johnson , is the beneficial owner of the business.
O The respondents were not advised of the disposition of the case until July 1941,
when they were informed that the charges were being disposed of without recommenda,
tion of a fraud order.
7 While there is conflict in the record as to the exact dates on which the first
organizational meetings were held. Maski admitted that he attended a meeting during
which Paetow complained about the wage cut he had received . Paetow received this
cut on December 5 Although French and Paetow placed the dates of the meetings
earlier, it is clear from Maski's testimony that definite steps toward organization were
taken no later than a few days after December 5. 1
I
AAA DENTAL LABORATORY 269
then manager of the laboratory and secretary of the respondent
United States Dental Company, informed the committee that John-
son, was out of town and that she had no authority to negotiate
with the employees. Klingler testified that on December 26 or 27
she went to the Regional Office of the Board and was advised that
the respondents should arrange a conference with the Union and
that she should not discourage union activity. According to the
testimony of Paetow, Klingler informed the employees on December
27 that, while the respondents had no objection to their forming a
union, "if the union was to organize we would be brought down
to-the Labor Relations Board and they would set the salaries and
they would be less than what we are getting now." While Klingler
denied that she spoke against the Union, she did not deny having
made this statement. We find that Klingler made the statement
substantially as testified to by Paetow, and by this- statement, for
which the respondents are responsible, sought to discourage union
activity. Between December 26, 1940, and January 1, 1941,11
Klingler communicated with Johnson, absent on vacation, and
was instructed to secure one Lynn Beman as the 'respondents' repre-
sentative to deal with the Union.
According to the testimony of George Schrubbe, during January
or the early part of February, Jensen, the office manager, advised
employees in the witness' department that "You are foolish for
joining the union. After the union goes through they will only
be able to hire the skilled help and pay the skilled wages that union
members get when they belong to the union." Jensen was not called
as a witness. We find the testimony of Schrubbe to be credible,
and that the respondents by Jensen's statement sought to discourage
union activity. -
A few days before February 8, according to the testimony of
French, Johnson advised French to withdraw from the Union be-
cause "You [French] now have the regard and the respect of the
boys up there, and they think most highly of you, but if you take
an active part in union matters you will find things coining up that
might make the boys become dissatisfied with you, make them think
that you aren't playing fair with them, and you may lose' that
respect. And, furthermore, I had in mind making things much
better for you." While Johnson testified that he "did not intimate
or request or in any way suggest that French not join a union,"
he did not deny that the conversation took place, did not testify
as to what was said, and did not deny making these remarks. The
record establishes that Johnson was opposed to the Union, and the
8 On Decemiier 30 the Union also sent a letter to the respondents stating that a
majority of the employees had joined the Union and, requesting a conference for the
purposes of collective bargaining.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remarks attributed to Johnson by French are consistent with John-,
son's 'attitude as established by the • record. Under all the circum-
stances, we accept this testimony of French as being credible, and
further, that these remarks constituted an unwarranted attempt by
Johnson, to discourage French's union activity 9
Although the respondents retained Beman early in January, the
Union was unable to secure a meeting with Beman until February 8.
The meeting was held in the Regional Office of the Board, the
respondents being represented by Beman and the Union by its
attorney and negotiating committee.1° The parties agreed upon
the unit, and on the basis of a check of union cards made by a
Field Examiner of the Board, the respondents acknowledged that
the Union represented a majority of the employees in an appro-'
priate unit. The respondents further agreed to recognize the Union
as the exclusive representative of employees in such unit. A con-
ference to begin negotiations was arranged for February 13.
At the meeting -of February 13 the Union presented a proposed
contract. There was only brief discussion of the proposed contract,
the Union agreeing to adjourn the meeting to allow the respond-
ents an opportunity to study the union demands.
On February 15, 1941, at the third meeting, the demands were
separately discussed. The respondents agreed to the Union's pro-
posals with rega'r`d to recognition, vacations, a 40-hour week, and
sanitary facilities, ' all of which provided for- the continuation of
conditions already in effect." With regard to the Union's proposal
for a 3-man arbitration board, the respondents suggested a single
arbitrator, to be selected from a list submitted by the American
Arbitration Association. The Union objected to this method, and
no conclusion was reached. With regard to the Union's seniority
proposal, the, respondents, required that seniority be conditioned upon
their decisions as to ability. The demands for a union shop and a
check-off system were denied. -
The greater portion of the meeting was devoted to a discussion
of wages. Johnson produced his personal income tax returns for the
9 The record establishes , and the respondents admit , that sometime after the forma-
tion of the Union French was relieved of his supervisory duties Since the exact
date of the demotion is not established by the record , it is impossible to determine
whether French was a supervisory employee at the time Johnson sought to dissuade
him from further union activity Even though he,was, Johnson's remarks were not
privileged , since the basis of the suggestion was not that French, as a supervisor,
was prejudicing the respondents by his union activity . Cf. Matter of Marshall Field if
Company and Department Store Employees Union, Local 291, 34 N . L R. B. 1
"The negotiating committee as constituted throughout the conferences consisted
generally of employees French , Faetow , Tatkin , Mutton , and Robert Jackman.
n According to the undenied testimony of Tatkin, the contract included provisions
covering the 40 -hour week , vacations , and other conditions already in' effect, as - a
precautionaiy measure deemed necessary because of the'I abolition of a 10 - minute rest
period after the formation of the Union:
1
AAA DENTAL LABORATORY 27F
years, 1937, 1938, and 1939, and other figures concerning the earnings
of the respondents, and contended that the respondents could- give no
general wage increase as requested by the Union. The union repre-
sentatives questioned some of the figures submitted, such' as the
amounts paid for legal and advertising services, and the sum of
$40,000 allotted,'without explanation, to miscellaneous expenses. The
respondents agreed to open their books during the following week for
inspection by a certified public accountant to be selected by the Union,
and the conference was adjourned to February 22. Schiller, attorney
for the Union, testified that he arranged for an acccountant to inspect
the books but that, due to pressure of other business in connection
with preparation' of income tax returns, the accountant was unable
to examine the respondents' books prior to February 22.
On the day prior to the conference of February 22 Klingler called
six employees into her office and informed them,that if they were
interested they could attend the conference between the, Union and
the respondents on the following day. Klingler gave no explanation
for this act, and the reccord does not establish that any of these
employees had requested permission to attend the conference.
'The meeting of February 22 was devoted almost exclusively to
a discussion of wage increases. Johnson submitted a summary of the
respondents' financial condition. The union representatives pro-
tested that the respondents' inability to grant wage increases was not
established by the figures, pointing out that large sums of money had
been put into expansion, and into advertising and legal fees, paid
in part to Johnson. Finally, in response to Schiller's request that
the respondents offer a counterproposal on wages, Johnson, accord-
ing to the testimony of Schiller and the union representatives, stated,
"I won't give- those suckers one damn cent." While Johnson and
Beman denied that Johnson used the word "suckers," both admitted
Johnson stated that he would not "give a God damn cent" of in-
crease. Schiller then stated that the respondents had failed to bar-
gain in good faith and that the matter would have to be taken to-
the Board. According to the union witnesses and their attorney,
Johnson then left the room. While Johnson testified that the union
committee terminated the conference and walked out, Beman testi-
fied that Johnson left first. The Trial Examiner, who observed the
witnesses, found in accordance with the testimony of the union repre-
sentatives. Upon the basis of the entire reccord, we find the facts
concerning this ' conference to be substantially as testified to by
Schiller and the union committeemen.
Later on the same day the respondents sent a special delivery
letter to ' each of their employees. Beman -testified that the letter
was sent because the respondents were "not sure that the union would
272 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
give a complete report * * *." The letter , ' in part, is as
follows :
We have been meeting with a Union Committee and its attor-
ney. Today this Committee and its attorney walked out of a
conference and apparently broke off negotiations.
We therefore feel free to give you a complete report of what
took place at all of these meetings.
* * * * * * *
The Union Committee asked for a "minimum basic wage scale
to be established in accordance with" a list the Union Committee's
lawyer furnished to us. The list called for wage increases that
would raise the pay roll over 100%-for example , "Inspector
of Plates and Supervising Technician , $2.50 per hour ," or $100.00
a week for forty hours.
' The Union ' Committee had big ideas in relation to profits
of our business and felt some of the various businesses at 1555-57
Milwaukee Avenue made large profits. The Union Committee
however admitted that the wages which AAA Dental Laboratory
is already paying to its employees is on the average higher than
the wages of any other dental laboratory, in the city of Chicago.
Increased wages have been given and are being given as fast as
the Laboratory can to employees whose work records show they
deserve recognition for production and quality.
* * * * * * *
STRIKE
Since the Union attorney and the Union Committee walked out
of the meeting, it is possible that they are going to try to get
the employees to strike . If there is a strike we will continue
to operate as usual.
It is easier to get into strike troubles than to get out of trouble.
IF YOU DO NOT WANT TO HAVE A STRIKE, THE
TIME TO MAKE YOUR VOICE HEARD IS NOW BEFORE
IT IS TOO LATE.
We have never refused to meet with the Union Committee and
attorney . If, on their limited knowledge , they want to do some-
thing that will wreck the business , we cannot agree with them.
Our supervisory force will be fair and say nothing about union
matters . We ask that there be no talk on this subject by any
one during working hours . Mistakes could ruin the business.
Various attempts by outside business men are reported to have
been made in the past to ruin this business . We believe the
Union Committee is honest and will not make any such attempts.
AAA DENTAL LABORATORY
CONCLUSION
273
We have been entirely fair on the question of having a union.
We regret that we are not financially able to comply with all ,
of the Union Committee's demands at this time. To grant these
demands, increases in costs would cause a serious annual wage
reduction. You would lose hours of employment. We would
lose orders due to increased cost. We are convinced if we granted
the Union Committee's demands it would completely wreck the
business. We know you are fair minded and will appreciate
your giving this matter your careful consideration. [Italics
supplied.]
Although purporting to give only the actual facts, the respondents
misrepresented the facts in this letter. Thus, as we have shown,
it was Johnson and not the union committee, as stated in the letter,
"who walked out of the meeting." The union committeemen deny,
and the respondents introduced no evidence to prove, that the union
committee agreed that the respondents paid higher wages than those
paid by other local laboratories. Further misrepresentations in the
letter were contained in the statements :
The Union Committee asked that no employee be discharged
without just cause. We agreed to go farther than the Committee
requested and have any discharge subject to arbitration;
and
It was proposed that we increase the selling prices and'pay the
men the additional amount. This ',would cut down employ-
ment * * *.
The Union's proposals had included an arbitration provision. Irv-
ing Tatkin, a member of the negotiating committee, denied that the
Union had suggested an increase in selling price as a means of meeting
wage increases and we credit his denial.
The predictable effect of this letter was apparent immediately. The
committeemen received many telephone calls the following day, a
Sunday, from employees who had received the letter. Many of the
employees accused the committee of not properly representing the
membership ; others demanded that a strike be called iminediately.12
The committeemen recommended that no action be taken until the
following day. At a meeting in the plant the following morning
the committee reported its version of the conference of February 22,
whereupon the employees voted to strike immediately. Most of the
At the union meeting of February 18 the membership had authorized the president
and the negotiating committee to call a stiihe in the event that the respondents failed
to bargain in good faith. -
463892-42-vol 41--18
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees left the plant, and picketing began. The plant continued
to operate, however, with some of the old employees and with new
employees.
On the same day Johnson solicited the employees individually to
return to work by sending the following letter to a number 'of the
strikers:
In checking reports made out by Miss Klingler on AAA Dental
Laboratory, I notice that you too left work this forenoon. I
advised her to hold your job open for you as long as she can.
If you care to call upon lne or telephone to me' at my office
or home, I shall be glad to talk with you at any time.
While Johnson testified that the letter was intended as "an act of
charity, to let him know that we were holding the job open for him,"
he also testified that "I had in mind that if the job is filled while he
was out on strike by somebody. else, why, sometimes it is difficult to
put that other person out and put somebody else in." Johnson's
explanation is thus consistent with the inference that the letter was
intended as a warning to the striking employees that their positions
would be filled by new employees, and we find accordingly.-
On February 27, 1941, 3 days after the strike began, the Union,
through its attorney, sent a letter to the respondents asserting that
the negotiations had been terminated and the 'strike caused by the
respondents' refusal to bargain in good faith, and concluding :
However, I want you to know that the Union is ready and
willing to negotiate further at all times provided that you are
willing to bargain in, good faith as is provided, by law.
If you care to negotiate further, please communicate with the
President or the Union or the undersigned.
The respondents did not reply to this letter.
' On March 5 the Union voted to terminate the strike, to request
reinstatement of all striking employees, and to seek further negotia-
tion's with the respondents. On the same day it made oral and written
application for reinstatement of the 25 employees who were still on
strike. The respondents thereafter reinstated or offered reinstate-
ment to all the strikers except the 3 who are discussed below. After
the strikers returned to the plant the respondents made further
individual wage adjustments.
Subsequent to the termination of the strike, Schiller, the Union's
attorney, made repeated efforts to arrange a conference with Beman.
A conference was finally " arranged for March 25, at which time,
11 Several of the strikers thus addressed called at Johnson's office in person or by tele-
phone. Johnson admitted that he promised to provide them with taxicabs, police escort,
or other reasonable means of protection if they would return to work
AAA DENTAL LABORATORY 275
Schiller 'testified, he requested the respondents to enter into a. written
contract covering the terms which had been agreed upon, and to nego-
tiate further concerning the matters still in dispute. Schiller further
testified that Beman refused both requests, stating that he did not
believe in "forced negotiations." Beman denied that he had refused
any such requests. Nevertheless, Beman testified he recommended to
Schiller that "we forget about it" because he, Beman, "didn't see any
reason, for our meeting any longer." Beman further testified that
he did not believe in forced negotiations and that the Union "pointed
a gun at the company when they went on strike."' ' The Trial Ex-
aminer, who had an opportunity to observe the witnesses, credited the
.testimony of Schiller. Upon the basis of the entire record, we find
that on March 25 the respondents refused to negotiate further with
the Union.
B. Conclusions concerning the refusal to bargain and other acts of
interference
Although the complaint alleges that the respondents failed to bar-
gain collectively with the Union on and after December, 27, 1940, we
And, upon the basis of the record and in accordance with the finding
of the Trial Examiner, that the delay in opening negotiations from
December 27, 1940, to February 8, 1941, was occasioned by Beman's
inaccessibility. Nevertheless, the entire course of events establishes
beyond doubt that the respondents did not bargain in good faith
with the Union.
Although the employees had been. discontented for some time be-
cause of wage rates, no adjustments were made until the respondents
learned that organization was imminent. Faced with this threat, the
respondents immediately began making individual wage adjustments.
Further individual wage, increase,-, were given after the strike, result-
ing in increases for substantially all the laboratory workers em-
ployed prior to' the strike. Yet, the bargaining conferences were
terminated on February 22 because of the respondents' refusal to
grant any wage increases in response to the Union's demand,- osten-
sibly because of financial inability. It is clear and we find that the
refusal to make any concessions stemmed solely from a preference
for individual rather than collective bargaining.14 Our finding is
14
We do not of course imply that an employer is required, in fulfilling his statutory
duty to bargain , to grant general wage increase concessions during collective bargaining
negotiations . It is apparent here , however , that the respondents ' refusal to make such
concessions was based not upon their desire to withhold a general wage increase but upon
their desire to withhold from the Union the prestige that the Union would derive from
a negotiated increase In granting individual increases to almost all their employees,
under the circumstances here present, the respondents clearly demonstrated bad faith
in their negot i ations with the Union.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
based not only upon the respondents' willingness to raise wages so
long as increases were granted individually but upon their entire
course of conduct.15
We have already shown that the respondents sought to dissuade
the employees from union activity by threats that organization would
have a detrimental effedt'upon their wage problems. The wage raises
given, after much delay, only after the move toward organization,
were clearly designed to prevent self-organization and we so find.16
It is also apparent, and we find, that by inviting unauthorized em-
ployees to the bargaining conference, the respondents sought to create
in the minds of the employees a lack of confidence in their bargaining
representative.'1 When negotiations were broken off, the respondents
sought to undercut the authority of the bargaining representative
by addressing their employees directly, promising them individual
wage increases and exhorting them against possible concerted strike
activity, and by misrepresenting the bargaining conferences 18 When,
because of the respondents' unfair labor practices, the employees went
on strike, the respondents sought to`break the strike by threatening
to fill the places of the strikers and by offering to deal individually
with their employees, while at the same time ignoring the Union's
letter of February 27 looking toward the reopening of negotiations.
Finally, after the Union abandoned the strike, the respondents' lack
of good faith became clear beyond doubt when they refused to con-
tinue negotiations.:" The strike had not relieved the respondents of
15 It is clearly no defense to the respondents to assert , as they do in their exceptions
and brief , that the Union' s demands were for a 100-percent wage increase and therefore
unreasonable . The record does not establish how much the proposed wage scale would
have increased wages. In any event , the respondents precluded exploration of how much
less might have been acceptable
10 Cf. Matter of A. S. Abell Company, a Corporation and International Printing and
Pressmen's Union, 5 N. L R. B. 644, enf 'd as mod , National Labor Relations Board v.
A S Abell Co , 97 F. (2d) 951 (C. C. A. 4) ; Matter of The Rstzwoller Company and
Cooper's International Union of North America, 15 N. L. R B 15, enf'd as mod., The
M. H. Ritzwoller Co. v National Labor Relations Board, 114 F. (2d) 432 (C. C. A. 7) ;
Matter of Dixie Motor Coach Corporation, at al. and Brotherhood of Railroad Trainmen,
25 N L R B. 869
17 Cf. Matter of Lennox Furnace Co., Inc. and Syracuse Federation of Labor, 20,N. L.
R. B. 962; Matter of Jasper Blackburn Products Corp. and District No. 9, International
Ass'n of Machinists, 21 N. L R. B 1240.
i8 Cf National Labor Relations Board v. Remington Rand, Inc., 94 F (2d ) 862 (C. C. A.
2), cert. denied 304 U. S 576, enf'g with mod., Matter of Remington Rand, Inc. and
Remington Rand Joint Protective Board of the District Council Office Equipment Workers,
2 N L R. B. 626; Matter of Kellogg Switchboard and Supply Co, a, corporation and
Ain erican Federation of Labor, etc, 28 N L R. B 847.
10 In addition , it is equally clear as the Sixth Circuit Court of Appeals held in contempt
proceedings in National Labor Relations Board v Knoxville Publishing Co, decided Jan-
uary 16, 1942, "While the National Labor Relations Act in all instances does not compel'
an employer to enter into a contract with the statutory representative of his employees,
it does require him to agree in writing with such agent concerning wages , hours and the
established usages or customs prevailing in the conduct of his business in regard to such
mattei s "
AAA DENTAL LABORATORY 277
the duty to continue negotiations; certainly they were not justified in
refusing,because they did not believe in "forced negotiations."
We find that on February 22, 1941, and at all times thereafter
the respondents refused to bargain collectively with the Union and
that' the strike resulted from the respondents' unfair labor practices.
We find further that, by their entire course of conduct, including
their refusal to bargain with the Union, granting individual in-
creases, inviting unauthorized employees to attend the bargaining
conferences, seeking to discredit the Union, indicating a preference
for individual bargaining, threatening to discharge employees who
had gone on strike because of the respondents' unfair labor practices,
and by remarks designed to discourage self-organization, the respond-
ents interfered with, restrained, and coerced their employees in the
exercise of the rights guaranteed in Section 7 of the Act.
C. The discriinivaatory discharges
Although the respondents agreed on March 5 and thereafter to
reinstate all the striking employees, French, Paetow, and Tatkin
were never reinstated. The complaint alleges that these employees
were refused reinstatement because of their union membership and
activity. The respondents deny these allegations and allege affirma-
tively that these employees were not reinstated because each was an
unsatisfactory workman, because the work previously performed by
Tatkin was abolished after the strike, and because each of these
employees had engaged in certain unlawful acts.
It is clear that none of the three was an unsatisfactory workman.
French had been a practicing dentist for many years prior to his
employment by the respondents in October 1939. The respondents'
advertisements characterize French as "an outstanding authority" on
the making of artificial dentures and, until the period of union ac-
tivity, all laboratory work had been subject to French's approval.
During his employment French's salary had' been increased from $15
to $40 a week and, as previously stated, French and Paetow had been
selected by the respondents to testify in their behalf at the hearing
before the postal authorities. In view of this affirmative evidence
of competency and in view of the vagueness of the testimony, we,
as did the -Trial Examiner, attach no weight to the testimony of
Maski that French's work was "terrible," to testimony by Miss Lay-
ton, appointed manager of the laboratory, after the strike, that she
did not approve certain dentures made by French on account of their
278 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
appearance, or to the testimony of Miss Hinkle, not employed by
the respondents, that French was "very incompetent." 20
Paetow was employed by the respondents in July 1940, upon the
closing of the Oradental Laboratory where he had previously been'
employed. The only evidence adduced by the respondents concern-
ing Paetow's alleged deficiency related to the quantity and not to the
quality of his work. The respondents asserted that they had cut
Paetow's wage rate $2 per week in December to bring his cost per
unit into line with that of other employees. While we agree with
the Trial Examiner who found that the evidence does not establish
that the respondents knew of Paetow's union activity at the time of
the cut, nevertheless we are not convinced that there is any merit
to the respondents`claim that it refused to reinstate Paetow because
he was an unsatisfactory workman: Paetow testified that his work
so differed from that of other employees that computations based
upon the number of units completed, as done by the respondents,
would not accurately reflect the value of his services. The respond-
ents introduced no evidence which refuted this testimony and ad-
mitted that no time study had been made at that time for the differing
operations. Paetow's value was likewise attested by the respondents
in choosing him to testify in their behalf before the postal authorities:
Tatkin had been employed by the respondents for approximately
6 months prior to the strike. 'He first worked as a dig-out man, his
duties being to open vulcanizing flasks, remove the dental plates and
clean the surplus plaster from the plates. After 21/2 months he was
promoted to a vulcanizing job, with a small increase in'pay. Fore-
man Maski later transferred him to condensite work, and told him'
that his wages would be raised gradually until he received $25 per
week. He continued to work in the condensite department until
the strike. Maski testified that he had complained to Tatkin on
several occasions about his work and that Tatkin's work had not been
satisfactory. Tatkin, whose testimony the respondents characterize'
in their exceptions as "uniformly more truthful than that of the
other complainants," denied that he had ever received any complaints
about his work from Maski or from any other supervisory employee.
Tatkin' further testified that about 3 weeks before the 'strike, Maski
stated that, while the condensite department, in which Tatkin was
then working, was going to be eliminated within 2 or 3 months, Tatkin
20 Until July 1940, Hinkle managed the Oiadental Laboratory at Gary, Indiana, a
business similar to the respondents ' In July 1940 , the Oradental Laboratory was closed
by Johnson , its equipment being moved to the respondents ' plant Johnson testified
that Oradental had been indebted to him for advertising which lie had placed and to.
the respondents for materials . Hinkle , whose stock in Oradental had been pledged for its
indebtedness , aided the employees in foaming the Union She was called as a witness
by the respondents
AAA DENTAL LABORATORY 279
should not worry as Maski would transfer him to other work. Maski
did not deny that he made these statements. Under all the circum-
stances, 'we accept Tatkin's testimony as credible and reject the
testimony of Maski concerning Tatkin's alleged inefficiency, as did
the Trial Examiner.
It is equally clear that the respondents did not refuse to reinstate
Tatkin on March 6 because of the abolition of the condensite depart-
ment. Tatkin testified that several other employees, whom he named,
performed condensite work after the strike, and the respondents
state in their brief that the department was not abolished until a
month or two after the strike. In addition to the undenied testimony
that Maski had promised to transfer Tatkin to other work when the
condensite department was abolished, the respondents introduced no
evidence to show that Tatkin was incapable of performing the work
done by new employees hired and retained after the strike.
The respondents assert that French, Paetow, and Tatkin engaged
in a conspiracy to put the respondents out of business in that they :
(1) conspired to set up a business in competition with the respond-
ents; (2) surreptitiously removed papers and documents from the
respondents' premises which they threatened to use for this purpose;
(3) represented to the employees that if the respondents did not
accede to the Union's demands, they would obtain $200 for each em-
ployee and employment in another dental laboratory through the
Chicago Dental Society; and (4) in furtherance of these designs
solicited aid from the Chicago Dental Society.
Hinkle testified that at the early organizational ,meetings, 'the' em-
ployees present, particularly French, threatened to put the respond-
ents. out of business; that one suggestion made had been to place
the employees in a laboratory operated by Paetow ; and that during
the discussions French had shown her a bundle of papers which he
stated he had removed from the respondents' premises and which
he threatened to use to put the respondents out of business in the
event their demands were not met. French and Paetow, who at-
tended these meetings, denied that they or any employees present had
held or expressed any intention to put the respondents out of busi-
ness, Paetow further testifying that it was Hinkle who had suggested
putting the respondents out of business, and that Hinkle admitted
that she was working with a postal inspector to secure evidence for
this purpose., While Hinkle denied that she stated that she "would
like nothing better than to put Johnson out of business" she did
not deny making remarks to this general effect and did not deny that
she was working with a postal inspector investigating the respond-
ents. Maski, who attended one or more of the meetings, could not
recall what was said but believed that it was French",who discussed
putting the respondents out of business;
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Getz, a union member who deserted the strike, testified that French
had shown him a bundle of papers during the strike stating that
there was enough information in the package to put the respondents
out of business and that upon another occasion French addressed
the employees stating that, "if the worst came to the worst" he could
"sell out" ,the respondents and each of the employees would receive
$200 and be guaranteed employment. Bishop, also a union member
who deserted the strike, likewise testified that French had addressed.
the employees promising them $200 and permanent positions if they,
put the respondents out of business. French did not deny having
papers, belonging to the respondents nor addressing the strikers as
testified to by Getz and Bishop.
The respondents offered in evidence an affidavit secured by John-
son from Robert Jackman, a member of the union negotiating com-
mittee.. The respondents offered the affidavit for the purpose of
establishing that the statements had been made to Johnson and not
for the purpose of proving the truth of the matters contained therein.
The Trial Examiner excluded the affidavit but directed that it be
marked as a rejected exhibit and accompany the record. While the
ruling of the Trial Examiner was not prejudicial since he permitted
Johnson to testify to the statements made by Jackman, nevertheless
the affidavit was admissible for the purpose offered and, in accord-
ance with our ruling as contained in the "Statement of the Case," is
now before us.
According to the affidavit and the oral testimony of Johnson,
on March 15 Jackman told Johnson that, during the strike, French
and a committee of employees called at the offices of the Chicago
Dental Society and asked for a "proposition"; that representatives
of the Chicago Dental Society stated that they had no proposition
to make; that one of the union committeemen stated they under-
stood that the Chicago Dental Society had a proposition for them
whereby the strikers were to get a certain sum of money and also
get jobs in "regular" dental laboratories; that the representatives of
the Chicago Dental Society, while admitting that the Society had spent
money to secure evidence to prosecute violations of laws, stated that
the Society was not in a position to help the strikers; and that noth-
ing had been heard from the Chicago Dental Society since this
interview.21
"French testified that a day or two after the strike began , Chapp , a local dentist,
suggested to French that the strikers seek aid from the Chicago Dental Society, and
that he requested Paetow, Tatkin , and Jackman to accompany him in calling on the
Society According to the testimony of 'Paetow , Tatkin, and French and the two
representatives of the Chicago Dental Society , called as witnesses by the respondents,
the only "proposition " made was a request by French that the Society obtain tem-
porary employment for some of the strikers in order to obtain funds to maintain the
strike. while it appears , therefore, that the affidavit may not be an accurate account
of what occurred, we must deal with the facts as reported to the respondents.
AAA DENTAL LABORATORY 281
The Chicago Dental Society is a branch of the American Dental
Association. According to its secretary, called as a witness by, the
•respondents, the Society assists law-enforcement agencies in the en-
forcement of laws pertaining to the practice of dentistry. Johnson
testified, and it was not denied, that the Society had furnished the
information on which the postal authorities had brought charges
against the respondents and on a criminal indictment pending
against the respondents in Illinois at the same time. The record
also shows that at least French was aware of the activities and
interests of the Society prior to the interview.
We do not accept as established any fact testified to solely by
Hinkle. Not only is her testimony rendered questionable by the
inconsistent positions she assumed in her aid to the Union and-at
the hearing, but it affirmatively appears that the respondents were
unaware of these facts, even if true, prior to the hearing. Hinkle
testified that she had not spoken to Johnson concerning these mat-
ters prior to the hearing. Johnson asked for an adjournment of the
hearing for the purpose of questioning Hinkle, stating that he had
not had an opportunity to question her previously, and the respond-
ents introduced no evidence that these matters had come to their
attention, in any other way. It is clear, therefore, that the re-
spondents did not rely upon any such activities in denying rein-
statement to these employees. However, the underiied testimony
of Hinkle and Getz concerning French's possession of papers belong-
ing to the respondents, and of Getz and Bishop, that French led
the strikers to believe that he could "sell out" the respondents,
coupled with the facts set forth in the affidavit, lend credence to
the respondents' contention that they refused to reinstate French
because of a reasonable belief that French was not a trustworthy
employee. Moreover whether or not the accusations in the affidavit,
which mentioned French by name, were true, nevertheless we are
persuaded by the record that the respondents believed the accusations
to be true and were so motivated in denying French reinstatement.
The cases of Paetow and Tatkin rest on totally different grounds
however. None of the testimony which we have found credible
implicates Paetow or Tatkin as engaging in threats to put the re-
spondents out of business. The Jackman affidavit does not name
Paetow or Tatkin as members of the committee which visited the
Chicago Dental Society, and Johnson did not testify that Jackman
or any other person had informed him that they were members of
the committee. Therefore, as to these employees, the respondents
did not establish any reasonable basis for believing they were
engaged in any such activity.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paetow, along with French, was instrumental in the formation of
the Union. While Tatkin did not become interested in the Union
until late in December he was thereafter active in its behalf.
Paetow` and Tatkin were on the committee which first requested
recognition and thereafter were members of the Union's bargaining
committee. In view of the prominence of Paetow and Tatkin in
union matters, the respondents' proven antipathy towards the Union,
and the respondents' failure to establish any reasons for refusing
to reinstate Paetow and Tatkin, we find that the respondents re-
fused to reinstate Paetow and Tatkin because of their union mem-
bership and activity, thereby discouraging membership in the Union
and interfering with, restraining, and coercing their employees in
the exercise of the rights guaranteed in Section 7 -of the Act.
D. The joint liability of the respondents
The respondents contend that the partnership is engaged in the
manufacture of artificial dentures which it sells to the two corporate
respondents; that the -respondent United States Dental Company
is engaged in the sale of such dentures by mail order and that the
respondent AAA Dental Laboratories, Inc., sells such dentures
locally. The respondents contend further that each of the com-
panies is, operated as a distinct and separate entity; that the em-
ployees here involved are` solely the employees of the partnership
and that the partnership alone is liable for the unfair labor prac-
tices, if any, which have been committed. We find this contention
to be without merit.
The record shows that the three companies are engaged in a
single enterprise conducted by Voyle C. Johnson. The partnership
consists of R. M. Johnson and G. F. Sharp, the 10-year old son
and 18-year old stepdaughter, respectively, of Johnson. The part-
nership assets consist only. of the laboratory equipment which was
acquired by the partnership upon foreclosure of a chattel mort-
gage executed by the United States Dental Company. The funds
for this transaction were supplied from the joint account of John-
son and his wife. Although all the stock of the respondent United
States Dental Company is held by Johnson's wife, this stock was
also purchased from the same joint account. All the stock of
AAA Dental Laboratories, Inc., is held by Johnson's sister-in-law
who resides in Iowa. The record does not show who paid for
this stock. In addition to having thus furnished a substantial por-
tion of the initial funds for the enterprise, Johnson admitted that
he has loaned the companies large sums of money. All advertising
for the companies is handled through an advertising agency owned
AAA DENTAL LABORATORY 283
and. operated by Johnson. . Although denied by Johnson, the record
establishes that Johnson exercises ultimate control in the manage-
ment of all three companies; including the hiring of supervisory
employees and the determination of wage rates and other condi-
tions of employment.
Irrespective of the business or other considerations which resulted
in the establishment and maintenance of three separate companies,
the record establishes that all three companies are operated as a
single integrated enterprise. - All share the premises at 1555-1557 Mil-
waukee Avenue, Chicago, Illinois. One person usually acts as general
manager for all three companies, the salary being prorated among
,the three companies. The foreman is paid and acts for the partner-
ship and the United. French was hired by, and until July 1940
-received all checks from, the respondent United but after that date
received weekly checks from both the United and the "AAA Den-
tal Laboratories Company." 22 Tatkin testified that while all his
work was "addressed to" the United'23 he received his checks from
AAA Dental Laboratories, Inc., that he did not know which com-
pany was his employer but that he worked for Johnson. Paetow
testified that he worked for all three companies; Bishop that he
worked for the "AAA Dental Laboratories.' Lack of clear-demar-
cation between the functions of the companies resulted in the Union
making identic,,ll requests to bargain on each of the corporate re-
spondents.24 Indeed the financial statement submitted by Johnson
lumps the transactions of all three companies making no distinction
based on their asserted separate functions. The advertisements of
the United States Dental Company, allegedly only a sales corpora-
tion, provide that the United guarantees "each and every set of
teeth we make"; carries pictures of "our laboratory"; and speaks of
"our department for" operations which, according to the respondents'
contention, are done solely,by the partnership. It is apparent, there-
fore, that the activities of the three companies are so related and
'commingled that findings and order directed solely against the part-
nership would:neither be accurate nor afford an effective remedy.25
We find that the respondents and Voyle C. Johnson are employers
within the meaning of the Act.
22 The employees did not clearly distinguish between the partnership AAA Dental
Laboratory and the corporate respondent AAA Dental Laboratories, Inc. in their
testimony
23 The majority of the respondents ' business is by mail order transactions
11 The record establishes that the employees were unaware of the existence of the
partnership until December 27, 1940, after the formation of the Union, when a notice
,was posted in the plant stating that R. M. Johnson and G. F Sharp were copartners
operating the AAA Dental Laboratory
6Matter of Pennsylvania Greyhound Lines, Inc, et at and Local Division No. 1063
of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees
of America , 1 N. L R B .1, enforced 303 U S 261.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
- The activities of the respondents set forth in Section III, above,,
occurring in connection with the operations' of the respondents de'-
scribed in Section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have engaged in certain unfair
labor practices, we shall order them to cease and desist therefrom and
to take certain affirmative action which we deem necessary to effec-
tuate the policies of the Act.
We have found that on February 22, 1941, and at all times there-
after the respondents refused to bargain collectively with the Union.
We shall, therefore, order the respondents to bargain collectively
with the Union, upon request, as the representative of the employees
in the appropriate bargaining unit.
. Having found that the respondents have discriminated in regard
to the hire and tenure of employment of Paetow and Tatkin, we
shall order the, respondents to reinstate these employees 26 to their
former or'to substantially equivalent positions, without prejudice to,
their seniority and other rights and privileges, and to make them
whole for the loss they have suffered by payment to each of a sum
equivalent to the amount he would have earned from March 6, 1941,27
to the date of reinstatement, less his net earnings during the same
period.28
21 The remedy, providing for reinstatement of Paetow and Tatkin with back pay, is based
not only upon our finding that the respondents discriminated against them in regard
to their hire and tenure of employment, but also, and independently , upon our finding
.that the strike in which they engaged was caused and prolonged by the. respondents'
unfair labor practices. Matter of Western Felt Works, a corporation, and Textile Work-
ers Oi ganizing Committee, Western Felt Local, 10 N L R. B 407; Matter of United
Biscuit Company of America and Biscuit & Cracker Local #1131, Bakery, Tea, Coffee,
Yeast if Pretzel Drivers Local #2611i and Auto Mechanics Local 1053, 1. A. of M., 38
N L R B 778
27 Application for reinstatement was made for all the strikers on March 5, 1941, and
the respondents introduced no evidence to show that they would have been unable to
reinstate any of the strikers, absent discrimination, as of that date The one employee
who testified concerning his reinstatement, was reinstated on March 6
28 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 respondents, which would not have been incurred but for his
unlawful ddischarge and the consequent necessity of his seeking employment elsewhere
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union, Local 2.590, 8 N L. R. B. 440.
Monies received for work performed upon Federal, State, county, municipal, or other
work-relief projects shall be considered as earnings See Republic Steel Corporation v.
National Labor Relations Board, 311 U. S. 7.
AAA DENTAL LABORATORY 285
It appears from the record that Paetow also operated a dental
laboratory making dentures for local dentists both during the time
he was employed by the respondents and, after he was discharged.
We intend by our order that no deduction shall be made from the
amount to be paid Paetow by the respondents for any income received
by Paetow from his own laboratory which he would have received
had he continued to work for the respondents. If, however, by
virtue of non-employment elsewhere, Paetow has received a greater
income from his laboratory than he would have received otherwise
such increase shall be accounted as part of,his earnings.
Upon the foregoing findings of fact and upon the entire record in
the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Dental Mechanics,. Laboratory Technicians, Assistants and Help
ers Union is a labor organization, within the meaning of Section
2 (5) of the Act.
2. R. M. Johnson and G. F. Sharp, a partnership doing business
as AAA Dental Laboratory; AAA Dental Laboratories, Inc.; United
States Dental Company, and Voyle C. Johnson are employers, within
the meaning of Section 2 (2) of the Act.
3. All laboratory workers engaged in the manufacture and repair'
of artificial dentures at the Chicago plant of the respondents, ex-
cluding the foreman, assistant foreman, inspector, and all other em-
ployees at the' plant,' constitute a unit appropriate for the purpose;
of collective bargaining, within the meaning of Section 9 (b) of the-
Act.
4. Dental Mechanics, Laboratory Technicians, Assistants and Help-
ers Union was, on December 26, 1940, and at all times thereafter has
been, the exclusive representative of all such employees for the pur-
poses of collective' bargaining, within the meaning of Section 9 (a)
of the Act.
5. By refusing and continuing to refuse to bargain collectively
with the Union as the exclusive representative of the employees in
the above-stated unit, the respondents have engaged in and are en-
gaging in unfair labor practices, within the' meaning of Section 8 (5)
of the Act.
6. By discriminating in regard to the hire and tenure of employ-
ment of Charles Paetow and Irving Tatkin, thereby discouraging
membership in a labor organization, the respondents have engaged
in and are engaging in unfair labor practices, ' within the meaning
of Section 8 (3) of the Act. •
7. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the At, the
286 DECISIONS OF NATIONAL LABOR' RE'IIATIONS BOARD
respondents have engaged in and are engaging in unfair labor prac-
tices, 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. The respondents have not discriminated in regard to the hire
and tenure of employment of E. E: , French, within the meaning
of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondents R. M. Johnson and G. F. Sharp, a partnership doing
-business as AAA Dental Laboratory, AAA Dental Laboratories, Inc.,
and United States Dental Company, Chicago, Illinois, and the officers,,
agents, successors, and assigns of 'each, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Dental Mechanics, Labo-
ratory Technicians, Assistants and Helpers Union as the exclusive
representative of the laboratory workers engaged in the manufacture-
and repair-of artificial- dentures at the Chicago plant, excluding the
foreman, assistant foreman, inspector, and all other employees;
(b)- Discouraging membership in Dental Mechanics, Laboratory;
Technicians, Assistants and Helpers Union, or in any other labor
organization, of their employees by discharging or refusing to rein-
state or in any other manner discriminating in regard to the hire or
tenure of employment or any term or condition of- employment, of
their employees ;
'(c) In any other manner interfering with, restraining, or coercing
their 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-
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) Upon request, bargain collectively with Dental Mechanics,
Laboratory Technicians, Assistants and Helpers Union, as the exclu-
sive representative of all laboratory workers engaged in the- manu
facture and repair of artificial dentures at the Chicago plant, exclud--
ing the foreman, assistant foreman, inspector, and all other employees;,
(b) Offer 'to -Charles Paetow and Irving Tatkin- immediate and
full reinstatement to their former positions or to substantially'equiva-;
AAA DENTAL LABORATORY 287
.lent positions, without prejudice to their seniority or other rights or
privileges ;
(c) Make whole Charles Paetow and Irving Tatkin for any loss
of pay they have suffered by reason of the respondents' discrimination
against them by payment to each of a sum of money equivalent
to the amount each would normally have earned as wages during
the period from March 6, 1941, to the date of the offer of reinstate-
ment, less his net earnings, if any, during said period;
(d) Post immediately in conspicuous places in the Chicago plant,
and maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices to their employees stating: (1)
that the respondents will not engage in the conduct from which they
are ordered to cease 'and desist in paragraphs 1 (a), (b), and (c)
of this Order; (2) that the respondents will take the affirmative
action set forth in paragraphs 2 (a), (b), and (c) of this Order;
and (3) that the respondents' employees are free to become or re-,
main members of Dental Mechanics, Laboratory Technicians, As-
sistants and Helpers Union and that the respondents will not dis-
criminate against any employee because of membership or activity
in that organization;
(e) Notify the Regional Director of the Thirteenth Region in
writing within ten (10) days from,the date of this Order what
steps the respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED, that the complaint, insofar as it alleges
that the respondents discriminated in regard to the hire and tenure
of employment of E. E. French, be, and it hereby is, dismissed.
CHAIRMAN MILLIs took no part in the consideration of the above,
Decision and Order.