Aladdin Industries, Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1940

22 N.L.R.B. 1195 (N.L.R.B. 1940)

In the Matter of ALADDIN INDUSTRIES, INCORPORATED and UNITED
AUTOMOBILE WORKERS OF AMERICA, LOCAL No. 171
Case No. C-408.-Decided April 00, 1940
Lamp Manufacturing Industry-Interference, Restraint, and Coercion: anti-
union statements of supervisory employees; general reorganization of plant for
business reasons during strike not caused or prolonged by unfair labor practices:
(Chairman Madden) if effected on non-discriminatory basis does not in itself
constitute any violation of the Act; (Edwin S. Smith) such reorganization under-
taken at time of strike necessarily disruptive large number of strikers' continuity
of employment which Act intended to preserve and in itself violative of Section
8 (1) and (3) of Act, acts accompanying reorganization of plant, as-Unit
Appropriate for Collective Bargaining: all employees exclusive of executives,
their assistants, foremen, office and clerical employees; same as unit agreed to
by parties in consent election-Representatives: proof of choice: majority status
of union established in consent election-Collective Bargaining: allegation of
failure to consider grievances and pursuit of dilatory tactics in consideration of
grievances presented by union pursuant to exclusive bargaining contract not
sustained; allegations of refusal to bargain after sit-down strike dismissed
because of union's loss of majority through discharge of sit-down strikers-
Labor Dispute: sit-down strike caused by union's failure to secure dismissal of
supervisory employee objectionable to employees constitutes labor dispute within
meaning of Act-Discrimination: respondent's notice of discharge to all strikers:
effective as discharge of and non-discriminatory as to 63 sit-down strikers ;
ineffective as discharge of strikers who did not sit down ; vote for sit-down strike
or failure to disclaim responsibility for it no justification for discharging or
refusing reinstatement to strikers who did not sit down ; charges of discrimina-
tory failure to reinstate strikers upon application : sustained as to 10 strikers
who did not sit down ; dismissed as to 131 employees including 63 sit-down
strikers-Reinstatement Ordered-Back Pay: 10 employees found discrimina-
torily refused reinstatement.
Mr. George Rose, for the Board.
Mr. W. H. F. Millar, of Chicago, Ill., and Mr. Clarence 0. Davisson,
of Anderson, Ind., for the respondent.
Mr. Andrew Jacobs, of Indianapolis, Ind., and Mlir. Larry S.
Davidow, of Detroit, Mich., for the Union.
Mr. Robert Burstein, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Automobile
Workers of America, Local No. 171, herein called the Union, the Na-
22 N. L. R. B., No. 101.
1195
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Labor Relations Board, herein called the Board, by Robert
H. Cowdrill, Regional Director for the Eleventh Region (Indianapolis,
Indiana), issued a complaint dated August 16, 1937, against Aladdin
Industries, Incorporated, Aladdin, Indiana, herein called the respond-
ent, alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the 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 respondent and upon the Union.
The complaint alleged in substance: (1) that the respondent, by
failing to consider in good faith and by delaying action upon griev-
ances submitted to it by the Union pursuant to an agreement of De-
cember 1936, refused to bargain collectively with the Union as the
exclusive representative of the production and maintenance employees
of the respondent, said employees constituting an appropriate bar-
gaining unit; (2) that on March 2, 1937, by reason of such refusal to
bargain the Union called a strike; (3) that thereafter the respondent
refused to enter into any negotiations with the Union or its representa-
tives; (4) that on or about March 29, 1937, the respondent resumed
operations at its plant but has refused to reemploy 133 named em-
ployees for the reason that they had engaged in concerted activities
in behalf of the Union; (5) that although such employees have- applied
for reinstatement on numerous occasions, either jointly or severally,
the respondent has continued to hire new and inexperienced employees;
and (6) that by the afore-mentioned acts and by other acts, the re-
spondent has interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act. The re-
spondent filed an answer, dated August 20, 1937, denying that it had
engaged in or was engaging in the alleged unfair labor practices and
requesting that the complaint be dismissed.
Pursuant to notice, a hearing was held at Alexandria, Indiana,
commencing on August 30, 1937, and concluding on October 13, 1937,
before Henry J. Kent, the Trial Examiner duly designated by the
Board. The Board, the respondent, and the Union were represented
by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to produce evidence
bearing upon the issues was afforded all parties.
At the conclusion of the Board's case, counsel for the Board
moved that the complaint be amended by adding the names of eight
persons alleged to have been discriminatorily refused reinstatement.
The motion was granted. Counsel for the Board also moved to
amend' the complaint to conform to the proof. The Trial Exam-
iner reserved ruling on this motion. The motion is hereby granted.
ALADDIN INDUSTRIES, INCORPORATED 1197
During the hearing counsel for the respondent offered to prove that
the respondent, in notifying the striking employees on March 4,
1937, that they were no longer in its employ, acted upon the advice
of counsel that the termination of employment of those who were
in unlawful possession of the plant was a condition precedent to a
suit in ejectment against them. In rejecting this offer of proof,
the Trial Examiner was in error. In view of our findings set forth
below, however, the error is not prejudicial."
At the close of the hearing, counsel for the respondent moved
that the complaint be dismissed on the ground that its allegations
were not, sustained by the evidence. At the conclusion of the Board's
case and at the close of the hearing, counsel for the respondent
similarly urged separate motions that certain allegations of the
complaint be dismissed, including the allegations with respect to
the discriminatory refusal to reinstate the named employees. Some
of these motions were granted, and others were denied. The Trial
Examiner reserved decision on still further motions and thereafter
ruled on them in his Intermediate Report.
We have reviewed the above-mentioned rulings and all the other
rulings made by the Trial Examiner on motions and on objections
to the admission of evidence, and find that no prejudicial errors•
were committed. The rulings are hereby affirmed.
On February 9, 1938, the Trial Examiner filed his Intermediate
Report, in which he found that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and
(7) of the Act, and recommended that the respondent cease and
desist from the unfair labor practices so found, bargain collectively
with the Union, and reinstate with back pay 101 of its employees
found to have been discriminated against in regard to hire and
tenure of employment.2 He also recommended that the complaint
be dismissed in so far as it alleged discrimination against the re-
maining employees.
On February 17, 1938, the respondent filed exceptions to both the
rulings and the findings of the Trial Examiner. Pursuant to no-
tice, a hearing was held before the Board, in the presence of J.
Warren Madden. Chairman, and Donald Wakefield Smith, Member,
at Washington, D. C., on April 5, 1938, for the purpose of oral
argument. The respondent and the Union were represented by
counsel and participated in the argument. The respondent filed a
1 See infra, Part III D
2 Apparently through inadvertence, the Trial Examiner included in the list (appended to
the Intermediate Report) of those whom he recommended for reinstatement the names of
three employees with respect to whom he found no discinnmation.
" ' 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brief. On May 12, 1939, subsequent to the decision of the Supreme
Court of the United States in the case of National Labor Relations
Board v. Fansteel Metallurgical Corporation,3 the Union filed a
brief, pursuant to leave granted by the Board. On May 26, 1939,
the respondent filed a reply brief. On June 12, 1939, after Donald
Wakefield Smith ceased to be a member of the Board, the respondent
and the Union were accorded an opportunity for further oral argu-
ment but made no request therefor.
The Board has considered the exceptions to the Intermediate
Report and the briefs and, in so far as the exceptions are consistent
with the findings, conclusions, and order set forth below,, finds no
merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is an Illinois corporation, having offices at Chicago,
Illinois, and operating its plant at Aladdin, Indiana. It is engaged
in the business of manufacturing and selling mantle lamps, electric
lamps, lamp accessories, lamp shades, vacuum bottles, and vacuum
jars. Prior to the strike of March 2, 1937, the respondent employed
at its plant 504 employees and as of September 18, 1937, 537 em-
ployees. The respondent is a wholly owned subsidiary of Mantle
Lamp Company of America, an Illinois corporation, having its
principal office in Chicago, Illinois, and engaged in the business of
selling mantle lamps, electric lamps, lamp chimneys, and mantles,
most of which products it purchases from the respondent. The two
companies have interlocking officers and directorates. V. S. Jolui-
son, president of both, owns a majority of the stock of Mantle Lamp
Company.
Mantle Lamp Company maintains a shipping department at the
respondent's plant. It purchases most of the lamp products manu-
factured by the respondent and ships them from the respondent's
plant to its customers. The respondent itself handles the sale and
shipment of vacuum bottles, jars, and similar products. It also
ships some lamps to foreign countries.
The raw materials used by the respondent in its operations con-
sist principally of white metal, brass, silica sand, cotton, silk thread,
Ramie yarn, feldspar, and chlorium nitrate. All these materials,
with the exception of feldspar and chlorium nitrate, the sources of
which are not disclosed in the record, come from points outside of
the State of Indiana, and are shipped directly to the respondent's
8 306 U. S 240.
ALADDIN INDUSTRIES, INCORPORATED 1199
plant by rail or truck. In its brief the respondent admits that the
:major portion of the materials and ingredients used in its products
.are transported to the plant from sources outside the State of
Indiana. The purchases of raw materials for the fiscal year May
1, 1936, to April 20, 1937, aggregated in value $370,223.55.
The respondent's entire output for the same fiscal year aggregated
in value $1,188,235.41. Of this total, $219,835.41 represented the
value of products sold and shipped by the respondent itself. Ship-
ments of such products to points outside of Indiana aggregated in
value $204,199.56 or about 93 per cent. At least 88 per cent of the
remaining products, $968,400.00 in value, which were purchased and
shipped by Mantle Lamp Company, were shipped to points outside
•of Indiana.
II. THE ORGANIZATION INVOLVED
United Automobile Workers of America, Local No. 171, is a labor
,organization affiliated with the Committee for Industrial Organiza-
tion,4 herein called the C. I. 0., admitting to membership the produc-
-tion and maintenance employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion prior to March 0, 1937
The organizational activities among the respondent's employees
began in October or November 1936, and culminated in the strike of
IDecember 5, 1936, and the agreement of December 14, 1936, referred
to hereafter. On a number of occasions during this period the
respondent, through its supervisory force, displayed a hostile interest
in the organization of its employees and made statements to combat
-such activity. Thus Bill Chapman, foreman or assistant foreman of
the glass-finishing department, approached Henry Druelle, an em-
ployee in the same department, and asked him whether he belonged
to the C. I. O. When Druelle replied in the affirmative, Chapman
said, "Boy, you are making an awful error Land I will advise you just
-to drop it right now . . . It is bad business." Shock Hughes, the
foreman of the white-metal department, questioned Cecil Markham,
an employee of that department, regarding the button he was wear-
ing. When Markham informed him that it was a union button,
:Hughes asked him why he wanted "to start the C. I. O. in here" and
whether he was trying to put everybody out of work, and remarked
that the respondent would not accept or bargain with any union.
Grace Piret, an employee in the mantle department, testified that
Fred Spangler, her foreman, said to her, "Grace, what are you doing
Now the Congress of Industrial Organizations.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with that union?" and that when she admitted her membership,
Spangler shook his head and said, "I would advise you not to take
any active part in it because I don't think Mr. Johnson will ever
recognize it." Spangler denied making the statement attributed to
him by Piret. He testified that Piret sought his opinion of the Union
and that he professed not to know much about it, but stated that he
was unable to see any relation between the operations of the re-
spondent and the automobile business and doubted, therefore, the
suitability of the Union. However, in view of similar statements
attributed to Spangler (referred to infra) by other employees, we
believe that Spangler expressed himself as Piret testified, and we so.
find. Edwin Bittner, supervisor of the vacuum-bottle department,
upbraided Dorothy Everett, an employee of that department, for
wearing her union button and said, "If I were you, I would take it
off and hide it." Charles Cummins, an employee in the glass-finish-
ing department, testified that as he reported for work on a Sunday
night just before or after the strike of December 5, 1936, John,
Green, the foreman of the blow room, told him that the C. I. O.
"would never do no good" and advised him against joining it. This
statement is denied by Green. In view, however, of a similar state-
ment imputed to Green by another employee, referred to infra, we are
of the opinion that Cummins' testimony is entitled to credence, and
that Green in fact made this statement to him.
Pursuant to a request of the bargaining committee of the Union,
a conference was held on December 4 between that committee and
representatives of the respondent. The Union submitted a proposed
contract and claimed that it represented a majority of the respond-
ent's employees. Johnson, the respondent's president, questioned the
Union's claim as to a majority, asserted that it should be established
by definite proof, and asked that an election be conducted under the
supervision of the Board. At another conference held the following
morning, Robert Pugh, the president of the Union, submitted a bundle
of union application cards as evidence of the Union's strength. John-
son stated that it was not incumbent upon the respondent to verify the
authenticity of the signatures on the cards and insisted on an election.
The Union thereupon called a strike. Further conferences resulted'
in the holding of a consent election on December 9 under the super-
vision of the Regional Director for the Eleventh Region. At this elec-
tion a majority of the respondent's employees designated the Union
as their representative for the purposes of collective bargaining. On
December 14 an agreement was entered into between the respondent.
and "the Committee representing The International Union United
Automobile Workers of America, Local 171," covering wages, hours,
and working conditions.
ALADDIN INDUSTRIES, INCORPORATED 1201
The anti-union statements on the part of members of the respond-
ent's supervisory force did not cease with the signing of the agreement
but continued thereafter.
Spangler was particularly active in this respect. He told Gladys
Mobley, an employee in the wick and flame-spreader department, and
Helen Reeves, an employee in the mantle department, that "it was a
shame" they belonged to the Union, good workers as they were, and
that "some of these days" they would be out of work. On one or two
other occasions, Spangler warned Helen Reeves about her union activi-
ties and told her that she was going to lose her job. Mearl Reeves,
another employee of the mantle department, testified with respect to
a similar statement made to him by Spangler :
... the only time he [Spangler] talked to me about the union
he said it was a shame that I belonged to the union as long as I
had been with the company and so much as I knew about the work,
and I couldn't continue on working there . . . I couldn't say
anything, except I thought I would continue to work there as
long as the rest of them did . .. He just laughed and walked
away.
Curtis Landers, an employee in the shade department, testified that
Spangler expressed himself to him as not being in favor of the C. I. O.
and as believing that a company union would be preferable to an out-
side union. Spangler denied having made the statements testified to
by Helen Reeves and Landers. However, we see no reason to dis-
believe their testimony, and we find that Spangler so expressed him-
self to Reeves and Landers.
Similar activity was engaged in by Bill Chapman. At one time
he asked Virgil Holford, an employee of the glass-finishing depart-
ment, what he thought of the Union and admonished him. "If you are
wise, you will stay out of it." On another occasion he called Kenneth
Porter, another employee of the same department, over to one side and,
pointing to a union pin in his (Chapman's) hand, asked, "Do you
-know who this belongs to?" Porter replied in the negative. Chap-
man then said, "Now, listen, Porter, let me give you some advice .. .
Leave that alone ... When a man like John L. Lewis pulls out of it,
you know it is no good." Johnny Rowe, foreman of the metal-finishing
department, said to Howard Gilmore, an employee in his department
who was wearing his union button, "as far as lain concerned, the union
doesn't mean a thing to me ... Johnson is too big to buck, the C. I. O.
can't bust him." Mrs. Culbertson, assistant to the foreman in the
-mantle department, asked Juanita Athan, who worked under her super-
vision, whether she had signed up with the Union and advised her not
;to do so until she had to. Several foremen engaged W. W. Lewis, an
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee in the glass-finishing department, in a conversation in which
they attacked the C. I. 0., and spoke in favor of an inside union.'-
Chapman remarked to him that the Union "wasn't worth a damn" and
counseled him, "Lewis you are too good a man and too good a worker
to get mixed up in an affair like that . . . If I was you, I would dis-
card it, and get into something where you can have some protections.
and if you get sick . . . you will have some money at home to take
care of you." Hughes' remarks were to the same effect. He said that
the Union was no good and would never "hold up." He added :
It is just going to spring up for a little while ... That spreads.
like prairie fire . . . it will burn for a little while ... It will be
like the N. R. A., practically it will go kerflunk ... as the other
did.
He further advised him to be loyal to the respondent and join the
company union which would provide him with money in sickness and
would make it possible to thrash matters out and settle them "right at
home" as they came up, whereas the C. I. 0. might cause the shut-down
of the factory or its removal out of town. John Green, a turn fore-
man in the blow room, spoke in the same vein. He said that the plant
would be shut down and moved in the event of further trouble with.
the Union. He continued :
We have got a union here, we have got a company organization
here that is all right ... That is what you ought to get into,
instead of what you are in . . . You have got some protection in
that, where you haven't in this ... Your money is going out of
the state, and if you get sick, you have just got nothing, because
they haven't got anything to offer you . . . they don't assure you
a thing . . . If they call you out on a strike, they don't assure
you you are going to get back, or that you are going to get an
increase in wage, or that you are going to better your working
conditions, or in fact, they don't assure you anything . . . I have
never gone to the management of any company and talked with
them but what I get fair consideration, without being mixed up
with an organization like you are in.
At the hearing Green denied having made these statements. Hughes
and Chapman, however, failed to testify, thus leaving the state-
ments attributed to them uncontradicted upon the record. We be-
lieve that Green, Hughes, and Chapman made the statements
attributed to him by Lewis, and we so find.
6 The record indicates that during this period attempts were made by a number of em-
ployees to form an inside union. Several employees were charged by the Union with
soliciting membership on behalf of such organization . One was in fact tried before am
arbitration committee but was found not guilty.
ALADDIN INDUSTRIES, INCORPORATED 1203
In addition other statements were made by the respondent's super-
visory employees evidencing their impatience with the operation of
the union agreement. At a discussion concerning seniority rights
under the agreement, Cy Watkins, the foreman of the glass-finishing
department, told Irma Dickinson, an employee in that department,
that the Union "was nothing but a God damn nuisance." Mabel
McCarty, floorlady in the shade department, remarked to Florence
Mason, employed in that department, that they would find out "that
the union would never get [them] any place, and that . . . the union
was not going to run that department." On another occasion, when
Virgil Holford's group in the glass-finishing department was laid
off, presumably pursuant to the seniority provision in the union
agreement, and Holford asked Watkins the reason for such lay-off,
Watkins pointed to the union button on Holford's shirt and said,
"That is what that does for you."
We find that the respondent, through the above-described state-
ments of its supervisory employees, has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. The alleged refusal to bargain
1. The appropriate unit
As already noted, a consent election to determine whether the
Union represented a majority of the respondent's employees was held
on December 9, 1936, under the supervision of the Regional Director.
With respect to the unit, the ballot provided as follows :
All employees of the Aladdin Industries, Inc. on the payroll
as of November 21, 1936 will be eligible to vote, except that the
following shall not :
1. Executives, their assistants and foremen.
2. Office and clerical, executive-chemists and watchmen.
The election was conducted by agreement of the Union and the re-
spondent, neither of whom here challenges the appropriateness of the
unit in which the election was conducted, nor, for that matter, the
"Certificate of Election" signed by the watchers and tellers at the
election in the presence of the Regional Director and Field Examiner.
We have held on numerous occasions that if parties in interest them-
selves have agreed upon a specified unit as appropriate for collective
bargaining] it was within the exercise of our discretion to find such
unit an appropriate one to effectuate the policies of the Act. We
are of the opinion that a similar principle obtains here where the
parties have consented to the conduct of an election by the Regional
Director in a stated unit.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The exclusion of executives, their assistants, and foremen, and of
office and clerical employees, from the election unit was consonant
with our usual practice. Nor does it appear that the omission of
executive-chemists and watchmen was improper.
We find that all the employees of the respondent, exclusive of exec-
utives and their assistants, foremen, office and clerical employees,
executive-chemists, and watchmen, constitute a unit appropriate for
the purposes of collective bargaining, and that such a unit insures to
the employees the full benefit of their right to collective bargaining
and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
prior to March 2, 1937
The "Certificate of Election" referred to above shows that, out of
517 employees eligible to vote in the unit ' here found appropriate,
362 voted in favor of the Union, 111 voted against, and 5 ballots were
contested. We find that on December 9, 1936, and up to March 2,
1937, the Union was the duly designated representative of the ma-
jority of the employees in an appropriate unit, and pursuant to Sec-
tion 9 (a) of the Act, was the exclusive representative of all the
employees in such unit for the purposes of collective bargaining with
the respondent in respect to rates of pay, wages, hours of employment,
and other conditions of employment.
3. The alleged refusal to bargain prior to March 2, 1937
The complaint alleges that , pursuant to the agreement of Decem-
ber 1936, the respondent met weekly with the duly designated com-
mittee of the Union during the period from December 1936 to March
2, 1937; that the respondent failed to consider or continually delayed
taking action upon many grievances presented at these meetings;
that on March 1, 1937 , the Union , in the belief that the respondent
was not acting in good faith , pressed for immediate adjustment of
certain grievances ; and that, the respondent having failed to make
such adjustment , the Union called a strike on March 2, 1937.
Pursuant to the agreement of December 14 (referred to supra),
weekly meetings between representatives of the respondent and the
union committee were held during the period from December 20,
1936, to March 2, 1937 . The record shows that many grievances pre-
sented at such meetings by the union committee were satisfactorily
adjusted. Some of these grievances involved questions of seniority,
compensation for time spent by employees in the glass -finishing de-
partment in setting up their machines , designation of legal holidays,
adjustment of losses on scrap resulting from faulty material, installa-
ALADDIN INDUSTRIES , INCORPORATED 1205
tion of a ventilating system in the plating department , a chart for
converting minutes into dollars and cents according to the rates of
pay, compensation for unreasonable waiting time , rest periods, doors
in the punch -press department , and time clocks in the various de-
partments.
At a meeting held on about February 6 a grievance was presented
involving the decrease in pay incurred by employees working in
groups as a result of the addition of new employees to such groups.
At the meeting it was suggested that Arnold Madara, the chief stew-
ard, and Thomas Blain , the assistant factory manager , formulate a
plan to remedy this situation . This was done . At the next meeting
held on February 19, Madara and Blain presented a plan whereby
the older employees in a given group would be given a certain allow-
ance depending on the length of time necessary for the new employee
to acquire proficiency in the work of the group . The union com-
mittee rejected the proposal and Elmer Davis, an organizer of the
International Union, suggested that the question be referred to the
union membership or to the stewards.
At the same meeting the union committee demanded that the re-
spondent make certain individual wage adjustments . The represen-
tatives of the respondent agreed to review the wage rates of certain
employees . Blain thereafter prepared certain data as a basis for
discussing the matter at a future meeting.
During this period a grievance concerning Mrs. Culbertson, the
assistant to the foreman in the mantle department , reached its cli-
max. The dissatisfaction of the employees in the mantle department
with the conduct of Mrs. Culbertson was a matter of long standing.
Numerous witnesses testified regarding her behavior and the ill feel-
ing toward her in that department . She frequently "bawled the
girls out" for insignificant things and for' the slightest infractions
of the rules , made them cry by using harsh words, and created nerv-
ous tension among them . This grievance came up informally for
discussion at the first meeting after the execution of the contract.
Blain promised to take the matter up with Spangler , Culbertson's
immediate supervisor . Blain did so , and Spangler instructed Mrs.
Culbertson to exercise greater care in the treatment of the employees
under her supervision . Mrs. Culbertson 's name was mentioned again
at a special meeting held on February 8. On the morning of Febru-
ary 26 Madara informed Blain that a number of employees were com-
plaining against Mrs. Culbertson and demanded immediate action.
It was agreed that Allen Whipple, the respondent's chief engineer,
would talk to Mrs. Culbertson. Whipple did so the same day. Mrs.
Culbertson denied the truth of the charges and attributed her rigor
to the low efficiency in her department.
233033-41-vo] 22--77
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 28 the members of the Union met and voted to call
a sit-down strike in the event that Mrs. Culbertson was not dis
charged or demoted. On Monday, March 1, the union committee in-
formed the representatives of the respondent of the action taken by
the Union. Blain telephoned Johnson who was in Chicago at the
time. Johnson said he could not act without the evidence before him
and instructed Blain to hold the matter in abeyance until his return
on about Thursday of the same week. The union committee indi-
cated its unwillingness to submit to a postponement. Pugh declined
to discuss the questions relating to older employees in groups to
which new ones are assigned and wage adjustments for individual
employees. On the following day, March 2, a sit-down strike was
called by the Union.
It is clear from the foregoing that the respondent did, in fact,
act on grievances presented by the Union and that many grievances
were satisfactorily adjusted. Although at the time of the sit-down
strike the matters relating to older employees in group work and to
the adjustment of individual wage rates were still pending, it is
clear that the respondent bargained in good faith with respect thereto.
Although Blain and Davis apparently had the authority to take-
action with respect to Mrs. Culbertson, under the circumstances the
request to postpone the matter for 3 or 4 days until Johnson's return
was not unreasonable.
We find that the respondent did not refuse to bargain collectively
with the Union prior to March 2, 1937.
4. The alleged refusal to bargain after March 2, 1937
The record shows that on various dates during the period between
March 2 and April 2, 1937, the respondent refused to enter into any
negotiations with the Union or its representatives. As noted here-
after, the respondent, on March 4, discharged all the striking em-
ployees. From the names listed in the restraining order issued
against the Union and its members and from the testimony of em-
ployees alleged to have been discriminated against, it appears that at
least 110 members of the Union participated in the sit-down strike.
In view of our finding below that the discharge of the employees
engaged in the sit-down strike was valid, such employees must be
excluded from the computation of those who have selected the Union
as their bargaining representative. As already stated, 362 out of
517 employees who were eligible voted in favor of the Union at the
election of December 9, 1936. Upon subtracting 110 from 362, there
remains a total of only 252 employees in the appropriate unit who
designated the Union as their representative. Since there were 504
employees in the appropriate unit when the sit-down strike began,
ALADDIN INDUSTRIES , INCORPORATED 1207
there is, therefore , no basis for a finding that after March 2 the
Union was the choice of a majority of the respondent 's employees
for the purposes of collective bargaining.
The allegations of the complaint that the respondent refused to
bargain collectively with the Union as the representative of the
employees in the appropriate unit will be dismissed.
C. Events after the sit-do w"n strike; interference, restraint, and
coercion
As already stated, the Union called a sit-down strike on March 2',
1937 . On March 4 the respondent prepared the following notice :
To Striking Employees Only of Aladdin Industries.
You are notified that you are not any longer in our employ.
In case you wish to apply for reemployment with the company,
your application will be received and given consideration.
ALADDIN INDUSTRIES , INCORPORATED.
These notices were attached to the pay envelopes and delivered to
each employee on the morning of March 5 . The respondent then
filed a bill in the Circuit Court of Madison County , Indiana, to enjoin
the strikers from occupying the premises . On March 5 a temporary
restraining order was issued by that Court and served upon those in
possession of the plant . On March 12 a temporary injunction against
the sit-down strikers was obtained by the respondent . The strikers,
however, refused to comply with the orders of the Court until March
16, when they evacuated the plant.
A meeting of the officers , directors , foremen, and other supervisors
of the respondent was held on March 18. Johnson stated that the
respondent was not earning any profits and that the plant was not
being operated efficiently ; he asserted that the agreement with the
Union , was:unsuccessful because of the lack of experience in' collec-
tive bargaining of both the Union and the respondent ; and he ex-
pressed concern over whether the respondent would be able to re-
sume operations . Either Johnson or other officers of the respondent
present then asked the foremen concerning the efficiency in their
respective departments and requested their opinion whether it would
be feasible to operate their departments successfully and profitably
under conditions as they existed during the preceding few months
and whether they would be willing to resume operations under such
conditions . The foremen stated that it would be impossible to oper-
ate the plant efficiently and that they would not, attempt to do so
under the unsatisfactory conditions prevailing before the strike.
On or shortly before March 24, 1937 , Johnson read to the fore-
men, assembled at a meeting , a printed draft of an employment
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
application which was intended for mailing to all the employees of
the respondent. This application was in the form of a letter ad-
dressed "To Aladdin Employees, and to Ex-Employees," and signed
by the respondent. This letter, after referring to the sit-down strike,
the temporary injunction issued by the Circuit Court of Madison
County, and the picketing outside of the plant, states that the prom-
ises of the union organizers of increased efficiency and harmony in
the plant as a result of union recognition failed to materialize, but
that "after the Union had been recognized at the plant, with its
system of stewards, no improvement in efficiency whatever resulted
therefrom, but instead further demoralization resulted in disregard
for that ordinary control which must be maintained in the conduct-
ing of any business if it is to endure"; and asserts that if the re-
spondent cannot manufacture products at a cost which would enable
it to meet the competition of other manufacturers, it must either
close the plant immediately or be subjected to losses which would
compel it to close later. The letter then points out the fallacy in
the argument that the respondent cannot afford to move the plant
because of the investments in its buildings, and explains that the
,only question is:
.. . Can we, with the employees available in this community,
now build a new, efficient loyal Aladdin organization that is
willing to, and can, compete with the skill and products of the
workers in other communities. Can we eliminate the waste,
carelessness, indifference, inefficiency, and the petty grievances
that have flourished in many of the departments in the plant
during the past? If it can be done, then there is hope.
Attention is then called to the meeting of the respondent's man-
agerial staff of March 18 and to the statements of those who were
present :
.. Each one stated that the efficiency was low in his de-
partment, that the increased efficiency that the Steward System
was promised to bring was a farce, and that instead it has devel-
oped into an endless system of petty politics, petty complaints,
absolute indifference, and defiance of ordinary factory disci-
pline, and has disorganized and demoralized the force.
The Management Committee states that three-fourths of its
time had been spent in trying to adjust petty complaints and that
scarcely a week had gone by but what threats of strike were
made. .
Every man present stated that the showings made in his
department had been very unsatisfactory, and that it would be
impossible to successfully operate under similar conditions.
ALADDIN INDUSTRIES, INCORPORATED 1209
The letter continues :
We do not mean to say that every employee had lost his or
her efficiency, but we are quite certain that if everyone to whom
this letter is sent, will seriously think matters over, they will
agree that conditions have been anything but right in the Alad-
din Production Organization for quite some time.
The entire factory has been shut down since March 2nd on
a union issue that concerns only one department, but at a great
loss to all the workers, and to the company. We understand
that less than seventy-five people called the strike, which put
all the rest of you workers out of your jobs. Are you workers
willing to tolerate this? The Management cannot.
The letter then announces that the respondent has definitely decided
that it will not and cannot again operate its plant under the con-
ditions which have prevailed in the past; that if it resumes opera-
tions it must do so with employees who will give satisfactory service;
that it will not reemploy those "who are not willing to give an honest
day's work for an honest day's pay," who are dishonest, who will
not cooperate with the respondent, who are disposed to loaf, who
infringe the respondent's rules and stir up strife and trouble, and who
boast defiance of the law; that the respondent will have nothing to
do with "organizers and agitators who put themselves above the
law"; and that the respondent will give every employee a "square
deal " and is willing to deal with its employees "either singly, col-
lectively, or in groups." Finally, the letter states:
Whether the company will reopen its Aladdin plant depends
upon the attitude of the workers in the community. If enough
of the workers are willing to work under the conditions herein
mentioned, the Management will then be ready to give favorable
consideration to the opening of its plant at an early date. Other-
wise the plant will remain permanently closed.
Because those who participated in the strike had quit their
employment, and are no longer employees of the company, and
because the Management is unable to determine just which ones
had quit, and which ones would have liked to have worked but
were deprived of the opportunity by the strike, it will be nec-
essary for you to apply for reemployment if you are interested.
. .. If you do not reply immediately, the Management will
consider that you do not desire reemployment with Aladdin.
The back of the letter, which'provides a space for the employee's
signature, states as follows:
I hereby apply for employment with the company. I have
carefully read the letter of the reverse side hereof and understand
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what the Management expects of its workers. If employed, I
agree to faithfully do my part.
The wording of the letter, hereafter referred to as the company
application, met the approval of the foremen, and on March 25, copies
,of it were sent to all of the respondent's employees who were-on its
pay roll on March 2.
On about April 1 Johnson again called a meeting of the foremen.
He repeated his dissatisfaction with the manner in which the plant
had been operated, stated that it was incumbent upon each foreman
to bring order in his own department, and warned that if the foremen
did not place their respective departments on an efficient basis some-
one else would be given the opportunity to do so. He also announced
that henceforth each department would be rated as a separate unit,
that the foremen would be more responsible than ever for the manage-
ment of their departments, and that it would be the duty of the
foremen to secure efficient and cooperative employees. Johnson then
enunciated certain policies for the guidance of the foremen in their
choice of employees : (1) union affiliation was not to influence the fore-
men in their choice of applicants; (2) the determining factors were to
be efficiency and ability; (3) seniority was not to be stressed; (4)
there was to be a curtailment in the hiring of married women; although
it would at first be necessary to recall to work some experienced
married women in order to enable a speedy resumption of operations,
thereafter the foremen were to concentrate on hiring single women;
(,5) they were not to employ too many members of one family; (6) they
were to avoid employing a husband and wife in the same department
and having employees work under the supervision of their relatives.
Thereafter, the foremen were instructed 'to review the names of
the employees who had returned the respondent's application letters
and select those whom they wanted recalled to work immediately.
With few exceptions, all the employees who had returned the applica-
tion were recalled on the basis of the recommendations and at the
request of the foremen.
A number of union members did not sign or return the company
application because they believed that it was directed against the
Union and constituted in effect a yellow-dog contract, and because it
conveyed to them the meaning that the respondent would not resume
operations under the Union and would not reinstate union members."
6 Thus Dorothea Burke testified that when these . applications came out, the way
I interpreted them, I was signing my rights away. After I read the document on the other
side of the application . . . I thought if I signed that I would be signing all my rights
away. That is what I understood a 'yellow dog' contract to be." Similarly, Dorothy
Johnston testified that "I read it over. and I was under the impression that it was a yellow
dog contract." Vance Marley interpreted certain portions of the application to mean that
the respondent "will not have anything to do with the union." According to Helen Mc-
Carty, the application "leaves out our union, I understood it left the union out."
ALADDIN INDUSTRIES, INCORPORATED 1211
The plant reopened on April 5. By April 17 the respondent had
rehired 303 employees, including some new employees. On April 16
or 17, a committee of the Union submitted to the respondent an
application for reinstatement, herein called the union application,
signed by 106 employees. The application was addressed to the
respondent and stated :
We the undersigned employees hereby make application for
reenstatement to our original positions with the Company, as
previous March 2, 1937.
The record presents a conflict of testimony with respect to the re-
spondent's reaction to the union application. Harold Hunt, a member
of the union committee, testified that one of the respondent's officers
told the committee that Johnson was out of town and that no action
could be taken-on the application in his absence; and that when the
committee returned 2 or 3 days later, either Almquist or Blain told
them that they could do nothing about it. Gilbert Kessler, another
member of the union committee, testified that when the committee
returned a second time they were told that the respondent had been
considering the matter but had not yet reached a definite decision.
Blain testified that, when the union committee first submitted the
application, and Blain asked what they wanted him to do with it,
Pugh replied, " ... You will know what to do with it because you
will hear from Mr. Johnson about it." Blain further testified that
the committee returned several days later and inquired if any action
had been taken by the respondent and that Blain replied that Johnson
had not yet returned and that the application was still on Blain's
desk. It is clear, however, that no definite answer to the application
was given by the respondent and that it was not acted upon favorably.
Almquist testified that the union application was not considered by
the respondent as an application of each individual listed therein to
return to work, although it did serve as an indication that such
employees desired to be reemployed, and some of them were in fact
recalled to work.
On April 26 the foremen were instructed to pass on the qualifications
of the employees who had not been reinstated by that time. Each
foreman was summoned separately before a round-table conference
consisting of Johnson, Millar, Blain, and the time-study men, and
was questioned with respect to the employees under his supervision.
The comments of the foremen concerning each individual employee
were discussed. The stenographer typed the substance of such com-
ments and submitted it to the foreman for signature.7
7 The record does not disclose the bases used by all the foremen in arriving at their
determination as to whether or not a given employee should be recommended for reinstate-
ment. Stuart Goodwin. the chief inspector in charge of the white-metal department, con-
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At some time thereafter Robert H. Cowdrill, the Board's Regional
Director for the Eleventh Region, communicated with the respondent
with respect to the reinstatement of the union members and was
informed that certain ones were being considered for reinstatement
on the basis of the foremen's recommendations.
The evidence shows that the respondent, upon resuming operations,
made it clear that it would henceforth neither bargain with nor
recognize the Union. According to Ollie Summers, foreman of the
shipping department, the foremen were told at one of their meetings
"that the union wasn't there any more, and that this seniority list
that we had wasn't in force any more ; that as far as that was con-
cerned we could tear those up or do whatever we wanted to with them."
Similar statements were made by officers of the respondent to em-
ployees as they were being recalled to work. Almquist told Ernest
McCarty that "the union wasn't there any more." Pete Leach was
told by Almquist, Goodman, and Blain that he could belong to any
union he desired but that the respondent no longer recognized the
Union and was not operating under the contract. Similarly, Almquist
said to Inez Wolfe, "you have the right to belong to two or three
,unions if you want to, but you know, we don't bargain with any
C. I. O. committee."
On May 29 the respondent formally terminated its contract with the
Union by dispatching to the Union the following letter :
Notice is hereby given that in view of the breach of the con-
tract dated December 14, 1936, entered into between the Com-
pany and the Committee representing at that time its employees,
the Company does not desire that the said contract be reinstated
or renewed.8
On June 18 the following petition signed by about 350 employees
employed at the time was presented to the respondent:
In view of the loss of time and generally unsatisfactory work-
ing conditions which followed the recognition of the U. A. W. A.,
as the sole bargaining agent for the purposes of collective bar-
gaining in this plant, and feeling that further recognition of the
above union would not serve our best interest, we the undersigned
employees of Aladdin Industries, Inc., of our own free will and
accord, request that in the future the U. A. W. A. be not con-
sidered as our representative for the purposes of collective bar-
sidered the attitude of the employees and their ability to cooperate as well as their efficiency
but not their union affiliation . Scott based his recommendations on the work performed
by the employees in his department during January and February
8 The contract provided that it was to be in effect until June 30, 1937, and was to be
renewed for every 6 months thereafter "unless notice is given thirty ( 30) days prior to the
expiration date by either the management or the committee."
ALADDIN INDUSTRIES, INCORPORATED 1213
gaining, and that no future negotiations be entered into with
them in our behalf.
This petition, at least to some extent, was circulated by employees
within the plant.
After the reopening of the plant, the Aladdin Employees' Associa-
tion, herein called the Association, an inside labor organization which
had apparently come into existence before the sit-down strike, launched
an organizational campaign which was conducted within the plant
and, at least in part, during working hours. Certain employees circu-
lated tentative bylaws of the Association and solicited the signature
of membership cards. A marked interest in the campaign was dis-
played by Mrs. Culbertson who requested several employees to sign
Association membership cards. Blain testified that he first learned
of the Association's organizational activities sometime in July when
he found a copy of the Association's bylaws on his desk and when a
foreman reported such activity to him. According to his testimony,
Blain told the foremen that it was against the rules of the respondent
to engage in activity for or against any organization and that anyone
doing so was subject to discharge. There is no evidence, however,
that any employee was in fact discharged or otherwise disciplined
for such activity. Johnson testified that he was first apprised of the
Association's activities when Blain wrote to him that the employees
were apparently organizing an inside union and asked him what action
to take. According to his testimony, Johnson instructed him not to do
anything until he heard something more definite. The Association
through its attorney, Thurman Robinson, attempted to obtain a charter
of incorporation. The application for a charter was rejected on the
recommendation of the Labor Commission of Indiana based on objec-
tions filed by the Union which charged that the Association was com-
pany dominated. Through the advice of Robinson, the Association
was then organized as a voluntary unincorporated association.
By September 18 the respondent had fully staffed its plant, having
in its employ 537 employees. All of the old employees except 172
had been reinstated by that date. The number of married women
employed by the respondent on that date represented a substantial
decrease from the number employed prior to the sit-down strike. Prior
to the sit-down strike the number of married women aggregated 144
as against 64 single women. As of September 18, 1937, the respective
numbers were 88 and 121.
During the period between the resumption of operations and the
date of the hearing, the respondent, as part of the reorganization of
its personnel, made certain changes in its supervisory staff. Five
foremen of various departments were either shorn of their super-
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
visory powers or released from elnployment. In addition, four indus-
trial engineers were added.
The respondent, in its brief, contends that its determination to
make changes in its personnel was not a result of the strike but
was due to the fact that all but two of its departments had for some
time been operating at a loss, and that during the period between the
two strikes conditions became more serious because of a lowering of
efficiency on the part of the employees generally. For some time
prior to the advent of the Union in its plant, the respondent had been
operating at a loss in most of its departments. On December 12,
1936, shortly before the execution of the contract between the re-
spondent and the Union, Johnson, the respondent's president, made
a statement to the union committee in which he attributed that condi-
tion partly to the lack of skilled and experienced employees; and
commented that such condition "can be corrected only by reducing
our losses (of both material and labor) due to poor workmanship,
and thereby getting better production and efficiency in the various
departments." The record establishes that during the period of
union activity and particularly between the two strikes there was
a general lowering of efficiency in the plant.
Chairman Madden is of the opinion that the respondent's reor-
ganization of its plant under the circumstances hereinabove dis-
cussed did not in itself violate the Act.9 The strike was not caused
by any unfair labor practices and, in his opinion, its occurrence did
not alter or impair the respondent's normal right to reorganize its
plant on a non-discriminatory basis in order to increase the efficiency
and profitableness of its operations.10 The Board does not therefore
find that the reorganization in itself constitutes an unfair labor
practice.
However, the reorganization was accompanied by acts which did
interfere with, restrain, and coerce the respondent's employees within
the prohibition of Section 8 (1) of the Act. The whole tenor of
the company application forms presented to the strikers makes it
plain that such application was designed to condemn the Union and
to bring it into disrepute among the employees, to convey the mean-
9 Mr Edwin S Smith does not agree with that view for reasons stated in his separate
concurring opinion
10 It is unnecessary to decide here whether or not such a reorganization during an unfair
labor practice strike is in and of itself violative of the Act However, when a strike is
caused in whole or in part or is prolonged by an employee ' s unfair labor practices his ordi-
nary right to select his employees becomes vulnerable and a striking employee is usually
entitled to reinstatement to his job upon application See Black Diamond Steamship Cor-
poration v National Labor Relations Board , 94 F (2d ) 875 (C C A 2), certiorari denied,
304 U S 579 , enf'g 3 N. L. R B 84 ; Jeffery-Dell'itt Insulator Co v National Labor Rela-
tions Board, 91 F (2d) 134 (C. C A 4), certiorari denied, 302 U S 731, enf'g 1 N L.
R B 618, National Labor Relations Board v Louisville Refining Co, 102 F (2d) 678
( C. C. A 6 ). modif'g, and enf'g as modified , 4 N L R B 844 , Republic Steel Corp v.
National Labor Relations Board, 107 F. (2d) 472 (C C A 3), enf'g 9 N L R B 219
ALADDIN INDUSTRIES , INCORPORATED 1215
ing that the respondent would no longer operate the plant with the
Union as the collective bargaining agency of its employees, and to
compel the employees to abandon the Union . The employees so
understood it. As stated above, a number of employees did not
sign or return the company application because they believed that
it was directed against the Union and that it constituted in effect a
yellow-dog contract . Thereafter , the respondent announced to em-
ployees as they were recalled to work ,that "the Union wasn't there
any more," that the respondent no longer recognized the Union, and
that "we don 't bargain with any C. I. O. committee ." After the
plant reopened , Mrs. Culbertson , the supervisory employee whose
conduct precipitated the strike , participated in the Association's
organizational campaign by soliciting membership , which campaign
was conducted within the plant, and, at least in part, during working
hours. We find that the respondent by these acts has interfered
with , restrained , and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
D. The discriminatory refusals to reinstate
The complaint, as amended, alleges that the respondent discrimi-
nated against 141 named employees in regard to the hire and tenure
of their employment by refusing to reinstate them after it resumed
operations because of their concerted activities on behalf of the Union.
The record shows that by September 17, 1937, the respondent had
fully staffed its plant, having 537 employees, or 33 more than when
the strike began. Of these 537 employees, 332 were old and the others
new. Thus 172 old employees were not reinstated.
The respondent denies that any employees were refused reinstate-
ment in violation of Section 8 (3) and predicates its denial primarily
on the following grounds : (1) The sole cause of the sit-down strike
was the respondent's refusal to grant the Union's demand to discharge
Mrs. Culbertson ; such a dispute is not a "labor dispute" within the
meaning of the Act since "it is not a demand for a change or improve-
ment of any working condition"; therefore, the individuals alleged to
have been discriminated against ceased to be employees within the
meaning of the Act when they went on strike. (2) The respondent
affirmatively terminated the employment of these individuals by the
notice of discharge issued to the striking employees. (3) The in-
dividuals alleged to have been discriminated against were not rein-
stated primarily because they "disregarded reasonable rules covering
their employment, were inattentive to their duties, insubordinate or
incompetent in the performance of their duties"; in failing to reinstate
such individuals, the respondent relied upon the recommendations of
their foremen and supervisors and acted pursuant to the respondent's
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determination "to purge its organization of incompetence and unde-
sirable employees solely in an effort to operate its factory on a
profitable basis."
The first contention of the respondent is clearly untenable. Section
2 (9) of the Act defines a "labor dispute" to include "any controversy
concerning terms, tenure or conditions of employment . . ." The type
of supervisor under whom an employee works is of direct concern to
the employee and may be of vital importance to him. The conduct
of a supervisor may affect an employee's well-being as much as low
pay, long hours, or other unsatisfactory conditions of work. A dispute
involving the discharge or demotion of a supervisor obj actionable to
the employees is, we think, a dispute concerning a condition of em-
ployment and, therefore, a labor dispute within the meaning of the
Act.11
With respect to the second contention, we find that under the cir-
ccumstances of this case the discharge of those employees who par-
ticipated in the sit-down strike does not constitute an unfair labor
practice.12 However, the employees who did not participate in the
sit-down strike fall in a different category. The respondent's notice
of discharge was addressed to "striking employees only." It is
clear that the respondent by this notice intended to discharge only
the sit-down strikers, since the respondent contends, in part, that
the discharge was necessary in order to terminate any rights that
the employees might have in the plant as invitees and thus enable
the respondent to evict them as trespassers. 'Moreover, a discharge
of the employees who did not participate in the sit-down strike,
based upon the mere fact that they were striking, -would in itself
constitute an unfair labor practice within the meaning of Section
8 (3) of the Act.
In its reply brief, the respondent contends that all the individ-
uals named in the complaint, who were all members of the Union,
should be denied relief on the ground that the sit-down strike was
an unlawful conspiracy representing the concerted action of the
Union; that all the union members were equally responsible for it;
and that therefore its consequences cannot be limited to those who
"actively carried into effect [the Union's] purposes and aims" but
must fall alike "on all Union members in whatever capacity, or to
11 See Restatement of the Law of Torts as adopted and promulgated by the American
Law Institute on May 13, 1039, Volume 4, Section 790, Subsections ( a) and (b), p. 132,
where the applicable rule is stated as follows : "Dismissal by an employer of an employee
is a proper object of concerted action by his employees if the employee (a) is in a super-
visory position and is reasonably believed by the employees to discriminate among workers
on the basis of, or otherwise to interfere with, their labor union affiliation , or (b) Is, by
virtue of his habits , conduct or character, reasonably believed by the employees to be an
11,unfit fellow employee . . .
21 N. L. R. B. v. Fensteel Metallurgical Corporation, 306 U. S. 240.
ALADDIN INDUSTRIES, INCORPORATED 1217
whatever extent they participated, whether actively as sit-down
trespassers, actively as aiders and abettors or even passively as
Union members." We cannot concur in this contention. The fact
that an employee voted in favor of a sit-down strike or did not
openly disclaim responsibility therefor does not in our opinion serve
as a justification for discharging such an employee or for refusing
him reinstatement .13
It remains to be considered whether or not the respondent's refusal
to reinstate the employees who did not engage in the sit-down strike
was in fact due to the belief that they were unqualified and inefficient
employees, or whether it was based upon membership or activity inl,
the Union.
There is evidence that those employees who had not signed the
union application were not discriminated against because of their
union membership and were selected for reinstatement on the basis
of their qualifications as employees. Thus, at least 200 members of
the Union were recalled to work. Also 10 or 11 employees, shown
by the record to have been unsatisfactory employees, were not rein-
stated, even though they had not signed the union application and had
signed the company application.
Under all the circumstances, however, it becomes apparent that a
different treatment was accorded to the 106 employees included in the
union application. Upon the basis of the considerations set forth
below, we think it clear that many of the employees who signed the
union application, thereby disclosing their firm adherence to the
Union, were refused reinstatement because of their union membership
and activity rather than because of any supposed disqualification
based upon the nature of their work. Certain general matters should
first be mentioned.
The, respondent alleges that the failure to reinstate the employees
whose names -appear on the union application was based on the rec-
ommendations and efficiency ratings of their foremen and super-
visors on April 26, 1937. These recommendations, however, must be
considered in conjunction with the circumstances under which they
were made. By April 26 Johnson had already made it clear to the
foremen that he was dissatisfied with the conditions which he attrib-
uted to the Union and that he would not operate the plant with the
Union representing the employees. At the same time he had also
admonished the foremen that the responsibility for restoring order
and efficiency in the various departments and for selecting suitable
13 Cf National Labor Relations Board v Fansteel Metallurgical Corporation, 306 U S
240, where the Supreme Court held by implication that the employees who did not engage
in or aid and abet in the sit-down strike were subject to reinstatement on a nondiscrimi-
natory basis and that responsibility for the sit -down strike could not be imputed to such
employees
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees would lie primarily with them and that if they could not
do so someone else would be given the opportunity, thus linking the
necessity for the elimination of the most ardent union adherents with
their responsibility for restoring order and efficiency. It would be
surprising indeed if the foremen, in making the recommendations of
April 26, did not bear these admonitions in mind. Furthermore, the
recommendations were not made independently by the foremen but
in collaboration with Johnson and other officers of the respondent.
Moreover, an analysis of the recommendations made concerning
employees included in the union application makes it apparent that
at least with respect to a number of them the claim of inefficiency
was a mere pretext, not founded in fact but seized -upon after prior
determination not to recommend their reinstatement. Although
some of them are shown by the record to have been unsatisfactory
employees and would very likely not have been recalled to work
even if they had not signed the union application, others were
eminently satisfactory employees." Moreover, it is significant that
14 The following are examples of such employees They were participants in the sit-down
strike , and will therefore not be ordered reinstated Such participation was not , however,
advanced as the reason for refusing them reinstatement The cases of the employees who
signed the union application but who did not engage in the sit-down strike are discussed
hereafter
Dorothea Burke, who had been employed in the vacuum-bottle department , was recom-
mended unfavorably by Edwin Bitner , her supervisor , in part because she allegedly did not
cooperate with the time -study department and did not like to work . At the hearing Bitner
admitted that she earned a good salary at her job Almquist testified that her work was
known to him to have been satisfactory Whipple admitted that she was a good worker
and "turned out good production ." Iva Steward, an employee in the same department who
had resigned prior to the sit-down strike because of ill health , testified that Burke was the
fastest operator on welding in her department and that "there wasn ' t anything she
couldn't do."
Carmen Coe, an employee in the mantle department who had been in the respondent's
employ since 1929, was not recommended for reinstatement by Spangler , her foreman, be-
cause she was "quite a talker, disposed to stir up trouble whenever any time study work
is involved ; makes others dissatisfied " At the hearing , Spangler expressed his objections
to her in very general terms * " Carmen Coe was what I classed as a troublemaker She
talked too much not only during working hours , but at other times , and as a result of that
she caused more or less contention and confusion in the plant" Coe's work, hoverer, had
been praised by Mrs. Culbertson . Herman Durr , a witness for the respondent , who ob-
served her work, testified that her work was good and that the time studies he made with
her were satisfactory.
Elisabeth Myers, an employee in the parchment-shade department, was not recommended
favorably by John Jones , her foreman , for the reason that he questioned her attitude toward
time-study work . The record shows that Myers had never been "time-studied" since the
appointment of Jones as foreman At the healing Jones conceded that she was a good
worker , but that she always objected to new rates He admitted , however that her con-
duct in this respect was no different from the conduct of the average employee when new
rates were put in effect
With respect to Robert Pugh, an employee in the shade department, it was reported that
his work was good until the December strike but that thereafter lie spent a great deal of
time on union matters and lowered the efficiency of his group Stuart Goodman, the chief
inspector , testified that the employees in Pugh ' s group earned more money than those in
other groups Kenneth Allen, foreman of the punch-press department, testified that Pugh
was the most efficient employee in his group and that he made his rates even after the
December strike Manford Ilolnres, who had worked in Pugh's group, admitted that
Pugh's absences did not affect the other employees in the group Pugh testified that he
ALADDIN INDUSTRIES, INCORPORATED 1219
18 of the employees who were not recommended for reinstatement
had been employed in the mantle department. Spangler, the fore-
man of this department, admitted that the work of almost all of the
employees in his department was satisfactory. It is further signifi-
cant that a number of the employees who had not signed the union
application were taken back although they possessed deficiencies as
employees or had been guilty of infractions of rules which in the
case of employees who had signed the union application were con-
sidered by the respondent serious enough to warrant a denial of
reinstatement.-
One final consideration is particularly significant. At the time the
strike began there were 504 employees in the plant. Of this number
106 signed the union application and 398 did not. Of the 398 em-
ployees who did not sign the union application, not more than 92, and
very.likely less, failed of reinstatement, 4 of them for the reason that
they had not applied in any manner.1e Assuming that all of these 92
employees, except the 4 just mentioned, had applied for reinstatement,
it would follow that at most 22 per cent of the group of 398 who had
not signed the -union application were deemed inefficient or unsatis-
factory employees. A different picture, however, presents itself with
respect to the respondent's treatment of the 106 employees whose names
appear on the union application. The record shows that 11 of them
were reinstated and 80 were not. There is no evidence as to the remain-
was not paid by the respondent for time spent by him in connection with bargaining-
committee meetings , and that when lie left his department to go to meetings he always
saw to it that there was sufficient work for the others in his group
Gertrude il'ewconb, an employee of the vacuum-bottle department who had been in the
respondent 's employ for almost 7 Sears, was recommended unfavorably by Bitner because
"she is very hard to get along with, and cooperation with others is poor , very sarcastic
and unsatisfactory " At the hearing, all that Bitner advanced as a basis for his failure to
recommend her was that on one occasion she had refused to work with a certain employee
and on another occasion she had refused to be transferred permanently to a new opeiation.
Harry Thompson, who worked in the mantle department prior to the sit-down strike,
was not recommended for reinstatement by Spangler because "he was responsible for much
of the turmoil in the mantle department in recent months, used very poor judgment " At
the hearing, Spangler testified that his only objections to Thompson were that he had com-
plained about his rates and that he could not work haimoniously with Mrs Culbertson.
tle admitted however that he worked at the rates prescribed and that his work was
satisfactory
15 George King's attitude toward company rules was questioned and he frequently used
to leave his machine Nleiedith Allebaugh was caught loafing Margaret Babcock was
married and her husband was employed ; she apparently did not cooperate with the girls
in her department and was placed in another department Mrs. Schroeder was taken back
although her foreman had experienced some difficulty with her because of her inability to
keep up her end of the w ork. Joseph Kuhn spent more time drinking water while woi king
than any of the other employees in the glass-finishing department Elmer Brunifiel admit-
tedly spent considerable time in the washroom Madge Zell had been ill frequently before
the sit-down strike and her husband was working Mis Noble suffered from rheumatism
16 This figure is ari rved at as follows : As stated above, the total number of old employees
who were not reinstated is 172 The record shows that 11 of the 106 employees who weie
included in the union application were reinstated , SO were not , there is no evidence as to
the remaining 15 Assuming that these 15 were also reinstated, there remain 80 out of
the group of 106 who were not reinstated Subtracting SO from 172, the total number of
old employees, who did not sign the union application and who were not reinstated, is 92,
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing 15. Thus, at least 75 per cent of this group were not taken back.
With respect to 68 of them, or 64 per cent, it was alleged that they were
unsatisfactory.17
It is true that a number of the employees on the union application
participated in the sit-down strike and will, therefore, not be ordered
reinstated for reasons stated infra. The respondent, however, does not
assert that such participation was the reason for refusing them rein-
statement. The respondent contends that the reorganization of its
plant was on a non-discriminatory basis, that in the reinstatement of
old employees ability, efficiency, and other criteria unrelated to union
affiliation were the only factors considered, and that all the employees
named in the complaint, sit-down strikers as well as non-sit-down
strikers, were not reinstated because they did not satisfy the respond-
ent's afore-mentioned requirements. The figures cited in the preceding
paragraph clearly indicate that the respondent's treatment of the em-
ployees who signed the union application was motivated by considera-
tions other than those alleged by the respondent.
All the circumstances lead to the conclusion that no real attempt
was made to judge the employees whose names appear on the union
application on the basis of their qualifications as employees. The
names of most of the active union members, including members of the
bargaining committee, are listed on such application. For the most
part the employees who signed the union application had refrained
from signing the company application which, we have found, in effect
informed the employees that renunciation of the Union was a requisite
for reinstatement. In this manner the employees who signed the union
application marked themselves as its most persistent adherents and
hence the logical group to be excluded from the plant to preclude the
necessity for future dealings with the Union. We believe and find
that the respondent had predetermined not to reinstate most of the
employees included in the union application because they continued
to adhere to the Union and thus distinguished themselves from those
not included in such application.
We now turn to a consideration of the individual employees alleged
to have been discriminated against.
1. The employees with respect to whom the Trial Examiner recom-
mended a dismissal of the complaint
Twenty of the employees named in the complaint, listed in Ap-
pendix A, did not testify at the hearing, and there is otherwise
17 There is nothing in the record to indicate that the group of 106 employees signing the
union application, who were composed of individuals from the different departments, did
not represent a cross-section of the plant with an average number of efficient and inefficient
employees All the evidence with respect to such employees points to a contrary
conclusion.
ALADDIN INDUSTRIES, INCORPORATED 1221
insufficient evidence in the record to sustain the allegations of the
complaint with respect to them. We shall therefore dismiss the
allegations of the complaint in so far as they apply to these persons.
The Trial Examiner also recommended that the complaint be dis-
missed as to 20 others, listed in Appendix B. We find that the evi-
dence does not sustain the allegations of the complaint with respect
to them and we concur in the Trial Examiner's recommendation
that they be dismissed. Since no exceptions have been taken to the
Intermediate Report with respect to these individuals, we will not
discuss their cases in detail. The case of Catherine Cleaver, another
employee listed in Appendix B, was dismissed by the Trial Exam-
iner during the hearing on motion of counsel for the Board.
2. The employees who made no application for reinstatement
The record shows that five employees listed in Appendix C made
no application for reinstatement in any manner. We will, therefore,
dismiss the allegations of the complaint as to them.
3. The employees who engaged in the sit-down strike
Of the remaining 95 employees, 63 listed in Appendix D engaged
in the sit-down strike. As already stated, the respondent by its
notice of March 4, 1937, discharged these employees and such dis-
charge does not constitute an unfair labor practice. We will dismiss
the complaint as to them.
4. The employees who did not engage in the sit-down strike
We now turn to a consideration of the balance of the employees,
32 in number, alleged to have been discriminated against.
One further general observation is necessary before these cases
can be irdividually discussed. As indicated above, Johnson, at one
of the 'foremen's meetings, instructed the foremen that, although it
would at first be necessary to recall to work some experienced married
women in order to enable the respondent to resume operations, they
were henceforth to curtail the hiring of such women and concentrate
on hiring single women. In its brief, the respondent advances as
one reason for its failure to reinstate certain employees named in the
complaint the fact that they were married women supported by their
husbands. The record shows that before the sit-down strike the
respondent employed 144 married women and 64 single and as of
August. 30, 88 married women and 121 single. The record also
indicates that very few new married women were hired after the
sit-down strike, and that most of the 88 married women were old
employees. The record further shows that the respondent recalled to
283033-41-vol 22--78
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work 13 married women whose husbands were employed by the re-
spondent or elsewhere. There is no evidence that women other than
those named in the complaint were denied reinstatement solely
because of their marital status. On the contrary, Almquist admitted
that any married woman was reinstated "if she was perfectly good.
worker and she showed that she wanted to return to work." More-
over, the respondent does not assign their marital status as the sole
reason for its failure to reinstate the women named in the complaint
but as a reason additional to the reasons of inefficiency and lack of
qualifications. On the basis of the entire record, we believe that
while the marital status of any given female employee might have
militated against her reinstatement if her efficiency and qualifications
were questionable, it would not have precluded her from reinstate-
ment if she were otherwise an efficient and experienced employee.
The record does not disclose the relative number of married women
reinstated and denied reinstatement in each department. The record
does show that of the women employed in the mantle department
before the sit-down strike, 27 were single and 51 were married, and
that the corresponding numbers reinstated after the sit-down strike
were 22 and 35, thus leaving 16 married women not reinstated. Of
the 15 married women in the mantle department named in the com-
plaint who had signed the union application 11 were not reinstated.18
a. The employees included in the union application
Charles Cummins. Cummins began work for the respondent in
June 1934 and, with the exception of a 6 months' lay-off, worked
continuously until the sit-down strike. He worked on a "lehr," or
moving belt, in the glass-finishing department. He served on the
picket line which was maintained after the evacuation of the plant
by the sit-down strikers.
Cummins did not sign the company application. He went to the
plant sometime in June and was told by Almquist that all the posi-
tions in the glass-finishing department were already filled and that
there were no vacancies in any other department. Almquist said
nothing about the quality of his work nor did he suggest that he file
a company application.
Cy Watkins, Cummins' foreman, recommended against his rein-
statement because "he was a very poor worker and on top of this a
good loafer." Cummins testified, and his testimony is uncontra-
dicted, that Watkins had praised him as a lellr man prior to the
19 Theie is no evidence in the record with respect to 8 female employees who had signed
the union application Assuming the unlikelihood that all 8 were martied women in the
mantle department and all 8 bad been reinstated, it would result that 11 out of 23 who had
signed the union application were denied reinstatement as against 5 out of the remaining
2S married women ii ho had not signed the union application
ALADDIN INDUSTRIES, INCORPORATED 1223
strike. Henry Hellmers, superintendent of the blowing room and
chief inspector, testified that he had observed Cummins' work and
that it was satisfactory but that "he spent a lot of time sitting around
clown there." John Green, a turn foreman of the blow room, testified
that on one occasion, the date of which he could not remember, Cum-
mins "dozed off and fell in a truck and cut his arm," and that "at
lunch time when the shop would be stopped he would go to sleep and
I would have to wake him up and tell him the ware was coming off
the lehr." Watkins did not testify, so that his general report that
Cummins was a poor worker and a loafer remains unsupported on
the record. Moreover, the assertion that he was a poor worker is
contradicted by the testimony of Hellmers that his work was satis-
factory. Furthermore, the respondent does not attribute the failure
to reinstate him entirely to Watkins' report but also to the fact that
he failed to present himself for employment until June when there
were allegedly no vacancies in the glass-finishing department. The
record, however, shows that operations in the glass-finishing depart-
ment were not fully resumed until about 4 weeks after the plant re-
opened, and that only 303 employees had been rehired by April 16.
It cannot, therefore, be contended that there were no jobs available
in the glass-finishing department on April 17 when Cummins had
signed the union application. Under all the circumstances, we be-
lieve that Cummins was denied reinstatement because he had applied
through the Union and had thus indicated his continued adherence
,to the Union.
Mary Cunningham-. Cunningham is unmarried. She has been in
,the respondent's employ since June 1933 and worked in the parch-
ment-shade department. She served on the picket line and did not
return the company application.
Cunningham personally communicated with Almquist with respect
to work on June 25. She indicated her willingness to work at any
Job available. Almquist told her that she would be considered for
the lacquer department in July or August when the work in that
department would pick up. Almquist testified that she was still being
considered for reinstatement.
John Jones, the foreman of the parchment-shade department, did
not recommend her favorably allegedly because "she was slow and
she didn't make her rates." At the hearing, Jones admitted that
"her work was all right" but insisted that "she was slow ... she
didn't seem to have much initiative" although he could not remember
whether she made her rates or not. Almquist, however, testified that
according to factory reports she was "a good worker." It is clear
from the record that the assertion that she was an unsatisfactory
,employee has no basis in fact. The tenuousness of such assertion is
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further made clear in the respondent's brief which states that Cun-
ningham "is, still being considered for employment when an opening
is available and has not previously been re-employed because she was
a slow worker and did not make her rates." If she had been an
unsatisfactory employee, presumably she would not have been con-
sidered for reinstatement at any time. There is nothing in the
record to indicate, nor is it contended, that when the union applica-
tion was submitted to the respondent there was no work available
for Cunningham. We believe that the real reason for her non-rein-
statement was that she had signed the union application and had
thus manifested her continuing loyalty to the Union.
Irma Dickerson.19 Dickerson, who is married, had been in the re-
spondent's employ for 8 years. For 5 years prior to the sit-down
strike she worked in the glass-finishing department.
Dickerson failed to return the company application. The evidence
does not disclose whether any report was made concerning her quali-
fications as an employee. Almquist testified that she had not been
reinstated because she had not sent in her application when work in
her department was resumed and because, due to a change in opera-
tion, it was necessary to eliminate one operator in her group, so that
all the available positions were filled by the other employees in her
group. We cannot credit Almquist's testimony, because it overlooks
the fact that at the date of the union application, which includes
Dickerson's name, operations in the glass-finishing department were
not yet fully resumed. It is not contended that the other operators
in her group who were recalled to work were entitled to preferred
treatment because of seniority or greater efficiency. We find that she
was denied reinstatement because she had applied for reinstatement
through the Union and thus manifested her continuing loyalty for
the Union.
Edythe Disbennet. Disbennet began to work for the respondent
in 1929. Prior to the sit-down strike she was employed in the mantle
department. She did not sign or return the company application.
Edythe Disbennet is the wife of Clay Disbennet, a supervisor in the
wick and flame-spreader department which, according to the testi-
mony of Spangler, is closely associated with the mantle department.
Spangler reported that she was a satisfactory employee but recom-
mended that she should not be reinstated in the mantle department
on the ground that the respondent's policy against assigning an em-
ployee to a department supervised by a relative of such employee
was applicable to her. He advanced no reason, however, against her
being placed in another department.
19 Also referred to as Erma Dickerson.
ALADDIN INDUSTRIES , INCORPORATED 1225
Sometime in April , after the presentation of the union application
to the respondent, Disbennet spoke to Almquist concerning work.
Almquist asked her, "You signed the general application , didn't you ?"
She replied in the affirmative . Almquist then asked whether she
wanted to sign another application . Disbennet retorted, "I have
signed one application, I think that will be enough." Almquist
finally promised to put her to work if he could find a place for her,
stating, however , that he would not assign her to the mantle depart-
ment because her husband was supervisor of the wick and flame-
spreader department . Disbennet communicated with Almquist on
several further occasions but was met with the statement that he
had not yet found an opening for her. Almquist admitted that, from
all reports , she was a good worker. He testified , however, that he
experienced difficulty in finding a vacancy for her in another depart-
ment.
We are not convinced that the real reason for denying reinstate-
ment to Disbennet in the mantle department was that she fell within
the respondent 's policy against hiring an employee in a department
under the supervision of a relative of such employee . While the wick
and flame-spreader department may have been closely related to the
mantle department , Disbennet came under the sole supervision of
Mrs. Culbertson, the forelady of the mantle department. That the
wick and . flame-spreader department was considered separate and
apart from the mantle department for the purposes of this policy is
shown by the fact that Mrs. Culbertson 's step-daughter and sister,
Margaret Fox and Mrs. Whittaker, respectively, who had worked
under Mrs. Culbertson before the sit-down strike , were both trans-
ferred to the flame-spreader department after the sit-down strike.
Nor do we believe that Disbennet was not given employment in an-
other department , because Almquist encountered difficulty in finding
a place for her. As already indicated , many new employees were
hired by the respondent after April 17, the date of the union appli-
cation. We find that Disbennet was not reinstated to the mantle
department or given employment in another department for the rea-
son that she had signed the union application and remained loyal
to the Union.
Ethel Dyer. Dyer is married . She had been in the respondent's
employ continuously from 1928 until the time of the sit-down strike
and worked in the mantle department . She served on the picket
line and did not return the company application upon receiving it,
although she apparently did file one in May.
Dyer testified , and it is not denied that on different occasions Mrs.
Culbertson had praised her work by saying that "she could put [her]
any place, and go away, and know that it was did right."
i
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spangler recommended against her reinstatement in the mantle
department because she "wanted to be transferred to some other work.
She was dissatisfied with-the work she was doing. We have no other
work that she can do to better advantage . In view of her being dis-
satisfied with the work she was doing, would recommend that she
be given consideration for some other department."
In May she spoke to Almquist regarding her job. Ahnquist told
her that "she could have been one of the first ones back to work, but
[she] didn 't act like [she] wanted to work." Almquist then con-
sulted with Blain who said that it would not be advisable to put her
back in the mantle department because there might be difficulty be-
tween her and Mrs. Culbertson . Dyer remonstrated that a number
of girls had been recalled to work who had caused far greater trouble
than she had . Almquist finally promised to secure a job for her in
another department . Dyer has heard nothing since then.
At the hearing , Spangler assigned as a reason against Dyer's rein-
statement that "she wasn't able to work harmoniously with Mrs. Cul-
bertson" and that "she was not very harmonious on [her] group." He
could not, however , recall any argument in which she may have been
involved. Spangler also asserted that "she was very solemn and sober,
acted merely as if she was angry about something ." Almquist testified
that the principal objection to her was her marital status.
There is no evidence and it is not contended that Dyer was hot a
satisfactory employee. Whether or not there was difficulty between
her and Mrs. Culbertson , it is apparent that Spangler did not attach
any importance to it, since he made no mention of it in his report.
Moreover , a number of employees who had openly criticized Mrs. Cul-
bertson before the sit-down strike and had filed grievances against her
had been reinstated. That Spangler could find nothing tangible
against Dyer as an employee is further indicated by his other allega-
tions that she was dissatisfied with the work that she had been doing
and that "she was very solemn and sober." We believe that the objec-
tion to her as a married woman was an afterthought rather than the
real reason for denying her reinstatement , since her marital status was
not stated as an objection in Spangler 's report nor was it mentioned
to her when she spoke to Almquist and Blain. Moreover, as already
stated, it was admitted that the marital status of an employee did
not preclude her from reinstatement provided she was a satisfactory
employee and had indicated her desire to return to work. It is further
significant that Dyer had been employed in the mantle department
where comparatively few married women whose names appear on the
union application were reinstated . We find that Dyer was denied
reinstatement because her name was included in the union application
and because she was deemed to have remained loyal to the Union.
ALADDIN INDUSTRIES, INCORPORATED 1227
Elijah Ellars.20 Ellars began to work for the respondent in 1933.
He was employed as a punty-gatherer in the blowing room. He did
not sign the company application. -
Hellmers, the superintendent of his department, reported that "he-
is a pinity gatherer and is the poorest workman we have had in this
line; always crabbing, never satisfied. I have more punty gatherers
than I need because of the change for the coming season. Neverthe-
less, I would not want this man back under any circumstances." At
the hearing, Hellmers testified, and his testimony is not contradicted;
that Ellars was difficult to get along with and repeatedly disobeyed
the instructions of his supervisors in important matters.
We find that Ellars was not reinstated because he was considered an
unsatisfactory employee.
Ruby Godwin. Godwin is married and has been in the respondent's.
employ 2 years. She worked in the parchment-shade department dur-
ing the entire period of her employment except for a short period
before the sit-down strike when she was employed in the glass-finishing
department.
In his report regarding her qualifications, Cy Watkins stated that
she had worked in the glass-finishing department only 1 week; that
John Jones, the foreman of the parchment-shade department where
she had previously worked, considered her a very slow operator and_
very slow at learning new operations; and that, for this reason, he
did not want her in his department. Watkins' report is substantiated
by the testimony of Jones, who at the time of hearing was no longer
in the respondent's employ, that Godwin was a slow operator and did
not make her rates.
We find that Godwin was not reinstated primarily because she was
a slow operator.
Virgil Hol f ord. Holford had been with the respondent since 1933.
He was employed as a carry-in boy and blocker in the glass-blowing
department. He did not return the company application.
Hellmers' report with respect to Holford was as follows
I have all the carry-in boys I can use on account of the change
in the line for the coming season. I don't need any blockers.
In fact, I am going to have my hands full to keep those I already
have busy. He laid off whenever he felt like it.
Hellmers testified that he had nothing against Holford's work as,
a carry-in boy but that Holford had worked as a blocker only for a
period of 3 months. The allegation that Holford "laid off whenever
he felt like it" was apparently based only on the fact that he once
left the respondent's employ for a job elsewhere and then returned-
20 Referred to in the complaint as Elijah Ellers
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Almquist testified that there had been no work available for Holford
since the date of the union application but that he would be con-
sidered for employment if it became necessary to hire an additional
employee in his line of work. Hellmers, however, testified that he
did not know of Holford's application until April 26, and that he
would have considered him if he had signed an application before
the plant resumed operations. Hellmers also admitted that his de-
partment had not been operating at full capacity on April 17 so that
more people must have necessarily been taken on since that date.
On the basis of all the facts, we find that Holford was denied rein-
statement because he had applied through the Union.
Herman Horn. Horn had been in the respondent's employ since
1932 and worked as an electrician in the maintenance department.
He did not return the company application. Horn has been an officer
of the Union since the sit-down strike and served on the committee
which submitted the union application to the respondent. After the
sit-down strike Horn was convicted of rioting but his sentence was
suspended.
About 5 weeks before the hearing Horn secured what he considered
a steady and a better job elsewhere. At the hearing, he stated that
he did not wish to return to the respondent's employ after he had
secured his present job.
Martin Burden, the foreman of the maintenance department, rec-
ommended against Horn's reinstatement on the ground that he was
"continually loafing in the plant; unsatisfactory, and while he has
posed as an electrician, he was really incompetent for the job. Under
no consideration would I want him back . . ." At the hearing Bur-
den testified that he had received many complaints about Horn's work,
that he frequently admonished him about it, and that he concluded
that Horn was lazy, and did not want to do his work properly.
Under all the circumstances we believe that Horn was denied rein-
statement because he was in fact an unsatisfactory employee.
Melvin Kane. Kane had worked for the respondent off and on
since 1932. He was employed in the experimental department as a
machinist's helper. He served on the picket line and did not return
the company application.
Walter Engh, the foreman of the experimental department, testi-
fied that Kane was a "good man" but his work required a great deal
of supervision; that prior to the sit-down strike the work had ac-
cumulated in the department; and that he therefore suggested to
Almquist that he secure an experienced toolmaker. Engh further
testified that prior to the sit-down strike he had attempted to transfer
Kane to the machine shop. Engh's testimony is supported by Alm-
quist, who asserted, however, that he would have tried to place Kane
ALADDIN INDUSTRIES, INCORPORATED 1229
in another department if he "had come out and applied for work."
Almquist does not contend that all the positions in the machine shop
had been filled by April 17, the date of the union application. We
must conclude that if Kane had signed a company application rather
than the union application he would have been recalled to work.
W. W. Lewis. Lewis was first employed by the respondent in Sep-
tember 1936 and worked as a tank-man in the glass-finishing depart-
ment. He returned the company application 3 or 4 days after the
plant reopened.
Hellmers reported : "He was a tank man. This is a very important
job and Lewis is negligent in attending properly to his work. I do
not feel I can risk the man on the job." The record shows that the
work of a tank-man, which consists of the regulation of the tempera-
ture in the glass tank, requires constant attendance,, and that if the
temperature is allowed to vary it might result in defective glass and
require the lay-off of the whole group of employees working in con-
nection with the tank for a period of time. It is not disputed that
Lewis absented himself from work frequently. According to his own
admission, he was absent twice for a period of 1 week each time during
the brief duration of his employment.
We find that W. W. Lewis was not reinstated because he was con-
sidered unsuitable for his position.
Margery Marley. Margery Marley had been in the respondent's
employ since 1928. Prior to the sit-down strike, she worked as an
inspector in the glass-finishing department. She returned the com-
pany application on April 30.
Her foreman, Cy Watkins, recommended against her reinstatement
on the ground that "her work was not satisfactory. Many of the
bad lamps that got out can be laid directly to her inspection. I also
caught her cheating in her count." Hellmers testified that he had
experienced difficulty with her in that her count on the ware which
passed through her inspection was occasionally incorrect. There is
also some evidence that at times she rejected as scrap passable ware.
Marley attempted to explain that the incorrect counts in the amount
of ware inspected by her was not due to her fault but to the fault of
other employees.
Whether or not Marley was in fact- dishonest or responsible for
mistakes in the count of ware, we believe that she was not reinstated
because she was not considered a satisfactory employee, and we so find.
Vance B. Marley. Vance Marley first began to work for the re-
spondent in 1933. Before the sit-down strike he was employed as a
lehr-man in the glass-finishing department and he also did some
inspecting and grinding on the lehr. He served on the picket line and
did not sign the company application.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cy Watkins reported that "he was a regular trouble-maker and a
loafer, generally all around an unsatisfactory workman and should
have been discharged a long time ago. Under no circumstances would
I consider rehiring this man for my department." John Green, a turn
foreman of the blow room, testified that Marley "would do just what
he thought was right; that is, so much work, and if he thought he
had too much he didn't want to do it." Hellmers also testified that
he had found fault with Marley on one occasion when he refused to
work at the end of his turn because he was not certain whether he
would be paid at the rate of time and a half for such work.
Under all the circumstances we find that the record does not support
the allegation of the complaint that the respondent discriminated
against Marley because of his union affiliation.
Helen May McCarty. McCarty has worked for the respondent
since 1933 in the shipping room. She served on the picket line and
did not return the company application.
McCarty testified, and it was not denied, that her work had occa-
sionally been praised by her supervisors. Almquist testified that
according to reports she was "a good fast worker." Ollie Summers,
her foreman, also admitted that she was a "fair worker" but he
recommended against her reinstatement because she talked a great
deal during working hours and was "a sort of trouble-maker."
McCarty explained, however, that her work in "picking" orders for
shipment made it necessary for her to confer with the girls in the
shade department and that she was never reprimanded for failing to
attend to her duties.
We are not convinced that McCarty was refused reinstatement
because she talked during working hours. It is unlikely that she
would have been a "good fast worker" if this charge against her were
true. We find that she was denied reinstatement because she applied
for reinstatement through the Union and thereby indicated her
adherence to it.
Thelma-Newrovnb. Newcomb is married. She began to work for
the respondent about 3 weeks before the sit-down strike. She was
employed as an "extra" in the vacuum-bottle department. Bitner,
the foreman of her department, reported that her work was "not
first class" and that he therefore displaced her. We find that the
record does not support the allegation of the complaint that the
respondent refused to reinstate her because of her union affiliation.
Kenneth Porter. Porter had been in the respondent's employ since
December 1933. He was employed in the glass-blowing department,
where he worked as a carry-in boy and as a blower. He did not re-
turn the company application. Hellmers' report concerning Porter
was as follows:
ALADDIN INDUSTRIES , INCORPORATED 1231
Kenneth Porter, blower , on account of new line which is made
press and blow, we will not have much work for blowers . Before
the shut-down I used him as a carry - in boy, and we haven't any
work at this time for Mr. Porter.
At some time after the plant reopened , Porter told Almquist that he
had a possibility of securing work as a carpenter at a lumber com-
pany and inquired as to his chances of employment with the re-
spondent. Almquist informed him that due to the change in the
method of operation they were running only one "blow shop" which
was being operated by Joe Kuhn, a blower of greater experience, and
that there was no work available for an additional blower. He,
therefore , advised him to accept work with the lumber company.
Porter agreed with Almquist that he would earn more money as a
carpenter at the lumber company than as a carry-in boy with the
respondent which only paid at the rate of 45 cents an hour in contrast
to the rate of $1 an hour paid to blowers . Porter thus indicated that
he was not anxious to work as a carry -in boy, even if such work were
available . Porter has not communicated with Almquist since
that time.
Under all the circumstances , we find that the record does not
support the allegation that the respondent discriminated against
Porter because of his union affiliation.
Mabel Rebucck. Rebuck is married. She was first employed by
the respondent in October 1930. Prior to the sit-down strike she
worked in the glass-finishing department . She served on the picket
line several times. She signed a company application on April 27
and on various occasions personally communicated with Almquist.
She was met with the reply that she would be called to work if
needed.
Almquist admitted that she was a good worker and that the only
reason for not having reinstated her was her marital status. Since
the marital status of a female employee was not in other cases con-
sidered sufficient to preclude such an employee from reinstatement,
provided she was a satisfactory employee and had indicated her
desire to return to work, we find that Rebuck was not reinstated
because she had signed the union application.
Ralph Stokes. Stokes began to work for the respondent in 1933
and was employed in the shipping room. He returned the company
application on March 29. Summers recommended against his re-
instatement because he was "unreliable , inefficient, and not a steady
worker; needed a boss back of him all the time to get him go-
ing ..." The evidence shows that Stokes , who was an "order
picker," was accused of selecting easy orders , leaving the difficult
ones to the other employees ; that he did not carry his end of the
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work; that he was frequently caught loafing; and that he had a
high record of mistakes. We find that Stokes was denied rein-
statement because he was considered an unsatisfactory employee.
Anna Thompson. Thompson is married. She had been with the
respondent since August 1933 and worked in the lacquer depart-
ment. She did not sign the company application.
John Rowe, the foreman of the lacquer department, made the
following report on her :
She was a lacquer sprayer, married woman, husband has a
good job in town. I have no work for her now, and because
she is a married woman I think it would be best to put un-
married women on these jobs. 11
At the hearing, Rowe, admitted that Thompson "was a very efficient
worker. She did her work well and she stayed on the job." He
testified that the only reason for her not being recalled to work
was that she was a married woman. He also testified that he had
heard she was going to have an operation. It is apparent that
Rowe did not attach any significance to the possibility of her under-
going an operation, since he did not even mention it in his report
and advanced her marital status as the only reason against her re-
instatement. With respect to the latter reason, it is significant that
Rowe hired a married woman who had not been in the respondent's
employ before the sit-down strike. We find that the respondent
refused to reinstate Thompson because she had signed the union
application and thereby manifested her loyalty to the Union.
Mary Tomlinson. Tomlinson is married and at the date of the
hearing was 64 years old. She had been in the respondent's employ
approximately 8 years. Before the sit-down strike she worked in
the mantle department.
On April 9 Tomlinson signed and returned a company applica-
tion. Shortly thereafter, Spangler, who was apparently satisfied
with her work, requested Almquist to summon her to the office and
speak to her about returning to work. Almquist did so. She was
interviewed by both Almquist and Blain. She told them that she
intended to work only for a short time. Blain testified that she
made an unfavorable impression on him; that she acted as if she
did not care whether she was given work or not; that she appeared
to him "defiant, independent, resentful, and sharp-tongued"; and
that he, therefore, recommended against her reinstatement. Alm-
quist testified that, after consulting with Blain, it was decided not
to reinstate her but to hire a younger employee in her place.
The contention that the unfavorable impression Tomlinson made
on Blain was a factor in the refusal to reinstate her is not entirely
convincing. There is, however, no evidence that she was denied re-
ALADDIN INDUSTRIES , INCORPORATED 1233
instatement because of her union affiliation . On the contrary, the
evidence shows that the decision not to reinstate her was made after
she signed the company application and before she signed the union
application . We find that the record does not support the allega-
tion in the complaint that the respondent discriminated against Tom-
linson because of her union affiliation.
We find that the respondent discriminated against Charles Cum-
mins, Mary Cunningham , Irma Dickerson , Edythe Disbennet, Ethel
Dyer, Virgil Holford, Melvin Kane, Helen May McCarty, Mabel
Rebuck, and Anna Thompson in regard to hire and tenure of em-
ployment, thereby discouraging membership in a labor organization,
and it interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
We find that the respondent did not discriminate against Elijah
Ellars, Ruby Godwin , Herman Horn , W. W. Lewis, Margery Mar-
ley, Vance B. Marley, Thelma Newcomb , Kenneth Porter, Ralph
Stokes, and Mary Tomlinson in regard to hire and tenure of em-
ployment, thereby discouragin g membership in a labor organization.
b. The employees not included in the union application
Quentin Fox, tiijhitt Highbaugh, Adam Lauderdale, Florence
Mason, Olive Melling, Esther Montgomery, Joseph Sahrr,, Thelma
Simpson, and George Terhune. All of these nine employees signed
and returned copies of the company application immediately or
shortly after they had received them from the respondent. Although
they were all members of the Union, none of them had distinguished
themselves by reason of their union activity , and only two , Florence
Mason and Olive Mehling, had served on the picket line. The evi-
dence with respect to most of these employees shows valid reasons
for their non -reinstatement . Whitt Highbaugh , an employee in the
glass-blowing department , stated in his application that he wished
employment as a glass -gatherer, a position which requires skill and
for which lie was not qualified . The work of Adam Lauderdale, a
steam-boiler fireman, required constant supervision , and he had
reached the age when it was felt dangerous to entrust the power
plant in his hands . It was believed that Florence Mason, an em-
ployee in the parchment -shade department , had moved to Anderson,
where her husband, who had been an employee of the respondent
and who had refused ,an offer of reinstatement , had secured employ-
ment. In her application, Olive Mehling stated that she desired
steadier work than she had been assigned before the sit-down; it was
impossible to comply with her request because of the irregular nature
of the work in her department. Since the resumption of operations
the respondent has had no etching work of the sort engaged in by
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Esther Montgomery before the strike. Joseph Salim, who was em-
ployed as a porter, was in ill health and an unsatisfactory employee.
George Terhune, who worked as a porter and janitor, was the sub-
ject of complaints from various departments and was an unsatisfac-
tory employee. While the evidence with respect to the lack of
qualifications as employees of Quentin. Fox and Thelma Simpson,
employees of the glass-finishing department and of the lacquer de-
partment, respectively, is not entirely persuasive, there is, on the
other hand, no evidence that the refusal to reinstate them was in any
way associated with their union affiliation.
We find that the respondent did not discriminate against these
nine employees in regard to hire or tenure of employment, thereby
discouraging membership in a labor organization.
Nathan DeLonq, Marie Kelly, and Cynthia Marley. The respondent
contends that it failed to reinstate DeLong, Kelly, and Marley, em-
ployees of the glass-finishing department, partly because their jobs
had already been filled when they applied for work. The record shows
that DeLong first applied for reinstatement on May 11, Kelly on or
about June 1, and Marley, in the last part of June. Their jobs had
been filled before application was made and there is no evidence that
any other employees have since been hired for work similar to that
previously performed by these employees.
We find that the respondent did not discriminate against these
three employees in regard to hire or tenure of employment, thereby
discouraging membership in a labor organization.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III,
A, C, and D above, occurring in connection with the operations de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion 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.
THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order it to cease and desist therefrom. In order to
effectuate the purposes and policies of the Act, and as a means of
removing and avoiding the consequences of the respondent's unfair
labor practices, it is essential that in aid of our cease and desist order
the respondent be directed to take certain affirmative action, more
particularly described below.
We have found that the respondent has discriminated against the
employees listed in Appendix F in regard to hire and tenure of em-
ALADDIN INDUSTRIES, INCORPORATED 1235
ployment. We will order the respondent to offer them reinstatement
with back pay. The offer of reinstatement shall be without prejudice
to their seniority and other rights and privileges. Such reinstate-
ment shall be effected in the following manner :
All persons hired for the first time after April 17, 1937, the date of the
union application, shall if necessary, to provide employment for those
to be offered reinstatement, be dismissed. If, after this is done, there
is not, by reason of a reduction in the force of employees needed,
sufficient employment immediately available for the remaining em-
ployees, including those to be offered reinstatement, all available
positions shall be distributed among such remaining employees, in
accordance with the respondent's usual method of reducing its force,
without discrimination against any employee because of his union
affiliation or activities. Those employees remaining after such dis-
tribution, for whom no employment is immediately available, shall be
placed upon a preferential list prepared in accordance with the prin-
ciple set forth in the previous sentence, and shall thereafter, in
accordance with such list, be reemployed in their former or substan-
tially equivalent positions as such employment becomes available and
before other persons are hired for such work.
The respondent shall make payment to each of the employees or-
dered to be offered reinstatement an amount equal to that which each
would have earned as wages during the period from April 17, 1937,
to the date of the offer of reinstatement, or placement on the prefer-
ential list, less his net earnings 21 during that period, had the respond-
ent, on April 17, 1937, reinstated the employees listed in Appendix F
in acordance with the principles set forth in the preceding paragraph.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Automobile Workers of America, Local No. 171, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of the employees listed in Appendix F, thereby discouraging
21 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B 440 Monies received
for work performed upon Federal, State , county, municipal , or other work -relief projects
are not considered as earnings, but as provided below in the Order, shall be deducted from
the sum due the employee, and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal, State, county, municipal, or other government or governments
which supplied the funds for said work-relief projects
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in a labor organization, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and- (7) of
the Act.
5. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (5) of the Act.
6. The respondent has not engaged in unfair labor practices, with-
in the meaning of Section 8 (3) of the Act, with respect to the
employees listed in Appendices A, B, C, D, and E.
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 re-
spondent, Aladdin Industries, Incorporated, Aladdin, Indiana, and
its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in United Automobile Workers of
America, Local No. 171, or any other labor organization of its em-
ployees by discharging or refusing to reinstate any of its employees,
or in any other manner discriminating in regard to their hire or
tenure of employment, or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities for the purposes 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 the employees named in Appendix F immediate and
full reinstatement to their former positions, without prejudice to their
seniority and other rights and privileges, in the m°mner set forth in
the section entitled "The Remedy" above, placing those employees for
whom employment is not immediately available upon a preferential
list in the manner set forth in said section, and thereafter, in -said
manner offer them employment as it becomes available;
ALADDIN INDUSTRIES, INCORPORATED 1237
(b) Make whole the employees named in Appendix F for any loss
of pay they may have suffered by reason of the respondent's refusal
to reinstate them on April 17, 1937, and thereafter, by payment to
each of them, respectively, of a sum of money equal to that which each
would have earned as wages during the period from April 17, 1937,
to the date of the offer *of reinstatement, or placement on the prefer-
ential list, less his net earnings'22 if any, during said period, deducting,
however, from the amount otherwise due each such employee, monies
received by such employee during said period for work performed
upon Federal, State, county, municipal, or other work-relief proj-
ects; and pay over the amount so deducted, to the appropriate fiscal
agency of the Federal, State, county, municipal, or other government
or governments which supplied the funds for said work-relief projects;
(c) Post immediately in conspicuous places at its plant, and main-
tain for a period of at least sixty (60) consecutive days from the date
of posting, notices to its employees stating: (1) that the respondent
will not engage in the conduct from which it is ordered to cease and
desist in paragraphs 1 (a) and (b) of this Order; (2) that the re-
spondent will take the affirmative action set forth in paragraphs 2 (a)
and (b) of this Order; (3) that the respondent's employees are free
to become or remain members of United Automobile Workers of
America, Local No. 171, and the respondent will not discriminate
against any employee because of membership or activity in that
organization ;
(d) Notify the Regional Director for the Eleventh Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in so far as it alleges that the respondent has engaged in unfair
labor practices, within the meaning of Section 8 (5) of the Act.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, in so far as it alleges that the respondent has engaged in
unfair labor practices, within the meaning of Section 8 (3) of the Act,
with respect to the employees named in Appendices A, B, C, D, and E.
Charles Blackford
Thomas Dauenhauer
Arthur Edwards
Louise Ellis
Paul Gaither
Fred Guard
APPENDIX A
Richard Haulegen
Orval Hendryz
Wayne Hutchinson
Beatrice Lentz
Helen Lentz
Thelma Lentz
22 See footnote 21, supra.
283033-41-vol. 22-79
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edward Molik
Ethel Nevils
Mary Ann Prisehoff
Margaret Rigsby
Gertrude Smith
Marvin Street
Myrtle Street
Anna Whatley
APPENDIX B
Catherine Cleaver
Robert Davis
Fred De Long
Augusta Disbennet
James Fox
Floyd Huffman 23
Roy Lewis
Ernest Walter McCarty
Fred Nichols
Harriet Noble
Grace Everett Piret 24
Juanita Hartman
Arnold Madara
Ethel Madara
Frank Alexander
Martha Alexander
Bonnie Athan
Juanita Athan
William Barth
Lula Beigh
Jessie Bennie
Dorothea Burke
Frances Carver
George Clear
Carmen Coe
Kenneth Craig
Odis Crum
Simon Crum
Rotha Cuneo
Martha Diehl
Mildred Pyle
Bertha Short
J. W. Steenbarger
Emma Stevens
Owen Basil Timmons
Arthur Trout
Harry Watson
Margaret White
Inez Pauline Wolfe
Zura Zink
APPENDIX C
Earl Ryan
Thelma Agnes Thompson
APPENDIX D
Henry Druelle
Bob Dyer; Jr.
Henry Ealing
Dorotha Everett
Marybell Ewing
William Frazee
Howard Gilmore
Donald Gross
Dorothy Gross
Emma Hicks
Harold Hunt
Naomi Hunt
Luna Kelley
Gilbert Kessler
Harry Klein 25
Audrey Landers
4
21 Referred to in the complaint as Floyd Hoffman
24 Referred to in the complaint as Grace Everett
25 Referred to in the complaint as Harry I{lien.
ALADDIN INDUSTRIES, INCORPORATED 1239
Curtis Landers
Cecil Markham
Edythe McCord
Gladys Marley
Elizabeth Myers
Samuel Myers
Sherman Myers
Gertrude Newcomb
Leota Phillips
Owen Piret
Blanche Prewett
Robert Pugh
Wayne Pyle
James Reeves
Helen Reeves
Mearl Reeves
Nathan De Long
Elijah Ellars
Quentin Fox
Ruby Godwin
Whitt Highbaugh
Herman Horn
Marie Kelly 27
Adam Lauderdale
W. W. Lewis
Cynthia Marley
Margery Marley
Edward Reiley
Kennard Ryan
Paul Savage
Ova Scott
Dorothy Schott (Johnson)
Howard Simmons
Pearl Snelling
Dwight Russell Stanley 26
May Stokes
Harry Thompson
Purl Tutorow
Eddie Williams
Mary Williams
Homer Williams
Virgil Wolfe
APPENDIX E
Vance B. Marley
Florence Mason
Olive Mehling
Esther Montgomery
Thelma Newcomb
Kenneth Porter
Joseph Sahm
Thelma Simpson
Ralph Stokes
George Terhune
Mary Tomlinson
APPENDIX F
Charles Cummins ' Virgil Holford
Mary Cunningham Melvin Kane
Irma Dickerson Helen May McCarty
Edythe Disbennet Mabel, Rebuck
Ethel Dyer Anna Thompson
MR. EDWIN S. SMITH , concurring:
I concur in the Decision and Order but I would find, in addition,
that the undertaking by the respondent of a general reorganization
of the plant at a time when its striking employees sought reinstate-
21 Referred to in the complaint as Russell, Stanly
27 Referred to in the complaint as Marie Kelley.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment to their jobs, in itself, apart from other discrimination against
any individual employees, constituted discrimination in regard to
tenure of employment, designed to discourage membership in the
Union, as well as interference with, restraint, and coercion of its
employees in the exercise of the rights guaranteed to them by Section
7 of the Act. While there is evidence that the respondent's dissatis-
faction with the functioning of the plant antedated the strike, it
appears that the respondent seized upon the strike as the occasion
for effecting the reorganization. The Act recognizes the right of
employees to strike and as an incident thereto preserves to them their
status as employees during a strike.28 A general reorganization such
as here involved is necessarily disruptive of the continuity of employ-
ment of large numbers of the strikers and hence inevitably an inter-
ference with and discouragement to union or concerted activity. I
would therefore hold that the reorganization, occurring as it did,
constituted in and of itself an unfair labor practice within the meaning
of. Section 8 (1) and (3) of the Act. In view of the fact that Chairman
Madden does not so hold, however, it is unnecessary to consider the
appropriate remedy for such unfair labor practice at this time.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Order.
28 See Mackay Radio d Telegraph Co. v. National Labor Relations Board, 364 U. S. 333.