American Numbering Machine Company

National Labor Relations Board - Board Decisions

Dec 13, 1938

10 N.L.R.B. 536 (N.L.R.B. 1938)

In the Matter of AMERICAN NUMBERING MACHINE COMPANY and
INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT #15
Case No. C-592.-Decided December 13, 1938
Numbering Machine Manufaeturang Industry-Unit Appropriate for Collective
Bargaining : production employees , including porters. working foremen, and
working forela,dies , excluding supervisory officials and clerical or office em-
ployees ; agreed to by all parties-Representatives : proof of choice : signed
union membership application cards ; membership in union ; revocation of union
membership subsequent to refusal to bargain collectively of no effect when
caused by unfair labor practices-Collective Bargaining : refusal to contract,
despite willingness to negotiate, with union ; attempts to bargain with em-
ployees individually ; employer ordered, upon request , to enter into agreement
with union-Company-Dominated Union. domination of and interference with
formation and administration ; support ; disestablished , as agency for collective
bargaining ; "yellow dog" contracts : discontinuance ordered-Discri nination:
lay-offs for union membership and activity ; charges of , not sustained as to
four persons , sustained as to five persons-Reinstatement Ordered-Back Pay:
awarded; monies received by employees for work performed upon Federal,
State , county, municipal , or other work-relief projects to be deducted and paid
over to agency which supplied funds for said projects.
Mr. Richard J. Hickey, for the Board.
Kotzen , Mann ct Siegel , by Mr. Abraham Mann, of New York City,
for the respondent.
Mr. Alfred Peabody and Mr. John T. Sullivan , of New York City,
for the Union.
Mr. Robert Kramer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Association of Machinists, District #15, herein called the Union, the
National Labor Relations Board, herein called the -Board, by Elillore
M. Herrick, Regional Director for the Second Region (New York
City), issued its complaint, dated December 30, 1937, against
American Numbering Machine Company, Brooklyn, New York,
herein called the respondent, alleging that the respondent had en-
10 N. L. R. B., No. 40.
536
DECISIONS AND ORDERS _ 537
gaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1), (2), (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 and of notice of a
hearing, to be held on January 7, 1938, at New York City, were duly
served upon the respondent, the Union, and the Collective Bargain-
ing Committee of the Employees of American Numbering Machine
Company, herein called the Employees Committee. On January 6,
1938, the Regional Director issued and duly served upon all the
parties a notice that the hearing had been postponed to be continued
upon 2 days' notice. On January 28, 1938, the Regional Director
issued and duly served upon all the parties an amended notice of
hearing, specifying that the hearing would be held on February 3,
1938.
In respect of the unfair labor practices, the complaint alleged in
substance (1) that on or about October 7, 1937, and thereafter the
respondent refused to bargain collectively with the Union as the
exclusive representative of the respondent's employees in its plant,
said employees constituting an appropriate bargaining unit; (2) that
on or about September 23, 1937, the respondent initiated, formed,
and sponsored a labor organization of its employees known as the
Collective Bargaining Committee of the Employees of American
Numbering Machine Company, whose administration the respondent
thereafter dominated, interfered with, and contributed support to ;
(3) that on or about November 5, 1937, the respondent discharged
and thereafter refused to reinstate Isabella Reinhart, Ernest Pfann-
schmidt, Elizabeth Lanci, Richard Davis, William Keim, John
Roschke, Catherine Healy, John O'Rourke, Madeline Elsasser, Louis
Muraro, William Haake, and Robert Grauer, employees of the re-
spondent, and on or about November 12, 1937, discharged and there-
after refused to reinstate Edward Kitt, Edward Ruter,l H. A. Follett,
and Jacob Schlapp, employees of respondent, for the reason that
they had joined and assisted the Union and had engaged in con-
certed activities with other employees of the respondent for the pur-
pose of collective bargaining and other mutual aid and protection';
and (4) that by the above and various other acts, such as warning
and urging its employees to refrain from becoming or remaining
members of the Union, threatening them with discharge for so doing,
forcing them to sign individual contracts of employment purportedly
negotiated through the Employees Committee, and keeping under
surveillance the meetings of the union members in its employ, the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
1 The complaint alleged that Ruter was reinstated 3 weeks later.
538 NATIONAL LABOR RELATIONS BOARD
The respondent filed an answer, dated January 5, 1938, denying
that it was engaged in interstate commerce within the meaning of
the Act and that it had engaged in the alleged unfair labor practices,
and stating affirmatively that the Union had no members or adher-
ents among its employees and therefore had no authority to file
charges under the Act; that the complaint was defective because
the original charge was not annexed thereto, and that the amended
charge which was annexed thereto was defective in that it did not
contain a clear, concise statement of the facts constituting the unfair
labor practices and did not state the names of the individuals
involved in the allegations of the charge.
Pursuant to the amended notice, a hearing was held at New York
City on February 3, 4, 5, 7, 8, 9, 10, 11, and 14, 1938, before Hugh
McCarthy, duly designated as Trial Examiner by the Board. The
Board and the respondent were represented by counsel; the Union
was represented by its business representative and its organizer;
and all participated in the hearing. The Employees Committee did
not appear at the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to produce evidence bearing upon
the issues was afforded all the parties.
At the commencement of the hearing the respondent objected to
the introduction in evidence of the complaint on the ground that
the amended, and not the original, charge was attached thereto. The
Trial Examiner overruled this objection. The ruling is hereby
affirmed. During the hearing, the respondent filed a written appli-
cation for the issuance of two subpenas to Sperry Gyroscope Cor-
poration and Intertype Corporation for the employment applications
of William Haake, one of the persons alleged to have been discrimi-
natorily discharged by the respondent. The Trial Examiner referred
this application to the Board, which on February 7,1938, ordered that
the application be denied. At the close of the presentation of the
Board's case and at the close of the hearing the respondent moved
that the entire complaint be dismissed on the ground that no evidence
had been adduced to sustain the allegations. The Trial Examiner
denied these motions. The ruling is hereby affirmed. At the close
of the presentation of the Board's case, counsel for the Board moved
to dismiss the complaint in so far as it alleged that Ernest Pfann-
schmidt, Elizabeth Lanci, Richard Davis, Louis Muraro, John
O'Rourke, Catherine Healy, and Robert Grauer had been discrimi-
natorily discharged inasmuch as they had not appeared at the hear-
ing and no evidence had been offered with respect to discrimination
in their cases. The Trial Examiner granted this motion. The ruling
is hereby affirmed. At the close of the hearing the respondent
moved to dismiss the complaint in so far as it alleged that H.- A:
Follett and John Roschke had been discriminatorily discharged,
DECISIONS AND ORDERS 539
inasmuch as they did not desire reinstatement. The respondent also
moved to dismiss the complaint in so far as it alleged that the,
respondent had formed and dominated the Employees Committee,
on the ground that the Employees Committee had never been made
a party to, or appeared in, this proceeding. The Trial Examiner'
denied these motions. The rulings are hereby affirmed. During the
course of the hearing the Trial Examiner made a number of rulings
on other motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On April 22, 1938, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served upon the respondent and the
Union, finding that the respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (1), (2),
(3), and (5) and Section 2 (6) and (7) of the Act. He recommended
that the respondent cease and desist from its unfair labor practices;
that upon request it bargain with the Union as the exclusive repre-
sentative of its employees; that it offer full reinstatement with back
pay to seven named employees; that it offer H. A. Follett and John
Roschke back pay; and that it personally inform each employee who
had entered into an individual contract of employment with it that
such contract would in no manner be enforced or attempted to be
enforced.
The respondent filed exceptions, dated May 12, 1938, to the Inter-
mediate Report. The parties, although accorded an opportunity for
oral argument before the Board, made no request therefor. The
Board has reviewed all the exceptions to the Intermediate Report,
and finds them without merit except as they are consistent with the
findings, conclusions, and order set forth below.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation engaged in the produc-.
tion, distribution, and sale of three types of numbering machines-
hand, typographic, and engraving. Its principal office and manufac-
turing plant are in Brooklyn, New York. Thirty-five per cent of its
annual purchases of raw materials, mainly steel, valued at $5,589,
are shipped to the respondent from points outside the State of New
York, and the respondent ships 85 per cent of its annual output,
valued at $160,534, to points outside the State of New York. The
respondent is one of four companies, all located in Brooklyn, New
York, which control the entire numbering-machine business of the
540 NATIONAL LABOR RELATIONS BOARD
United States. Approximately 300 workers are engaged in this in-
dustry, of whom the respondent employs about 90.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, District #15, which filed
.the charges upon which the complaint is based, is a labor organiza-
tion affiliated with the American Federation of Labor. It admits
to membership all the production employees of the respondent, in-
cluding porters, working foremen, and working foreladies, but
excluding supervisory officials and clerical or office employees.
The Collective Bargaining Committee of the Employees of Ameri-
can Numbering Machine Company is an unaffiliated labor organiza-
tion admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively; and the Collective Bargain-
ing Committee of the American Numbering Machine Company
1. The appropriate unit
The complaint alleged that all the machinists, assemblers, machine
operators, tool and die workers, and instrument. and experimental
workers of the respondent, exclusive of supervisory employees, con-
stitute a unit appropriate for the purposes of collective bargaining.
The Union admits to membership all the production employees of
the respondent, including porters, working foremen, and working
foreladies, but excluding supervisory officials and clerical or office
employees. At the hearing all parties agreed that such employees
constituted an appropriate bargaining unit. This is a normal indus-
trial unit. We see no reason for departing from the unit agreed
to by the parties.
We find that all the respondent's production employees, including
porters, working foremen, and working foreladies, but excluding
supervisory officials and clerical or office employees, constitute a unit
appropriate for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and other conditions of
employment., and that said unit insures to employees of the
respondent the full benefit of their rights to self-organization and,
to collective bargaining and otherwise. effectuates the policies of
the Act.
2. Representation by the Upioh of the majority in the appropriate
unit
The complaint alleged that on October 7, 1937, and thereafter, the
respondent refused to bargain collectively with the Union as the
exclusive representative of the employees in the appropriate bar-
DECISIONS AND ORDERS 541
gaining unit. According to the respondent's pay roll for October 4
to October '8, 1937, it had 93 production employees. Since 3 of these
were supervisory officials, there were 90 employees in the appropriate
unit at that time. The respondent hired no additional employees
during the remainder of 1937. The Union introduced in evidence 62
membership application cards, each of which was signed by an
employee whose name appeared on the respondent's October 4 to
October 8 pay roll. At the hearing the respondent did not challenge
the genuineness of the signatures appearing on the cards. Each card
stated that the signer had been initiated into the Union during thee
last week of August 1937. Alfred Peabody, the union organizer,
testified that the 62 employee-signers were members of the Union in
good standing in October 1937. Five additional employees on the
October 4 to October 8 pay roll signed membership application cards
which stated that they had,been initiated into the Union by October
26, 1937. Thus by October 7, 1937, 62 of the 90 employees in the ap-
propriate unit had designated the Union as their representative for
collective bargaining, and by October 26, 1937, 67 had done so. After
November 1, 1937, conferences between the Union and the respondent
ceased.
The respondent contends that on November 30, 1937, a majority, of
its employees revoked the authority of the Union to represent them
and authorized the Employees Committee to act as their bargaining
representative. However, the record is clear that had it not been for
the unfair labor practices of the respondent, described below in
Section III 3, in refusing to bargain collectively with the Union,
in organizing and fostering the Employees Committee, and in per-
silading, intimidating, and coercing its employees to join the Em-
ployees Committee and leave the Union, the respondent's employees
would -have remained' members of the Union. The unfair labor
practices of the respondent cannot operate to change the bargaining,
representative previously selected by the' untrammelled will of the
majority.2 -
We find` that on October 4, 1937, and at all times thereafter, the
Union was the duly designated representative of a. majority of the
employees in the appropriate unit, and, pursuant to Section 9 (a) of
the 'Act, was' the exclusive representative of all the employees in
such unit'for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, or other conditions of
employment: -
'Matter of Bradford Dyeing Association (U. S. A.) (a Corporation) and Textile Work-
ers' Organizing Committee of the C. I. 0., 4 N. L R. B. 604; Matter of Somerset Shoe
Company and United Shoe Workers of America, 5 N. L., R. B. 486; 'Matter of Burnside
Steel Foundry-Company and Amalgamated Association of Iron, Steel and Tin Workers,of
North America, Lodge No. 1719, 7 N. L R. B. 714; Matter of Inland Steel Company and
Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel, and Tin
Workers of North America, Lodge Nos. 64, 1010, and 1101, 9 N. L. R B. 783.
542 NATIONAL LABOR, RELATIONS -BOARD
3. The refusal to bargain collectively; and the Collective Bargain-
ing Committee of the Employees of American Numbering
Machine Company
In the early spring of 1937 the respondent's employees organized
a union unaffiliated with any other labor organization, herein called
the Independent Union, and elected Herbert Arthur Follett, an
employee, chairman. The members of the Independent Union
selected a shop committee composed of seven employees, including
Follett, William Keim, and William Herman Haake, who on June 9,
1937, submitted written proposals regarding wages and hours of em-
ployment to Benjamin B. Conrad, the respondent's president, and at
a conference with Conrad on June 11, 1937, reached an oral agree-
ment with him regarding these proposals. The respondent, in ac-
cordance with the terms of this oral agreement, on June 14, 1937,
gave a 10-per cent wage increase to all its employees. On July 15,
1937, the respondent reduced the weekly hours of employment
throughout its entire plant from 44 to 40. The reduction in wages
which resulted as a consequence caused much dissatisfaction among
the respondent's employees, many of whom, including Follett, Haake,
and Keim, believed that the oral agreement between Conrad and the
Independent Union prohibited any reduction in hours of employ-
ment until September 15, when the weekly hours were to be cut from
44 to 40 without any decrease in wages. As a result of this feeling,
the members of the Independent Union decided to affiliate with the
American Federation of Labor, and Follett arranged for Alfred
Peabody, an organizer for the International Association of Machin-
ists, to address them and explain that union's purpose. About this
time, in early August 1937, Conrad and Follett arranged for a secret
ballot, to be taken in the plant during working hours to determiner
whether the employees preferred the Independent Union or the In-
ternational Association of Machinists. The vote was 57 to 25 in
favor of the International Association of Machinists, hereinafter
called the Union, and in the last week of August 62 employees were
initiated into that Union. On September 23, 1937, the members of
the Union elected Follett, Haake, Keim, Peter La, Barbera, and
Adam Eger, all employees, as their collective bargaining committee,
and on September 24, notified Conrad by letter of the election of this
committee for the purpose of collective bargaining.
On October 7, 1937, Conrad met the members of this committee,
together with Peabody, who showed Conrad the 62 signed member-
ship application cards and presented him with a draft of a proposed
contract for discussion and negotiation. For approximately 3 hours
Conrad, Peabody, and the committee members discussed the proposed
DECISIONS AND ORDERS 543
contract paragraph by paragraph. Conrad at once agreed to certain
provisions, such as those regarding hours of employment. Other pro-
visions were set aside for further discussion at a later date. Conrad
especially objected to the provisions regarding a closed shop and
seniority. Peabody consented to discuss these provisions at the next
conference, which it was agreed should be held on October 21, Con-
rad requesting this 2-week interval in order to have time to study
carefully the proposed contract. A subcommittee was then selected
by the union bargaining committee to study the question of wage
increases and report on it at the next conference. Before the October
7 conference ended Conrad informed Peabody that he would never
sign an agreement with the Union name on it.
On October 15, 1937, without any previous notice either to Peabody
or the members of the union committee, Conrad summoned all the
respondent's employees to a meeting in the plant during working
hours and read aloud to them the contents of a printed statement,
copies of which were distributed among the employees, concerning
the respondent's labor policies, which he had prepared. In this state-
ment Conrad referred to Peabody as one who "claimed to represent
a , majority" of the employees and who had presented "impossible"
demands to the respondent. The statement asserted that the em-
ployees were free to join any union they wished, reiterated Conrad's
refusal either to agree to a closed shop or to sign a contract with any
union, and suggested that the employees elect their own committee
with whom, in addition to each individual employee, Conrad would
sign a contract. Conrad then gave to the assembled employees a form
of a letter, which, he said, they could write him if they wished, in-
forming him that they had chosen a committee as he had suggested.
Immediately after Conrad left the meeting, Fred Boss, foreman of
the hand-machine department, called several' employees by name and
asked each to sign the form letter, criticized one Jacob Schlapp' who
refused to do so, and told Follett that the letter was a good thing to
sign to avoid all trouble. Despite Boss' efforts, only a few employees
then signed.
Peabody, upon learning of the events of October 15,. telephoned
Conrad on October 16 and inquired if the committee meeting was still
to be held on October 21. Conrad replied that Peabody should meet
him then, as previously arranged, for he would be ready for him by
that time.
When Peabody reached the respondent's plant on October 21, he
discovered that Conrad, again without any previous notice to Pea-
body or the union committee, had called a mass meeting of all the
respondent's employees and wished to confer with Peabody in their
presence. Conrad, who had arranged for stenographers to record the
544 NATIONAL LABOR RELATIONS BOARD
proceedings, in his opening speech discussed the proposed contract
given him on October 7, paragraph by paragraph, adopting the same
position regarding each provision as he had taken on October 7.
Then Conrad stated that because the Union was not responsible and
so could not prevent a strike or enforce an arbitration agreement, he
could not sign any contract with the Union; that if the employees
wished the Union to represent them, he would confer with the union
representatives; and that, any contract he and the union representa-
tives agreed upon would have to be signed by the employees indi-
vidually and not by their representatives. After subsequent speeches
by Peabody and Conrad, in which Conrad did not alter his position
as he had previously stated it, Conrad agreed to offer counterpro-
posals, which he embodied in a proposed contract sent to Follett the
next day, October 22. The Union on October 26, considered Conrad's
proposals and voted to reject them.
On November 1, 1937, when Conrad met the union committee and
Peabody, Conrad was informed of the rejection of his proposed con-
tract. Peabody then offered to negotiate further on the closed-shop
issue, but insisted that the Union must sign any contract agreed upon.
Conrad again refused to enter into a written agreement with the
Union and reiterated his statement that the contract must be signed
only by the individual employees and their committee. Conrad also
refused to enter into an oral agreement with the Union. Thereupon
Peabody and the union committee departed. No further attempts to
bargain collectively were ever made by Conrad or the Union.
On November 22, 1937, the Union filed with the Board's Regional
Director charges of unfair labor practices against the respondent,
and on November 30, Conrad again called a mass meeting in the
plant during working hours of all the respondent's employees, and
-in a short address suggested to them that they elect a committee to
confer with him regarding the proposed contract submitted by him
to the Union on October 22, and subsequently rejected by the Union.
Before he left the room, Conrad produced a paper which he stated
the employees could sign if they wished to act on his suggestion.
This paper contained a notification to Conrad that the respondent's
employees had elected a committee as their representative for collec-
tive bargaining and thereby revoked authority previously given any-
one else to bargain for them. 'Foreman Fred Boss signed this paper,
then called upon several employees by name to sign it, and when they
hesitated, told, them that Conrad would hear and know of their not
signing. After 66 employees had signed the paper, Boss supervised
the election of 3 employees as members of the Employees Committee.
The, three members of the Employees Committee-Louis Zarobinski,
DECISIONS AND ORDERS 545
Josephine Medell, and Herbert E. Willey-without any, discussion
with each other of the proposed contract or their attitude toward it,
immediately conferred with Conrad in his office for about 30 min-
utes, during which they asked him no questions about the contract
while he explained several provisions to them. They then signed the
contract in the identical form in which Conrad had drafted it. At
least one of the three committee members, Miss Medell, had never
before read the contract. Willey did not like the contract but signed
it in the hope of avoiding further labor trouble in the plant. Both
Willey and Zarobinski testified that the failure of the Union and
Peabody to obtain any contract induced them to adopt Conrad's sug-
gestion of a bargaining committee and individual employment con-
tracts. On December 1, the following day, 67 employees signed the
master contract which had the committee members' signatures on it,
and each of the 67 employees also signed an identical individual con-
tract of employment, which was given them while at work in the
plant.
Since November 30, 1937, the' Employees Committee has never met
either alone or with Conrad, has never attempted to organize the
respondent's employees or present their grievances, or been active
as a committee in any manner whatsoever. One member of the com-
mittee, Willey, voluntarily left the respondent's employ on December
2, 1937, and there is no evidence that anyone was ever elected to
replace him.
The respondent insists that it at all times bargained collectively
with the Union, and that only when Conrad and Peabody were un-
able to agree upon the closed-shop issue, were negotiations broken off,
since further discussion would have been useless. - The evidence does
not support the respondent's contention. Each time Conrad objected
to having a closed shop, Peabody affirmed his willingness to negotiate
further on this issue. On November 1, negotiations were broken
off by Peabody solely because Conrad would not change the position
he had taken at the first conference on October 7, and persisted in
his refusal to sign a contract or make an oral agreement with the
Union. Conrad repeatedly stated that he would never enter into an
oral or written agreement 3 with the Union; that he would enter into
a written agreement with the respondent's individual employees;
and that he would discuss only the terms of such a written agreement
with the Union as the representative of the respondent's employees.
It The expression most frequently used by Conrad was that he would never "sign an
agreement with the Union." However, when Conrad stated that he would not sign an
agreement with the Union, Peabody asked him to enter into an oral agreement with the
Union. Conrad refused, stating that he preferred written to oral agreements, but would
make neither with the Union.
546 NATIONAL LABOR RELATIONS BOARD
In Matter of St. Joseph Stock Yards Company and Amalgamated
Meat Cutters and Butcher Workmen of North America, Local Union
No. 159,4 we said :
That issue is precise : is the refusal by an employer to enter
into an agreement, oral or written, with the proper representa-
fives of his employees after an understanding has been reached
on the terms of the agreement by discussion and negotiation, an
unfair labor practice within the meaning of Section 8?
We then discussed in detail the numerous decisions of the first Na-
tional Labor Relations Board on this issue, and continued :
... we can only conclude that the issue raised by the respondent
must be determined against it on the basis of authority and
precedent. But even if the issue be regarded as a de novo matter,
we feel a similar conclusion is inescapable ...
Such an attitude . . . is designed to thwart and slowly stifle
the Union by denying to it the fruits of achievement. .It is
based upon the knowledge that in time employees will grow
weary of an organization which cannot point to benefits that
are openly credited to its aggressiveness and vigilance and not
to an employer's benevolence that on the surface may appear
genuine but in truth is forced upon the employer by the organi-
zation. To many his unwillingness to enter into an agreement
with a labor organization may seem no more than a harmless
palliative for the employer's pride and to amount only to a petty
refusal to concede an unimportant point purely as a face-saving
device. But the frequency with which the old Board was com-
pelled to denounce such a policy on the part of employers indi-
cates its potency as a device subtly calculated to lead to
disintegration of an employee organization ... The respondent's
persistent adherence to the policy of not entering into agree-
ments with labor organizations representing its employees must
be regarded as an intentional and effective interference with the
employees' exercise of the rights guaranteed in Section 7 of the
Act.
The respondent, however, points out that although it refused to
enter into any agreement with the Union as the representative of its
employees, it was at all times willing to sign contracts with its indi-
vidual employees, even if these contracts resulted from negotiations
with the Union. In Matter of Hopwood Retinning Company, inc.
and Monarch Retinning Company, Inc. and Metal Polishers, Buffers,
Platers and Helpers International Union Local No. 8, and Teamsters
2 N. L. It. B. 39.
4
DECISIONS AND ORDERS 547
Union, Local No. 584,5 the Hopwood Company took that position, in
its negotiations with the unions and we said : - '
From its own admissions and' from the testimony as a whole:
it is clear, that the Hopwood Company categorically refused to'
bargain concerning any agreement with the Unions themselves,
whether or not it involved a closed shop, and declared that it had
a fixed policy precluding a contract with any union. Although
it is not requisite to collective bargaining that an employer should
reach an agreement as the result of such bargaining with the
representatives of its employees, no bargaining can be- said to
take place when the employer, as in this case, sets forth variou's
bars to the bargaining rights of employees guaranteed under the
Act. It is clear that his statement that he would never sign a
contract with the Union but would do so only with a committee
of his employees amounts to a stubborn refusal to bargain col-
lectively with the representatives of his employees in an effort
to reach an agreement.
And in Matter of The Louisville Refining Company and Interna-
tional Association, Oil Field, Gas Well and Refinery Workers of
America 6 we said:
An employer cannot under the Act refuse to recognize the
duly designated representative of his employees for the purposes
of contracting any more than for the purposes of negotiation.
He must accept his employees' representatives as such through-
out the entire process of collective bargaining.
The refusal to enter into an agreement, oral or written, with a
labor organization, although the labor organization may have negoti-
ated the agreement, and the insistence that the individual employees
only sign the agreement, inevitably weakens the labor organization
by depriving it of the credit for its achievements.
Moreover, the evidence clearly shows that Conrad after October 7,
although he continued to repeat this formula of willingness to negoti-
ate but not to enter into an agreement with the Union, did not pay
more than lip-service to its terms. On October 15 the respondent, in
the very midst of its negotiations with Peabody and the union com-
mittee, ignored the chosen representatives of its employees and with-
out the consent or knowledge of these representatives, attempted to
negotiate directly with its employees and suggested to them that
54 N. L . R. B. 922 , order enforced , as modified as to other issues, in Hopwood Retinntng
Company, Inc. v. National Labor Relations Board, 98 F. ( 2d) 97 ( C. C. A. 2d, 1938). See
also Matter of Federal Carton Corporation and New York Printing Pressman 's Union No.
51, 5 N. L. R. B 879.
4 N. L. R . B. 844.
a
548 NATIONAL LABOR RELATIONS BOARD
they adopt another method of organization for collective bargaining.
On October 21 the respondent again attempted to negotiate directly
with its employees by compelling Peabody to meet with Conrad in
their presence without previously informing Peabody or obtaining
his consent. By these attempts to negotiate directly with its em-
ployees, the respondent discredited the bargaining efforts of the
Union and tried to demonstrate to its employees the uselessness of
the Union for the purposes of collective bargaining with the respond-
ent. The respondent's conduct clearly shows not only that it wanted
to sign a contract with its individual employees and not with the
Union, but also that it wanted to negotiate the terms of this contract
with them and not with they Union. A similar situation arose in the
Hopwood case T where the Hopwood Company, after conferring with
the union representatives sent out a letter to each employee requesting
him to sign an individual contract of employment. We condemned
this practice as follows : ,
It [the Hopwood Company] thus attempted to bargain with
the employees individually, although negotiations had been ini-
tiated for collective bargaining. By its tactics the Hopwood
Company manifestly attempted. to destroy the Unions here in-
volved as effective instruments of representation of its employees.
Such action by itself constituted an unfair labor practice within
the meaning of Section 8 (1) and (5) of the Act.
The respondent contends that on and after November 30, the Union
ceased to be the representative of a majority of the employees in
the appropriate unit and that the Employees Committee then became
the representative. The suggestion and plan for such a committee
originated with the respondent, not with its employees; the respond-
ent, not its employees who twice rejected it, sponsored this plan.
On October 15 the respondent suggested to the employees that they
should adopt the plan and indicated approval and sponsorship of it.
Foreman Boss tried vainly to compel the employees to support it.
On October 22, Conrad again offered this plan, only to have it again
rejected by the employees. Finally, on November 30, for the third
time Conrad suggested and sponsored this plan, and after Foreman
Boss again made threats to obtain employee approval for it, the
employees approved it and selected the Employees Committee, the
elections for the Committee being held under the supervision of Boss.
That this Employees Committee was the scheme of Conrad and not
of the respondent's employees is shown by the fact.that the employees
signed the paper, drafted by Conrad, notifying the respondent of
the election of the bargaining committee before that committee had
ever been elected by them. The respondent not only initiated,
formed, sponsored, and supported the Employees Committee, but
* Supra, footnote 5.
DECISIONS AND ORDERS 549,
also later dominated it. The Committee did not bargain or negoti-
ate with Conrad. Its members, one of whom had not even read the
contract, signed it 30 minutes after their election, exactly as Conrad
had drafted it. The puppet nature of the Committee is further
shown by its complete failure to function in any way after signing
the contract. Its sole task and achievement was to sign the contract.
The provisions of the contract itself show the servile nature of the
Employees Committee which signed it. The contract constitutes an
individual contract of employment, since it is expressly intended for-
individual signature by the employees and was so signed. It pro-
vides for certain increases in wages, for vacations with pay, and for
hours of employment. The employees agree not to go out on strike-
until November 30, 1942, and the respondent agrees not to lock out
any of its employees during this time. The respondent reserves the
right to lay off or discharge employees for "seasonal slackness,
lack of orders, dearth of business, . . . repairs, renewal or altera-
tion of plant and/or equipment." Under the contract's terms, em-
ployees may join or not join a union as they desire,'but have no right
"to demand a closed shop or a signed agreement by the Employer
with any union." The employees may have a union represent or
advise them in collective bargaining, and the employer may "hire or
discharge any Employee or Employees for any reason and regard-
less of his or their affiliation or non-affiliation with any union," but
the employer "will not discharge Employees because of legitimate
union activities . . . " By the contract, it is "the intention of the.
Employer that Employees be not unjustly discharged," but
"the question as to the propriety of an Employee's discharge is in
no event to be one for arbitration or mediation and . . . any
action for reinstatement, if any, will be taken voluntarily by the
Employer if it deems such reinstatement advisable." The contract
also states that "all of the parties understand and agree that the
propositions and questions of a closed shop and signing of an agree-
ment with any union are not and shall at no time be matters subject
to, or to be submitted to, arbitration."
In Matter of Atlas Bag and Burlap Company, Inc. and Milton-
Rosenberg, Organizer, Burlap ce Cotton Bag Workers Local Union
No. 2469, affiliated with United Textile Workers Union," and again
in the Hopwood case,9 we considered substantially identical indi-
vidual contracts of employment, and quoted with approval in the'
Hopwood case the following language from the Atlas case :
The contract deprives each employee who signs it of the right
to strike until November 1, 1940, of the right to demand recogni-
tion of any union by the employer, and of the right to question,
8 1 N L. R. B. 292.
Supra, footnote 5.
147541-39-vol 10-36
.150 NATIONAL LABOR RELATIONS BOARD
discharges for any reason or no reason regardless of his affilia-
tion or nonafliliation with any union. Despite the lip-service
rendered by the terms of the contract to the right of any em-
ployee to join any union of his own choosing, the agreement
deprives each employee subscriber of the fundamental rights
inherent in union affiliation and activity-the right' to union
recognition, which means the right to collective bargaining, the
right to concerted activities for mutual aid or protection, which
is guaranteed to employees in Section 7 of the National Labor
Relations Act, and the right to protest against the employer's
exercise of his most powerful anti-union weapon, discharge for
union affiliation or activity. It would be hard to devise a more
patently anti-union or "yellow dog" contract, or one more dis-
couraging to membership in a labor organization.
The main difference between the respondent's contract and the one
condemned in the Atlas case is that the respondent's contract, instead
of prohibiting any demand for union recognition, prohibits any
demand for a signed agreement with the union. As we have previ-
ously pointed out herein, the making of an agreement with the union
is a vital and integral part of collective bargaining; the denial of
the right to demand an agreement with the union is a denial of the
right of collective bargaining.'°
We find that on October 7, 1937, and at all times thereafter, the
respondent has refused to bargain collectively with the Union as the
•exclusive representative of its employees in an appropriate bargain-
ing unit in respect to rates of pay, wages, hours of employment, and
other conditions of employment.
We find that the respondent has dominated and interfered with
the formation and administration of the Employees Committee and
contributed support to it.
We find that the respondent, by the acts and conduct set forth in
the two preceding paragraphs and by other acts and conduct set
forth above, has interfered with, coerced, and restrained its employees
in their right to self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes
of collective bargaining and other mutual aid and protection as
guaranteed in Section 7 of the Act.
B. The discharges
Between November 5 and December 31, 1937, inclusive, the re-
spondent laid off or discharged 31 employees listed on its October 4
10 See Matter of Federal Carton Corpooation and New York Printing Pressman's Union
No 51, 5 N. L. R. B. 879.
DECISIONS AND ORDERS 551
to October 8, 1937, pay roll. The respondent asserted that a decrease
in its business and in the available work at its plant made these lay-
off s necessary, and that as soon as it had sufficient business to warrant
an increase in its working force, it was willing to reinstate these 31
employees. We accept the contention of the respondent that a de-
crease in its business warranted the lay-off of 31 employees during
this period, but the question remains whether or not the respondent
in effecting this reduction in its working force selected for lay-off the
employees named in the complaint because of their union member-
ship and activity. -
Of the 16 individuals alleged in the complaint to have been dis-
'criminatorily discharged, only 9 remain for our consideration, since
the complaint was dismissed as to 7 at the hearing upon the motion
of counsel for the Board.
1. The engraving department
Isabella Zilpah Reinhart. Reinhart was employed by the respond-
ent from March 18, 1937, until December 31, 1937. She worked in
the engraving department, was considered very efficient by the factory
superintendent, William Sanders, and had never received any com-
plaints regarding her work.
,She joined the Union in August 1937, but had never been an officer
of it or prominent in its activities, although the foreman of the de-
partment, Victor Guernier, knew that she was 1 of the 3 union mem-
bers among the 11 employees in this department.
During November and December 1937, the engraving department
worked 30 hours a week, and each employee in turn was laid off
for a week. On December 31, 1937, the factory superintendent,
William Sanders, informed Foreman Guernier that three employees
had to be laid off for an indefinite period until business improved,
and was told by Guernier that the three youngest employees in the
department would be laid off. Reinhart was the only employee in
the department hired in 1937 and received the lowest wage paid
in the department. Carr and Wissner, neither of whom belonged
to the Union, were, next to Reinhart, the junior employees in the
department.11 These three were laid off by the respondent on De-
cember 31, 1937. The following day the department was placed
on a 40-hour week.
The respondent offered no explanation of why it abandoned the
weekly in favor of the indefinite lay-offs, or why it raised the work-
ing hours from 30 to 40 a week immediately after the three lay-offs.
We are of the opinion, however, that the evidence does hot support
u Except for Walters, who had been laid off on November 26, 1937, ' and for Erickson,
who, unlike the other employees in the department , was a hand instead of a machine
engraver.
552 NATIONAL LABOR RELATIONS BOARD
the allegations of the complaint that the respondent laid off Reinhart
for union membership or activity. The allegations of the complaint
with regard to the lay-off of Reinhart will be dismissed.
2. The hand-machine department
Mary Madeline Elsasser. Elsasser was employed by the respondent
from January 19, 1937, until November 5, 1937. She worked in the
hand-machine department, and had never received any complaints
about her work.
Elsasser joined the Union in August 1937 and shortly thereafter
her foreman, Fred Boss, saw her leaving a union meeting. She had
never been an officer of the Union or prominent in its activities.
All the 30 employees in this department, except the foremen, were
members of the Union.
On November 5, 1937, Elsasser and five other employees in this
department were laid off indefinitely. She began her employment
with the respondent in 1937, and was one of the junior employees
in the department, although she had slight seniority over five other
employees there who began their employment in the same year.
We are of the opinion that the evidence does not support the.
allegations of the complaint that the respondent laid off Elsasser
for union membership or activity. The allegations of the complaint
with regard to the lay-off of Elsasser will be dismissed.
William Herman Haake. Haake first entered the respondent's
employ on November 8, 1923. Prior to January 2, 1934, Haake had
on five occasions been laid off for short periods due to slumps in the
respondent's business. After January 2, 1934, he worked continu-
ously in the hand-machine department as a second assembler until
his lay-off on November 5, 1937. Haake had never received any
complaints about his work, although his assistant foreman, Zaro-
binski, testified that Haake was slower and not as efficient as the
two other second assemblers in the department. These two other
second assemblers were both senior to and higher paid than Haake.
Haake, however, testified that he had worked on four different
machines and could do and had done the work of several other
employees in the department, to whom he was senior and who had
not been laid off, including one first assembler, Carney, hired in
1937, and one third assembler, Sarna.
Haake was a member of the shop committee of the Independent
Union. He joined the Union in August 1937, and was a member of
its bargaining committee. He collected union dues and told mem-
bers about union meetings.
Around November 5, 1937, the factory superintendent, William
Sanders, notified Boss, the foreman of the department, that due to
DECISIONS AND ORDERS 553
the decline in the respondent 's business , some employees in the depart-
ment had to be laid off . Sanders left the selection of the particular
employees to be laid off to Boss' discretion . A few minutes after
learning of his lay -off on November 5, 1937, Haake asked Boss the
reason therefor and Boss replied that he had nothing to say. Pre-
viously Boss had often questioned Haake about what occurred at
union meetings and once told him that if he joined the A. F. of L.,
Conrad would find some way to discharge him. Boss also told Walsh,
another union member working in this department , that he would do
-everything to break up the Union . It must be remembered , also, that
on October 15 and November 30 Boss criticized and threatened em-
ployees who did not sign the paper notifying Conrad of the election
of the Employees Committee . Boss did not testify at the hearing,
and consequently , although the respondent strongly assails the testi-
mony of Haake, Walsh , and other witnesses regarding the anti-union
remarks and activities of Boss , in the absence of any denial or ex-
planation by Boss regarding these incidents , this testimony remains
unrefuted and unshaken . In view of the pronounced hostility of Boss
toward the Union and its members , and his sponsorship of the Em-
ployees Committee, the fact that Boss, alone , according to William
Sanders, selected Haake, one of the most active union members in the
department , for lay-off , is strong evidence that Haake was so selected
because of his union activity.
Moreover , the five other employees, including Elsasser, who were
laid off in the department on November 5 with Haake, had , without
exception , been first employed by the respondent in 1937. The six
other employees laid off in this department during the remainder of
the year-one on November 26 and five on December 31-were, with
the exception of one ( J. Walsh) who had been with the respondent
since 1933 , all originally employed by the respondent in 1936 or 1937.
The fact that Haake alone of all the 12 employees laid off in this de-
partment, with one exception , was one who had worked for the re-
spondent long before 1936 or 1937, points to the selection of Haake
because - of his union activity . Not only was Haake senior by many
years to all those laid off at the same time or after him, but also he
was senior to many employees in the department not laid off, in-
cluding one first assembler , Carney, and one third assembler , Sarna,
both hired in 1937, whose work Haake testified he could do and had
done. The respondent offered no explanation of why Haake was, with
one exception, the only man in the department to be laid off who was
not a comparatively new employee , or of why other employees, whose
work Haake could do, were not laid off , despite his great seniority
over them. Such unexplained facts support the conclusion that Boss
selected Haake for a lay-off because of Haake's union activity , as does
the course of conduct pursued by the respondent at this time in re-
554 NATIONAL LABOR ,RELATIONS,BOARD
gard to collective bargaining with the Union and the formation of the•
Employees Committee. By laying off . Haake, one of the key union
members, the respondent weakened the Union and paved the way for
its next and successful attack on the Union on November 30.
The respondent points out that Peter La Barbera , also a member
of the shop committee of the Independent Union and a member of the.
bargaining committee of the Union , worked in this department and
was not laid off. However , both Haake and Follett, the chairman of
both of these committees , testified that La Barbera was not as active
as the other members of the committees in that he did not collect union
dues or tell members about union meetings. La Barbera also was
senior to Haake and was a drop cipher fitter-work so highly skilled
and specialized that he would have been very difficult to replace if
laid off.
We find that the respondent laid off Haake because of his union
membership and activity . The respondent , by laying off Haake,.
discriminated in regard to his hire and tenure of employment, there-
by discouraging membership in a labor organization , and interfer-
ing with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
Haake desires to return to his former position in the employ of
the respondent . He has had no regular employment since his lay-off -
on November 5, 1937.
3. The typographic department
William Keim. Keim entered the respondent 's employ on Sept
tember 13, 1920. After having either quit or been laid off on two,
occasions for short periods of time, he left the respondent 's employ
on October 30, 1925. He returned to the respondent 's employ on,
December 10 , 1935, and from that time until his lay-off on Novem-
ber 5, 1937 , worked continuously in the typographic department.
There had been no complaints about his work, and the factory su=
perintendent . William Sanders, described Keim as a good to fair
worker. On September 8, 1937 , Keim received a 10-per cent increase
in his wages which the other employees of the respondent did not
obtain.
Keim was a member of the shop committee of the Independent
Union, and after having joined the Union in August 1937, he be-
came a member of the union bargaining committee.
On November 5, 1937, Keim was laid off by the assistant factory
superintendent , Alfred Sanders, who told him that the lay-off was
probably for a short time so that doubtless he soon could return.
Until November 5, 1937 , there were 47 employees in the typo-
graphic department . On that day , five employees , including Keim,
DECISIONS AND ORDERS 555,
were laid off. On November 12 , four more employees were laid off;
on December 31, six more were laid off . All 15 of those laid off were
union members . Excluding the foremen , there were seven em-
ployees in the department who were not union members . Of these
seven, Keim was senior to and more highly paid than three. Keim,
was also senior to all 15 of those laid off, and to 21 of the 32 em-
ployees not laid off. The factory superintendent, William Sanders,
testified that he discussed the proposed lay-offs in the department
with Alfred Sanders , the assistant superintendent ; that he sug-
gested to Alfred Sanders that Keim be laid off because certain other
employees in the department whom he wished to keep in the re-
spondent's employ because they did "special" work, of which there
was then none to be done, could do Keim's work. The respondent
failed to explain , however, why , if "special" workers were doing his
usual work , Keim was not allowed to do the work of the other em-
ployees in the department who were not laid off and to whom he was
senior. Keim's great seniority over the other 15 employees who were
laid off makes his lay-off, coming, as it does, among the first of the
lay-offs , appear unusual , and his seniority over most of those not laid
off strengthens this impression. Moreover, not only had there been
no complaints about his work, but only 2 months before his lay-off
he had received a special increase in wages . His very prominent
activity as a member of the Union, in conjunction with the above
facts, leads us to conclude that it was this activity which caused the
respondent to ignore his long employment with, and excellent work
for it, and to single him out as one of the first to be laid off. In
addition , as we pointed out-in discussing the lay-off of Haake, the
course of conduct pursued by the respondent at this time in regard
to collective bargaining with the Union and the formation of the,
Employees Committee must be considered . By laying off Keim, also
a union ' keyman, as well as Haake, the respondent further weakened
the Union in preparation for the attack of November 30 upon it.
The respondent points out that Adam Eger , a member of the Inde-
pendent Union's shop committee and the union's bargaining com-
mittee, as Keim was, worked in this department and was not laid off.
As in the case of La Barbera in the hand-machine department, how--
ever, Haake and Follett testified that Eger was not as active as the
other committee members in that he did not. collect dues and tell
members about the union meetings. Although junior to Keim, Eger
was one of the "special" workers, was paid a higher wage , and, if
discharged , would have been difficult to replace.
We find that the respondent laid off Keim because of his union
membership and, activity . The respondent , by laying off Keim, dis-
criminated in, regard to his hire and tenure of employment , thereby
discouraging membership in a labor organization , and interfering
556 NATIONAL LABOR RELATIONS BOARD
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
Keim, who has not been elsewhere employed since his lay-off on
November 5, desires to return to his former position in the employ of
the respondent.
John Hans Roschke. Roschke had worked continuously for the
respondent since April 26, 1934. He first worked in the knuckle di-
vision of the typographic department, was then transferred to the
gear-division of the typographic department for a short time, and
was then sent back to the knuckle division when work decreased in
the gear division. A few months before his lay-off he was again sent
to the gear division, where he remained until his lay-off. There is
no evidence of any complaints regarding his work.
Roschke joined the Union in August 1937, but had never been an
officer of it or prominent in its activities.
On November 5, 1937, Superintendent William Sanders told
Roschke that he was being laid off temporarily for lack of work and
gave him a letter of recommendation stating that this was the reason
for his lay-off. William Sanders testified that he informed Blatz,
foreman of the gear division where Roschke was then working, that
someone had to be laid off, and that Blatz suggested that Roschke be
selected since he was the junior employee in the division and only
temporarily there. Blatz did not testify at the hearing. Roschke
testified that Blatz informed him, immediately after Sanders had laid
him off, that he, Blatz, was unaware that Roschke was to be laid off,
that there was much work to be finished in the gear division, and that
Roschke had been foolish to join the Union because the lay-off was
what Roschke "got" for joining. Even if Sanders' testimony be
accepted as true, it was Blatz, who, according to Sanders, suggested
the lay-off of Roschke, and in the absence of any explanation from
Blatz as to whether the reason he allegedly gave Sanders or the rea-
son he allegedly gave Roschke was the true cause for his suggesting
Roschke's lay-off, we conclude that both reasons must have contrib-
uted to Blatz's suggestion. Moreover, due to Blatz's non-appearance
at the hearing, Roschke's testimony is unrefuted and unshaken in re-
gard to Blatz's remarks to Roschke. On the other hand, the course
of conduct pursued by the respondent at this time in regard to col-
lective bargaining with the Union and the formation of the Em-
ployees Committee, in the absence of any confirmation by Blatz of
Sanders' testimony, casts serious doubt upon its truthfulness and,
further, leads us to believe that Blatz told Roschke the true reason for
his lay-off, and that Sanders did not.
William Sanders further testified that after his talk with Blatz
regarding the lay-off of Roschke, he spoke to Gordon, foreman of the
knuckle division, who told Sanders that he did not want to have
DECISIONS AND ORDERS 557
Roschke return to this division because Lindeman, hired on June 25,.
1937, to take,Roschke's place when the latter went to the gear di-
vision, and paid 5 cents more per hour than Roschke, was a better-
worker than Roschke. On the previous occasion when Roschke'lied
been in the gear division and the work had decreased there, he had
been returned to the knuckle division. Even if Lindeman, over 2-
years junior to Roschke and in the respondent's employ for less
than 6 months, was so superior a workman to Roschke, about whose
work there had never been any complaints, as to justify the retention
of Lindeman instead of Roschke in the knuckle division, the respond-
ent has failed to explain why Roschke, who had shown his ability
to do more than one type of work, was not assigned to other work-
in the typographic department where he was senior to at least 15^
employees not then laid off.
We find that the respondent laid off Roschke because of his union
membership and activity. The respondent, by laying off Roschke,.
discriminated in regard to his hire and tenure of employment,
thereby discouraging membership in a labor organization, and inter-
fering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
Roschke, who is now employed elsewhere, does not desire to return
to-his former position in the employ of the respondent.
Herbert Arthur Follett. Follett entered the respondent's employ
on October 6, 1920. Prior to 1924 he had been laid off once because
of a slump in the respondent's business. He did not work for the
respondent from 1924 until February 16, 1934. From that time until
he was laid off on November 12, 1937, lie worked steadily in the
typographic department as one of the "special" workers. There is,
no evidence of any complaints about his work.
Follett was the chairman of the shop committee of the Independ-
ent Union, and, after joining the Union in August 1937, lie became
the chairman of the union bargaining committee. He was, conse-
quently,,the leader of these labor organizations in the plant of the
respondent.
On September 30, 1937, Follett's hourly wage was raised from 72'
to 77 cents. No other employee of the respondent then received any
wage increase. The superintendent, William Sanders, told Follett
to keep quiet about the wage increase because the other employees
might accuse the respondent of trying to win Follett's favor by thus
raising his wages. On November 12, 1937, William Sanders laid off-
Follett, and when Follett asked for an explanation, told him that he
was not at liberty to say a word about it; that after things returned
to normal, they could have a talk, man to man; and that although
Follett had been slated for better things, that was all over now. Ex-
cept for Keim, Follett was senior to all the other 14 employees laid
558 NATIONAL LABOR RELATIONS BOARD
off in this department between November 5 and December 31. Like
Keim, he was senior to 21 of the 32 employees not laid off. More-
over, he was a "special" worker, and thus belonged to the group whom
'illiam Sanders testified that he particularly desired not to lay off.
Follett was senior to four of the seven other "special" workers, none
of whom were laid off, although one quit several weeks after Follett's
discharge. The respondent offered no explanation why Follett, de-
spite his seniority, and the fact that he had received a special wage
-increase less than 2 months prior to his lay-off, was the only "special"
worker to be laid off, or why Follett, if there was no "special" work
to be done, was not given other work to do, as the other "special"
workers in the department were. In view of Follett's leadership of
the Union and the remarks of William Sanders to him when he was
laid off, the only explanation for thus singling out Follett alone of
-the "special" workers for a lay-off appears to have been his union
activity. The course of conduct pursued by the respondent at this
time in regard to collective bargaining with the Union and the forma-
tion of the Employees Committee gives further support to this ex-
planation. The lay-off of Follett, the leader of the Union, could not
fail to weaken greatly the Union and contribute much to the success
of the respondent's attack on the Union on November 30. The re-
spondent again calls to our attention the fact that Adam Eger in this
department was not laid off. Our discussion of Eger's case in con-
nection with Keim's lay-off applies equally here.
We find that the respondent laid off Follett because of his union
membership and activity. The respondent, by laying off Follett,
discriminated in regard to his hire and tenure of employment, thereby
discouraging membership in a labor organization and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
Follett, who is now employed elsewhere, does not desire to return
to his former position in the employ of the respondent.
Edward J. Kitt. Kitt entered the respondent's employ on August
16, 1928. After having been laid off three times because of slumps
in the respondent's business, he worked steadily in the typographic
department from June 26, 1933, until he was laid off on November
12, 1937. There is no evidence of any complaints regarding his work.
Kitt joined the Union in August 1937, but had never been an officer
of it or prominent in its activities.
The factory superintendent, William Sanders, testified that when-
he ordered the lay-off of some of the employees in the department
because of the slump in the respondent's business, Kitt's foreman,
Schuebel, suggested that Kitt be laid off because the younger em-
ployees were much better workers and 'because Kitt's bad' breath
DECISIONS AND ORDERS 559
annoyed Schuebel, who often worked with Kitt at the same bench.
Kitt testified that some time prior to his lay-off Schuebel had assured
him that he would be the last man in the department to be laid off,
and that when Schuebel laid him off on November 12, 1937, Schuebel
remarked that "they" were trying to break up "this affair," referring
to the Union. Schuebel did not testify at the hearing. Even if San-
.ders' testimony be accepted as true, it was Schuebel who, according to
Sanders, suggested the lay-off of Kitt, and in the absence of any
explanation by Schuebel as to whether the reason he allegedly gave
Sanders or the reason he allegedly gave Kitt was the true cause of
Kitt's lay-off, we conclude that both reasons must have contributed
to Kitt's lay-off. Moreover, clue to Schuebel's non-appearance at the
hearing, 'Kitt's testimony is unrefuted and unshaken in regard to
Schuebel's remarks to Kitt. On the other hand, the course of con-
duct pursued by the respondent at this time in regard to collective
bargaining with the Union and the formation of the Employees Com-
mittee, in the absence of any confirmation by Schuebel of Sanders'
testimony, casts serious doubt upon its truthfulness and leads us to
believe Kitt's testimony rather than Sanders' and to conclude that
Foreman Schuebel told Kitt the true reason for his lay-off. Moreover,
there is no evidence of any complaints to Kitt regarding his work or
his breath. Kitt was senior not only to all six of the employees in
the department who were subsequently laid off on December 31, 1937,
but also to at least six people, employed by the respondent in 1937
in the department, who were not laid off. The respondent stresses
the fact that it did not regulate its lay-offs entirely by seniority, but
-considered other factors, particularly the efficiency of the employee.
.Seniority, however, in the absence of any evidence of complaints
-regarding the work of the employee, would seem to be an excellent
indication of'the -worker's efficiency. The fact that 19 of the 31 em-
ployees laid off between November 5 and December 31, 1937, had
entered the respondent's employ only in 1936 or 1937 confirms this
fact. Kitt's long and- excellent employment record with the respond-
ent, coupled with Schuebel's remarks, leads us to conclude that Kitt
was laid off for union activity.
We find that the respondent laid off Kitt because of his union
membership and activity. The respondent, by laying off Kitt, dis-
criminated in regard to his hire and tenure of employment, thereby
discouraging membership in a labor organization and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
Kitt, who has not been elsewhere employed since his lay-off on
November 12, desires to return to his former position in the employ
of the respondent.
560 NATIONAL LABOR RELATIONS BOARD
Jacob Schlapp. Schlapp entered the' respondent's employ on April
26, 1934, and worked continuously in the typographic department
until he was laid off on November,12, 1937.
Schlapp joined the Union in August 1937, but had never been an
officer of it or prominent in its activities.
A short time after Schlapp had joined the Union he was severely
reprimanded by the assistant superintendent, Alfred Sanders, for his
method of using a micrometer. Schlapp felt that the reprimand was
undeserved and unduly severe, but there is no evidence that his union
membership was the cause of this incident. On November 12, 1937,
Foreman Goebel told Schlapp that because there was not much work
to be done around the plant, Schlapp was being laid off. Schlapp
was senior to several employees in the department who were not then
laid off.
We are of the opinion that the evidence does not support the allega-
tions of the complaint that the respondent laid off Schlapp for union
membership or activity. The allegations of the complaint with re-
spect to the lay-off of Schlapp will be dismissed.
Edward Ruter. Ruter entered the employ of the respondent on
December 13, 1934. Except for a short lay-off caused by a decrease
in the respondent's business, he worked steadily in the typographic
department until he was laid off on November 12, 1937. On December
7, 1937, he returned to the employ of the respondent, but was laid off
again on December 31, 1937. There is no evidence of any complaints
regarding his work.
Ruter joined the Union ' in August 1937, but had never been an
officer of it or prominent in its activities.
The respondent asserted that on November 12 and December 31,.
1937, Ruter was laid off because of the decrease in its business, and
stated that, as it had reinstated him on December 7,-when there was
work at the plant for him to do, so it would again reemploy him as
soon as there was work for him. Ruter was senior to several em-
ployees in the department who were not laid off on December 31.
We are of the opinion that the evidence does not support the allega-
tions of the complaint that the respondent laid off Ruter, for union
membership or activity. The allegations of the complaint with re-
spect to the lay-off of Ruter will be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Upon the whole record we find that the activities of the respondent
set forth in Section III above, occurring in connection with the opera-
tions of the respondent described in Section I above, have a closer
intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
DECISIONS AND ORDERS
V. THE REMEDY
561
We have found that the respondent has engaged in certain unfair
labor practices. We will, therefore, order it to cease and desist there-
from and to take certain affirmative action designed to effectuate the
policies of the Act and to restore , as nearly as possible , the situation
that existed prior to the commission of the unfair labor practices.
We have found that the respondent dominated and interfered with
the formation and administration of the Employees Committee and
contributed support to it. Since the Employees Committee is iii-
,capable of serving as a genuine representative of the respondent's
employees for the purposes of collective bargaining, we will, in order
to establish conditions necessary for the exercise of an unfettered
choice of representatives by the employees, order the respondent to
withdraw all recognition from the Employees Committee as a repre-
sentative of the respondent's employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, and conditions of work,. and to
-disestablish it as such representative . We have also found that the
individual contracts of employment signed by the employees are anti-
union or "yellow-dog" contracts, discouraging membership in the
Union. In order to restore the status quo as it existed prior to the
'execution of these illegal'contracts, and to enable the process of collec-
tive bargaining to function, we will order the respondent to inform in
writing each employee who signed such a contract that the contracts
were entered into pursuant to an unfair labor practice within the
meaning of the Act, are void and of no effect, will therefore be dis-
'continued as,a term or condition of employment , and will in no man-
ner be enforced or attempted to be enforced.
We have found that the,respondent has refused to bargain collec-
tively with the Union. • In order to effectuate the policies of the Act,
we will order the respondent, upon request, to bargain collectively
with the Union in respect to rates of pay, wages, hours of employment,
and other conditions of employment , and, if an understanding is
reached in any such matters, embody said understanding in an agree-
ment with the Union, if requested to do so by the Union.
We have found that the respondent engaged in unfair labor prac-
tices in laying off William Herbert Haake, William Keim, Herbert
Arthur Follett, Edward J. Kitt, and John Hans Roschke. Since
Follett and Roselike, do not desire to return to their former positions
in the employ of the respondent, we will not order the respondent to
offer them reinstatement. We will, however, order the respondent
to make them whole for any loss of pay they have suffered by rea-
son of their respective lay-offs by payment to each of them of a sum
equal to the amount which he normally would have earned as wages
562 NATIONAL LABOR RELATIONS BOARD
from the date of his discharge to the date of his obtaining regular
employment elsewhere, less his net earnings 12 during that period.
We will order the respondent to offer reinstatement to Haake, Keim,.
and Kitt and to make them whole for any loss of pay they have
suffered by reason of their respective lay-offs by payment to each
of them of a. sum equal to the amount which he normally would have
earned as wages from the date of his lay-off to the date of the offer-
of reinstatement, less his net earnings 13 during that period.
We have adopted the theory of the respondent that the lay-offs of-
Reinhart, Elsasser, Schlapp, and Ruter were temporary, occasioned
by a decrease in business and available work in the plant, and there--
fore we will not order their reinstatement. However, in view of
the respondent's unfair labor practices as set forth in Section III-
above, there is grave danger that the respondent will not reemploy
these four individuals even if their former or substantially equivalent
positions are open. In order to effectuate the policies of the Act,.
we will require the respondent to place Reinhart, Elsasser, Schlapp,.
and Ruter, for whom work was not available at the time of the
hearing, upon a preferential list for employment as it arises.14
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. International Association of Machinists, District $ 15, and the
Collective Bargaining Committee of the Employees of American
Numbering Machine Company are labor organizations, within the-
meaning of Section 2 (5) of the Act.
2. All the respondent's production employees, including porters,
working foremen, and working foreladies, but excluding supervisory
officials and office or clerical employees, constitute a unit appropriate
for the purposes of collective bargaining, within the meaning of
Section 9 (b) of the Act.
3. By virtue of Section 9 (a) of the Act, International Associa-
tion of Machinists, District #15, having been selected as their rep-
17 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 on Federal, State , county , municipal , or other work-relief projects are
not deductible as "net earnings ," but, as provided below in the Order , shall be deducted
and paid over to the appropriate fiscal agency of the Federal, State, county , or other gov-
ernment or governments which supplied the funds for said work -relief projects.
1s See footnote 12, supra. ,
14 Matter of American Manufacturing Concern and Local No. 6, Organized Furniture
Workers, 7 N. L. R. B. 753; Matter of Benjamin Levine, doing business under the name and'
style of Estellite Fixtures Company and International Brotherhood of Electrical Workers,
Local Union No. 438, 6 N. L. R. B. 400.
DECISIONS AND ORDERS 563;
resentative by a majority of the employees in an appropriate unit,.
was on October 4, 1937, and at all times thereafter has been, the ex-
clusive representative of all the employees in such unit for the pur-
poses of collective bargaining in respect to rates of pay, wages, hours
of employment, and other conditions of employment.
4. By refusing to bargain collectively with International Associa-
tion of Machinists, District #15, as the exclusive representative of
its employees in the appropriate unit, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning
of Section 8 (5) of the Act.
5. By dominating and interfering with the formation and admin-
istration of the Collective Bargaining Committee of the Employees,
of American Numbering Machine Company and by contributing sup
port thereto, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (2) of the Act.
6. By discriminating in regard to the hire and tenure of employ-
ment of William Herman Haake, William Keim, Herbert Arthur
Follett, Edward J. Kitt, and John Hans Roschke, and thereby dis-
couraging membership in the International-Association of Machinists,
District #15, the respondent has engaged in and is engaging in an
unfair labor practice, within the meaning of Section 8 (3) of the
Act.
7. By interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, the respond-
ent has engaged in and is engaging in unfair labor practices; within
the meaning of Section 8 (1) of the Act.
. 8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
9. By laying off Isabella Zilpah Reinhart, Mary Madeline Elsasser,
Jacob Schlapp, and Edward Ruter, the respondent has not engaged
in an unfair labor practice, within the meaning of Section 8 (3) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, American Numbering Machine Company, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Association of
Machinists, District #15, or any other labor organization of its em-
ployees, by discharging or threatening to discharge, laying off, or
refusing to reinstate any of its employees or in any other manner dis-
-564 NATIONAL LABOR RELATIONS BOARD
.criminating in regard to their hire or tenure of employment or any
term or condition of their employment because of membership or
,activity in connection with any such labor organization;
(b) Refusing to bargain collectively with International Associa-
tion of Machinists , District #15, as the exclusive representative of
all its production employees, including porters, working foremen,
'and working foreladies , but excluding supervisory officials and office or
clerical employees;
(c) Recognizing the Collective Bargaining Committee of the Em-
ployees of American Numbering Machine Company as the representa-
tive of any of its employees for the purpose of dealing with the
respondent concerning grievances , labor disputes , wages, rates of
pay, hours of employment , or conditions of work ;
(d) In any manner dominating or interfering with the adminis-
tration of the Collective Bargaining Committee of the Employees
of American Numbering Machine Company , or with the formation or
administration of any other labor organization of its employees, or
contributing support to the Collective Bargaining Committee of the
-Employees of American Numbering, Machine Company;
(e) Giving effect to its contracts of employment entered into with
the Collective Bargaining Committee of the Employees of American
Numbering Machine Company , and with its employees individually;
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations , to bargain collectively
through representatives of their.own choosing , and to engage in con-
certed activities , for the purpose of collective bargaining or other
-mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to William Herman Haake, William Keim, and Edward
J. Kitt, immediate and full reinstatement to their former positions,
without prejudice to their seniority and other rights or privileges
previously enjoyed by them;
(b) Make whole William Herman Haake, William Keim, Edward
J. Kitt, Herbert 'Arthur Follett , and John Hans Roschke for any,
-loss of pay they have suffered by reason of their discharges by
payment to each of them of a sum equal to the amount to that which
'he normally would have earned as wages during the period from
the date of his discharge to, in the case of Haake, Keim, and Kitt,
the date of such offer of reinstatement , less his net earnings ".during
said period , and in the case of Follett and Roschke, the date of his
obtaining regular employment elsewhere, less his net earnings 18.
15 See footnote 12, supra
DECISIONS AND ORDERS 565
during said period, deducting, however, from the amount otherwise
due,':to each of the said employees, monies received by said employee
during said period for work performed upon Federal, State, county,
municipal, or other work-relief projects; and pay over the amount,
so deducted, to the appropriate fiscal agency of the Federal, State,
county, municipal, or other government or governments which sup-
plied the funds for said work-relief projects;
(c) Place Isabella Zilpah Reinhart, Mary Madeline Elsasser,
Jacob Schlapp, and Edward Ruter on a preferential list to be offered
employment as it arises on the basis of seniority by classification
before any other persons are hired;
(d) Upon request, bargain collectively with International Asso=
ciation of Machinists, District #15, as the exclusive representative
of all its production employees, including porters, working foremen,
and working foreladies, but excluding supervisory officials and office
or clerical employees, in respect to rates of pay, wages, hours of
employment, and other conditions of employment, and, if an under-
standing is reached in any such matters, embody said understanding
in an agreement with the International Association of Machinists,
District #15, if requested to do so by said International Association
of Machinists, District #15;
(e) -Withdraw all recognition from the Collective Bargaining
Committee of the Employees of American Numbering Machine Com-
pany as the representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of work, and
-completely disestablish the Collective Bargaining Committee of the
Employees of American Numbering Machine Company as such
representative;
(f) Personally inform in writing each and every one of its em-
ployees who has entered into the individual contract of employment
in the form proposed by the American Numbering Machine Com-
pany, as set forth in the findings of fact above, that such contract
was entered into pursuant to an unfair labor practice within the
meaning of the National Labor Relations Act, is void and of no effect,
will therefore be discontinued as a term or condition of employment
and will in no manner be enforced or attempted to be enforced;
(g) Post immediately notices to its employees in conspicuous places
throughout its plant stating: (1) that the respondent will cease and
desist as provided in paragraphs 1 (a), (b), (c), (d), (e), and (f) of
this Order; (2) that the respondent's employees are free to become or
remain members of International Association of Machinists, District
#15, and that the respondent will not discriminate against any
employee because of membership in that organization; (3) that the
147541-39-vol 10--37
566 NATIONAL LABOR RELATIONS BOARD
respondent, upon request, will bargain collectively with the Interna-
tional Association of Machinists , District # 15, as the exclusive repre-
sentative of all its production employees , including porters , working
foremen, and working foreladies , but excluding supervisory officials
and office or clerical employees and if an understanding is reached
in any such matters, the respondent will embody said understanding
in an agreement with the International Association of Machinists,
District # 15, if requested to do so by said International Association
of Machinists , District #15; (4) that the respondent has withdrawn
all recognition from the Collective Bargaining Committee of the Em-
ployees of American Numbering Machine Company as a representa-
tive of its employees for the purpose of dealing with the respondent
concerning grievances , labor disputes , rates of pay , wages, hours of
employment, or conditions of work and that the respondent has com-
pletely disestablished it as such representative ; and (5) that the indi-
vidual contracts of employment which have been entered into with
its employees are in violation of the National Labor Relations Act,
are void and of no effect , and will no longer be offered , solicited,
entered into , continued , enforced , or attempted to be enforced;
(h) Maintain such notices for a period of at least sixty (60) con-
secutive days from the date of posting;
(i) Notify the Regional Director - for the Second Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed with respect to the lay-off of Isabella Zilpah Reinhart,
Mary Madeline Elsasser, Jacob Schlapp , and Edward Ruter.