Art Crayon Co., Inc.

National Labor Relations Board - Board Decisions

May 11, 1938

7 N.L.R.B. 102 (N.L.R.B. 1938)

In the Matter of ART CRAYON COMPANY, INC. AND ITS AFFILIATED
COMPANY, AMERICAN ARTISTS COLOR WORKS, INC. and UNITED
ARTISTS SUPPLY WORKERS
Cases Nos. C-295 and R-358.--Decided May 11, 1938
Art Materials Manufacturing Industry--Emptoyer: separate corporations,
closely related in location and operations, with substantially identical stock own-
ership and interlocking directorates-Conciliation: efforts at, by New York De-
partment of Labor-Interference, Restraint, and Coercion: discrediting union ;
expressed opposition to labor organization ; persuading employees to refrain
from joining union-Company-Dominated Union: domination of and interference
with formation and administration ; support ; soliciting membership in ;
disestablished as agency for collective bargaining-Discrimination: discharges :
charges of, not sustained as to one employee; refusal to reinstate: charges of,
not sustained-Unit Appropriate for Collective Bargaining: functional coher-
ence; interchangeability of employees; centralized control over labor policies;
common stock ownership, interlocking directorates; production employees in
employer unit-Representatives: proof of choice : comparison of pay roll with
applications for membership in union-Strike-Employee Status: during strike-
Collective Bargaining: effect of strike upon employer's duty ; refusal to recog-
nize representatives-Reinstatement Ordered: discharged employee; other dis-
charged employees previously reinstated-Back Pay: awarded-Investigation
of Representatives: petition for, dismissed because of order to employer to
bargain.
Mr. Lester M. Levin, for the Board.
Mr. David M. Neuberger and Mr. Murray M. Ratner, of New
York City, for the respondents.
Mr. S. G. Lippman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by United Artists Supply Workers, here-
in called the Union, the National Labor Relations Board, herein
called the Board, by Elinore Morehouse Herrick, Regional Director
for the Second Region (New York City), issued its complaint dated
July 14, 1937, against Art Crayon Company, Inc. and American
Artists Color Works, Inc., New York City, herein at times individu-
ally called Art Crayon and American Artists, respectively, and at
times called the respondents, alleging that the respondents had en-
gaged in and were engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1), (2), (3), and (5), and
102
DECISIONS AND ORDERS 103
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. The complaint and notice of hearing
were duly served upon the respondents and the Union. Various
amendments to the complaint were made at the hearing.
In respect to the unfair labor practices the complaint , as amended,
alleges in substance that the respondents discharged about May 19,
1937, various employees because they assisted the Union and engaged
in other concerted activities for the purpose of collective bargaining
and other mutual aid and protection; that certain of such employees
have not been reinstated; that the respondents have initiated, spon-
sored, supported, dominated, and interfered with the administratioll
of a labor organization or plan known as the, Benevolent Association;
that the respondents have urged, persuaded, warned, and threatened
their' employees in order that such employees should refrain from
joining or give up their membership in the Union and join the
Benevolent Association; that although the Union ha's at all times
since May 19, 1937, represented a , majority of,the respondents'
employees, exclusive of supervisory and clerical employees, the re-
spondents have refused to bargain with the Union as the representa-
tive to such employees.
On July 21, 1937, the respondents filed answers which admitted
the respondents obtained some raw material outside New York, but
denied that the respondents. had engaged in any' of the alleged unfair
labor practices or that a labor dispute existed within the meaning
of the Act.
On June 3, 1937, the Union filed a petition and on July 12, 1937,
it filed an amended petition with the said Regional Director, alleg-
ing that a question affecting commerce had arisen concerning the
representation of employees of the respondents and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the Act. The Board acting pursuant to Section 9 (c) of the
Act and Article III, Section 3, of Nr,tlonal Labor Relations Board
Rules and Regulations-Series 1, as amended, ordered an investiga-
tion and authorized the Regional Director to conduct it and to
provide for an appropriate hearing upon due notice. On July 21,
1937, the Board, acting pursuant to Article III, Section 10 (c) (2),
of the Rules and Regulations, ordered that the two cases be consoli-
dated for the purpose of hearing.
Oil July 14, 1937, the Regional Director issued a notice of hearing,
copies of which were duly served upon the respondents and the
Union. Pursuant to the notice, a hearing on the complaint and pe-
tition was held in New York City on July 22, 1937, through July
27. 1937, before James C. Paradise, the Trial Examiner duly desig-
106791-38-vol vu--8
104 NATIONAL LABOR RELATIONS BOARD
Hated by the Board. At the hearing, the Board and the respondents
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all
parties.
During the course of the hearing, the Trial Examiner made several
rulings on 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 November 16, 1937, the Trial Examiner filed his Intermediate
Report in which he found that the respondents had engaged in the
unfair labor practices alleged in the amended complaint, except in
so far as the complaint alleged that the discharge of William Roth-
feld and the failure to reinstate Henry Hirsch were unfair labor
practices. On December 1, 1937, the respondents filed exceptions to
the Intermediate Report. The respondents requested an opportunity
to argue their exceptions before the Board. Pursuant to notice, a
hearing was held before the Board on January 14, 1938, in Wash-
ington, District of Columbia, for the purpose of such oral argument.
The respondents were represented by Mr. Nathan Agar, but the
Union did not appear.
The Board has considered the exceptions to the Intermediate Re-
port and the brief filed by the respondents. It finds the exceptions
to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Art Crayon Company, Inc., is a New York corporation engaged
in the manufacture of crayons, chalks and kindred products, having
its office and place of business in Brooklyn, New York. The prin-
cipal raw materials used by it are wax, steric acid, whiting, paper,
wooden and tin boxes, and brushes. During the year 1936, it
purchased raw materials costing approximately $110,000, with ap-
proximately 50 per cent of the raw materials being obtained through
local jobbers from sources outside of the State of New York. The
total sales of Art Crayon during 1936 amounted to approximately
$260,000. About 70 per cent of its customers are located outside the
State of New York. The Standard Toy Craft Company is one of
the largest purchasers from Art Crayon and approximately 50 per
cent of the products sold to it are shipped by Art Crayon to points
outside the State of New York. Art Crayon employs about 110
DECISIONS AND ORDERS 105
production workers and has salesmen located in Canada, California,
Chicago, and the South.
American Artists Color Works, Inc., is a New York corporation
having its office and place of business in Brooklyn, New York, and
is engaged in the manufacture of artists' materials, such as paints,
water colors, oils, pastels, and kindred products. The principal raw
materials used by it are colors, linseed oil, turpentine, chemicals,
dyestuffs, glass containers, and miscellaneous products. Approxi-
mately 30 to 40 per cent of such materials are obtained from sources
outside of the State of New York. The total sales of American
Artists during the year 1936 amounted to approximately $150,000.
More than half of its customers are located outside the State of
New York. American Artists employs approximately 40 production
workers.
The officers and directors of Art Crayon are Mack Lester, president,
and Nathan Agar, secretary. The officers and directors of American
Artists are James Wilson, president, Mack Lester, vice president
and treasurer, and Nathan Agar, secretary. Mack Lester and Agar
each own one-half of the capital stock of Art Crayon. One-third
of the capital stock of American Artists is owned by Wilson, a small
amount by Mack Lester and Agar, and the balance of the stock is
held by Art Crayon.
Each company has a separate pay roll for its respective employees,
files separate tax returns, and pays separate, workmen's compensation
insurance. The evidence indicates that Mack Lester, president of
Art Crayon, has charge of the management of that company and
that James Wilson, president of American Artists, has charge of its
management. Apparently, Nathan Agar, secretary.of each respond-
ent, normally handles labor controversies arising with respect to
employees of both respondents.
The two respondents occupy space on the third floor of the same
building in Brooklyn, the entire space being leased by Art Crayon,
which under an informal agreement, sublets a portion to American
Artists. The employees of both respondents use the same entrance
and it is necessary for those working for American Artists to walk
through the Art Crayon space to go to work. • The respondents use the
same telephone and the same timeclock. The entire inventory of
American Artists is owned by Art Crayon. American Artists main
tains no bank account and all funds received by it are endorsed over
to Art Crayon. All disbursements of American Artists, including
its pay roll, are made with checks of Art Crayon. The latter com-
pany also does all the purchasing of materials for American Artists.
However, separate books are kept for each of the companies and
American Artists is charged for services and disbursements made on
106 NATIONAL LABOR RELATIONS BOARD
its behalf by Art Crayon. The respondents state that the described
financial arrangements result from the fact that both the respondents
are operating primarily on a loan of $35,000 from the Federal Reserve
Bank and a $15,000 loan from the Marine Midland Bank to pay off
some installments of the Federal Reserve loan, and the fact that the
Federal Reserve loan was made to Art Crayon with the understand-
ing that it could advance no part of it to American Artists.
II. THE ORGANIZATIONS INVOLVED
United Artists Supply Workers is a labor organization affiliated
with the Textile Workers Organizing Committee,' admitting to its
membership all employees of the respondents, excluding supervisory
and clerical employees.
Four "Employee Committees", organized May 6 and 7, 1937, but
defunct since May 10, 1937, were labor organizations. Separate
committees were organized for the male and female employees of
the respective respondents.
III. TIIE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coel cion
Prior to April 29, 1937, ,there appears to have been no labor organ-
izatioii among the respondents' employees. Shortly after that date
a small group of employees, headed by Dominick Bortoluzzi, Henry
Hirsch, and John Rega, wishing to form a union, went to the office
of the Textile Workers Organizing Committee and spoke to one of
its organizers. They obtained application cards and circulated them
among the respondents' employees outside of working hours. On
April 29 these three employees called their first meeting at a restau-
rant, not,far from the, plant. The number of employees of the re-
spondents who attended the meeting was estimated at from 60 to
more than 100. Coincidentally, Bob Lester, general manager of Art
Crayon, Dan Small, in charge of the Art Crayon office, and Meyer
Cooperman, an Art Crayon forenman, were present in the restaurant
during the meeting and apparently were able to see and hear what
went on. The employees present at the meeting voted to affiliate
with the Committee for Industrial Organization and elected a shop
committee to represent them in dealing with ,the respondents with
respect to wages, hours, working conditions, and grievances. This
committee was composed of Hirsch, Bortoluzzi, Rega, Theresa Peluso,
and one or two other employees. The organization of the employees
affected at this meeting was later formally designated as the United
Artists Supply Workers.
DECISIONS AND ORDERS 107
The respondents lost no time in initiating a campaign aimed at
persuading, intimidating, and coercing their employees into forsak-
ing or refraining from joining the Union. This campaign included
attempts by the respondents to form inside organizations, and the
discharge of active union employees. These occurrences will be
discussed chronologically so that they may be judged in the light of
their respective surrounding circumstances.
On Saturday, May 1, 1937, during working hours, a meeting of
the respondents' employees was called in the plant. The workers of
the morning and afternoon shifts were asked to attend. The meet-
ing was opened and addressed by Mack Lester, president of Art
Crayon, who told the employees how the business had been built up
from small beginnings, expressed his desire that the management
and the employees be one happy family, stated that the C. I. O. was
a racketeering organization which was out for money, and that he
would not recognize the C. I. O. or any outside union but that he
would recognize an inside union which he suggested might be called
the Benevolent Association. He suggested that the employees organ-
ize such an organization. Hirsch, an employee, then addressed the
employees and urged them not to leave the Committee for Industrial
Organization:
On the evening of May 1, 1937, as soon as employees Hirsch and
Bortoluzzi reported for work, they were engaged in conversation by
Joseph Mascari and John Giordano, Art Crayon foremen, who urged
them to try the Benevolent Association proposed by Mack Lester
before committing themselves to an outside union. They stood at
Hirsch's machine until about 2 a. m. despite the fact that Mascari's
shift ended at midnight. No work was done during the conference.
On May 3, 1937, Bortoluzzi was assigned to the day shift and that
afternoon Meyer Cooperman and John Moreno, Art Crayon fore-
men, invited Bortoluzzi to a neighboring restaurant and urged him
"to give'the boss -chance and form an inside union."
On May 4,1937, Bortoluzzi, Hirsch, and Rega were discharged. The
first two on different pretexts which are more particularly discussed,
below and Rega for no reason which is definitely stated in the record.
At noon of the same day a meeting of the employees of the respond-
ents was held in the plant, at which Dan Small, an Art Crayon offi-
cial, introduced to the employees a Mr. Roth, an organizer for the
American Federation of Labor. The explanation given by the re-
spondents is that Roth had asked permission to address the
employees and it was granted because "The Company wished to
accord the same privilege to the A. F. of L. as had been accorded to
the C. I. 0." The record does not disclose that the respondents
granted any similar privilege to the representative of the Committee
108 NATIONAL LABOR RELATIO'IN S BOARD
for Industrial Organization . During the open meeting George
Douval , a Union member , asked Roth to inquire of Bob Lester the
reason for the discharge of Bortoluzzi and Rega. Douval was
discharged the next day.
On the afternoon of May 4, 1937 , Joe Mascari and John Moreno,
Art Crayon foremen, were given permission by the management to
hold a series of separate departmental meetings for the purpose of
promoting the organization of the Benevolent Association. These
meetings were held in the plant during working hours on May 4 and
5, 1937. On the evening of May 4 and May 5, 1937, Moreno and
Mascari held another series of meetings of the employees of each of
the departments of the respondents , during working hours , in one of
the lofts . At these meetings they urged the employees to refrain from
organizing an outside union but to form an inside organization as
suggested by Mack Lester and to present their demands to the man-
agement. On May 5, 1937, during working hours, they called a meet-
ing in the plant of all the employees of the respondents . They told
the employees that they were "getting pretty well disgusted and fed
up," and finally Mascari stated that he wanted an expression of
opinion from those present . He asked all employees who were in
favor of the C. I. O. to walk out, and practically all of the employees
started to leave. Mascari called them back and asked for a closed bal-
lot. He designated William Rosenzweig , an Art Crayon employee to
count the ballots . The result was overwhelmingly in favor of the
C. I. O.
About May 5, 1937 , the respondents consulted with L. L. Balleisen,
industrial advisor for the Brooklyn Chamber of Commerce, who
offered them advice concerning their labor problems . This advice was
crystallized in a statement read by Mack Lester to the respondents'
employees on May 5 and 6, 1937. The statement opened with a recog-
nition of the rights of employees to bargain collectively and then went
on to say, "While the Company is willing to enter into a written con-
tract with its own employees , it has come to the conclusion that it
will not sign a contract with any union or have a closed shop in the
plants ..." 1 Following the reading of the statement by Mack
Lester, which according to him was intended to make the position of
the management clear, Rosenzweig , an employee , with Mack Lester's
permission , called a meeting of all employees on the day shift. The
meeting was held on company time and premises . At this meeting
1 The statement in its entirety follows the Balleisen formula condemned by the Board
in many instances See Matter of Atlas Bag, 1 N L R. B. 292; Matter of Hopwood
Retinning, Inc, and Monarch Retinning Company , Inc, 4 N L R B 922, Matter of Cating
Rope Works, 4 N. L. R. B. 1100; Matter of American Manufacturing Company, 5 N L R B.
443; Matter of Jacobs Bros . Co , Inc, 5 N L R B. 620, Matter of Federal Carton Corpo-
ration, 5 N. L R. B. 879.
DECISIONS AND ORDERS 109
Rosenzweig, stated "Give it a try. We have nothing to lose. If we
don't like it, can't we always drop it and go back to the C. I. 0.? "
With this understanding the employees voted to comply with Mack
Lester's suggestion . Rosenzweig apprised Mack Lester of this de-
velopment and the latter immediately phoned Agar, secretary of
each of the respondents, who was away from the plant. Agar there-
upon dictated over the phone the forms of the petitions which the
employees were to sign. These petitions provided for four separate
committees , representing respectively the men and the women in each
of.the two companies . The petitions were taken around by Rosen-
zweig and other employees during working hours and were submitted
to Agar and Mack Lester on May 7, 1937, with the demands which
apparently had been formulated at a meeting of the employees.2
Agar testified that he stated to the Employee Committee, with ref-
erence to the demand that all employees discharged of recent date be
reinstated without discrimination , that none had been discharged for
union activity but that everyone discharged during the preceding 2
weeks would be reinstated. As to the other demands, he told the
committees that the management would consider them and advise the
employees of their answer at a later date. Agar testified that he made
no attempt to verify the signatures on the petitions but that he merely
counted them to see if a majority of the employees of both companies
had signed.
The respondents delivered their reply to the demands of the Em-
ployee Committees on May 10.3 The employees held'a meeting in the
plant on the afternoon of that day, at which they rejected the manage-
ment's offer. That evening a meeting of the Union was called by
Bortoluzzi and Rega to consider the matter . A majority of the em-
ployees who were present at this meeting voted to reject the respond-
ents' offer, to drop the Employee Committees, and to remain with the
C. I. O. They designated Bortoluzzi and Rega as a committee to
inform the respondents of their action and to tell them that the Com-
mittee for Industrial Organization represented a majority of the
employees.
On May 11, 1937 , Bortoluzzi and Rega went to see Mack Lester and
conveyed the employees ' answer to the respondents' proposal. Mack
Lester replied, according to Bortoluzzi , "Wake up, I've got the
majority here and he showed , me a paper with names on. He said
this is the Union I recognize, I don't know you boys."
From all the foregoing it is evident that the respondents have domi-
nated and interfered with the formation and administration of the
Employee Committees and have contributed support to them, and
s Board Exhibit 11.
Board Exhibit 9.
110 , -NATIONAL LABOR RELATIONS BOARD
have thereby interfered with, restrained, and coerced their employees
in the exercise of the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing.
B. The discharges and the refusal to reinstate
1. Dominick Bortoluzzi. Bortoluzzi had been employed by Art
Crayon since July 1933. From the evidence as simlmarized' in Section
III (A) above, it is clear that by May 4, 1937, the respondents were
fully aware that Bortoluzzi was one of the principal organizers of
the Union. On the morning of May 4, 1937, Bortoluzzi and Rega
were summoned to Bob Lester's office where they were summarily dis-
,charged by Bob Lester without any explanation.
The reason given for Bortoluzzi's discharge at the hearing was
that on the afternoon of May 1, 1937, following the meeting held by
Mack Lester in the plant, Bortoluzzi was overheard by Wilson, presi-
dent of American Artists, to make the following statement to a girl
employee: "If she does not join, we will knock her head against the
wall." Wilson's testimony regarding this incident was supported by
Beatrice Braverman, his bookkeeper. 'According to Wilson and Miss
Braverman, this statement was made by Bortoluzzi in an ordinary
conversational tone just as they were passing him at a distance of
about 2 feet. They testified that Bortoluzzi was facing toward them,
while the girl to whom he was speaking had tier back toward them.
They stated that they recognized Bortoluzzi's companion as an em-
ployee, and Miss Braverman stated that the girl had been employed
in the plant for about 31/2 years. Nevertheless, both Wilson and Miss
Braverman stated that they would not be able to identify the girl if
they saw her. In fact, Miss Braverman was not sure that she would
have been able to identify the girl if she had seen her the day follow-
ing the alleged occurrence. Wilson stated that he was impressed by
the incident, and that on the morning of May 3, 1937, he reported it
to Mack Lester who received the report without any comment.
The alleged incident occurred on May 1, 1937, and despite its
alleged gravity Bortoluzzi was not discharged until May 4, 1937.
Bortoluzzi was never questioned about the incident and denies that
it ever occurred. The Trial Examiner found the testimony of Wilson
and Miss Braverman, particularly that of the latter, to be unconvincing
and not to be credited. Even if the incident did occur it is clear from
the manner in which Bortoluzzi was discharged and the surrounding
circumstances that Bob Lester was concerned not so much with the
significance of Bortoluzzi's alleged remarks as he was with getting*rid
of one of the spearheads of the union movement. The conclusion is
inescapable that Bortoluzzi was discharged because of his activities
in behalf of the Union.
DECISIONS AND ORDERS 111
On May 7, 1937, Agar promised the Employee Committees to rein-
state all the employees who had been discharged within the last 2
weeks. However, it was not until May 11, 1937, that Mack Lester
told Bortoluzzi to report for work on May 17, 1937.
We find 'that the respondent Art Crayon unfairly discharged
Bortoluzzi on May 4, 1937, because of his union activities.
2. John Mega. Rega had been employed by Art Crayon since May
1936. He was one of the three original organizers of the Union and
was active in the solicitation of employees for membership in the
Union. Rega was elected to the Shop Committee at the meeting in
the restaurant at which Bob Lester, Dan Small, and Meyer Cooper-
man, supervisory employees, were present. It is therefore a reason-
able inference that the respondent Art Crayon was fully aware of
Rega's union activities.
On the morning of May 4, 1937, Rega was discharged by Bob Lester
without any explanation. When Rega asked Bob Lester the reason
for his dismissal, Bob Lester answered that he had nothing to say.
The respondent offered no explanation for Rega's discharge other
than a statement unsupported by any evidence that Rega had been
guilty of coercing employees into joining the Union.
Rega was reinstated on May 17, 1937, under the same circumstances
that led to Bortoluzzi's reinstatement.
The Board is convinced that Rega was not discharged because of
any alleged coercion of employees but that Art Crayon in discharging
him was motivated by a desire to get rid of the Union leader's.
We find that the respondent Art Crayon .unfairly discharged Rega
on May 4, 1937, because of his union activities.
3. Henry Hirsch. Hirsch had been employed by Art Crayon since
February 1932. He was instrumental in forming the Union and
solicited employees for membership therein. As stated above, at the
May 1, 1937, meeting addressed by Mack Lester, Hirsch, in answer to
Mack Lester's plea that the employees form a benevolent association,
spoke to the employees urging them to remain with the Union. Thus
Hirsch's interest in the Union was well known to the management.
Hirsch had been working on the night shift and during the day
had been employed as a janitor in an apartment house. Following
the meeting of Saturday, May 1, 1937, one of his fellow employees
chided him about being transferred to the day shift beginning the
following Monday. It appears that when a shift was to be changed,
Hirsch normally received instructions from his foreman, Cooper-
man, and Hirsch apparently paid no attention to the remarks of the
employee. On Tuesday morning, May 4, 1937, Hirsch was sum-
moned by Bob Lester and accused of violating instructions in failing
to report for work on the day shift on Monday. Hirsch protested
112 NATIONAL LABOR RELATIONS BOARD
that he had received no instructions to that effect. Bob Lester sent
him home and told him to report back the next morning. When
Hirsch reported the next morning, May 5, 1937, Bob Lester handed
him his pay envelope and stated that he was "through" because of his
failure to follow instructions.
Hirsch was informed by Cooperman, after a meeting on May 10,
1937, that Art Crayon had decided to reinstate him. Thereafter he
received a registered letter instructing him to return to work on the
day shift of May 13, 1937.
We find that the respondent Art Crayon discharged Hirsch on May
5, 1937, because of his union activities.
4. George Douval. Douval had been working for Art Crayon for
about 15 months and was a member of the Union. During the re-
spondents' May 4, 1937, meeting, Douval questioned the American
Federation of Labor representative regarding the discharge of Borto-
luzzi and Rega. Bob Lester was present at the meeting.
In the afternoon of May 5, 1937, Douval's machine jammed. The
foreman sent for a wrench to fix it. While waiting, Douval went to
the men's room to smoke a cigarette. Bob Lester looked into the
room and asked Douval whether he had been smoking. Douval an-
swered in the affirmative. Bob Lester reported the occurrence to
Mack Lester who ordered Douval's discharge.
The respondent contends that signs were posted throughout the
plant prohibiting smoking and Douval was discharged for breaking
this rule. It was, however, a common practice for Douval and most
.of the other male employees to go to the men's room at various
intervals during the day to smoke. Douval testified that foremen
frequently smoked in the plant and Bob Lester admitted that it was
his custom to smoke in his office and walk through the plant with a
lighted cigarette. Bob Lester further testified that though he had
seen employees smoking many times before this incident, he had
never reported an employee to Mack Lester by name for smoking.
He stated that he reported this incident because of the unrest in the
plant and that he had been instructed to do so by Mack Lester.
From the above facts, it is clear that Art Crayon had resolved
to discharge union members, particularly leading union members, for
minor offenses in order to discourage union activities.
Douval was reinstated on May 17, 1937, together with Bortoluzzi
and Rega.
We find that the respondent Art Crayon discharged Douval on
May 5, 1937, because of his union' activities.
5. William Rothfeld. Rothfeld had been employed by Art-Crayon
since 1935. Although a member of the Union, Rothfeld was not an
.active participant in the union activities as were Bortoluzzi, Rega,
DECISIONS AND ORDERS 113
Hirsch, and Douval. However, on May 15, 1937, Bob Lester visited
Rothfeld at his home and stated that he wanted to give him some
good advice, suggesting that Rothfeld join an inside organization
because the respondents would never recognize any outside union.
Rothfeld stated that he was undecided.
On May 20, 1937, at about 9 a. in., Rothfeld was working on the
chalk-extruding machine. Rothfeld testifies that he set the control
lever and went to the back of the machine to clean the pumps and oil
the cups in accordance with his usual custom. For some reason the
machine was set in motion and the ram which extruded the chalk
from the cylinder was caused to advance. This ram normally moved
forward through a charging cylinder which assumed a horizontal
position so that the ram might pass through it. However, the
-charged cylinder was in a diagonal instead of a horizontal position
on this occasion with the result that the ram struck it and was bent.
Mack Lester was informed of the occurrence and he rushed into the
department ordering that "that man be discharged." Rothfeld then
went to Bob Lester's office where he was told that he was being dis-
charged for negligence. He protested that he had never had an
accident on the machine before and that the accident happened
through no negligence on his part. However, Bob Lester stated "the
boss is bearing down on everybody now."
As a result of the accident to Rothfeld's machine, about eight em-
ployees in the chalk assembly department who were dependent upon
the machine for their materials had to cease work. The bent ram
was removed and sent to a mechanic who repaired it at a cost of $15
and returned it about 2 p. in. It appears that after the ram was
returned, it was necessary to work on it for a few hours in the plant
with the result that work in the department was not resumed until
about 5 p. in.
There is a conflict in the testimony regarding the cause of the acci-
dent. Rothfeld testified that he left the control- lever in the proper
position but that the packing in the lever was worn and defective.
This he said caused a partial release of water pressure which put the
machine in motion. The evidence however indicates that after the
ram was replaced, the machine was put into use without any re-
pair to the lever or in the packing and that the machine had been
operated ever since without any such repairs. The Lesters state that
Rothfeld failed to set the lever properly and that this was an act
of gross negligence. It appears that there had never been such an
accident on the machine before.
We feel that under all the circumstances the discharge of Rothfeld
is open to considerable suspicion. However, it appears that he was
not particularly -active in the union affairs, and that because of his
114 NATIONAL. LABOR RE'LATION S BOARD
negligence the operations of the respondent were considerably inter-
rupted. In view of these facts and the finding of the Trial Exan1-
iner that Rothfeld was not discharged because of his union activities,
we conclude that there is insufficient evidence to uphold the allega-
tions of the complaint with respect to Rothfeld.
6. Second Discharge of Dominick Bortoluzzi. As set forth above,
Bortoluzzi was discharged because of his union activities on May 4,
1937, and thereafter reinstated on May 17, 1937.
On the evening of May 20, 1937, a union meeting was held at which
a committee consisting of Bortoluzzi and Theresa Peluso was desig-
nated to demand the reinstatement of Rothfeld who had been dis-
charged on May 20, 1937. On May 21, 1937, shortly after 9 a. in.,
Bortoluzzi received the consent of his forenian and together with Miss
Peluso saw Mack Lester. They asked him to reconsider Rothfeld's
dismissal because they felt he was "unfairly discharged." Mack
Lester refused to do so. Bortoluzzi then asked permission to use the
telephone at his own expense to call Thomas G. Evans, field repre-
sentative of the C. I. 0., who had been assisting the Union in its
work. Mack Lester refused the request and advised Bortoluzzi to
wait until noon. Bortoluzzi then stated the call had to be made even
though it would necessitate his leaving the building. Mack Lester
then demanded that Bortoluzzi discontinue his practice of leaving
his work to carry on union activities 4 and warned him not to leave
the building. Bortoluzzi, however, left the building and iriade the
call, being gone 5 or 10 minutes. Upon his return he advised the
workers not to strike and then resumed his work. Bortoluzzi's fore-
man told him to cease working. At 11: 00 o'clock he was discharged
by Mack Lester. A few minutes later the word had gotten around
that Bortoluzzi had been discharged and all of the respondent's em-
ployees, with the exception of supervisory employees, left the build-
ing and went on strike.
The evidence is clear that Mack Lester was opposed to union organi-
zation and had unfairly discharged a number of employees because
of their union affiliations and activities as noted above. Bortoluzzi
himself had on May 4, 1937, been discharged but reinstated on May
17, 1937. The testimony also shows that it was not an uncommon
practice for employees to use the telephone on personal business.
Mack Lester conceded that employees had without objection used the
telephone during emergencies. Under all the circumstances, Ave are
constrained to view Mack Lester's refusal to allow Bortoluzzi the use
of the telephone as an act designed to provoke Bortoluzzi into leav-
4 Bortoluzzi admitted that on an occasion subsequent to his reinstatement after his
earlier discharge lie received *permission to spend a few hours away from the plant on
the pretext , of taking care of a mortgage for his parents when in -fact he went to the
Union headquarters.
DECISIONS AND ORDERS 115
ing the building or into other conduct which would furnish the re-
spondent a pretext upon which to discharge Bortoluzzi. It should
also be noted that Mack Lester had agreed on May 19, 1937, to deal
with the Union grievance committee. He conceded that the commit-
tee had a right to confer with the management during working
hours. The matter in issue was one winch was of concern to the
employees generally. Under such circumstances, it would appear that
Bortoluzzi, as a member of the grievance committee, was entitled to
inform the Union officials of the result of the conference with Mack
Lester and that, since Mack Lester refused to permit the use of the
telephone, Bortoluzzi properly took a few minutes off' from work to
confer with Field Representative Evans.
We find that the respondent Art Crayon discharged Bortoluzzi on
May 21, 1937, because of his Union activities.
7. Refusal to Reinstate Henry Hirsch. As set forth above, Hirsch
was discharged because of his union activities on May 5, 1937, and
was reinstated on May 13, 1937.
Hirsch did not report for work on the night of May 19, 1937, or
the following night. He testified at the hearing that he was "too
tired" to work on these nights. Thereafter, lie remained out on strike
with the other employees. The strike ended on July 9, 1937, and prac-
tically all the striking employees returned to work about July 11,
1937. Hirsch did not, however, apply for reinstatement until July
20, 1937, at which time lie was informed that he would be put on the
preferred list and given a job as soon as a vacancy occurred. He
stated that lie did not apply for reinstatement earlier because he did
not believe lie would get his job back. However, there was appar-
ently no foundation for this belief, the respondents having rein-
stated all striking employees who applied for reinstatement.
In view of these facts, we find that there is not sufficient evidence
to support the allegation of the complaint that the respondent refused
to reinstate Hirsch because of his union activities.
We find that the respondent Art Crayon, by discharging Dominick
Bortoluzzi and John Rega on May 4, 1937, Henry Hirsch on May 5,
1937, George Douval on May 5, 1937, and by discharging Bortoluzzi
a second time on May 21, 1937, has discriminated against its employees
with respect to hire and tenure of employment for the purpose of
discouraging membership in the Union and that by such acts the
respondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
We also find that Art Crayon, by discharging William Rothfeld on
May 20, 1937, and by the refusal to reinstate Henry Hirsch, on July
20, 1937, did not thereby discriminate against its employees with
116 NATIONAL LABOR RELATIONS BOARD
respect to hire and tenure of employment for the purpose of dis-
couraging membership in the Union, and the complaint in these last
respects will be dismissed.
C. The refusal to bargain collectively
1. The appropriate unit
The Union claims that all factory and production employees of
the' respondents, excluding supervisory and clerical employees, con-
stitute a single unit appropriate for the purposes of collective bar-
gaining. The respondents contend that two bargaining units are
appropriate, one composed of the factory and production employees
of Art Crayon, and the other composed of such employees of Ameri-
can Artists. We have carefully considered in Section I above, the
facts pertaining to the relationship between Art Crayon and Ameri-
can Artists. As we have noted, the two respondents are separately
incorporated, have different general managers, maintain separate
pay rolls, file separate tax returns, and pay separate workmen's com-
pensation insurance. These considerations support the contention
for two separate bargaining units.
However, we have also noted that the two respondents are closely
connected physically and closely related in their operations and
through substantially identical stock ownership and interlocking
directorates. There is also some interchange of employees. One
individual, Agar, has handled labor controversies arising with respect
to employees of both respondents. Indeed, the relationship of the
two respondents is such that ultimate control over the labor policies
of both respondents unquestionably rests in the same hands. Under
all the facts, we are of the opinion that employees of both respondents
should be included within a single bargaining unit.5
We find that the factory and production employees of Art Crayon
and American Artists, excluding supervisory and clerical employees,
constitute one unit appropriate for the purposes of collective bar-
gaining and that said unit will insure to the employees of the respond-
ents the full benefit of their right to collective bargaining, and
otherwise effectuate the policies of the Act.
2. Representation by the Union of the majority in the appropriate
unit
There were introduced in evidence lists of persons on the pay roll of
each respondent for the period ending May 20, 1937 , the last pay-roll
date prior to the strike . The list pertaining to Art Crayon contained
5 See Matter of Todd Shin Yards, 5 N. L. R B 20; Matter of C A Lusid Co, 6 N. L R. B
423.
I DECISIONS AND ORDERS 117
the names of 110 employees within the appropriate unit and the list
pertaining to American Artists contained the names of 48' employees,
within the appropriate unit. Thus, the respondents, on May 20', 1937,
employed 158 persons within the appropriate unit.
There were also introduced in evidence authorizations signed by
employees of Art Crayon and American Artists designating the.
Union as their bargaining representative. The respondent objected
to the introduction of the authorizations into evidence on the ground
that they were not properly proven. However, the three employees
who participated in procuring the signatures of the applicants testified
that the applications were either signed in their presence or handed
to them by individuals whose signatures the applications bore. The,
respondents did not attempt to offer any proof attacking the validity
of the applications. They were content with merely alleging the
insufficiency of the proof. We find, therefore, that the objection of
the respondents is without merit.
A comparison of the pay-roll lists and authorizations shows that
86 of the 158 employees on the pay-roll lists signed authorizations.
The respondents introduced at the hearing petitions signed by
various employees designating Employee Committees as their bar-
gaining representative. Many of the persons signing union authoriza-
tions also signed such petitions. We have found, however, that the-
petitions do not reflect the free choice of the employees and have
ordered that the Employee Committees be disestablished. Under all'
the circumstances, we find that the appearance of an employee's name
on a petition is not, of itself, an indication of such employee's desire
respecting such representation. Accordingly, we conclude that a
majority of the employees of the respondents in the appropriate unit
on May 20, 1937, desired representation by the Union. No evidence'
was introduced that subsequent to May 20,1937, the employees changed
their desires with respect to representation by the Union.
We find that on May 20, 1937, and at all times thereafter, the Union
was the duly designated representative of a majority of the employees
of the respondents in the appropriate unit. By virtue of Section 9 (a)
of the Act, the Union is, therefore, the exclusive representative of all
the factory and production employees of the respondents, exclusive of
clerical and supervisory employees for the purpose of collective bar-
gaining in respect to rates of pay, wages, hours of employment, and
other conditions of employment.
3. The refusal to bargain
On May 19, 1937, representatives of the Union met with represent-
atives of the respondents. At that time the Union's representatives
118 NATIONAL LABOR RELATIONS BOARD
stated that the Union represented a majority of the workers of the
respondents and asked to bargain collectively. Mack Lester on be-
half of the respondents replied that a majority of the employees had
signed petitions designating the Employee Committees. Finally,
the parties agreed to confer further on May 24, 1937. The respond-
ents agreed to maintain the status quo in the meantime, and to recog-
nize a union grievance committee. On its part, the Union agreed not
.to call a strike.
After the discharge of Bortoluzzi on May 21, 1937, practically all
the employees went on strike. On May 24, 1937, a representative of
the respondents informed Union officials that inasmuch as the em-
ployees had gone on strike, the conference set for that day would be
canceled. Nevertheless, representatives of the Union went to the
respondent's office at the appointed time. The respondent's officials,
however, refused to enter into any discussion.
On May 26, 1937, Ernest AMT. Lanoue, a mediator for the New York
Department of Labor, attempted to arrange a conference between
representatives of the Union and the respondents. The respondents
refused to confer on the ground that "The Union did not represent
the employees and the strikers were no longer considered as em-
ployees; that there were new employees taken on."
We find that on May 24, the respondents refused to bargain col-
lectively with the Union, basing its refusal to bargain on the ground
,that the employees had gone on strike. The strike which resulted
-trom the discharge of Rothfeld and Bortoluzzi and the previous course
,of conduct of the respondent in intimidating and coercing its em-
ployees, was clearly caused by a labor dispute. The respondents
clearly were not, on the basis of the strike, justified in refusing to
bargain.6 As we have found above, the Union was on May 20, 1937,
and at all times thereafter, the designated representative of the ma-
iority of the employees of the respondents within the appropriate
unit. It was such representative on May 24, 1937, at which time the
respondents refused to bargain with the Union.
We find that the respondents Art Crayon and American Artists have
-refused to bargain collectively with the Union as the exclusive repre-
See Natter of Columbian Enamel nq and Stanrvtnq Company/. 1 N L R B 181
In that case (page 197) the Board stated "That the respondent was under a duty to
meet with the Committee, if settlement were possible, seems clear The Act requnes the
employer to bargain collectively with its employees Employees do not cease to be such
because they have struck Collective bargaining is an instrument of industrial peace.
The need for its use is as imperative during the strike as before a strike By means of
it a settlement of a strike may be secured. It is our opinion that the respondents
refusal to meet with the Committee after it promised to do so, resulted from its realiza-
tion that it could in any case open its plant and that to do so without dealing at all
with the union would discourage active support of the union and render it useless"
DECISIONS AND ORDERS 119
sentative of its employees in the appropriate unit in respect to rates
of pay, wages, hours of employment, and other conditions of employ-
ment, within the meaning of Section 9 (a) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents, set forth in Section III above,
occurring in connection with the operations of the respondents, de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and have
led and tend to lead to labor disputes, burdening and obstructing com-
merce and the free flow of commerce.
REMEDY
In addition to an order to each respondent to cease and desist from
its unfair labor practices, we shall affirmatively require each respond-
ent to withdraw all recognition from its Employee Committees as the
representative of any of their employees for the purpose of dealing
with the respondents concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment
and completely disestablish the Employee Committees as such repre-
sentative. We shall require the respondents, upon request, to bargain
collectively with United Artists Supply Workers as the exclusive rep-
resentative of its factory and production employees, excluding super-
visory and clerical employees.
We have found that the respondent Art Crayon discriminatorily
discharged Dominick Bortoluzzi on May 4, 1937; reinstated him on
May 17, 1937; and again discriminatorily discharged him on May 21,
1937. We shall, therefore, order the respondent Art Crayon to' offer
Bortoluzzi reinstatement and to make him whole for any loss of pay
he may have suffered by reason of his two discriminatory dis-
charges, by payment to him of a sum equal to the amount he would
have normally earned as wages from the date of his first discharge
to the date on which he was reinstated and from the date of his second
discharge to. the date of the respondent's offer of reinstatement, less
any amount which he has earned during the said periods.
Since Art Crayon has offered reinstatement to John Rega, Henry
Hirsch, and George Douval, other employees found to be discrimi-
natorily discharged, as indicated above, no affirmative order therefor
need be made in this connection. However, we shall require Art
Crayon to make whole those employees and each of them for any loss
of pay they may have suffered by reason of their respective discrimi-
natory discharges, by payment to each of them of a sum equal to the
amount each would have normally earned as wages from the date of
106791-38-vol vu-9
120 NATIONAL LABOR RELATIONS BOARD
their respective discharges to the date on which they were , respec-
tively, reinstated , less any amount which they have, respectively,
earned during said period.
THE PETITION
In view of the findings in Section III above as to the appropriate
bargaining unit and the designation of the Union by a majority of
the respondents' employees in the appropriate bargaining unit as
their representative for the purpose of collective bargaining, it is not
necessary to consider the petition of the Union for certification of
representatives. Consequently the petition will be dismissed.
Upon the basis of the foregoing findings of fact, and upon the
entire record in this proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. United Artists Supply Workers and the Employee Committees
are labor organizations within the meaning of Section 2 (5) of the
Act.
2. The respondents by dominating and interfering with the for-
mation and administration of the Employee Committees and by other-
wise contributing support thereto, have engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (2) of the
Act.
3. The respondent, Art Crayon Company, Inc. by discriminating
in regard to the hire and tenure of employment of its employees and
discouraging membership in the United Artists Supply Workers has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
4. The respondents by interfering with, restraining, and coercing
their employees in the exercise of the rights guaranteed in Section
7 of the Act, have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 t1) of the Act.
5. The production and factory employees of the respondents, ex-
cluding supervisory and clerical workers, constitute a single unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9.(b) of the National Labor Relations Act.
6. The United Artists Supply Workers, having been designated
as their representative by a majority of the employees in the appro-
priate unit, was on May 20, 1937, and at all times thereafter has
been the exclusive representative of all employees in such unit for
the purposes of collective bargaining, within the meaning of Section
9 (a) of the Act.
7. The respondents, by refusing to bargain collectively with United
Artists Supply Workers as the exclusive representative of its em-
DECISIONS AND ORDERS 121
ployees in the appropriate unit has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (5) 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.
ORDER
Upon the basis of the findings of fact and conclusions of law and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby :
ORDERS that the respondents, Art Crayon Company, Inc. and
American Artists Color Works, Inc., their officers, agents, successors
and assigns, shall:
1. Cease and desist from :
(a) In any manner dominating and interfering with the formation
or administration of the Employee Committees, and from contribut-
ing support thereto, or to any other labor organization of their
employees ;
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to
form, join, and assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid and protection ;
(c) Refusing to bargain collectively with United Artists Supply
Workers as the exclusive representative of their factory and produc-
tion employees, exclusive of supervisory and clerical employees.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Withdraw all recognition from the Employee Committees
groups as the representative of any of their employees for the pur-
pose of dealing with the respondents concerning grievances, labor
disputes, wages, rates of pay, hours of employment or other condi-
tions of work, and completely disestablish the Employee Committees
as such representative;
(b) Upon request, bargain collectively with United Artists Supply
Workers as the exclusive representative of their factory and prodilc-
tion employees, excluding clerical and supervisory employees ;
(c) Post immediately notices in conspicuous places throughout its
plant and maintain such notices for a period of thirty (30) consecu-
tive days, stating (1) that the respondent will cease and desist as
aforesaid; (2) that the Employee Committees are disestablished as
the representative of any of their employees for the purposes of deal-
122 NATIONAL LABOR RELATIONS BOARD
ing with them with respect to grievances, labor disputes, wages, rates
of pay, hours of employment or conditions of work and that the re-
spondent will refrain from recognition thereof; (3) that the respond-
ent will bargain collectively with United Artists Supply Workers as
the exclusive representative of the employees in the appropriate unit;
(d) 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.
FURTHER ORDERS that the respondent Art Crayon Company, Inc.,
its officers, agents, successors and assigns shall :
1. Cease and desist from discouraging membership in United Artists
Supply Workers or any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees or in any
other manner discriminating in regard to their hire or tenure of em-
ployment or any term or condition of their employment because of
their membership in, activity on behalf of, or sympathy toward any
such labor organization;
2. Make whole John Rega, Henry Hirsch, and George Douval and
each of them for any loss of pay they have suffered by reason of the
.respondent's discrimination in regard to hire and tenure of employ-
ment by payment to each of them of a sum equal to that which each
would normally have earned as wages during the period from the
date of their respective discharges to the date on which they were
Tespectively reinstated, less any amount each has earned during that
period ;
3. Offer reinstatement to Dominick Bortoluzzi and make him whole
for any loss of pay he may have suffered by reason of the respondent's
discrimination in regard to hire and tenure of employment, by pay-
ment to him of a sum of money equal to that which he normally would
have earned as wages from the date of his first discharge to the date
.of his reinstatement and from the date of his second discharge to the
date of the respondent's offer of reinstatement, less any amount earned
by him during the said periods;
4. 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.
FURTHER ORDERS that the complaint be, and it hereby is, dismissed
in so far as it alleges that the respondents discriminatorily discharged
William Rothfeld on May 20, 1937, and discriminatorily refused to.
reinstate Henry Hirsch on July 20, 1937.
FURTHER ORDERS that the petition for certification of representatives
filed by the United Artists Supply Workers be, and it hereby is,
dismissed.