Chicago Casket Co.

National Labor Relations Board - Board Decisions

Mar 7, 1940

21 N.L.R.B. 235 (N.L.R.B. 1940)

In the Matter Of CHICAGO CASKET COMPANY and CASKET MAKERS
UNION, No. 19306, AFFILIATED WITH THE AMERICAN FEDERATION OF
LABOR
Case No. C-879.-Decided March 7,1940
Casket Manufacturing Industry-Interference, Restraint , and Coercion: anti-
union statements by supervisory employees ; campaign to break strike ; soliciting
and inducing individual strikers to return to work; threatening strikers who
failed to return with discharge , and nominally discharging strikers who had not
returned by specified date ; engaging police officers to assist in campaign to break
strike ; employing persons to spy on Union ; maintaining surveillance of union
meetings ; ordered to cease engaging services of police officers-Unit Appropriate
for Collective Bargaining : production and maintenance employees , excluding
truck drivers, sales , office, and supervisory employees, but including engineer
and fireman-Representatives : proof of choice: a majority of the employees in
appropriate unit remained out for the duration of the strike , thereby indicating
designation of Union as their representative ; documentary proof of membership
lost by Union's president ; contention that Union coerced employees to strike and
remain on strike, found not supported by the record-Collective Bargaining:
refusal to bargain in good faith by campaigning to break strike and undermine
Union's support while ostensibly negotiating with the Union for the settlement
of the strike ; ordered to bargain collectively with Union as exclusive representa-
tive-Stroke : prolonged by the employer 's unfair labor practices-Discrimination:
charges of discharges for union membership and activity , not sustained ; charges
of refusal to reinstate members of Union after strike, not sustained-Reinstate-
ment: strikers : company ordered upon application to reinstate or place on prefer-
ential list all striking employees who have not been reinstated-Strike^Settlement:
settlement disposing of strike held no bar to these proceedings since not accorded
substantial compliance by the employer.
Mr. Stephen M. Reynolds, for the Board.
Mr. Otto A. Jaburek, of Chicago, Ill., for the respondent.
Mr. Joseph M. Jacobs and Mr. Harry U. Bernstein, of Chicago, Ill.,
for the Union.
Mr. Theodore W. Kheel, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed in behalf of Casket
Makers Union, No. 19306, affiliated with the American Federation
21 N. R . L. B.; No. 28.
235
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Labor, herein called the Union," the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Thirteenth Region (Chicago, Illinois), issued its complaint dated July
23, 1938, against Chicago Casket, Company, Chicago, Illinois, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, -49 Stat. 449, herein called the
Act. Copies of the complaint and accompanying notice of hearing
were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in
substance that the respondent (1) refused to bargain collectively with
the Union as the representative of a majority of its employees in an
appropriate unit; (2) urged and warned its employees to refrain'
from joining or retaining membership in the Union, questioned them
concerning their union activities and affiliations, exercised surveillance
over their union activities, and urged and solicited them individually
during a strike to abandon their concerted activities and return to
work; (3) discharged Victor Lukowski and thereafter refused to
reinstate him because he joined and assisted the Union; (4) caused
its employees, by the acts above set forth and by other acts, to go out
and remain out on strike; (5) refused to reinstate 44 named employees
who participated in said strike, because they joined and assisted the
Union; and (6) by the foregoing and other acts interfered with.
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On August 1, 1938, the respondent filed its answer to the complaint,
in which it admitted certain facts with respect to the interstate char=
actor of its business, but denied that it had engaged in the alleged,
unfair labor practices. As an affirmative defense, the respondent
averred that it executed and complied with an agreement, proposed
by the Regional Director and accepted by the Union, settling the strike
and disposing of the alleged unfair labor practices.
Pursuant to notice, a hearing was held in Chicago, Illinois,•from
August 4 through 12, 1938,-before Carl J. Ludwig, the Trial Examiner
duly designated by the Board. The Board, the respondent, and the
Union were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
parties. At the commencement of the hearing, counsel for the Union
moved to amend the charges to allege that the respondent discharged
Frank Szarek and Charles Goodall because they joined and assisted
'The charges and amended charges were filed by counsel for , the-Union . When, the
charges were filed, the Union was known as Casket Makers Union , Local No 1052 ,` affili-
ated with the Committee for Industrial Organization . Before the amended charges were
filed, it changed its name and affiliation to that indicated above.
CHICAGO CASKET COMPANY 237
the Union and Kenneth Tohill because he advocated the organization
,of a union among its, employees. Counsel for the Board) moved to
.amend the complaint accordingly. The respondent objected to these
amendments in so far as they applied to Goodall and Tohill. The
Trial Examiner granted both motions. At the conclusion of the
Board's case, counsel for the respondent moved to dismiss the com-
plaint with respect to 24 of the 44 persons who the complaint alleged
had been discriminatorily denied -reinstatement to employment, upon
the ground that they had not testified at the hearing. The Trial
Examiner denied this motion. Counsel for the Board moved to dis-
miss the complaint in so far as it alleged that the respondent dis-
criminatorily discharged Victor Lukowski. The Trial - Examiner
granted this motion. During the course of the hearing, the Trial
Examiner made 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 September 6, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served. on all the parties, in which
he found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act, but
that it had not engaged in unfair labor practices in discharging
'Frank Szarek, Charles Goodall, Kenneth Tohill, and Victor Lukowski.
The Trial Examiner recommended that the - respondent cease and
desist from such unfair labor practices and take certain affirmative
action designed to effectuate the policies of the Act.
Exceptions to the Intermediate Report were subsequently filed by
the respondent and the Union. Although the respondent' requested
oral argument before the Board at Washington, D. C., it thereafter
agreed to waive oral argument. Both the respondent and the Union
filed briefs. The Board has considered the briefs and the exceptions
filed by the respondent and the Union and, in so far as the exceptions
are inconsistent with the findings of fact, conclusions of law, and
order set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
. Chicago Casket Company, an Illinois corporation, is engaged in the
manufacture, sale, and distribution of metal, cloth-covered wood, and
hardwood caskets at its plant in Chicago, Illinois. It also sells and
distributes undertakers' supplies. From March 15, 1935, to March 15,
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1936, the respondent used 800 tons of raw materials, valued at approxi-
mately $300,000, of which 90 per cent were obtained outside the State
of Illinois. These raw materials consisted of steel, wood, broadcloth,
plush, rayon, velvet, crepes, silks, glue, nails, screws, hardware, glass,
casket mountings, lacquers, varnishes, excelsior, woodwool, and copper.
During the ,same period -the respondent produced 720 tons of finished
products, valued at approximately $850,000, of which two-thirds were
transported to points outside the State of Illinois.
The respondent maintains a branch sales office in Minneapolis,
Minnesota, which is not involved in this proceeding, where two sales-
men and one clerk are employed. It also employs some 30 salesmen,
-approximately one-half of whom work outside the State of Illinois.
II. THE ORGANIZATION INVOLVED
Casket Makers Union, No. 19306, is a labor organization affiliated
with the American Federation of Labor. It admits employees of the
respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion before the strike
The Union began to organize the respondent's employees in Feb-
ruary 1936. Meetings were held and members were enrolled. The
respondent was aware of the organizational activities of its employees.
In the early part of March 1936; James Sommerville, factory super-
intendent and efficiency expert, instructed Joseph M. Deane, foreman
of the metal-trimming department, to "try to find out ... who be-
longed to the Union." In obedience to Sommerville's instructions,
Deane asked Renis Cameron, an employee, "if he was in the Union."
When Cameron answered affirmatively, Deane remarked, "I don't know
where you fellows think you are going to get with a union in here.
I don't see any need for a union." Bill Hoseth, superintendent, also
asked employees if they were members of the Union or expected to
join. After inquiring of John Cournoyer, an employee, if he in-
tended to join the Union, Hoseth commented, "Well, if you are joining,
why, you are going to the slaughter like the rest of them."
These and other supervisory officials of the respondent made addi-
tional anti-union statements to the employees. Deane warned Kroll
that he would "see to it that there isn't any union in that [his] depart-
ment." Dick Hardy, foreman, told George W. Black, an employee,
"that anybody that joined a union was foolish or crazy; that he never
got no benefits from it" and, "If the old man ever finds out that you
fellows joined the Union he would close the plant down and move out
of the city."
CHICAGO CASKET COMPANY 239
None of the foregoing conversations or other similar conversations
ascribed to Hoseth, Hardy, and Deane were denied at the hearing.
Hoseth and Hardy did not testify and Deane admitted having made
many anti-union statements while not denying others. Joseph Miller,
foreman, denied certain anti-union remarks attributed to him. We
are satisfied, despite his denials,'that he and the supervisory officials
mentioned above, spoke to the respondent's employees substantially as.
the witnesses called by the Board related.
We find that the respondent has, by the above-described activities
of its supervisory employees, interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
B. The strike; refusal to bargain; interference, restraint, and coercion
1. History
In the latter part of 1935 the respondent engaged the George S. May
Company, industrial engineers, to assist in placing its business upon
a more efficient basis. A representative of this company, James Som-
merville, was sent to the respondent's plant and employed by the re-
spondent as factory superintendent. Among other things, Sommer-
ville introduced a "speed-up" system of production, cut wages by 12
per cent in the metal-assembly and metal-trimming departments, and
equalized or adjusted other wage rates.
At a meeting on March 13, 1936, the Union considered these and
other alleged grievances and appointed a committee of 13 members to
discuss these matters with the respondent. A conference was held on
the morning of March 16, 1936. The respondent was represented by
George W. Richards, its president, Sommerville, and Harry M. Grider,
sales manager. Charles Kroll, president of the Union, and Frank T.
Butler, an employee, acted as spokesmen for the Union. The testi-
mony of witnesses for the respondent and the Union establishes, de-
spite many serious conflicts in evidence,2 that at this meeting the Union
requested a guarantee against wage cuts, the observance of seniority
rights, and an arrangement whereby a committee of the Union would
act jointly with the respondent in passing upon discharges, lay-offs,
and hirings. The Union and the respondent discussed these demands
for approximately 2 hours but were unable to dispose of them to the
satisfaction of either party. Immediately following this conference,
2 For example, the Union asserts that it offered to prove that it represented a majority
and that it requested and was refused recognition ; Richards and Grader ( Sommerville
did not testify ) emphatically deny that these subjects were mentioned . The Union insists
that Richards abruptly terminated the conference with the comment "let's break this up"
and walked out of the room, while Richards maintains that the Union ended the meeting.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent's employees; with only a few exceptions, walked out
of the factory on strike.
The respondent maintains that following the conference the union
bargaining committee "augmented by approximately-10 other of re-
sponderit's employees, coursed through respondent's six-story place of
business, floor by floor, and coerced,, intimidated, and compelled the
remainder of respondent's employees, more than 100 in number, to
quit respondent's said place, of business and join in the strike against
it"" While the record is not wholly clear on the precise manner in
which the strike occurred, it does appear that representatives of `the
Union traveled through the factory and shouted to employees "The
strike is on. Come on," "Get out fellows, we are going.to strike,"
"You will have to go out," "If you don't go away from here, I'll hit
you over the head," and other like remarks.
The employees left the factory at about 1 o'clock and immediately
walked to union headquarters at 777'West Adams Street. They were
then informed of the results of the conference with the respondent.
Thereafter, the Union established various committees, such t griev,
ante, strike, negotiating, food, -finanee, and relief. In addition, it
appointed picket captains and began to picket the respondent's. plant
on the following day.
Representatives of the Union and the respondent met several. times
at intervals of 2 or.3 days following` the strike. All parties agree
that the Union made the same,demands and that the, respondent
adhered to the position announced on March 16. Richards testified
that "we could not come to any agreement because we could not agree
to the things they wanted." 8
Richards admitted that at the conference preceding the strike and
during the meetings following the strike, he said to the union com-
mittee, "I think you had better all go back to work." He also ad-
'mitted that he had tendered no counterproposals to the Union
"except for them to come back to work." Kroll testified, and we
find, that the union committee was informed by the respondent "that
we were all wrong and we should go back to work as we left if we
want our. jobs back, because the company will not stand for it; that
the plant will be reopened and if we.don't go back to work that some-
one else will take our jobs and we will be left out."
The respondent not only instructed its employees "to go back to
work" but enforced this summons with a relentless campaign to
break the strike. Richards conceded that'the respondent "made every
8 The Union asserts that it presented a proposed written contract at the first of these
meetings which the respondent refused to consider. Richards stated, when confronted
with a'copy of this contract, "I don't rememhei that" and "I don't believe I ever did [see
the contract before].". The contract provides that wage rates shall not be reduced during
the life of the agreement, that employees shall not be discriminated against for union
activity, that grievances shall be disposed of as set forth in the contract, and that lay-
offs and rehirings shall be made in accordance with principles of seniority.
CHICAGO CASKET COMPANY ' 241
effort 'possible to get them [the strikers] back [to "work]." These
efforts were initiated shortly after the strike had begun.
On March 21, 1936, while negotiations with the Union were in
progress, the respondent sent the following letter to each striker :
To ALL EMPLOYEES :
An investigation convinces us that the large majority of the
employees of the Chicago Casket Company who quit their em-
ployment when the strike vas .instituted last Monday did so
against their will. We have therefore decided to re-open the
plant next Monday, March 23, 1936 at 7:30 A. M. Because of
the fact that we have been shut down for almost a week, we will
not be able to resume on full schedule and will reinstate workers
who apply as we can use them. If you desire to return to work
under the same conditions and same wages, please call at our
plant Monday Morning at 7: 30 A. M. and we will try to put
you to work then and if not then, as soon as we are able. If
you do not report on Monday, we will assume that you do not
wish to return and will strike your name from our records and
fill your place permanently when the occasion arises.
Company officials will be at the plant on Sunday, March 22nd
from 9: 00 A. M. to 12: 00 noon if you wish to telephone and
make arrangements to report on the following day.
Yours truly,
CHICAGO CASKET COMPANY,
By GEO. W. RICHARDS,
President.
This letter succeeded in persuading some employees to return to
work. When the respondent opened its plant on March 23, 1936, there
were approximately 24 old employees (in the unit found appropriate
below) on its pay roll.4 The pay roll also included 44 new employees.
Supplementing its letter of March 21, 1936, in which Richards in-
formed each employee that "If you do not report on Monday, we will
assume that you do not wish to return and will strike your name from
our records and fill your place permanently when the occasion arises,"
the respondent sent the following telegram to Frank Butler at union
headquarters :
PLEASE NOTIFY ALL FORMER EMPLOYEES THAT AFTER WEDNESDAY
APRIL FIRST NINETEEN THIRTY SIX THE CHICAGO CASKET COMPANY WILL
NOT BE RESPONSIBLE FOR ANY CLOTHING TOOLS OR OTHER PROPERTIES
4 This figure is taken from exhibits identified by the respondent and introduced into
evidence by the Board. Witnesses called by the Board maintained that certain of the
24 old employees did not return to work until a later date although , admittedly, they
returned before the strike ended
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LEFT AT THE FACTORY BY THEM PLEASE HAVE FORMER EMPLOYEES
CALL FOR THEIR BELONGINGS AS QUICKLY AS POSSIBLE.
CHICAGO CASKET CO.
NOTE.-A COPY OF THIS NOTICE WILL BE MAILED TO.ALL FORMER
EMPLOYEES. [ Italics ours ]
As indicated, copies of this telegram were sent to the strikers.
In addition to the letter and telegram, agents of the respondent
made personal visits to the homes of employees and vigorously peti-
tioned them to return to work. Merle Zeigler, an office employee, and
Price, factory superintendent, visited Betty Maize, an employee, and
advised "that I better change my mind about the strike and come
back to work or I'll be fired." Two weeks later they called to inquire
if she had decided to come back to work. When she replied that she
had not so decided, Zeigler remarked, "You'll be sorry because you'll
never win the_ strike." Zeigler also visited Laura LeBeau and
Howard Gaines.5 Frank Zugschert, a witness called by the respond-
ent, explained that "Mr. Swanson, that foreman of mine, and this
officer, I don't know what his name is, they come out to my home
on Monday night and tell me that all of the men from the factory is
starting already to work, and they say that I have to come in other-
wise I have to stay home." Counsel for the Board inquired of Grider,
the respondent's sales manager, "Did you ask any of the strikers to
come back to work?" Grider responded: "If I would meet them;
when I went out to lunch I spoke to all of the strikers I saw." Ed-
ward Mallett, Charles Goodall, and William Hood, employees, con-
firmed that Grider had met and solicited them to return to work.
In other ways the respondent sought to dissuade employees from
remaining on strike. During the third Week of the strike, while
Renis Cameron was serving on the picket line, he was told by Zeigler
that "I might as well go back to Paris, Illinois, where I come from
because I would never get in the shop anyway." Sommerville in-
formed Cournoyer while he was on the picket line, "We don't have to
hire you back."
The respondent enlisted the services of officers attached to the
Chicago police force to assist in its efforts to break the strike. A
police officer asked Black during the strike "Why don't you fellows
go back to work?" and added, "You fellows are damn fools the way
you are going on around here. They can hire carloads of scabs to
come in here and take your jobs." On occasions while Black was
on the picket line, a police officer would make such remarks to him
as "You little son-of-a-bitch, go on." Police officers entered union
headquarters during the strike and inquired; "What is this, a com-
munist meeting." About 4 or 5 weeks after the strike had begun,
Cameron and two other strikers were stopped by police officers as
I Upon the basis of the record in this case , we find that Zeigler acted for the respond-
ent in his relations with the Union.
CHICAGO CASKET COMPANY 243,
they were walking by the factory after working hours. The police-
men took them to the corner of Sangamon and Washington Streets
where George Richards, Marcus Richards, the respondent's secretary-
treasurer, Crider, Price, and Sommerville were standing. Grider
then advised these employees that if they "would get away from the
shop and stay away from the shop that he wouldn't press any charges
against us. He says, `Now, we have got plenty of money behind us.
We are going to smash your strike and your union, too, before we are
through with you."' Neither Sommerville nor Price appeared at
the hearing; George and Marcus Richards 6 testified but did not deny
this incident; and Grider merely denied that he had told any striker
that "The company has plenty of money and will smash your strike
and your union." He did not deny that police officers stopped these
strikers and brought them to the officials of the respondent named
above. We find that the incident took place substantially as Cameron
described.
Two police officers accompanied by Al Sachs, an office employee,
came to George Black's home with a warrant for the arrest of his
wife. Mrs. Black helped cook for the strikers and assisted in picket-
ing during the strike. When Black opened the door, Sachs said to
the policemen, "That's her." The officers explained that "Mr. Rich-
ards told us to throw you in the police station over night." "When
they seen that she was sick . . . they said, `You appear in court to-
morrow morning."' The following morning, when she calve to
court, no one appeared against her and the case was dismissed. Sachs
did not testify at the hearing nor did Richards deny that he had
instructed the police as stated above.
An affray between strikers and non-strikers took place in front of
the respondent's plant on or about April 9, 1936. The evidence in
the record pertaining to this disturbance is not complete and respon-
sibility cannot be determined.7 During this affray, Cichon, an em-
ployee hired during the strike, was arrested and placed in a patrol
wagon with strikers who had been arrested. Presently, the police
officer who arrested him "called me out" and "questioned me as to
whether I was an employee or not." Cichon assured the officer that
he was an employee. "Then he went up and talked to Merle Zeigler,
asked him if he could recognize me, which Merle did" and then "he
'Marcus Richards testified that if he was asked the questions propounded to George
Richards and Grider concerning what was said at the meetings between the Union and
the respondent, that his answers would be substantially the same.
7 The respondent knew beforehand that a disturbance was likely to occur on this day
Tohill testified, and his testimony was not contradicted, that Sommerville told him that
"they [the respondent] had gotten word and were expecting trouble" Edmund Cichon,
who was employed during the strike, explained that the respondent "herded" the employees
in the receiving room near the gates leading from the plant and then let them out en
masse . The disturbance ensued.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
let me go." Edward Mallett, a striker, had a similar experience.
He and George Kozla ran into an alley and were pursued by a police
officer who "pulled out a gun and he said, `Stand right where you're
at."' Zeigler, who had either followed Mallett and Kozla or had
come upon them thereafter, said to the police officer, "Take both of
these fellows in." The officer thereupon put them in the patrol
wagon. "Then Mr. Grider came along, and he looked in the wagon.
Just then he happened to see one of the fellows that didn't work
there, that wasn't on strike a fellow that didn't work there, and he
said to the officer, `Not that fellow. Take him out.' So he took him
out . . . ." As mentioned above, Zeigler did not appear at the
hearing and, although Grider testified, he did not deny the foregoing
incident.
Several months after the strike was settled, Sommerville informed
Tohill, while out with him one evening, "that he thought that the
rioting, it wasn't the fellows that was striking, but it was the police
that were behind it, because they had stopped paying the police, and
the police thought they could make money and they created a riot,
that they would have them back again and pay them." Richards
was questioned by counsel for the Board on the alleged payment of
money to police officers for assistance during the strike. He testified
as follows :
Q. The police were present at your plant for quite a period
of time during the strike, were they not?
A. Oh, yes; I saw them around there for some time.
Q. Do you know whether any money, or any gratuities what-
ever might have passed from any officer of the company to the
police for their services in protecting your property?
A. Well, I don't know. I know I didn't pay any of them.
Q. Did you hear about any money being appropriated for that
purpose from the company's treasury or petty cash box, or what-
ever it is?
A. I wouldn't know.
Q. You don't know?
A. No, sir.
Q. Would you say that no money ever did pass?
A. Well, I don't know, I am not sure.
In the light of the foregoing, we find that the respondent paid for
and obtained the assistance of police officers attached to the Chicago
police force in its efforts to break the strike. As president of the
respondent and actively in control of its operations, Richards would,
in our opinion, know whether or not the police received payment
from the respondent. Yet, in the face of testimony to the effect that
the police were paid, Richards was unwilling to deny and in fact
CHICAGO CASKET COMPANY 245
alleged that he was not "sure" whether the respondent had paid
money to the police. Tohill's conversation with Sommerville, which
was uncontradicted, indicates that the police received payment at
least before the disturbance on April 9, 1936.8 And the activities of
the police, viewed particularly in the light of the respondent's deter-
mination to break the strike, confirms the conclusion that they were
paid. Such activities were not, for the most part, necessary for the
preservation of law and order. It was not essential for the police
in the maintenance of order to advise and threaten employees to
return to work, to address pickets in abusive language, to arrest and
release persons on the respondent's direction, and in other ways un-
duly to interfere with the conduct of the strike. These officers of the
Chicago police force functioned not as guardians of the law but as
agents of the respondent.
The respondent also enlisted the services of at least two employees
to spy on the Union and report on its activities. Deane testified that
Sommerville told him during the strike "that he had a couple of
boys out there that was keeping him posted." Subsequently, Ray
Stone, an employee told Deane that he had acted as informer for the
respondent. Tohill, who was hired during the strike, testified that
Deane told him "that they [the respondent] had men on the outside
tell them what was going on" and that after the strike Walte Groebe,
an employee, admitted to him that "lie was going to meetings and
getting the stuff that they were holding at the meetings for the com-
pany." Neither Sommerville, Stone, nor Groebe testified at the
hearing.
Wealer related that during a meeting of the Union at a hall on
North Avenue and Damen Street, which is several miles from the
respondent's plant, he observed Grider, Harris, Sachs, and Sommer-
ville seated in an automobile parked diagonally across the street
from the hall "watching the people that were going into the meeting."
George Kozla, all employee, testified that he saw a car with Grider,
Price, and some others drive near the meeting hall and "when we
started to walk over towards them, why, they pulled away." Of
the persons allegedly engaged in this surveillance, only Grider ap-
peared at the hearing. He gave the following testimony on direct
examination :
Q. Mr. Wealer testified that you were present in an automo-
bile with certain other persons at or near the meeting hall in
the vicinity of North Avenue and Damon [Damen].
The testimony was undenied since Sommerville, who was no longer in the respondent's
employ at the time of the hearing, did not appear as a witness. No proof was intro-
duced by the respondent to show that Sommerville was unavailable and no request was
made for a subpena to obtain his presence although the respondent requested and obtained
a subpena for another witness
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246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. That would be possible because I go home that way.
Q. Well, were you parked in an automobile in the vicinity at
or near the meeting hall?
A. I don't see why we should park there.
Mr. REYNOLDS. I object to that and I ask that the answer be
stricken.
Mr. JABUREK. Just let me ask him the question again.
Q. (By Mr. JABUREK.) The question is: Were you parked
there?
A. No, sir.
We are satisfied, nonetheless, that Grider and the others engaged
in surveillance of the union meeting and we so find. The employment
of labor spies and surveillance of union meetings are consonant with
the other activities carried on by the respondent in its campaign to
end the strike.
On April 15, 1936, the respondent applied to a State court of
Illinois for a temporary injunction restraining or restricting the
Union in picketing the factory.9 While the application was pending,
a representative of the United States Department of Labor, J. L.
O'Connor, intervened and attempted to settle the strike. Several
meetings were held and proposals advanced but ultimately to no
avail. While these negotiations were pending, the suit for an in-
junction was postponed. During this period the parties decided,
as Richards testified, "that the pickets should be taken off for a
week, at least" since "there was a meeting pending with Mr. O'Con-
nor." 10 Accordingly, the pickets were removed on Monday, April
20, 1936, by agreement and remained away at least until Saturday,
April 25, 1936. During this interval, according to an exhibit
identified by the respondent and introduced into evidence by the
Board, only one employee, C. Engberg, returned to work.
Another attempt to mediate the strike, which also proved fruitless,
was made by John Fitzpatrick, president of the Chicago Federation
of Labor. On May 5, 1936, the Union filed charges with the Board
alleging violations of Section 8 (1), (3), and (5) of the Act. There-
after, the Regional Director intervened and proposed a settlement
agreement which was accepted by the Union and the respondent.
8 The injunction papers were not introduced into evidence and we cannot determine pre-
cisely what was sought thereby
lO It was alleged during the heaiing that the pickets were removed in order to establish
that the employees were not coerced into remaining on strike Counsel for the Board asked
Richards "Don't you know that one of the reasons for the Union removing the pickets
during the strike was to make the showing that the employees on stake were not
intimidated by the pickets Didn't you understand that to be one of the purposes in 1 emov-
ing the pickets " Richards replied "I think the removal of the pickets would help
along that line "
CHICAGO CASKET COMPANY 247
This settlement agreement, which ended the strike, is discussed in
detail below.
2. The appropriate unit
The complaint alleges that the appropriate unit consists of all the
production and maintenance employees of the respondent, excluding
supervisory, sales, and office employees. During the hearing, counsel
for the Board and the respondent stipulated that "the appropriate
unit in the respondent's place of business includes all of the employ-
ees in the plant except office, supervisory, salesmen, and executives;
that the question as to whether the engineer and fireman belong to
the appropriate unit, as to whether the four chauffeurs belong to it,
and as to whether supervisory employees who actually work in pro-
duction belong to it shall be left for future determination." The
undecided issues were not disposed of during the hearing.
The truck drivers or chauffeurs have for many years been mem-
bers of International Brotherhood of Teamsters and Chauffeurs,
Local 705. They are engaged in hauling raw materials to the plant
and finished products from the plant to railway and bus-shipping
depots. They did not join in the strike on March 16, 1936. We are
of the opinion that they should be excluded from the appropriate
unit.
The engineer and fireman work in the engine room where the engi-
neer tends the power plant and the fireman shovels coal and removes
ashes from the furnace. At the time of the strike the engineer was
a member of an engineers union which refused to permit him to take
part in the strike.11 The fireman struck with the Union but returned
to work in a few days. The Trial Examiner concluded and we find
that as maintenance employees, the engineer and fireman properly
belong in the appropriate unit.
The respondent contends that such supervisory employees as work
in production should be included within the appropriate unit. Ad-
mittedly these employees have supervisory duties."- None of them
ever joined the Union. Upon request of the only labor organization
involved they should be excluded from the appropriate unit as
supervisory employees.
We find that a unit composed of the production and maintenance
employees of the respondent, excluding truck drivers, sales, office, and
supervisory employees, but including the engineer and fireman, con-
stitute a unit appropriate for the purposes of collective bargaining
11 The name of this organization does not appear in the record
^ These working supervisory employees ai a Stella Niemes in charge of the sewing girls,
Harry Hansen , who supervises the shipping clerks, and Paul Hruby, foreman of the cabi-
netmakers and woodworkers.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that said unit insures to employees of the respondent the full
benefit of their right to self-organization and to collective bargaining
and otherwise effectuates the policies of the Act.
3. Representation by the Union of the majority in the appropriate
unit
The respondent's pay roll for March 15, 1936, contained the names
of 131 employees within the appropriate unit. The Union asserts
that it represented a majority of these on and after March 13, 1936.
However, it was unable to produce its membership records in support
of this claim.13 Witnesses for the Union testified, nonetheless, that
approximately 100 employees had joined the Union before the end of
its meeting on March 13, 1936. Witnesses for the respondent placed
the number of union members at a substantially lower figure. We do
not, in the light of the above facts, find that the Union represented
a majority prior to March 16, 1936.
On March 16, 1936, all of the respondent's employees, with only a
few exceptions, walked out of the plant on strike. A majority of the
employees in the appropriate unit remained out until the strike was
settled on June 4, 193614 The respondent insists, as mentioned above,
that its employees were "coerced, intimidated, and compelled" to
participate in the strike. It is true, as we have observed, that repre-
sentatives of the Union shouted to employees "Get out, fellows, we
are going to strike" and "You will have to go out." In a few in-
stances, threats were used to induce employees to leave the building.
It is also true that the strike was spontaneous in the sense that it had
not been previously decided upon by the Union. However, in their
opinion the employees had genuine grievances against the respondent.
These alleged grievances were considered at the union meeting on
March 13, 1936, and a committee was appointed to discuss them with
the respondent. That the strike grew out of the unsatisfactory dis-
position of these grievances is confirmed by the testimony of Howard
Gaines, an employee who joined the strike but thereafter returned to
work and was made a foreman. Gaines was called as a witness by
the respondent and testified that the employees' fear "that Mr.
Sommerville was there to cut the wages" . . . "caused the strike more
than anything else."
13 Kroll, president of the Union and custodian of the Union's records , lost the member-
ship records when evicted from his home for the nonpayment of rent.
14 The complaint names 44 strikers whom the respondent never reinstated Two of these
44 (Ralph Scalise and Anna Dunne ) were not on the pay roll for March 15, 1936 Fol-
lowing the termination of the strike , the respondent reemployed 27 of the strikers To-
gether , this makes a total of at least 69 employees who were out for the duration of the
strike . This figure does not include 12 employees not named in the complaint who were
not reemployed during the strike . The record does not reveal why the names of these
employees were omitted from the complaint
CHICAGO CASKET COMPANY 249
Following the strike, the employees convened at union headquar-
ters and were there apprised of the results of the conference with
the respondent. Thereupon they reaffirmed their determination to
strike by establishing various committees and other machinery for
the successful conduct of the strike.
There is no proof in the record that any employee was coerced into
remaining on strike and, in fact, approximately 50 employees re-
turned to work during the strike. Etta Ray testified that she "was
afraid to go back." But when asked why she was afraid, she replied,
"Oh, I don't know. I was just afraid, that's all." Despite this
alleged fear, she went back to work during the strike. Irene Tietjens
also testified that she was afraid to go back to work. She also ad-
vanced no reason for her fear and also returned to work during the
strike. Bernadette Bernau, a witness called by the-respondent, was
asked by counsel for the Board, "did you feel that you would be in
any danger if you didn't remain in the strike with the other strikers?"
and answered, "Well, personally, myself, I can't say that I ever
thought that."
On the other hand, the respondent, as Richards testified and as
we have described above, "made every effort possible" to get its
employees back to work. Despite these strenuous efforts, more than
a majority of the employees in the appropriate unit remained on
strike until it was settled on June 4, 1936. For one workweek, from
Monday, April 20, to Saturday, April 25, 1936, the Union removed its
picket line. Yet only one striker returned to work during this
period.
We are satisfied, in the light of the foregoing facts, that the em-
ployees who remained on strike until June 4, 1936, did so of their
own free will, without having been "intimidated, coerced, or com-
pelled" by the Union or its representatives. In so doing, these em-
ployees affirmatively designated the Union as their bargaining rep-
resentatives.16 Had they desired, these employees had ample oppor-
tunity to renounce the Union and return to work. As Richards
testified, "The doors were always open for them [strikers] to come
in. We would have taken them back. They just had to apply for
work, that is all."
Since a majority of the employees in the appropriate unit re-
mained on strike for its entire duration, we find that on March 16,
1936, and at all times thereafter, the Union had been designated and
selected by a majority of the respondent's employees in the appropri-
ate unit. Pursuant to Section 9 (c) of the Act, it was, therefore, on
that date, and at all times thereafter, the exclusive representative
16 Cf. Matter of United Fruit Company and International Longshoremen and Ware-
housemen 's Union , District #3, Local # 901, affiliated with C. 1 0 , 12 N. L. R B 404
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of all the employees in such unit for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment.
4. Conclusions with respect to the refusal to bargain; the strike;
interference, restraint, and coercion
The complaint charges that the respondent refused to bargain
with the Union on March 16, 1936, and thereafter, and precipitated,
by its refusal to bargain on March 16, 1936, the strike which fol-
lowed. We have found, however, that the record does not establish
that the Union represented a majority of the employees in the
appropriate unit prior to the strike.
The strike grew out of a disagreement over certain demands pre-
sented by the Union. Since the strikers ceased work as a result of
a labor dispute, they. remained employees within the meaning of
the Act and were entitled to its protection.16 And, inasmuch as a
majority in the appropriate unit had, following the commencement
of the strike, designated the Union as their bargaining representa-
tive, the respondent was required, under the Act, to bargain with
the Union as the exclusive representative of all the employees in
the appropriate unit. We are of the opinion that the respondent
failed to discharge its obligations under the Act.
We have mentioned above that the respondent held several con-
ferences with the Union after the strike began. Although the evi-
dence in the record pertaining to these conferences is not clear, the
respondent unmistakably revealed by its activities during these
negotiations that it was unwilling to bargain with the Union in
good faith or to treat with it as the exclusive representative of its
employees.
The respondent was opposed to the Union and its opposition ante-
dated the strike. After March 16, 1936, this hostility was translated
into a vigorous campaign to break the strike. • This campaign began
almost immediately after the strike was declared. At an early con-
ference following the strike, the respondent advised a union coin-
mittee, As Kroll testified to "go back to work . . . if we want our
jobs back, because the company will not stand for it; that the plant
will be reopened and if we don't go back to work that someone else
will take our jobs and we will be left out." This sentiment was con-
16 Cf National Labor Relations Board v Mackay Radio & Telegraph Co, 304 U. S 333
(1938 ) rev'g 92 F. (2d) 761 (C C A 9, 1937 ), and enf'g Matter of Mackay Radio it
Telegraph Company, a Corporation, and American Radio Telegraphists ' Association, San
Francisco Local No. 3, 1 N. L . R. B. 201 ; Jeffery -DeWitt Insulator Co v. National Labor
Relations Board, 91 F (2d ) 134 (C. C A. 4, 1937), cert . den, 302 U S 731 ( 1937 ), enf'g
Matter of Jeffery -DeWitt Insulator Company and Local No 455, United Brick and Clay
Workers of America, 1 N L R B 618.
CHICAGO CASKET COMPANY 251
veyed to each striker in a letter on March 21, 1936, threatening that
if they did not return to work by March 23, 1936, "we will assume
that you do not wish to return and will strike your name from our
records and fill your place permanently when the occasion arises."
Ostensibly, the "occasion" had arisen by March 31, 1936, for on that
date each striker received a copy of a telegram, in which they were
addressed as former employees and advised to remove their tools
from the plant. The letters and telegrams were supplemented by
personal visits to homes of strikers during which they were advised
to return to work at the risk of losing their jobs if they failed to do
so. They were warned that they would not win the strike.
The campaign to break the strike took other forms. Police officers
paid by the respondent, abused and disparaged the strikers and
advised, warned, and threatened them to abandon the strike. Upon
instructions from the respondent, these police officers arrested strikers
and released nonstrikers and in other ways unduly interfered with
the activities of the strikers. Spies were employed by the respond-
ent to obtain "the stuff that they [the Union] were holding at the
meeting" and agents of the respondent maintained surveillance over
union meetings.
The Act was designed to encourage the settlement of labor dis-
putes, including such disputes as have resulted in strikes," through
the orderly processes of collective bargaining. To that end, it re-
quires an employer to bargain exclusively with the representative of
a majority of its employees in an appropriate unit. With the strike
but a few days old and while negotiations for its settlement were in
progress, the respondent, disregarding its duty to deal exclusively
with the Union, began soliciting its employees individually to re-
turn to work.
Not only was the respondent derelict in discharging its duty to
treat exclusively with the Union, but it revealed in this way and by
other acts designed to break the strike, that it was not prepared to
bargain with the Union in good faith. Collective bargaining, as
contemplated by the Act, means more than an idle exchange of pro-
posals. It means that the employer and the Union shall earnestly
and sincerely consider the proposals each has advanced with the end
in view of reaching a middle ground upon which both agree.18 Par-
ticularly during a strike is it essential that these requirements be
observed. Yet, while the respondent was conducting negotiations
11 Section 3 of the Act provides that the term "employee shall include any employee
. . . whose work has ceased as a consequence of, or in connection with, any current labor
dispute."
11 See Globe Cotton Mills v National Labor Relations Boa) d, 103 F (2d) 91 (C C A 5)
enf'g Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6
N. L R. B 461; Matter of P. Lorillard Company, Louisville , Kentucky , and Local Union
No 201, Tobacco Workers' International Union , 16 N L R. B 703
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union for the settlement of the strike, it was at the same
time bending every effort to force the employees to abandon the
Union and return to work.- Proceeding jointly with the collective
bargaining conferences, this campaign to undermine the Union's
support and break the strike, unmistakably revealed that the respond-
ent was not fulfilling its obligation to bargain collectively with the
Union.2°
We find that the respondent has refused to bargain with the Union
in good faith or to treat with it as the exclusive representative of
the employees in the appropriate unit. We also find that the re-
spondent, by its refusal to bargain with the Union and by its cam-
paign to break the strike, as above described, has interfered with,
restrained, and coerced 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 concerted activities for the purposes of collective
bargaining and other mutual aid and protection as guaranteed in
Section 7 of the Act. We further find that the respondent's unfair
labor practices were a substantial factor in prolonging the strike.
C. The strike settlement agreement; interference, restraint, and
coercion
As we have mentioned above, the strike was settled by agreement
between the respondent and the Union on June 4, 1936. The settle-
ment was proposed in a letter to the respondent on June 2, 1936,
from the Regional Director, who intervened after charges had been
filed. This letter provided, inter alia:
2. You [the respondent] will employ as many of the people
[strikers] as possible and as rapidly as possible. You are to be
the sole judge as to how rapidly the people can be absorbed.
3. During the period of one (1) year from this date, you will
give preference to the people that are now on strike. If any of
these people are available who can do the work required, they
will be offered employment before any new people are employed.
7. All legal action by the union or the firm will be withdrawn.
With minor changes, this proposed settlement was accepted by the
respondent and the Union.
The respondent relies upon this settlement agreement as a defense
to the unfair labor practices. As a rule we will give effect to a
"An employer , of course , is to be encouraged in making every legitimate effort to settle
a strike. But this desirable end, as the Act recognizes , cannot be accomplished by deny-
ing to employees the rights guaranteed in Section 7 of the Act
20 Cf Matter of Chicago Apparatus Company and Federation of Architects , Engineers,
Chemists and Technicians, Local 107, 12 N L R B 1002 ; Matter of Blanton Company
and United Oleomargarine Workers Local Industrial Union No 1189, 10 N L R B 951.
CHICAGO CASKET COMPANY 253
settlement agreement consummated through the offices of agents for
the-Board since the effective administration of the Act requires that
the Board's agents have the respect and confidence of labor organiza-
tions and employers with whom their work brings them in contact."
The Union maintains, however, that the respondent failed to
honor this agreement and consequently cannot urge it as a bar to this
proceeding. It is, of course, a necessary corollary to the policy we
have followed in observing settlement agreements that the respondent
fully comply with its terms. Moreover, an agreement which com-
promises public policy must be strictly construed. The question
before us for determination, therefore, is whether the respondent has
sufficiently fulfilled its obligations under the settlement agreement.
During the year following the settlement of the strike, the respond-
ent engaged 32 employees.22 Of these, 27 were strikers and 5 were
outsiders. The Union contends that there were strikers among those
not reemployed who were qualified to fill the positions awarded to
the five outsiders and that these strikers should have been given
preference in employment. The respondent insists "that there was
no one among the former strikers who in the opinion of respondent
could `do the work required."'
The five positions filled with outsiders were : (1) hardware finish-
ing, (2) top coating, (3) prime coating, (4) rubbing, and (5) wet
sanding. Joseph H. Wealer, a striker, maintained that he could
"do the work required" of a prime coater or a top coater. Wealer
related that, "When I first started there in 1934, they put me in
the priming booth. Practically for the first year I done nothing
but priming. After that they put me on color coating. I done that
for the remainder of my employ over there every day, and I also
done top coating for parts of the day practically for two hours of
the day for the last year that I worked there." Before Wealer began
to work for the respondent, he had obtained 16 years' experience as
a sprayer. "An experienced sprayer," «Tealer explained, "should
be able to do a full job. By that I mean he should be able to take
a piece of raw material and put a finished coat on it, that is, priming,
coloring and top coat."
Richards did not deny that Wealer had worked as a primer in
1934 and had done top coating for 2 hours a day, in addition to
color coating, thereafter. He admitted that priming was only "a
=i Matter of Shenandoah -Dives Mining Company and International Union of Mine, Mill
and Smelter Workers, Local No . 26, 11 N L R B. 885; Matter of Godchaux Sugars, Inc.,
and Sugar Mill Workers ' Union , Locals No. 21177 and No 2188 affiliated with the American
Federation of Labor, 12 N L R B 568 , Matter of Hope Webbing Company and Textile
Workers Organizing Committee of the C 1 0 , Local No 14, 14 N L R. B 55; Matter
of Harry A Half, doing business as The Halff Manufacturing Company, and Interna-
tional Ladies' Garment Workers ' Union , 16 N L R B 667.
22 Approximately 50 strikers in the appropriate unit returned to work during the strike
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
slightly different method of spraying" from top coating and color
coating. In explaining his failure to engage Wealer either as a
top coater or a color coater, Richards averred that "we did not feel
obligated" to reemploy a striker for any available position "If he
had not done that work previous to the strike."
This interpretation of the agreement clearly is not warranted by
its terms. The agreement provides that "If any of these people
[strikers] are available who can do the work required, they will be
offered employment before any new people are employed." Ob-
viously Wealer could "do the work required" and, in fact, had done
top coating for 2 hours a day before the strike. In its brief, the
respondent asserts that "in the opinion of respondent" none of the.
strikers could "do the work required" for any of the available posi-
tions. The agreement, however, does not contain the modifying
phrase, "in the opinion of respondent," which the respondent
would now insert therein. It states baldly that strikers must be
offered employment before outsiders if they "can do the work re-
quired." Furthermore, Richards did not insist that in his opinion
Wealer was not qualified to fill either the job of top coating or prime
coating. He contended merely that Wealer did not occupy either
position before the strike and consequently the respondent was not
"obligated" to engage him. Richards admitted that he made no
investigation to determine whether Wealer had as much experience
for prime coating as the outsider who was employed.23
It is significant, we believe, that Wealer was active in the Union.
He solicited members for the Union, served on bargaining commit-
tees which met with the respondent before and after the strike, and
in June 1936 was elected recording secretary of the Union. In view
of our foregoing discussion, we find that the respondent violated
the strike settlement agreement in failing to employ Wealer either
as a top coater or as a prime coater.
Mislevic, a rubber, was not employed to fill the rubbing vacancy,
although he had done that work before the strike. Richards testi-
fied that Mislevic neglected to turn in $109.50 worth of piece-rate
tickets until a month or so after the strike "on account of," as Mis-
levic explained to Richards, "some trouble at home." Richards main-
tained that "we did not like that way of doing it, of holding out
$109.00, so we did not want Mr. Mislevic back again." Since, ad-
mittedly, Mislevic could "do the work required," the respondent
breached its agreement in failing to employ him as it rubber. Fur-
thermore, Renis Cameron, a striker, testified that he had worked as
a rubber for approximately a month in 1931 and at times subse-
zs The prime coater was engaged by Price, the factory superintendent, who did not testify
at the hearing.
CHICAGO CASKET COMPANY 255
quently "when the rubbers wasn't there." While the respondent con-
tends that Cameron was not qualified to fill the position, it did not
give, him an opportunity to demonstrate whether he could "do the
work required" nor did it seek to show in what respect Cameron
was not so qualified. Counsel for the Board asked Richards, "Didn't
you feel obligated under the terms of the settlement agreement to
make an investigation of the qualifications of a striker to do a job,"
and Richards replied "Whenever we hired a new person we took
back persons who had done that kind of work before." It is appar-
ent that the respondent followed a procedure of eliminating union
members not warranted by the settlement agreement.
The respondent claims that the job of wet sanding was created
after the strike and since "there was no wet sander out [on strike]
so we didn't take any one." Cameron testified that he had done wet
sanding after the strike for another concern and that it took him
approximately 30 minutes to learn this operation. Wealer corrob-
orated Cameron's testimony with respect to the skill required to do
wet sanding. Richards averred that wet sanding "is not so simple
that it can be learned in 30 minutes." While we are inclined to
resolve this conflict in testimony in favor of Cameron, who actually
worked as a wet sander, we do not find it necessary in view of the
fact that the respondent did not afford any of the strikers an oppor-
tunity to demonstrate that they could "do the work required."
In other ways, the respondent revealed its continuing hostility to
the Union. When Malpede, a striker, returned to work on June 25,
1936, Sommerville and Deane decided, as Deane testified, "that the
thing to do was to humble them [the strikers] as much as we possible
could, make it appear that we could get along without him
[Malpede], that we didn't need him; that we was doing him a favor
by bringing him back." A committee of the Union called upon
Richards on June 9, 1936, before any of the strikers were reemployed,
"to see how soon the people could expect to go back to work."
Wealer described the conversation with Richards as follows :
Mr. Richards said, "It's really nice to look out on the sidewalk.
There is nobody walking up and down with signs on their
shoulders any more." He said, "It's really pleasant to look
out the window now," real sarcastically. I said, "That's the
reason we come over here." I said, "We come over here to dis-
cuss your attitude towards the strikers, those that stood on the
outside." "Well," he says, "what do you want me to do about
it"? We said, "You signed an agreement a few days ago that
you would reemploy your people." "Why," he said, "no. What
agreement? I don't know anything about any agreement."
... Mr. Rizzo asked him . . . if he could go back to the
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
:all and tell some of the people that they could come back to
work. Mr. Richards said, "What do you want me to do, fire
these people that have been working for me during this trouble"?
He said, "I can't trust you people, anyhow. I may put some of
you back to work, then you will start this same thing over
again." . . . He says, "I can't trust you people. You follow
Charley Kroll around all of the time, and he is misleading you.
You ought to take him out in the country and give him a good
trimming."
Wealer's testimony indicates that Richards, as well as Sommer-
ville and Deane, sought to "humble" the strikers. Richards denied
the statements attributed to him by Wealer although he did not deny
that he met and conversed with a union committee on June 9, 1936.
We credit, in the light of Richards' expressed hostility to the Union,
Wealer's account of the conversation.
In March 1937 Cameron applied at the factory for reinstatement.
He was told by Price that "business was awfully slack and that there
wasn't any jobs." "As I was coming out of the factory I met Mr.
Grider [sales manager] and he talked to me for about 45 minutes.
We got into a conversation at the time about unions and organiza-
tion, the Wagner Act, and all of that." During this conversation,
Cameron remarked that the respondent's plant would be organized
some day. Grider replied, "Oh, no, and furthermore, Mr. Richards
will move the plant out of the city or spend all of the money he
has before he would ever see the plant organized." Grider recalled
that he had conversed with Cameron but denied that he had said
that Richards would move the plant out of the city before he would
permit it to be organized. We are not impressed with his denial
and find, accordingly, that he spoke to Cameron as stated above.
We find that the respondent has failed to comply with the pro-
visions of the settlement agreement and that in consequence cannot
urge the settlement agreement as a defense to the unfair labor prac-
tices. We also find that the respondent has, by its activities above
described, interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
D. The alleged refusal to reinstate
The complaint charges that the respondent refused to reinstate 44
named strikers after the strike had been settled because they joined
and assisted the Union. We do not find that the record sustains these
allegations of the complaint. We have concluded in Section III C
above, that the respondent breached its agreement with the Union
in certain respects, and consequently cannot rely upon the agreement
as a bar to this proceeding. However, it does not appear that at the
CHICAGO CASKET COMPANY 257
time the agreement was executed the respondent refused to reinstate
any of the striking employees because of their membership or activity
in the Union. We shall accordingly dismiss the allegations of the
complaint.
E. The alleged discriminatory discharges
Frank Szarek worked for the respondent for approximately 12 or
13 years before the strike. He was employed as a rubber. Szarek
joined the Union on March 14, 1936, and went out on strike with the
other employees on March 16, 1936. In September 1936, Szarek was
reemployed by the respondent, worked for about 2 weeks, and was
then discharged. Richards maintained that Szarek was discharged
because "he rubbed through the outside coat of lacquer into the color
coat making it necessary to refinish some of the caskets." He ex-
plained that when Szarek returned to work, "he appeared to hold
a great deal of resentment against the company. This mental con-
dition he was in seemed to affect his work very much, because he
had been a good rubber."
Szarek testified that when he returned to work, "I feel that I am
in strangers and don't mean anything there." The employees who
replaced the strikers, he complained, laughed at him and acted "like
they were like the bosses of the owners of this building." He also
testified that approximately a dozen caskets had been spoiled during
the 2 weeks he worked in September. He surmised that some of the
employees had intentionally spoiled his caskets "to keep me out."
Szarek was discharged without an opportunity to defend himself
although, it appears, he had been reprimanded by his foreman. Ad-
mittedly, Szarek was a good worker. In fact, Deane, a foreman,
testified that he was "the best rubber in the country." And for 13
years he had rendered the respondent satisfactory service. Yet it
is true that Szarek was uneasy when he began working in September
1936 and this appears to have affected the quality of his work. Con-
ceivably, his uneasiness might have been attributable to the fact that
supervisory employees engaged in a practice of "humbling" strikers.
Nevertheless, we are not convinced, although this case is not free
from doubt, that the respondent discharged Szarek because of his
membership or activity in the Union.
Kenneth Tohill was hired during the strike as a metal trimmer.
He was discharged in January 1937. The complaint as amended al-
leges that Tohill was discharged because he advocated the organiza-
tion of a union. In September 1936 Tohill received a wage reduction.
He complained to his foreman and other employees about this reduc-
tion and remarked that "If they go to cutting wages around here,
we should have a union." Richards testified that the respondent
"got to a point where they didn't need so many trimmers" and Tohill
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was selected for discharge because he had objected to the wage cut
and complained about the manner in which the sewing girls made
the "interiors." Tohill admitted that he voiced a complaint about
the "interiors." No one was hired to take Tohill's place.
We are not satisfied that the evidence pertaining to Tohill's dis-
charge establishes that the respondent discriminated against him be-
cause he advocated the organization of a union.
Charles Goodall joined the Union on March 6, 1936, and, on March
16, 1936, went out on strike. He was reemployed on June 10, 1936,
and continued in the respondent's employ until May 1938 when he
was laid off. He was told at that time that business was slack and
that he would be reemployed if the respondent could use him.
Goodall asserts that he had seniority over an employee named Tim
McHenry. This was not controverted by the respondent. How-
ever, Richards maintained that Goodall was the only "shaper
hand" employed by the respondent at this time and that
two other employees, Weinert and Swanson, with 49 and 32 years'
seniority respectively, could work as shaper hands when needed. It
was not shown what position McHenry occupied. Although Goodall
participated in the strike, it does not appear that he was active in
the Union. Under the circumstances, we find that the respondent
has not discriminated against Goodall because of his membership or
activity in the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act and to restore as nearly as possible the conditions which existed
prior to the commission of the unfair labor practices.
In order to remedy the respondent's illegal refusal to bargain, we
will order the respondent to bargain collectively with the Union.
Since the strike was continued because of the respondent's unfair
labor practices from March 21, 1936,24 until June 4, 1936, we shall
24 It does not appear clearly in the record that the unfair labor practices in connection
with the strike, began before this date
CHICAGO CASKET COMPANY 259
in accordance with our usual custom, order the respondent, upon
application , to offer reinstatement to all striking employees who have
not been reinstated . The offers of reinstatement shall be without prej-
udice to seniority and other rights and privileges . Such reinstatement
shall be effected in the following manner : All persons hired after
March 21, 1936, the date the unfair labor practices commenced, and
who were not on the pay roll as of that date, shall if necessary to pro-
vide employment for those to be offered reinstatement , be dismissed.
If thereupon , by reason of a reduction in the force of employees
needed, there is not sufficient employment immediately available for
the remaining employees including those to be offered reinstatement,
all available positions shall be distributed among such remaining em-
ployees in accordance with the respondent 's usual method of reduc-
ing its force , without discrimination against any employee because
of his union affiliation or activities , following a system of seniority
to such extent as has heretofore been applied in the conduct of the,
respondent 's business. Those employees remaining after such dis-
tribution , for whom no employment is immediately available, shall
be placed upon a preferential list prepared in accordance with the
principles set forth in the previous sentence , and shall thereafter, in
accordance with such list, be offered employment in their former or
in substantially equivalent positions , as such employment becomes,
available and before other persons are hired for such work.25
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceedings , the Board makes the following :
CONCLUSIONS OF LAW
1. Casket Makers Union, No. 19306 , is a labor organization , within
the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the respondent,
excluding truck drivers , sales, office , and supervisory employees, but
including the engineer and fireman , constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (a) of the Act.
3. Casket Makers Union, No. 19306, was on March 16, 1936, and at
all times thereafter has been , the exclusive representative of all the
employees in such unit for the purposes of collective bargaining , within
the meaning of Section 9 (b) of the Act.
4. By refusing to bargain collectively with Casket Makers Union,
No. 19306, as the exclusive representative of its employees in the appro-
'S See Ford Motor Company and International Union, United Automobile Workers of
America , Local No 406, 18 N L Ii B 167
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate 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 interfering with, restraining, and coercing its employees.in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
7. The respondent has not discriminated in regard to hire and tenure
of employment 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 respondent,
Chicago Casket Company, and its officers , agents, successors, and
assigns shall:
1. Cease and desist from :
( a) Refusing to bargain collectively with Casket Makers Union, No.
19306, as the exclusive representative of all its production and main-
tenance employees , excluding truck drivers , sales, office , and super-
visory employees, but including the engineer and fireman;
(b) Engaging the services of police officers to interfere with, re-
strain, or coerce employees in the exercise of the rights guaranteed in
Section 7 of the Act;
(c) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of their right to self-organization,
to form, join, or assist labor organizations , to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon application, offer to those employees who were on strike
on March 21, 1936, and thereafter , and who have not since been fully
reinstated , immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
and other rights and privileges , in the manner set forth in the sec-
tion entitled "The Remedy" above, placing those employees for whom
employment is not immediately available upon a preferential list in
the manner set forth in said section and thereafter , in said manner,
offer them employment as it becomes available;
CHICAGO CASKET COMPANY 261
(b) Make whole the employees referred to in paragraph 2 (a)
above for any loss of pay they may suffer by reason of any refusal of
reinstatement or placement upon the preferential list required by
paragraph 2 (a) above, by payment to each of them a sum of money
equal to that which each would normally have earned as wages
during the period from five (5) days after the date of application
to the date of the offer of reinstatement or placement upon the prefer-
ential list, less his net earnings during said period; deducting, how-
ever, from the amount otherwise due to each of the said employees,
monies received by said employee during said period for work per-
formed upon Federal, State, county, municipal, or other work-relief
projects, and paying over the amount so deducted to the appropriate
fiscal agency of the Federal, State, county, municipal, or other gov-
ernment or governments which supplied the funds for said work-
relief projects;
(c) Upon request, bargain collectively with Casket Makers Un-
ion, No. 19306, as the exclusive bargaining representative of the
employees in the unit found appropriate;
(d) Immediately post notices to its employees in conspicuous
places throughout its plant and offices, and maintain said notices for
a period of at least sixty (60) consecutive days, stating that the re-
spondent will cease and desist in the manner set forth in 1 (a), (b),
and (c), and that it will take the affirmative action set forth in 2 (a),
(b), and (c), of this Order;
(e) Notify the Regional Director for the Thirteenth 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 allegations of the complaint
that the respondent has engaged in unfair labor practices within the
meaning of Section 8 (3) of the Act be, and the same hereby are,
dismissed.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.
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