Condenser Corp. of America

National Labor Relations Board - Board Decisions

Mar 29, 1940

22 N.L.R.B. 347 (N.L.R.B. 1940)

In the Matter of CONDENSER CORPORATION OF AMERICA AND CORNELL-
DuBIUER ELECTRIC CORPORATION' and UNITED ELECTRICAL AND
RADIO WORKERS OF AMERICA
In the Matter of CONDENSER CORPORATION OF AMERICA and UNITED
ELECTRICAL & RADIO WORKERS OF AMERICA
In the Matter of CORNELL-DUBILIER ELECTRIC CORPORATION 1 and
UNITED ELECTRICAL & RADIO WORKERS OF AMERICA
Cases Nos. C-259, R-323, and R-324, respectively.Decided March
109, 1940
Electrical Condenser Manufacturing Industry-Employer: two corporations
conducting single integrated business enterprise--Jurisdiction: corporation con-
ducting manufacturing operations obtaining substantially all materials from
second' corporation occupying same plant, and selling substantially all its finished
product to said second corporation, held subject to Board's jurisdiction where
second corporation is subject to Board's jurisdiction-Procedure: evidence taken
prior to service on some parties of complaint and notice of hearing, not con-
sidered with respect to such parties-Company-Dominated Union: permitted to
organize in plant; delegates of unaffiliated organization sent by supervisors to
meet in plant council room ; use of company property by organization's executive
committee ; discharge of several employees for refusal to cooperate in organizing ;
production halted during working time for organizational addresses and dis-
tribution of application cards ; membership recruited by supervisors ; support
rendered organization by vilifying and discrediting rival union in periodical
published by management and distributed among employees ; respondents ordered
to refuse to recognize as agency for collective bargaining-Interference, Restraint,
and Coercion: assistance rendered affiliated union prior to execution of closed-
shop contract with it : assisting union by vilifying and discrediting rival in
periodical published by management and distributed among employees about
4 days prior to organizational campaign of favored union ; union invited to
organize employees by company-dominated organization ; executive committee of
company-dominated organization determined upon affiliating that organization
with union ; leaders of union drawn largely from among leaders of company-
dominated organization ; early shut-down of most operations in plant to permit
employees to attend union mass meeting in advance of usual quitting time ;
'The respondent Cornell-Dubiller Electric Corporation was designated in the second
amended complaint as "Cornell Dubilier Corporation." It was stipulated by counsel for
both respondents and for the Board that on June 21, 1937, after the commencement of the
hearing, Cornell Dubilier Corporation changed its name to Cornell-Dubilier Electric Corpo-
ration. Pursuant to a motion by counsel for the Board at the hearing, the complaint, the
caption in this proceeding, and any reference in papers in evidence to events subsequent to
June 21, 1937, were amended to conform to the altered corporate name of the respondent
Cornell-Dubilier Electric Corporation.
22 N. L. R. B., No. 16.
347
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
announcement of union mass meeting by supervisors upon dismissing employees
in advance of usual quitting time ; favoring of union over rival in collective
bargaining negotiations during period when employer knew both labor organiza-
tions represented substantial minorities of employees ; membership recruited
for Brotherhood in plant during working time by supervisor and clerk of another
supervisor-Contract With Assisted Organization: executed as part of campaign
of illegal assistance to favored organization held invalid ; respondent ordered
to cease giving effect to any extension, renewal, or successor of such contract
with favored organization-assistance rendered favored union subsequent to
unlawful contract : enforcement of closed shop and check-off provisions ; favored
union treated as exclusive bargaining representative although contract recognized
it for its members only ; recruiting membership for favored union in plant by
supervisors and non-supervisors ; discriminatory discharge and threats of dis-
charge of employees for attending meetings of rival and for joining and assisting
rival-Remedial Order: special form of : employer to withhold recognition of
favored organization as representative of any employees until after final action
by Board upon petition to investigate representatives ; employer to withhold
recognition of favored organization as exclusive representative of any of its
employees unless and until certified as such by Board or unless and until, after
final action by Board upon petition, it is duly designated by majority of em-
ployees in an appropriate unit-Discrimination: discharge of 14 persons pursuant
to illegal closed-shop agreement not within proviso to Section 8 (3) ; dis-
crimination found in discharge of several employees who encouraged others to
engage in concerted activity before organization of union ; found as to employees
discharged for participating in strikes or stoppages not sponsored by a union-
Reinstatement Ordered-Back Pay: computation of : amount of net back pay
due for period between date of taking of last testimony and date of issuance
of proposed decision, reduced by one-half because of delay ; general wage increase,
effective after discriminatory discharges, taken into account-Investigation of
Representatives: controversy concerning representation : rival labor organization,
each claiming to represent majority in substantially overlapping bargaining
units; contract made subsequent to commencement of representation proceeding,
no bar to-Unit Appropriate for Collective Bargaining: production employees
excluding engineers, laboratory employees, shipping and receiving department
employees, watchmen, maintenance, office and clerical employees, supervisory
employees and foremen, but including checkers-Election Ordered: time for and
elegibility date to be fixed after effects of unfair labor practices dissipated.
Mr. David A. Morse and Mr. Will Maslow, for the Board.
Mr. Abraham J. Rosenblum, of New York City, for the respondent
Condenser Corporation of America.
Mr. Merritt Lane, by Mr. John J. Clancy and Mr. Eugene Frey, of
Newark, N. J., and Lord, Day i Lord, by Mr. John H. Vincent, of
New York City, for the respondent Cornell-Dubilier Electric Cor-
poration.
Mr. Samuel L. Rothbard, Mr. Abraham Schulman, and Mr. Peter
S. Patuto, of Newark, N. J., for the United.
Mr. Salvatore Diana, of Plainfield, N. J., for the Independent.2
2 Mr Salvatore Diana was denied the right to represent the Independent during the
latter phase of the hearing commencing on September 2, 1937, because it was admitted
that that organization had ceased to exist.
CONDENSER CORPORATION OF AMERICA 349
Mr. Andrew Zazzali, of Newark, N. J., and Mr. Isaac Lobe Straus,
of Baltimore, Md., for the Brotherhood.
Mr. Millard L. Midonick, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Electrical
and Radio Workers of America, herein called the United, the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Second Region (New York City), issued its com-
plaint dated February 1, 1937, against Condenser Corporation of
America, South Plainfield, New Jersey, herein called the respondent
Condenser, alleging that the respondent Condenser had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. With respect to the unfair labor practices, the complaint in
substance alleged (1) that on .or about specified dates the respondent
Condenser had caused the discharge of certain named employees and
had caused the demotion and resignation of other named employees
because they had joined and assisted the United and engaged in con-
certed activities for the purpose of collective bargaining and other
mutual aid and protection ; and (2) that on or about January 18,
1937, the respondent Condenser had initiated, formed, and sponsored
a labor organization or plans the administration of which it had
since continued to dominate and control. The complaint and accom-
panying notice of hearing, and subsequently an amended notice of
hearing, were duly served upon the respondent Condenser, upon the
United, and upon Condenser Workers Independent Union, herein
called the Independent.
On February 9, 1937, the respondent Condenser filed an answer to
the complaint, denying the commission of the unfair labor practices
alleged, denying the jurisdiction of the Board in this proceeding,
and alleging that the procedure of the Board as set forth in National
Labor Relations Board Rules and Regulations-Series 1, as amended,
violates "the provisions of the Constitution of the United States with
reference to `due process' and deprives the respondent of an oppor-
tunity for a fair trial."
3 Condenser Workers Independent Union
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing, herein called the former hearing, was
held in Plainfield, New Jersey, February 15, 16, 17, 18, 19, and 23,
1937, before Emmett P. Delaney, the Trial Examiner duly designated
by the Board. The Board, the respondent Condenser, and the Inde-
pendent were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to produce evidence bearing upon the issues was afforded to all
those who were parties at that time. At the commencement of the
former hearing, and pursuant to notice, a motion was made on behalf
of the Board to amend paragraph 3 of the complaint by naming ad-
ditional employees alleged to have been discriminatorily discharged
by the respondent on or about specified dates. This motion was
granted, and the respondent Condenser was given 5 days from the
date of service to file an answer. The respondent Condenser answered
denying the additional allegations.
At the commencement of the former hearing the respondent Con-
denser moved to hold the hearing in abeyance pending the first
Supreme Court rulings on the constitutionality of the Act, and this
motion was denied. The respondent Condenser further moved to
dismiss the complaint on the grounds (1) that the Act is unconstitu-
tional; (2) that the respondent Condenser is not engaged in inter-
state commerce and therefore the Board is without jurisdiction; (3)
that the complaint fails to state facts sufficient to constitute a viola-
tion of the Act; (4) that the complaint fails to state facts sufficient
to constitute unfair labor practices within the meaning of the Act;
and (5) that the procedure prescribed by National Labor Relations
Board Rules and Regulations-Series 1, as amended, violates the
Fifth Amendment to the Constitution of the United States. The
motion to dismiss was denied by the Trial Examiner with respect to
the first, third, fourth, and fifth grounds advanced, and upon the
second ground ruling was reserved until the evidence with respect
to the business of the respondent Condenser should have been
received.
On February 19, 1937, the United filed two petitions with the
Regional Director for the Second Region. Both petitions are identi-
cal except that in one the name of the employer is alleged to be
Condenser Corporation of America and in the other, Cornell Dubilier
Corporation, South Plainfield, New Jersey. In each petition it is
alleged that the employees in the appropriate unit work in the plant
of Condenser Corporation of America, South Plainfield, New Jersey,
and "are indiscriminately employees of both Cornell Dubilier Cor-
poration and Condenser Corporation of America." The United al-
leged in, one petition that a question affecting commerce had arisen
concerning the representation of employees of Condenser Corpora-
tion of America, and in the other petition that a question affecting
CONDENSER CORPORATION OF AMERICA 351
commerce had arisen concerning the representation of employees of
Cornell Dubilier Corporation, herein called the respondent Cornell,
and requested an investigation and certification of representatives
pursuant to Section 9 (c) of the Act. On February 19, 1937, the
Board, acting pursuant to Article III, Section 3, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, or-
dered investigations with respect to both petitions and authorized
the Regional Director to conduct them and to provide for appropri-
ate hearings upon due notice. Notice of hearing on the petitions was
duly served upon the respondents, the United, the Independent, and
International Brotherhood of Electrical Workers, herein called the
Brotherhood, a labor organization claiming to represent employees
directly affected by the investigation.
On February 19, 1937, pursuant to Article III, Section 10 (c) (2),
of National Labor Relations Board Rules and Regulations-Series 1,
as amended, the Board issued an order that the investigations arising
on the petitions be consolidated for the purpose of hearing with the
proceeding then in progress on the complaint.
On February 23, 1937, counsel for the Board moved, pursuant to
notice, to substitute for the amended complaint an amended com-
plaint as amended, adding the respondent Cornell as a party respond-
ent, and alleging that both respondents had engaged and were en-
gaging in the unfair labor practices set forth above. On March 2,
1937, the respondent Cornell filed an answer to the amended complaint
as amended, alleging that on February 27, 1937, it had filed a bill
of complaint in the United States District Court for the District
of New Jersey against the Trial Examiner and the Regional Director
and had obtained an order requiring them to show cause on March
8, 1937, why they and their agents and representatives should not,
pending the hearing of the cause before the District Court, be
restrained from proceeding with the hearing on the complaint and
petitions in this case, and that the bill of complaint prayed for a
permanent injunction and other relief. The answer further alleged
that the Act was unconstitutional on numerous grounds and that the
Board was without jurisdiction over the respondent Cornell. The
answer admitted certain of the allegations concerning the business
of the respondent Cornell, but denied those concerning unfair labor
practices. In particular, it denied the allegations of paragraph 9 of
the amended complaint as amended, referring to the domination of and
interference with the formation and administration of the Independ-
ent, except that it admitted that the respondent Condenser had
entered into a closed-shop agreement with the Brotherhood, (nowhere
referred to in the amended complaint as amended), and contended
that no order could be made by the Board which would not violate
the contract rights established thereby. On March 3, 1937, the
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent Condenser filed its answer to the amended complaint as
amended, (1) stating that it did not thereby waive its rights under
the order of Judge Guy L. Fake of the United States District Court
for the District of New Jersey, (2) admitting certain of the allega-
tions concerning the business of the respondents, and (3) denying
those concerning unfair labor practices. In its answer the respondent
Condenser further denied that the Board had jurisdiction over it,
and alleged that the procedure adopted by the Board in its Rules
and Regulations violated the provisions of the United States Consti-
tution with reference) to due process of law and deprived it of an
opportunity for a fair trial.
The temporary restraining order issued by Judge Guy L. Fake
on February 27, 1937, was dissolved on March 22, 1937, by Judge
William Clark, then also of the United States District Court for the
District of New Jersey, and the bills of complaint brought by the
respondents against the agents of the Board were dismissed.
Thereafter, upon a fourth amended charge duly filed by the
United, the Board by the Regional Director issued its third amended
complaint,-' dated June 11, 1937, against both respondents, following
in part the allegations of the amended complaint as amended, al-
leging that the respondents had engaged in and were engaging in
unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. Spe-
cifically it was alleged that all the operations of the respondent
,Condenser and the respondent Cornell, including their labor policies,
"have been and are being wholly dominated, directed and controlled
.by Cornell Dubilier Corporation, and form a unified and integrated
enterprise for the manufacture, sale, and distribution of radio con-
densers." It was further alleged that on or about specified dates
both prior and subsequent to the interruption of the hearing in this
proceeding by the order of the court, the respondents had caused
the discharge and the resignation of certain named employees be-
cause they had joined and assisted the United and engaged in con-
certed activities for the purpose of collective bargaining and other
mutual aid and protection. In addition to the allegations in pre-
vious complaints that the respondents dominated and controlled
the formation and administration of the Independent, the third
amended complaint further alleged that on or about February 18,
1937, the respondents induced the Independent to affiliate with the
Brotherhood and coerced a majority of their employees into accept-
ing membership in the Brotherhood; that in the name of the re-
spondent Condenser the respondents then entered into a closed-shop
contract with the Brotherhood; that this contract is still in exist-
A Referred to hereinafter either as the "complaint" or the "third amended complaint."
CONDENSER CORPORATION OF AMERICA 353
ence; that by these acts the respondents interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed
by Section 7 of the Act, and did thereby engage and were thereby
engaging in unfair labor practices, within the meaning of Section
8 (1) of the Act; that by such conduct the Independent and the
Brotherhood were established, maintained, and assisted, within the
meaning of the proviso to Section 8 (3) of the Act; and that there-
fore the closed-shop contract entered into between the respondents
and the Brotherhood was void and of no effect. The third amended
complaint was duly served upon the respondent Condenser, upon
the respondent Cornell, upon the Brotherhood, and upon the United.
On June 18, 1937, the respondent Cornell filed. an answer to the
third amended complaint, denying the commission of the unfair
labor practices alleged. It denied the allegations that the respond-
ents had dominated the Independent and had induced it to affiliate
with the Brotherhood and had coerced a majority of their employees
to accept membership therein, admitting, however, that the Inde-
pendent, or the members thereof, did affiliate with the Brotherhood,
and that the respondents entered into a closed-shop contract with
the Brotherhood and that the contract is still in full force and
effect. The respondent Cornell further alleged the third amended
complaint failed to state facts sufficient to constitute a violation of.
the Act; that the Board had no jurisdiction over the respondent
Cornell; that the injection of the respondent Cornell into this pro-
ceeding by an amended complaint after voluminous testimony had
been taken upon the original complaint while this respondent was
not a party to this proceeding would be to deprive the respondent
of its property without due process of law; that the effect of grant-
ing relief in accordance with the third amended complaint would
be to require the respondent Condenser, and to require the respond-
ent Cornell, if the Board should hold it responsible for the con-
duct of the respondent Condenser, to breach the closed-shop contract
entered into between the respondent Condenser and the Brother-
hood on, February 19, 1937, and if so construed the Act was un-
constitutional for the reason that it impaired the obligation and
interferes with the liberty of contract of the respondents; that the
Act was violative of numerous other specified provisions of the
United States Constitution; and that the respondent Cornell' was
never the employer of any of the individuals named in the com-
plaint or of any labor involved in the charges of unfair labor prac-
tices alleged in this proceeding.
On September 7, 1937, during the course of the resumed hearing,
the Brotherhood filed an answer to the third amended complaint
denying the commission of the unfair labor practices alleged, and
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleging that the respondents could not reinstate the individuals
named in paragraphs 5 and ,6 of the complaint 5 without violating the
closed-shop agreement entered into between the respondent Condenser
and the Brotherhood; that the said agreement effective from Feb-
ruary 19, 1937, to February 18, 1939, was valid and in full operation
.and effect; that the impairment, abrogation, or annulment of this
agreement would deprive the Brotherhood of its constitutional liberty
of contract, deprive it of its property and its contractual rights with-
out due process of law, and deny to it the equal protection of the laws.
On September 27, 1937, during the course of the resumed hearing,
the respondent Condenser filed an answer to the third amended com-
plaint, denying the commission of the unfair labor practices alleged.
It denied the allegations that the respondents had dominated the
Independent and had induced it to affiliate with the Brotherhood and
had coerced a majority of their employees to accept membership there-
in, admitting, however, that the Independent, or the members thereof,
did affiliate with the Brotherhood, and that the respondent Condenser
entered into a closed-shop contract with the Brotherhood and that
the contract is still in full force and effect. It further alleged that
the third amended complaint failed to state facts sufficient to consti-
tute a violation of the Act; that the Board had no jurisdiction over
the respondent Condenser ; that the effect of granting relief in ac-
cordance with the third amended complaint would be to require the
respondent Condenser to breach its closed-shop contract entered into
with the Brotherhood on February 19, 1937, and if so construed the
Act was unconstitutional for the reason that it would interfere with
the liberty of contract, destroy the contract rights of the respondent
Condenser, and deprive it of property without due process of law; and
that the Act was violative of numerous other specified provisions of
the United States Constitution.
Pursuant to notice, the hearing resumed in Plainfield, New Jersey,
on September 2, 1937, and extended until October 15, 1937, before
William Seagle, the Trial Examiner duly designated by the Board
to act in place and stead of Emmett P. Delaney who had resigned
from the staff of the Board prior to the resumption of the hearing.
The Board, the respondent Condenser, the respondent Cornell, the
Brotherhood, and the United were represented by counsel and partici-
pated in the hearing. Salvatore Diana, who had appeared in the
earlier hearing for the Independent, was denied the right to appear
for the Independent or to participate in the proceedings upon the
resumption of the hearing when he admitted that he did not believe
that the Independent was still in existence at that time. He was also
These include 64 of the 66 individuals named in the complaint The remaining em-
ployees , Ann Coley and Phyllis Fisk, are named in paragraph 8 of the complaint.
CONDENSER CORPORATION OF AMERICA 355
denied the right to appear for the witness Frank Diana, who was not
a party. We affirm the rulings of the Trial Examiner in this regard.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to produce evidence bearing upon the issues was afforded to all
parties. On October 30, 1937, pursuant to stipulation, and again on
November 30, 1937, pursuant to stipulation; depositions were taken
of testimony by witnesses called on behalf of the respondents. Said
depositions are hereby incorporated into the record herein.
At the commencement of the hearing before Trial Examiner Sea-
gle, herein called the resumed hearing," counsel for the Brotherhood
objected, on the ground that this was the first appearance for the
Brotherhood in the case, "to the admission into evidence of anything
that has taken place heretofore." The objection was overruled.
Counsel for the Board agreed that if the testimony of witnesses at
the former hearing were not repeated and if the respondent Cornell
and the Brotherhood were not confronted by those witnesses, their
testimony at the former hearing would not be binding upon these
parties. Counsel for the respondent Condenser and for the Brother-
hood moved to dismiss the third amended complaint particularly in
so far as it seeks to set aside the contract between that respondent
and the Brotherhood. The motions were denied. During the course
of the resumed hearing, the Trial Examiner ruled that the evidence
adduced at the former hearing would be deemed binding upon the
respondent Condenser because the resumed hearing was merely a con-
tinuation of the former proceeding. Counsel for the respondent
Condenser excepted on the ground that (1) an amended complaint
had been filed, and (2) a new Trial Examiner was conducting the
resumed hearing. Again at the close of the Board 's case, counsel
for the respondent Condenser moved to strike from the record all
testimony taken at the former hearing on February 15 to February
19, 1937, inclusive, on the ground that the testimony was taken
before another Trial Examiner. The Trial Examiner denied this
motion. We affirm these rulings of the Trial Examiner in this re-
gard. The third amended complaint did not alter the identity of
this proceeding-but merely purported to alter the allegations of the
amended complaint as amended to conform to the events which had
transpired since its issuance. There is no merit in the contention that
the evidence taken at the former hearing must be disregarded be-
cause the Trial Examiner who conducted it did not also conduct the
resumed hearing. Neither of the Trial Examiners filed an Interme-
diate Report and therefore the findings of fact made by us, in the
case of both the former and resumed hearings, -are equally without
e As distinguished from the portion of the hearing held before Trial Examiner Delaney,
herein called the former hearing
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
the benefit of observation of the demeanor of the witnesses, and are
similarly based upon the recorded stenographic transcript and ex-
hibits in both hearings.
At the close of the Board's case, and again at the close of the
hearing, counsel for both respondents made numerous motions, some
of which are here set forth. They moved to dismiss the complaint
with respect to the alleged violations of Section 8 (1) and (3) as
to 20 individuals 7 named therein who had failed to appear or give
testimony in this proceeding. Counsel for the Board joined in the
motion in the cases of Emily Raczyniski and Margaret Pipick. The
motion was granted with respect to 17 of these individuals and denied
with respect to Katherine Dolce, Arthur Chippendale, and John
Di Vico. Counsel for the respondents excepted to that portion of the
ruling denying the motion to dismiss, and counsel for the Board took
exception to that portion of the ruling granting the motion except in
so far as it related to the cases of Emily Raczyniski and Margaret
Pipick. Counsel for the respondent Condenser then moved to dismiss
the complaint with respect to Katherine Dolce, Arthur Chippendale,
and John Di Vico on the ground that there was no evidence to sustain
the charges as to them. Counsel for the Board opposed the motion
on the ground that these three persons were discharged because they
had been suspended from the Brotherhood. The Trial Examiner
reserved decision on those motions. We hereby deny those motions
for reasons indicated below. Counsel for the respondents moved to
dismiss the complaint with respect to 14 individuals named in the
complaint 8 on the ground that since they had been suspended from
the Brotherhood, the respondent Condenser was merely performing
the terms of its agreement with the Brotherhood in discharging them'.
Counsel for the Board opposed the motion on the ground, inter alia,
that the closed-shop contract relied upon had been entered into in
violation of the Act. The motions were denied with leave to renew
at the close of the respondents' cases, and exceptions were taken by
counsel for the respondents. When the motions were renewed, the
Trial Examiner reserved decision, and exceptions were taken. We
hereby deny these motions for reasons indicated below. Counsel for
the respondents moved to dismiss the complaint with respect to seven
7 Joseph Morelli , Charles Longo , Lou Faigle , Michael Jankowy , Norman Hinkle , Joseph
J Bruzdowski , Vito Morelia , Mike Mazza, Dominio Ventrello , John Serido , Arvella Grove
(named in the complaint as, "Pat Grove" and amended on motion ), Katherine Dolce, Louis
De Fillipo , Arthur Chippendale , John Di Vico, Emily Raczyniski , Margaret Pipick, Joseph
Elk, Thomas D'Amico, and Carmen Ferris!.
8 Michael Santoro, Fred Vitto, Katherine Dolce, John Sedon, Mary Schumacher , Arthur
Chippendale, John D1 Vico, Ann Jacobs , Caroline Callecchio , Tessie Appezzatio , Michael
Sabino, Herbert Rydberg, Katherine Fedoruk, and Frances Prohodka.
CONDENSER CORPORATION OF AMERICA 357
persons 9 named therein stating that the record shows that they have
been reinstated to membership in the Brotherhood and to the employ
of the respondent Condenser and arguing that the Board has no
authority under the Act to order back pay when employees have
been previously reinstated. This motion, was denied by the Trial
Examiner and exception taken. We hereby affirm. this ruling of the
Trial Examiner. Counsel for the respondent Condenser moved to
dismiss the complaint on the ground that there was no proof that
the corporation was, engaged in interstate commerce. The Trial
Examiner denied the motion. For reasons indicated below, we
hereby affirm this ruling. Counsel for the respondent Condenser
moved to dismiss the complaint and the petition on the ground that
the United has never represented a majority of the employees in the
plant. The Trial Examiner denied this motion, and we hereby affirm
his ruling for the reason that it is not a condition under the Act
to the relief to be ordered by the Board in this proceeding that the
union filing charges or a petition prove that it represents a majority
of employees.
Counsel for the respondent Condenser moved to dismiss the com-
plaint with respect to Cono Morello. This motion was granted by
the Trial Examiner. Counsel for the Board consented to the dis-
missal of the complaint in so far as it concerned Section 8 (3)
charges with respect to this individual but excepted to the ruling of
the Trial Examiner dismissing the Section 8 (1) allegation with
respect to this individual as well . Upon a consideration of the en-
tire record, we hereby affirm this ruling.
Numerous other motions to dismiss part or all of the complaint
were made by counsel for the respondent Condenser for want of
proof and on other grounds. Each of these motions was denied by
the Trial Examiner and exceptions were taken. We have considered
these motions in connection with the record and we find no merit
in them. We hereby affirm these rulings. One of the motions to
which reference has just been made was based upon the ground that
this respondent had been denied a fair and just trial. In the briefs
filed by the respondents and the Brotherhood in support of excep-
tions to the proposed findings of fact, proposed conclusions of law,
and proposed order, this contention is reiterated. On page 6 of the
brief for the respondent Condenser, counsel calls attention in this
connection to "the last day's testimony, on which occasion he [the
Trial Examiner] overrules every objection made by respondent's at-
torneys and sustained almost every objection made by the Board's
9 Fred Vitto , Tessie Appezzatio , Katherine Fedoruk ( erroneously spelled Feodorik in the
complaint ), John Spisso, Vincent Binicasso , John Mazza, Carmen Ferrisi ( erroneously
transcribed as "Martin Sarissi").
283033-41-vol. 22-24
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attorney." While a proper determination of whether a fair hearing
has been accorded generally requires reference to the entire record,
we must note that counsel's quoted statement concerning the tran-
script of one day of the hearing, presumably the portion of the tran-
script best supporting his contention, is not in accordance with the
facts. On the day referred to, counsel for the respondent Condenser
was sustained in an objection on at least one occasion and the ob-
jections of counsel for the Board were overruled on at least five oc-
casions, and a motion on the part of counsel for the Board to strike
certain testimony was denied. Aside from this reference, no specific
instances of unfair treatment are cited by any party. No reference
is made to any point in the transcript of the resumed hearing where
the Trial Examiner is alleged to have rejected proferred exhibits
and to have refused to permit such rejected exhibits to be included
with the record for review of his ruling. At no time, including the
occasion of the oral argument held February 15, 1940, has any party
offered us any documents allegedly thus treated by the Trial Exam-
iner so that we might rectify any error on his part. We have care-
fully considered the entire record in this proceeding. We conclude
that all parties were accorded a fair and just hearing, and we there-
fore affirm the rulings of the Trial Examiner in this regard.
At the close of the Board's case and at the close of the hearing,
counsel for the respondent Cornell made numerous motions. A mo-
tion was made to dismiss the complaint as to this respondent for
lack of evidence that it is or was the employer of any of the persons
named in the third amended complaint, and for want of proof that
it committed either alone or in conjunction with the respondent
Condenser any of the unfair labor practices alleged. The Trial
Examiner denied these motions and exceptions were taken. For
reasons indicated below, we hold that with respect to unfair labor
practices shown to have been committed upon the basis of evidence
adduced at the resumed hearing, the respondent Cornell and the
respondent Condenser are equally responsible, and we therefore af-
firm this ruling. Counsel for the respondent Cornell thereupon
moved to dismiss the allegations in the third amended complaint in
so far as they related to all persons who had testified or who had
been named in the testimony taken during the former portion of
this proceeding on the ground that during that portion of the pro-
ceeding this respondent was not a party and that the testimony then
taken was not binding upon it because it had been denied an oppor-
tunity of cross-examining those witnesses during the period when it
had been a party to the proceeding. This motion was granted by
the Trial Examiner and an exception was taken by counsel for the
Board. We hereby affirm the ruling of the Trial Examiner. We
will disregard, moreover, with respect to the respondent Cornell, all
CONDENSER CORPORATION OF AMERICA 359
evidence adduced at the former hearing. On the merits of the pro-
ceeding, counsel for the respondent Cornell joined in the motions
made by counsel for the respondent Condenser in so far as they
related to employees of the respondent Condenser named in the com-
plaint who had testified since the respondent Cornell has appeared
in this proceeding. The Trial Examiner ruled and reserved ruling
in the same planner as he had in passing upon the respective motions
made in behalf of the respondent Condenser, and exceptions were
taken. We hereby rule with respect to the respondent Cornell in
the manner we have ruled in regard to the respective motions of the
respondent Condenser.
At the close of the Board's case and at the close of the hearing,
counsel for the Brotherhood moved to strike from the record all
testimony taken prior to its intervention in the proceeding at the
time of the resumption of the hearing. The Trial Examiner granted
this motion to the extent of ruling that no findings with respect to
the Brotherhood would be made except on the basis of •evidence in-
troduced since the resumption of the hearing. We affirm this ruling
of the Trial Examiner. Counsel for the Brotherhood then moved
to dismiss the third amended complaint on the ground that the Board
was without power to set aside the contract entered into between the
Brotherhood and the respondent Condenser on February 19, 1937.
This motion was denied by the Trial Examiner. We hereby affirm
this ruling. Counsel for the Brotherhood made various other mo-
tions to dismiss the third amended complaint or portions of the third
amended complaint on the ground of the insufficiency of proof and
upon other grounds. These motions were denied by the Trial Exam-
iner. We have considered these motions in connection with the
record, and we find no merit in them. We hereby affirm these
rulings.
During the course of the resumed hearing, counsel for the Board
moved to dismiss the allegation of the third amended complaint
with respect to six individuals named therein 10 These motions were
granted by the Trial Examiner . We hereby affirm these rulings for
the reasons set forth below.
A motion by counsel for the Board at the conclusion of the Board's
case to amend the pleadings to conform to the proof was granted.
At the close of the hearing, counsel for the respondent Condenser
moved to dismiss the petition in the representation proceeding on the
ground that the evidence shows that the Brotherhood represented a
majority in the plant on February 19, 1937, when the closed-shop
10 John Huyler , John Holden, May Boland , Victoria Howell, Margie Dimuria , and Mar-
garet Pipick with respect to the latter employees , as well as Emily Raczyniski , we have
noted above that counsel for the Board joined in a motion to dismiss made by counsel for
the respondents.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract was executed. We affirm the Trial Examiner's ruling deny-
ing the motion for reasons indicated below.
By order of the Board, dated October 18, 1937, the proceeding was
transferred to and continued before the Board in accordance with
Article II, Section 37, of the Rules and Regulations. On December
9, 1937, upon due notice to the United and to the respondent Conden-
ser, and on June 28, 1938, upon due notice to the United, the respond-
ents, the Brotherhood, and the Independent, hearings for the purpose
of oral argument were held before the Board. On December 9, 1937,
the United and the respondent were represented and participated.
On June 28, 1938, the United, the respondents, and the Brotherhood
were represented and participated.
Counsel for the respondent Condenser and for the Board have filed
briefs which have been fully considered by the Board. The Board
has reviewed the rulings of the Trial Examiners on motions and on
objections to the admission of evidence and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
An- order of the Board, dated September 3, 1938, directed issuance
of proposed findings of fact, proposed conclusions of law, and pro-
posed order, and the right was granted to all parties to file exceptions,
to request oral argument and to file briefs upon the receipt thereof.
It was further directed that no Trial Examiner's Intermediate Re-
port should be issued. On December 2, 1939, the Board issued and
duly served upon the parties proposed findings of fact, proposed con-
clusions of law, and proposed order herein. Exceptions thereto and
further briefs thereon were filed by the respondent Condenser, the
respondent Cornell, and the Brotherhood. On February 15, 1940,
upon due notice to the United, the respondents, and the Brotherhood,
hearings for the purpose of oral argument were held before the
Board. The United, the respondents, and the Brotherhood were
represented and participated.
At the hearings for the purpose of oral argument held before the
Board on February 15, 1940, motions were made by the respondents
and the Brotherhood, in accordance with written notices of motion
theretofore filed, that the record be reopened. to take evidence as to
the existence and validity of a certain collective agreement made in
1939 by the respondent Condenser and the Brotherhood, as to the
circumstances surrounding the execution of this agreement which
is now in effect, and generally with respect to labor relations in the
respondents' plant since the date of the execution of the original
contract of February 19, 1937. For reasons hereinafter set forth
these motions are denied.
The Board has considered the exceptions, filed by the respondents
and by the Brotherhood to the proposed findings of fact, proposed
CONDENSER CORPORATION OF AMERICA 361
conclusions of law and proposed order herein, and the briefs filed
and oral arguments made on behalf of the parties in connection
therewith, and, in so far as they are inconsistent with the findings,
conclusions, and order set forth below, finds them to be without
merit.
Upon the entire record in the cases, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
A. Corporate structure
On May 22, 1933, Dubilier Condenser Corporation and Cornell
Electric Manufacturing Company, Incorporated, organized Cornell
Dubilier Corporation under the laws of the State of New York. The
new company took over the manufacturing business of those two
companies and surrendered its entire capital stock to be equally
divided between them. The two old companies, herein called the
holding companies, have not since engaged in manufacturing opera-
tions. The same stock ownership was preserved when Cornell
Dubilier Corporation of New York was succeeded on October 31,
1936, by Cornell Dubilier Corporation of Delaware, herein called the
respondent Cornell. The latter, incorporated on October 22, 1936,
under the laws of the State of Delaware, altered its name on June 23,
1937, to Cornell-Dubilier Electric Corporation, the present form.
All the outstanding voting stock of the respondent Cornell • has
been deposited under a voting trust agreement dated October 23,
1936, its term to extend until October 22, 1946, unless sooner termi-
nated either by the unanimous action of the voting trustees or by
the holders of voting trust certificates representing 75 per cent of
the shares of stock deposited thereunder. The voting trustees are
Octave Blake, director and president of the respondent Cornell,
Buell Hollister, director and chairman of the board of the respondent
Cornell, and Herbert H. Maass, a person with no other formal con-
nection with the corporation.
Condenser Corporation of America, the other respondent in this
proceeding, was incorporated on August 18, 1927, under the laws
of the State of New York. Since February 23, 1937, one-half of the
stock of the respondent Condenser was owned by each of the above-
mentioned holding companies, each of which at that time was the
beneficial owner of one-half of the voting stock of the respondent
Cornell.
On August 28, 1937, shortly before the resumption of the hearing,
the respondent Cornell issued and sold 62,328 new shares of its com-
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mon stock, and with part of the proceeds purchased all of the out-
standing capital stock of the respondent Condenser; the respondent
Condenser has since been a wholly owned subsidiary of the respond-
ent Cornell. Both respondents are now under the control of the
voting trustees who hold the stock of the respondent Cornell.
B. Business relationship between the respondents and the nature
of their business
Commencing in August 1936, some months prior to the unfair
labor practices alleged in the complaint, both respondents moved
to South Plainfield, New Jersey, into one large plant leased by the
respondent Cornell. There both respondents now maintain all their
offices, laboratories, and factory buildings, and conduct all manu-
facturing operations. The respondent Cornell does not alone directly
perform manufacturing operations at the South Plainfield plant or
elsewhere. This function is supplied by the respondent Condenser
as described below.
Together the respondents are engaged in the manufacture and
sale of various types of capacitors, known also as fixed electrical
condensers. Capacitors are devices for storing electrical energy
between two or more conducting surfaces separated by a non-con-
ductor, and are for use in radio, electrical communications, automo-
tive, X-ray, and other equipment; for use in electrical household
appliances of many kinds, in rectifying devices, in power factor
correction in public utility lines and industrial plants, and in many
other miscellaneous devices. The respondent Cornell is one of the
two leading corporations in the capacitor industry, which industry
in 1936 had a total output valued at about $12,000,000. In 1936, the
sales of the respondent Cornell, together with the small quantity
of sales by the respondent Condenser, amounted approximately to
$2,750,000.
All manufacturing operations are directly performed by the
respondent Condenser alone, and all production workers in the plant,
varying in number from 1250 to 1600, are directly employed by it.
The respondent Cornell purchases practically all of the raw ma-
terials used by the respondent Condenser in its operations, sells these
materials to the respondent Condenser, and except for small quan-
tities sold by the respondent Condenser to certain customers, pur-
chases from the respondent Condenser all of the respondent Con-
denser's finished products. All the capacitors sold by the respondent
Cornell are manufactured for, it by the respondent Condenser. Under
an arrangement between the respondents, the respondent Cornell
furnishes the respondent Condenser manufacturing facilities and
CONDENSER CORPORATION OF AMERICA 363
materials and advances funds to meet costs of labor and labor super-
vision. Intercorporation charges between the respondents, including
the price paid by the respondent Cornell for finished products, are
made at substantially the costs to the respective corporations, the
transactions being adjusted by bookkeeping entries. The costs, upon
which such charges are based, include the cost of labor.
C. Relations to convmerce
The principal raw materials used in the manufacture of capacitors
are mica, glass, foil, aluminum, wire, and paper. About 90 per cent
of the raw materials purchased by the respondent Cornell are shipped
to its plant in South Plainfield, New Jersey, where the respondent
Condenser is also located, from points outside the State of New
Jersey.
The respondent Cornell sells its capacitors through more than 40
commission sales representatives who operate throughout the United
States. It also sells to jobbers. It has an arrangement with an
exporting firm for the sale and distribution of its products in several
foreign countries. About 90 per cent of the capacitors sold by the
respondent Cornell are shipped by it, from the South Plainfield plant
where they have been manufactured by the respondent Condenser,
to customers and points outside the State of New Jersey. Its capaci-
tors are advertised nationally in 24 electrical and radio journals as
well as through distribution of a house organ to more than 25,000
radio and electrical appliance service and repair men.
II. THE UNIONS
United Electrical and Radio Workers of America is a labor organi-
zation affiliated with the Committee for Industrial Organization." It
admits to membership all the production employees and checkers at
the South Plainfield plant of the respondents.
Local No. 1041-B, International Brotherhood of Electrical Work-
ers, is a labor organization affiliated with the American Federation of
Labor. It admits to membership all the production employees at the
South Plainfield plant of the respondents.
Condenser Workers Independent Union was an unaffiliated labor
organization formed to admit to membership employees of the re-
spondents on and after January 20, 1937, but disbanded during the
week of February 15, 1937.
11 Now the Congress of Industrial Organizations.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Borough of South Plainfield
In 1929, Spicer Corporation , the owner of the plant now leased
by the respondent Cornell, moved from South Plainfield, leaving the
town's population of approximately 5000 persons without its principal
source of income. Faced with severe conditions of unemployment
and consequent loss of purchasing power in the community sufficient
to support local business , the Chamber of Commerce in 1931 or 1939,
appointed an Industrial Committee of three men including William
Thornton and Frank Diana, a salesman of insurance and automobile
club memberships . The function of the Industrial Committee was
to induce industries to move into South Plainfield.
In July 1936 , after the tax assessor had reduced the taxes on the
plant at Diana's request , and after the respondents had satisfied them-
selves about the local labor situation , they decided to move. Com-
mencing in August 1936, the respondents transferred their operations
over a period of months to South Plainfield. During July 1936,
Diana voluntarily aided the respondents to recruit their staff , largely
from among the residents of South Plainfield . During September
1936, Diana was employed for 3 weeks by the respondents to aid in
reconditioning the plant . By December 1936 or January 1937 , all the
moving had been completed . Both respondents were located in the
South Plainfield plant prior to the commencement of any and during
the commission of all of the unfair labor practices described below.
B. Background of organization of the United , and the respondents'
reaction to it
From August to December 14, 1936, there was no move to organize
the employees of the respondents in South Plainfield. Low wages
and difficult plant conditions gave rise to increasing dissatisfaction
during this period. On December 16, 1936, Edward Hughes, em-
ployed in the South Plainfield plant as head checker, was discharged.
On December 17, 1936, the checkers , a group numbering between 10
and 15, met by arrangement at the home of Herbert Peterson, one
of their number , to protest Hughes ' discharge . One checker present
at this meeting was an employee named Mitchell Zieborak . Zieborak
was also in the employ of S. H. Connors, Inc., a detective agency
whose services are utilized by the respondents . At the meeting, it
was planned to approach the management and to communicate with
the Committee for Industrial Organization for the purpose of or-
ganizing a permanent labor union in the respondents ' plant. Within
the next few days, according to the testimony of Zieborak , all the
checkers were discharged except himself and another . On January
CONDENSER CORPORATION OF AMERICA 365
8, 1937, a committee of the discharged checkers headed by Joseph
Russo visited James B. Carey, president of the United, in his New
York City headquarters.
On January 14, 1937, the first mass meeting of the United was
held at the International Ladies Garment Workers Union hall in
Plainfield, a nearby town. On January 18, 1937, a second mass
meeting was held at which the United installed its local charter and
elected its local officers.
On January 19, 1937, Carey dispatched a letter to Octave Blake,
president of the respondent Cornell, asserting that the United repre-
sented a majority of employees in the plant, demanding recognition
of the United as a bargaining agent for these employees, and re-
questing a conference with Blake. On January 25, 1937, the requested
conference took place, but before further describing the experiences
of the United and its members, we will turn our attention to the
organization of the Independent.
C. The rise of the Independent
Diana sent word to those of the discharged checkers who resided
in South Plainfield that he would aid in their reinstatement if they
would meet him on the night of January 20,1937, at the Silver Moon,
a nearby night club. At the meeting, Diana arranged to meet the
South Plainfield checkers again on the next morning and to inter-
cede then with Blake for their reinstatement. He also suggested
that an independent labor organization be formed to engage in social
activities and to bargain with the respondents for the purpose of
adjusting in the future such "grievances" as had arisen in the case
of the checkers. He stated that his services were available for the
advancement of such a project. On the morning of January 21,
1937, Diana obtained an appointment with Blake at the plant for
himself and approximately nine checkers. Haim Beyer, secretary
and treasurer of the respondent Cornell, was also present. We find
that the testimony of Diana, a ,witness hostile to the Board, accurately
portrays what happened at the meeting. He testified at the resumed
hearing :
A. I told Mr. Blake at the time we were putting these boys
back to work, that these boys wanted to have an organization
there, and were going to organize the workers in the plant.
Q. Did Mr. Blake say anything when you said that?
A. No; he says he had no objection.
Q. (By Mr. Maslow.) Did you ask for permission to distribute
cards in the plant at that time?
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. We didn't talk about cards at that time, we asked him
permission to organize.
Q. And, he said you could have that?
A. Yes.
Q. And, did you attempt to organize in the plant the next
few days after January 21st?
A. We did.
He gave me permission to go ahead with the organization.
Diana further testified that Blake gave him permission to use the
plant telephone for the purpose of informing the various department
heads or other persons in authority that each department was to
select representatives for the purpose of forming an executive com-
mittee for the Independent.
Diana directed the department heads to send the representatives
of each department to the council room. Diana testified also that he
received permission from Blake, Beyer, and Arnold,12 to use the
property of the companies, and meetings of the Independent execu-
tive committee were in fact held in the conference room of the plant
from time to time commencing shortly thereafter. Carmine Guili-
ana, departmental representative on the Independent executive com-
mittee, testified that the first meeting was held during working
hours and that he asked and received permission to attend it from
his foreman, Jimmy Morris. Harold Brafman, foreman in charge of
department 8, testified that Max Bleich, treasurer and production
superintendent of the respondent Condenser, gave him the following
information with respect to the Independent:
A. Just that we have an independent union and try to work
with delegates.
Q. Try what?
A. Try to work with the members, rather the delegates of
each department.
Q. Did you work the delegates?
A. I worked with them.
Diana further testified that he obtained permission from either
Blake or Beyer to distribute the white membership application
cards 13 of the Independent in the plant, and that he informed the
members of the Independent committee that he had received per-
mission to distribute the cards in the plant. The executive com-
mittee proceeded to distribute the cards both in and out of the
plant. Diana himself distributed the cards in the plant, and he
William F. Arnold was president of the respondent Condenser.
is Board Exhibit No. 5.
CONDENSER CORPORATION OF AMERICA 367
disseminated at the same time the information concerning his per-
mission from the management. He testified :
I told the workers when I went in the plant with the cards,
that I had permission to come in the plant and pass out these
cards, and they didn't have to worry whether they signed them
or not, and I think that is the word I told them.
Among the departmental representatives who served on the In-
dependent executive committee was Lena Sinisgali, clerk of Manny
Sanchez, foreman in charge of department 11 of the South Plain-
field plant.
While the Independent was thus being formed, the respondent
took steps to impede the progress of the United. Diana requested
the checkers for whom he had succeeded in obtaining reinstatement
on January 21, 1937, to meet him in a pool room opposite the plant
on January 27, 1937, for the purpose of furthering the projected
independent labor organization. The checkers appeared at the ap-
pointed time but did not find Diana, who had been delayed. They
left a written message for Diana indicating that they had decided
not to cooperate in the furtherance of his project. Diana testified
that he received this communication and that he could not recall
whether the message also stated that the checkers intended to proceed
with the organization of the United. Diana further testified at the
resumed hearing that he was unable to remember whether he reported
this turn of affairs to Blake. On January 28, 1937, the day after
Diana had received word that they were not in sympathy with the
Independent, the checkers who had been reinstated on January 21,
1937, to various positions in several departments of the plant, were
discharged. This time Diana took no further, interest in reinstating
the checkers. It is obvious that all these discharges were not fortui-
tous, and we can only infer that Diana informed the management of
the sentiment displayed by the checkers.
About February 1, 1937, Diana delivered addresses in the plant to
the employees of at least six or seven of the departments. The ad-
dresses were made in behalf of the Independent as part of its organ-
izational drive. The employees in each successive department were
ordered by the respective department heads to stop operations during
working hours and to gather to hear Diana. We find these facts on
the basis of the testimony of numerous employees who heard the
speeches, of Diana himself, of several foremen in charge of depart-
ments where Diana spoke, and of Max Bleich, treasurer of the
respondent Condenser and production superintendent of the plant.
Bleich himself admitted that he happened upon one of Diana's audi-
ences during a speech which was being delivered during working
hours, and that he allowed Ed Munn, foreman in charge of that
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department, to keep the employees from resuming production until
Diana concluded. Harold Brafman, foreman in charge of approxi-
mately 125 employees who composed the personnel of department 8,
testified that he ordered production stopped for Diana's address only
after consulting Bleich. Tangney, foreman in charge of department
14, testified that he consulted Bleich during the course of a speech in
his department and that Bleich gave his approval. Bleich testified
that an order to stop production for the speeches could have come
only from him and that he gave none. To the extent that Bleich's
testimony is inconsistent with that of the foremen, we find it not
worthy of credence. Upon the basis of the evidence set forth above
it is obvious that the respondents rendered invaluable service to the
Independent in its organizational drive. Diana himself admitted on
the witness stand that the Independent application cards were dis-
tributed among the employees while he spoke. We credit the testi-
mony of Ann Jacobs, a production employee in department 9, indi-
cating that during and after Diana's speech in department 9, two
supervisory employees known as "Gertie" 14 and "Mary K." distrib-
uted Independent cards among the employees in the plant during
working hours. Alin Jacobs testified that "Mary K." told her and
several others within her hearing that "if we did not sign them we
would be sorry." We credit the testimony of Augusta Kane, a pro-
duction employee in department 8, who disclosed that the following
persons distributed Independent cards through her department dur-
ing working hours on the morning of February 1, 1937: (1) the
witness' immediate supervisor, Gertie Frankel; (2) Henrietta Schaef-
fer, secretary to Greenberg, who was the foreman in charge of depart-
ment 9; and (3) Walter Deutsch, assistant head foreman of depart-
ment 9. On the afternoon of the same day, Deutsch returned to
Augusta Kane's table in the company of Schaeffer and Gertie.
Augusta Kane described in her testimony the conversation which
ensued :
Well, about 2:30 on February 1 he came around to me and
he asked me where my card was. I said "Well, I am not handing
in my card, I am not signing this card, at all." He said, "Why
aren't you?" I said, "First of all, what are these cards for?"
He said, "Well, it's going to be an inside union."
Q. What else did Mr. Deutch 15 say?
A. Mr. Deutch said to me, he said-it was going to be an
inside union and I said all right and he said that this inside
union, well, he said it was going to give us recreation such as
ball games and dances. And I said, "We are not going to be
11 Gertie Frankel.
15 So in transcript ; Deutsch is the correct spelling
CONDENSER CORPORATION OF AMERICA 369
foolish and sign up just for recreation." I said, "We are inter-
ested in wages." I said that the C. I. O. guaranteed us more
wages, so he looked at me and he said, "Oh, you're one of them?"
I didn't know what he meant by that and this Miss Schaeffer,
she said, well she said "If this C. I. O. gets in here" she said,
"We are going to pack up and get out of town." She said,
"That's what we did in New York."
Q. Just a minute. Was Miss Schaeffer standing alongside of
Mr. Deutch when the statement was made?
A. Yes; there were three of us, Mr. Deutch, Miss Schaeffer,
and Gertie.
Deutsch's silence during Schaeffer's remarks conveyed the impression
of acquiescence.
Early in February 1938 Margaret Gibbs, production employee in
department 7, was approached during working hours while in the
company of several other employees by Sarah Martin, supervisor in
charge of the presses in department 7. We find that the following
testimony of Gibbs accurately indicates the nature of Martin's state-
ments at that time concerning application cards of the Independent :16
A. She told us if we did not sign those cards to join the union,
she said, "Either you sign those cards or else." When we asked
her if we had to sign them, she said that.
Q. What did she say?
A. She said, "Either you sign the cards or else."
As early as January 27, 1937, John Higgins, production employee,
observed the distribution of Independent cards in the plant, although
not during working time, by Rose Kemp, supervisor on the initial
test bench in department 13.
On or about the night of February 1, 1937, the Independent con-
ducted a mass meeting at Park Theater, South Plainfield. Tempo-
rary officers were elected, among them being Andrew Cvetko, chair-
man. Thereafter, a'series of meetings of the Independent executive
committee and the Independent officers were held in the plant con-
ference room. The meetings were generally held during the working
hours by some of the representatives who were present. Diana was
present at all meetings as an honorary member. Cvetko, the chair-
man, testified that he would allow Diana to conduct the meetings
because he, Cvetko, was without experience or knowledge in these
matters. When the executive committee desired to negotiate with
the management, Blake would be called in, and if he was unavail-
able, Beyer. It is important to note that the former was president
and the latter secretary and treasurer of the respondent Cornell,
"Board Exhibit No. 5.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that neither was officially connected with the respondent Con-
denser, which the respondents argue was the only employer of
virtually all the workers in the South Plainfield plant. Cvetko
testified that in view of the executive committee's inexperience,
Diana was appointed to the committee and given the full power to
negotiate with-the management.
After a few days of negotiations, the management agreed early
in February 1937 to grant a general increase of 3 cents an hour in
the basic wage rate to take effect on February 15, 1937. Notices were
posted in the plant reading in part:
The Management is very pleased to announce that as a result
of negotiations with a committee of the Condenser Workers In-
dependent Union, representing a majority of the workers in the
Condenser Corporation plant, an increased pay of three cents per
hour was negotiated.
The increased wages will in no way reduce the bonus plan,
which will continue along on the same allowed-hour basis as
previously, but with the new increased base.
Starting February 15, 1937, . . . the increase will become
effective .. .
We find that it was not shown to the respondents at any time that
the Independent represented a majority of their employees, either
generally or in any unit appropriate for the purposes of collective
bargaining.
On February 11, 1937, there was published an issue of a periodical
called "The C-D Condenser." Both the news and editorial columns
of this issue were largely given over to a thoroughgoing attack upon
the United through propaganda vilifying Carey, its president, and
John L. Lewis, chairman of the Committee for Industrial Organiza-
tion. It was reported that activities of the United and of other affili-
ates of the Committee for Industrial Organization in other plants
had had disastrous effects upon the welfare of the workers involved,
and employees of the respondents were urged to heed in this
connection :
A FEW WORDS TO THE WISE
DON'T LET THAT
HAPPEN HERE!
In a box prominently displayed on the front page of 'the same issue
was a statement signed "Frank A. Diana" and addressed "To C. C. A.
Workers from the C. W. I. U." In the statement , Diana said he was
CONDENSER CORPORATION OF AMERICA 371
ready to fight on the side of the employees for the betterment of
conditions , and concluded :
I an friendly with both the executives of the Company and
the workers and I am going to look into both sides and see that
everyone gets a fair deal , and that everyone will be happy in
the Borough.
Clara S. Leary, director of personnel for the respondent Con-
denser, testified that "The C-D Condenser" "was a plant organ pub-
lished by the factory and distributed in the plant among its em-
ployees." Blake , president of the respondent Cornell, testified that
since August 28 , 1937, when the respondent Condenser became a
wholly owned subsidiary of the respondent Cornell , the respondent
Cornell has paid the expenses of publishing "The C-D Condenser."
Since the respondent Cornell assumed the expenses of publication
upon assuming control of the respondent Condenser , it is clear that
previously , and at the time that the issue in question was published,
those expenses were borne by the respondent Condenser . The ex-
penses of publication to which Blake referred included the salary of
the editor , Joseph Calcaterra , whose name appeared as editor upon
the February 11, 1937 , issue. Upon the masthead of that issue it is
set forth that the paper is "Published to Promote the Mutual Inter-
ests of the Cornell -Dubilier Corporation and Its Employees." It is
obvious that "The C-D Condenser" was being published and distrib-
uted on February 11, 1937, by the respondent Condenser with the
approval of the respondent Cornell, and that it was and is regarded
by the employees 'generally as expressing the views of the manage-
ments of both respondents.
Upon the basis of the evidence , introduced during the resumed
hearing, it is clear that the Independent was formed at the instiga-
tion of the respondents , in order to destroy the United . We find
that the respondents , and each of them , have dominated and inter-
fered with the formation and administration of the Independent, and
that they have contributed support to it. The respondents have
thereby interfered with their employees in the exercise of the rights
guaranteed by Section 7 of the Act.
D. The organization of the Brotherhood prior to the execution of the
February 19, 1937 , contract
1. The relationship between the Independent and the Brotherhood
By January 25, 1937, the respondents had had their first conference
with representatives of the United and were attempting to discourage
its development by the series of discharges mentioned above and by
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other means discussed hereafter. On February 1, 1937, the Board
issued its original complaint and served it shortly thereafter upon
the respondent Condenser and upon the Independent. This com-
plaint, referring to the Independent by description, alleged that it
was a labor organization dominated by the respondents. The evi-
dence indicates that thereupon the respondents relinquished the hope
of establishing the Independent as a permanent organization, and
that they sought instead to evade the provisions of the Act by assist-
ing the Brotherhood.
The third amended complaint alleges that "On or about February
18, 1937, respondents, by their officers and agents, induced said Con-
denser Workers Independent Union to affiliate with the International
Brotherhood of Electrical Workers, a labor organization within the
meaning of Section 2 (5) of said Act."
Shortly prior to February 11, 1937, it was first suggested at a
meeting of the Independent executive committee that it would be
politic to "affiliate" with the American Federation of Labor. The
success of the Independent in obtaining, within the space of a few
days, recognition and a greater wage increase than it had in the
first instance demanded 17 might have been expected to encourage it
to resist the Brotherhood as it had the United. Nevertheless, Cvetko,
although knowing so little of union affairs that he, as chairman, was
unable to conduct meetings of the Independent executive committee,
testified that he was the first to suggest to the Independent execu-
tive committee an "affiliation" with the American Federation of
Labor. On the other hand, Charlotte Van Nest, member of the
Independent executive committee, testified that she had requested
Diana to communicate with the Brotherhood for the purpose of
bringing that organization into South Plainfield, without consulting
the Independent executive committee at all. She testified that she
"wanted to give them stronger than the inside union," although she
admitted that the inside union had shown no signs of weakness
whatever. It is noteworthy, however, that on February 1, 1937, the
complaint had been issued by the Board which alleged that the
Independent was company dominated.
Diana testified that on February 11, 1937, he called William Beedie,
international representative of the Brotherhood, and requested him
on behalf of the Independent to visit South Plainfield for the purpose
of establishing the Brotherhood. Beedie arrived in South Plainfield
on February 12, 1937. He testified that he met Diana opposite the
17 The Independent had first demanded a 10-per cent basic wage rate increase. This
would have amounted approximately to an average increase of 2% cents an hour. When
the respondents seemed disposed to accede , the Independent increased its demand to a flat
increase of 5 cents an hour. A compromise was reached at 3 cents an hour.
CONDENSER CORPORATION OF AMERICA 373
plant and that Diana informed him that the Independent was not
faring well and that its members desired to "affiliate" with the
Brotherhood. Charlotte Van Nest testified that both Diana and
Beedie appeared before the Independent executive committee in the
plant conference room and that she had on the day of that meeting
obtained from Beyer permission to use the room. We credit the
testimony of Van Nest on this point. It is necessary here to observe
that the testimony of Diana, Cvetko, Van Nest, and Beedie, with
respect to the relations between the Independent and the Brother-
hood is a maze of contradictions and inconsistencies. It is evident
that the complete story was withheld and that much was fabricated.
Diana testified that he discontinued acting on behalf of the Inde-
pendent and turned over all organizing to Beedie after his arrival
in South Plainfield on February 12, 1937. After this date,- Diana
maintained that the Independent executive committee, and with it
the entire Independent organization, informally disappeared : "Just
dissolved, didn't see no more of it." On the other hand, Diana testi-
fied concerning the events of February 15, 1937, particularly with
reference to the Brotherhood mass meeting in the Grant School of
the afternoon of that day, as follows:
Q.... Did you tell this Committee of Twenty-three [the
Independent executive committee] ... there was going to be
a meeting in the school [Grant School, South Plainfield] at 4: 30
that afternoon?
A. Yes. I told them there would be arrangements made as
they instructed and the meeting would be held at night.
Q. You made the arrangements yourself, didn't you?
A. They asked me to make it -to make the arrangements . . .
Q. Now did you tell this Committee of Twenty-three to notify
their fellow workers about the meeting to be held in the school
room that night?
A. Yes.
Q. Do you remember whether they did so or not?
A. Well, they must have.
In his brief, counsel for the respondent Condenser admitted that
members of the Independent executive committee assisted the organi-
zational drive of the Brotherhood, which commenced on February
15, 1937, but argued that they engaged in such activities as individ-
uals and not as representatives of the Independent."' In contrast to
the position of the counsel for respondent Condenser on this point,
the record contains the testimony of Cvetko, chairman of the Inde-
pendent executive committee, and we find the facts on the basis of
is See brief in behalf of the respondent Condenser, page 2.
283033-41-vol. 22-25
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this ,evidence. Cvetko testified that the Independent executive com-
mittee requested Diana to bring a representative of the Brotherhood
to South, Plainfield; that he passed word around of the Brotherhood
meeting of February 15, 1937; that the rest of the executive com-
mittee "may have" done the same; and that at the meeting in the
Grant School that night application cards of the Brotherhood were
distributed, by the members of the Independent executive committee,
as well as by others.19 Cvetko continued to distribute Brotherhood
cards in the plant next morning before his work began. With ref-
erence to the same day, February 16, 1937, he testified :
... the day after the meeting, well, we started to get the
cards together,;. •.. _
,Q.' You say "we," who do you mean?
A. The committee itself.,
Q. How did' you get them together?
A. Well, they, all met 'at twelve o'clock, ... we got together
and we got all the cards and found out how many we had and
we brought them to Frank.20
Q. Well, you received all the cards that were signed, isn't that
right ?
A. That's right.
Q. Those were the cards signed that morning, is that right?
A. That morning and the night before at the meeting.
Mr. Maslow : Now, when you saw the cards Monday night,
they weren 't turned in until the next day?
The Witness : Some were turned in that night , those were defi-
nitely sure signed it.
Q. (By Mr. Maslow ) Some the next morning?
A. Yes.
Q. Each member of the committee went around ...
A. Each member of the committee went around and collected
the cards from the people.
Between February 16 and February 18, 1937 , the Independent,
through action of its executive committee , transferred its organization
to the Brotherhood . The following testimony by Cvetko indicates
19 Q. And your committee passed around the cards?
A. Well, at the meeting, yes, they passed them on around . also the people themselves,
I mean even the people that weren't on the committee grabbed a handful of cards.
Q Your committee helped to pass these cards around , is that right? '
A Yes. •.
° Frank Diana
CONDENSER CORPORATION OF AMERICA 375
that the Independent executive committee determined officially to take
this step, and by the same token that the leaders of the Independent,
in aiding the Brotherhood, were not acting merely as individuals :
Q. . . . Did your committee take a formal vote on the ques-
tion of whether they should affiliate with an outside organization,
was there an actual vote taken?
A. Well, it was unanimous.
Q. Was there a vote taken?
A. We didn't need a vote, everybody spoke.
Moreover, we find that at least four of the leaders of the Independ-
ent become leaders of the Brotherhood as soon as the transfer, affil-
iation, or merger was effected. Diana, who had been originator,
guiding spirit, and an honorary member of the executive committee
of the Independent, was elected business agent of the Brotherhood
and continued to take, in the absence of Beedie, the leading role in
its affairs. Cvetko, who had been chairman of the Independent ex-
ecutive committee, became treasurer of the Brotherhood. Joseph
Fitzgerald, who had been a member of the Independent executive
committee, became president of the Brotherhood. Van Nest, who had
been a member of the Independent executive committee, became a
member of the executive board of the Brotherhood.
2. The attitude of the respondents toward the Brotherhood
The respondents took measures to reenforce the impression that they
desired the Brotherhood's organizing campaign to be successful and
thereby to assure this outcome.
Beedie arrived in South Plainfield on February 12, 1937. Active
organization in behalf of the Brotherhood extended from Monday
to Friday, February 15 to 19, 1937, and by the latter date, the
Brotherhood had obtained upon its cards 21 the signatures of a ma-
jority of the employees at the South Plainfield plant.
On February 15, 1937, a mass meeting was conducted at the Grant
School, a public school situated close to the respondents' plant. Upon
the basis of the testimony given by Diana during the resumed hear-
ing in this proceeding, we find that the February 15, 1937, mass
meeting commenced no later than 5 p. m. From the testimony of
other witnesses, it_appears that the_ meeting commenced at approxi-
mately 4:30 p. m. Upon the basis of a tabulation of approximately
5,000 daily time slips for the week of February 15, 1937, it appears
that a large majority of the employees in the plant were dismissed
by the respondents prior to 4: 15 p. m. on February 15, 1937. The
tabulation for the 4 remaining days of the- same week, during which
= Similar to Board Exhibit No. 17.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,time the Brotherhood conducted no afternoon mass meeting, discloses
that a majority of the employees were regularly dismissed subsequent
oto 5:15 p. m. The results of the tabulation 22 point so clearly to the
conclusion that the respondents, by dismissing the employees un-
usually early on February 15, 1937, were acting in pursuance of a
conspiracy to assist the Brotherhood in its first mass meeting, that
we must disregard the attempts of the respondents to assign as the
reason that operations were curtailed on that day for business reasons.
Hundreds of employees, finding themselves at liberty in advance of
their usual quitting time, and knowing of a much publicized mass
meeting of the newly arrived Brotherhood to be held at a nearby
schoolhouse at a time also in advance of their usual quitting time,
`could have arrived at no other conclusion but that the respondents
were in sympathy with the Brotherhood and intended that their em-
ployees attend the meeting.
' Moreover, the respondents did not leave the matter to the em
ployees' inference alone. We find that additional and open assistance
-was rendered the Brotherhood in support of the February 15,
1937, mass meeting. Katherine Fedoruk'23 production employee in
department 9, testified that Gertrude Frankl,23a her supervisor and
forelady in that department, made the following statement on Feb-
ruary 15, 1937; to a group of 100 employees in her department :
"Girls, I am dismissing you to go to a union meeting at the Grant
School." Ann Mae Therney and Mary Lane, both production em-
ployees in department 7, testified that Catherine Heslin, forelady
in charge of that department, announced the Brotherhood meeting
at the Grant School on February 15, 1937, and invited the employees
to attend. Therney testified that "Heslin told a group of about 75
employees that there would be a meeting in the Grant School, to go
if we wanted to." Therney, Fedoruk, and Lane left work at approx-
imately 3: 50 p. m. on February 15, 1937. Therney testified that
on that date the whole personnel of department 7 left work with
n Following tabulation represents a close approximation of information gathered from approximately
5,000 daily time slips comprising Board Exhibit No. 68:
Number of Proportion of ' Proportion ofemployees dis-
Date employees employees dis- missed betweenon the day missed prior to 15 and 5 455shift to 4 15 p. m. .
p. M.
Percent Percent
February 15, 1937----------------------------------- 983 80 8.5
February 16, 1937______________ ____________________ 1,012 15 5 58
February 17, 1937---------------- ------------------ 1,081 14 8 60 7
February 18, 1937___________________________________ 880 11 61 5
February 19,1937__________________________ ________ 971 12.5 60.5
23 In the complaint this name is erroneously spelled Katherin Feodorik.
=8 Referred to in the transcript as Gertie Frankel
CONDENSER CORPORATION OF AMERICA 377
her, and Lane testified that she attended the meeting and saw all the
other girls in department 7 on their way to it. This testimony is
denied by Catherine Heslin in her testimony and by Gertrude
Frankl in her deposition taken, on November 30, 1937 . Pursuant
to requests made in briefs filed and at the hearings held for the
purpose of oral argument on February 15, 1940 , we have considered
again the testimony given by these five witnesses at the resumed
hearing. The testimony of Fedoruk, Therney, and Lane appears to
be honest and worthy of credence. In weighing the conflicting
testimony of Heslin, we take into account that we find her testimony
to be unreliable in other connections as set forth below in Section
III G 1, under the discussion to be found concerning the discharges
of Mary Lane, Margaret Gibbs, and Ann Mae Therney. We find
that the testimony of Fedoruk , Therney, and Lane , above, accurately
portrays the events which occurred.
Heslin was the forelady of an entire department . Clara S. Leary,
personnel director for the respondent Condenser with authority to
hire and discharge employees , testified , and we find, that it was her
practice to consult with foremen or executives before making dis-
charges , and that foremen made requests of her when they desired
that employees be discharged . We also find, on the basis of Leary's
testimony , that foremen selected on their own authority, which
employees were to be laid off. Bleich , production superintendent of
the respondent Condenser , testified that whenever a person applied
for reemployment with the respondent Condenser , the persons who
had had anything to do with the previous discharge would be con-
sulted. It is clear that foremen, foreladies , and lesser supervisors
regularly recommended discharge and reemployment in the course
of their duties , and it is also clear that foremen and foreladies had
authority to select which employees were to be laid off and which
were to be reinstated after having been laid off.
We find that further direct assistance was afforded by the respond-
ents to the Brotherhood before February 19, 1937 , by means of the
personal efforts, on plant premises, of a supervisory employee of the
respondent Condenser and those of the secretary to another super-
visor. We credit the testimony of Ann Mae Therney , a production
employee and a member of the executive committee of the United,
who disclosed that she signed a Brotherhood card 24 on February 16,
17, or 18, 1937 , when ordered to do so while at work by her supervisor,
Sarah Martin. Sarah Martin was the supervisor of the presses in
department 7. Therney observed Sarah Martin approach at least
five other girls at work one of whom was stationed beside the witness.
The testimony of Paul Desjardins , an operative of the Connors
u Similar to Board Exhibit No. 17.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
detective agency employed at the respondents' plant, disclosed that
the Brotherhood card which he signed was given to him in the plant,
prior to, February 19, 1937, by Lena Sinisgali. Desjardins identified
Sinisgali as. a .non-supervisory employee who worked as the "clerk"
of Manny Sanchez, foreman in charge of department 11, the depart-
ment in which Desjardins worked. We do not accept that part o-O
Desjardins' testimony in which he stated that Sinisgali's organizing
activities in the plant were not conducted during working hours since
he seemed uncertain and evasive in his answers. On February 18,
1937, Lena Sinisgali became the recording secretary of the Brother-
hood. The fact, known to Desjardins and presumably to the employ-
ees generally, that Sinisgali was a "clerk" or secretary of a depart-
ment head 25 must have been taken by the employees to mean that
she was acting under the foremen's directions and, by the same
token, that she was soliciting with the approval of the respondents.
Sanchez must have known of these activities of his secretary carried
on within his department in the plant, but there is no evidence that
he sought to prevent them.
In addition to the acts of assistance rendered to it, the respondents
further encouraged the Brotherhood in its membership drive by dis-
playing hostility to the United prior to February 19, 1937. The
vigorous attacks upon the United published in "The C-D Condenser"
of February 11, 1937, and set forth above, were having their effect
in weakening the United as an effective rival of the Brotherhood
during the campaign of February 15 to 19, 1937. There is no evi-
dence of any activity on the part of any supervisor in the South
Plainfield plant in behalf of the United at any time.
The respondents rendered further aid and assistance to the Brother-
hood prior to February 19, 1937, by virtue of the discriminatory
manner in which the bargaining negotiations were conducted.
a. The bargaining negotiations with the United
In his letter of January 19, 1937, to Blake, Carey asserted that
the United represented a majority, demanded recognition and re-
quested a conference for the purpose of bargaining. Blake met
with Carey at the plant on January 25, 1937. At that meeting,
Blake admitted knowing that the United had "done very well here
at my plant." Moreover, Blake did not question a claim made at
that conference by Carey that the United represented a majority.
We further find, on the basis of Blake's own testimony regarding
that conference, that Carey indicated that his immediate desire was
merely for recognition and that demands for wage increases would
25 Desjardins testified : " She seemed to be the clerk of Manny Sanchez."
CONDENSER CORPORATION OF AMERICA 379
not outstrip organization in the rest of the industry on a comparable
basis. Blake requested time until January 27, 1937, to consult with
certain members of the board of directors, and Carey agreed.
Mutual oral promises were made to maintain the status quo until
further negotiations; specifically, there were to be no strikes, lock-
outs, or discharges, and former discharges which the United claimed
were discriminatory were to be taken up and adjusted. Blake
neglected to fulfill his promise to communicate with Carey or with
any other representative of the United on, January 27, 1937. The
records of the New York Telephone Company reveal that on Jan-
uary 29, 1937, a call was made from Carey's office to Blake's office.
Blake was not reached, but a message was left requesting him to
call Carey. Neither Blake nor any other representative of the re-
spondents communicated or attempted to communicate with Carey
at any time between February 2, 1937, and February 23, 1937. An
additional attempt to communicate was made by Carey in the form
of a registered special delivery letter mailed to Blake on February
18, 1937. The letter again stated that the United represented a
majority and asked that its representatives might meet with rep-
resentatives of the management of the respondent Condenser. Al-
though this letter arrived at the plant on February 19, 1937, the
day on which the agreement with the Brotherhood was executed,
Blake testified that he was not in the plant on that date and that
he received it on February 20, 1937. On February 23, 1937, a reply
to Carey's letter was sent by Arnold indicating that on February 19,
1937, a contract had been executed with the Brotherhood and that
there was, therefore, no occasion for further dealings with the
United. We find that no representative of either respondent in-
formed any representative of the United prior to the letter of Feb-
ruary 23, 1937, that Blake was an officer of the respondent Cornell
and not of the respondent Condenser.
b. The bargaining negotiations with the Brotherhood
In contrast to the dilatory and hostile attitude evinced toward the
United, the Brotherhood experienced no evasiveness. Although the
Brotherhood had begun organizing only on February 15, 1937, con-
ferences between its representatives and those of the respondents
were held from February 16 to 19, 1937. Representatives of the re-
spondents counted and checked the Brotherhood application cards
during each conference. On each occasion prior to February 19, 1937,
it was observed that the Brotherhood had not yet obtained a majority.
Nevertheless, negotiations with regard to the substantive terms of a
contract between the respondents and Brotherhood were in progress
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the time of the first conference. Arnold and Blake, presi-
dents of each of the respondents, engaged seriously in discussions
concerning a closed-shop clause and a check-off clause for the
Brotherhood. At a conference on February 17 or 18, when the mem-
bership of the Brotherhood admittedly still numbered a minority
of employees in the unit claimed appropriate by the Brotherhood,
a complete agreement including the closed-shop and check-off clauses,
was in fact drafted and discussed. The news of the proposed agree-
ment was announced to an assemblage of the employees at a mass
meeting of the Brotherhood on the evening of February 18, 1937, and
a copy of the afore-mentioned draft was on exhibition. At the
same mass meeting, the charter of the Brotherhood was installed
and its officers elected. On February 19, 1937, after it had been
determined that the Brotherhood had secured the membership of a
majority, the contract was executed by the respondent Condenser and
the Brotherhood in substantially the same form as had previously
been submitted when the Brotherhood's membership still comprised
a minority. Arnold himself testified that nothing of consequence
was changed. The agreement purports to be effective for 2 years
from the date of its execution and contains a renewal clause dis-
cussed bellow in Section V. It contains provisions not only for a
closed shop but also for a check-off of dues for the Brotherhood from
the wages of all individual employees coming within the collective-
bargaining unit defined therein. The check-off is made uncondi-
tional; no exception is expressed for employees not members of the
Brotherhood either during the 2-week period of grace allowed by
the contract before they are required to become members, or after
that period. It is common knowledge that labor organizations which
have had contractual relations with employers for long periods
have frequently been unable to obtain the privilege of a check-off.
The system of check-off has been traditionally one of the last con-
cessions which employers have been willing to make in their dealings
with labor organizations. Yet, the check-off was granted by the re-
spondent to the Brotherhood without any hesitation. The apparent
willingness to make this concession, at a time when the Brother-
hood's eventual ostensible majority was still prospective, is a par-
ticularly strong indication of the respondents' desire to support the
Brotherhood, in view of the manner in which the respondents were
avoiding negotiations with the United during the negotiations for the
Brotherhood's agreement. Employees were made aware of these
proposed contractual provisions at the Brotherhood's mass meeting
of February 18, 1937.
The attitude of the respondents in their negotiations with the
Brotherhood made it appear a foregone conclusion from the start
CONDENSER CORPORATION OF AMERICA 381
that some agreement would be reached and a contract executed as
soon as the Brotherhood should obtain a majority. "Arnold testi-
fied that the negotiations with-respect to the substantive terms of
the agreement were carried on in advance of the majority because
it appeared inevitable that the Brotherhood would represent a ma-
jority before long. It is not surprising that the majority appeared
inevitable in view of the respondents' dual activities on behalf of
the Brotherhood. On the one hand, they were responsible, as we
have already indicated,, for various practices by which employees
were coerced to join the Brotherhood and discouraged from join-
ing the United. On the other, we find that in their dealings with
the United and with the Brotherhood, they .revealed a strong dis-
position to favor the Brotherhood. By this discrimination, the
respondents caused membership in the Brotherhood to appear to
employees essential to their job security even prior to the time when
its members comprised a majority.
We take into consideration, moreover, that the marked preference
in bargaining relations was shown the Brotherhood by the respond-
ents from February 16 to February 18, 1937, a period when (1) both
the United and the Brotherhood were claiming to represent a
majority; (2) the respondents knew from their own tabulations that
the Brotherhood represented only a minority of their employees; and
(3) the United did in fact represent a substantial minority. Blake
was aware as early as January 25, 1937, that the United represented
a substantial number of the employees in the South Plainfield plant.
Although the contract of February 19, 1937, purports to be made
with the Brotherhood as representative only of its members; e the
request of the United dated February 18, 1937, for a meeting with the
management of the respondent Condenser for the purpose of bargain-
ing collectively was answered by Arnold in his letter of February
23, 1937, as follows :
For your information, I desire to advise you that on February
19, 1937 I executed, on behalf of this corporation 2T an agreement
with Local # B 1041, Electrical Condenser Workers Union,
International Brotherhood of Electrical Workers, affiliated with
the American Federation of Labor.
'()The contract provides :
Agreement entered into this 19th day of February . 1937. between the Electrical
Condenser Worker Union Local # B 1041 , the International Brotherhood of Electri-
cal Workers , American Federation of Labor, hereinafter designated as the Union, for
and in behalf of the said Union, and for and in behalf of its members thereof (sic)
now employed or hereinafter employed by the Employer and collectively designated as
the Employees.
First : The Union hereby agrees that its members employed by the Employer will
work for the Employer upon the terms and conditions set forth in this agreement.
117 The respondent Condenser.
382 DECISIONS OF, NATIONAL LABOR, RELATIONS,-)BOARD
In view of the fact that we have entered into this agreement,
I do not suppose that there will be any occasion for holding the
meeting which you suggested in your letter.
Moreover the contract of February 19, 1937, although it fails to
-provide formally for the exclusive recognition of the Brotherhood,
provides in its second paragraph that "all workers in the production
departments will become members" of the Brotherhood. To condi-
tion employment upon membership in a labor organization is un-
lawful under the Act if the labor organization benefited by such a
closed-shop agreement is not the exclusive representative of the em-
ployees in the appropriate collective bargaining unit covered by such
agreement when made.28
Finally, it is noteworthy that the 5 days of active organization and
bargaining conducted by the Brotherhood covered February 15 to
February 19, 1937, a period coextensive with the first 5 days of the
former hearing in this matter.
E. Conclusions as to the respondents' relations with the Brotherhood
prior to the execution o l the February 19, 1937, contract
We conclude that respondents have pursued an unlawful course of
conduct calculated to foster and dominate the Independent and then
to establish, maintain, and assist the Brotherhood by interference,
restraint, and coercion. On the other hand, the respondents, by the
coercive and discriminatory measures described above, discouraged and
weakened the United, a labor organization which they opposed from
its inception.
We find that the respondents, and each of them, by this conduct
have interfered with, restrained, and coerced their employees in the
exercise of rights guaranteed in Section 7 of the Act.
By their own deliberate conduct, the respondents, and each of them,
assisted the Brotherhood in obtaining its majority in the plant, and
imposed the Brotherhood upon their employees as bargaining repre-
sentative,' exclusive in fact if not in form. In view of the acts of
interference, restraint, and coercion on the part of the respondent s,
we find that the Brotherhood" was not on February 19, 1937, freely
designated by a majority of the respondents' employees in the collec-
tive bargaining unit covered by the agreement of February 19, 1937,
whether that unit was appropriate or not. We find that the granting
of the closed-shop contract to the Brotherhood was a part of the
respondents' unlawful course of conduct and that it was calculated
to consummate and perpetuate their unlawful plan to deal with the
Brotherhood alone to the exclusion of the United and thus to continue
23 See Section G 2, below.
CONDENSER CORPORATION OF AMERICA 383
to interfere with, restrain, and coerce their employees in the exercise
of the rights guaranteed to them under Section 7 of the Act.
The proviso in Section 8 (3) of the Act provides that:
... nothing in this Act . . . shall preclude an employer from
making an agreement with a labor organization (not established,
maintained, or assisted by any action defined in this Act as an
unfair labor practice) to require ' as a condition of employment
membership therein, if such labor organization is the representa-
tive of the employees as provided in section 9 (a), in the appro-
priate collective bargaining unit covered by such agreement when
made.
Since the contract of February 19, 1937, was entered into with a
labor organization which had been established, maintained, and assisted
by the respondents' unfair labor practices and which was not a repre-
sentative of employees freely designated by a majority thereof, it
is not within the proviso of Section 8 (3) of the Act and is, there-
fore, as a part of an unlawful course of conduct which we have found
to constitute interference, restraint, and coercion, clearly invalid and
unlawful under Section 8 (1) of the Act 29
F. The assistance rendered the Brotherhood subsequent to the execution
of the February 19, 1937, contract
1. Assistance rendered the Brotherhood pursuant to the terms of the
February 19, 1937, contract
After February 19, 1937, and pursuant to the unlawful contract
executed on that date, the respondents further assisted the Brother-
hood in various ways, thereby continuing to interfere with, restrain,
and coerce their employees in the exercise of the rights guaranteed
to them under Section 7 of the Act. In the latter part of February
1937, a notice signed by Beedie was posted in the plant stating that a
contract had been obtained from the respondent Condenser by the
Brotherhood and that:
On or before March 1st, 1937, all employees engaged in produc-
tion work must, if they have not already done so, fill out enroll-
ment cards with the Local B-1041 Electrical Condenser Workers'
29 Matter of' National Electric Products Corporation and United Electrical and Radio
Workers of America, Local No 609, 3 N. L. R B. 475 ; Matter of Lenox Shoe Company, Inc.
and United Shoe Workers of America , affiliated with the Committee for Industrial Organi-
zation, 4 N. L R 13. 372 ; Matter of Missouri-Arkansas Coach Lines , Inc and The Brother-
hood of Railroad Trainmen, 7 N. L R. B. 186; Matter of Mt Vernon Car Manufacturing
Company, a corporation, and Local No. 1756, Amalgamated Association of Iron, Steel & Tin
Workers of North America, affiliated with the Committee for Industrial Oigasnzatlon,
11 N. L R. B. 500.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union of the International Brotherhood of the Electrical
Workers.
After March 1st, 1937, an initiation fee of $2.00 for all new
members will be required, and none but union members can be
employed in the plants of Condenser Corporation of America.
A foreman named Mario threatened John Sedon, a production
employee, with the loss of his job if he did not join the Brotherhood.
During March and April 1937, the respondents discharged 14 em-
ployees named in the third amended complaint.3° These employees
were discharged under the closed-shop provision of the February 19,
1937, contract for the reason that they were suspended from member-
ship in the Brotherhood. We will discuss these discharges more fully
below in Section III, G, 2, in connection with Section 8 (3) of the
Act. We find that these discharges, giving effect as they do to condi-
tions upon employment imposed by the invalid contract, constitute
further interference, restraint, and coercion of employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
The contract signed by the Brotherhood and the respondent Con-
denser on February 19, 1937, in addition to the closed-shop provision
referred to above, contained the following paragraph providing for a
check-off of dues for the Brotherhood :
TWENTIETH. The Employers agree to forward to the. Union on
or before the fifteenth of each month a check covering One ($1.00)
Dollar, monthly dues to be deducted from pay of employees
coming under the terms of this Agreement. The Employer shall
deduct these dues in weekly installments from the pay of the
Employees.
The employees covered by the Brotherhood's contract of February 19,
1937, are described in that document as follows :
NINETEENTH. This agreement shall apply to workers in pro-
duction departments and shall not apply to engineering, labora-
tory, shipping, receiving departments, watchmen, maintenance,
office, foremen, supervisors, and clerical.
On March 15, 1937, the respondent Condenser commenced to remit
dues deducted from the wages of employees covered to the Brother-
hood pursuant to the contract of February 19, 1937. Since we have
found that the execution of the contract itself was calculated to con-
summate and perpetuate the respondents' illegal plan to interfere
with, restrain, and coerce their employees in the exercise of the rights
guaranteed to them under Section 7 of the Act, we find that by giving
80 John Sedon, Michael Santore, Fred Vitto, Katherine Dolce, Mary Schumacher, Arthur
Chippendale, John Di Vico, Ann Jacobs, Caroline Callecchio, Tessie Appezzatio, Michael
Sabino, Herbert Rydberg, Katherine Fedoruk, and Frances Prohodka.
CONDENSER CORPORATION OF AMERICA 385,
effect to the check-off provisions of that contract the respondents con-
tinued to render the Brotherhood unlawful assistance by acts which
interfered with, restrained, and coerced their employees in the exer-
cise of the rights guaranteed to them in Section 7 of the Act.
We find that by the various means described above the respondents
have interfered with, restrained, and coerced their employees in the
exercise of the rights guaranteed to them in Section 7 of the Act.
2. Assistance rendered to the Brotherhood apart from giving effect
to the February 19, 1937, contract
Subsequent to the execution of the contract on February 19, 1937,
the respondents continued to render direct assistance to the Brother-
hood as well as indirect assistance by impeding and hindering the
progress of the United as an effective rival..
We have already indicated that upon receiving a request for bar-
gaining negotiations made by the United in a letter dated February
18, 1937, Arnold replied on February 23, 1937, declining to partici-
pate in such negotiation on the ground that the February 19, 1937,
agreement with the Brotherhood removed the occasion for bargaining
with, the United. It is apparent, on the basis of Arnold's letter, that
the Brotherhood was treated as the exclusive bargaining representa-
tive after February 19, 1937, of the class of employees covered by the
aforesaid agreement despite. the provisions therein set forth above
limiting its application to members of the Brotherhood. Since, how-
ever, its membership had been obtained with assistance.of the re-
spondents which we have found to be unlawful under the Act, it is
clear that the Brotherhood was not entitled to be treated as the
exclusive bargaining representative of the respondents' employees.
Brotherhood membership cards were distributed in the plant after
February 19, 1937, by supervisory and non-supervisory employees.
In March. 1937, Brotherhood. cards were distributed to employees by
Virginia Connors, the supervisor of the inspection tables in
department .7. -
During March 1937, Catherine Heslin, head forelady in charge of
department 7, threatened Mary Lane, a production employee in that
department with discharge for membership in the United. On March
30, 1937, Mary Lane ,was discriminatorily discharged by Heslin for
attending the mass meeting of March 29, 1937, conducted by the
United, and for other assistance rendered. that labor organization.
The circumstances surrounding the discharge are discussed more fully,
below in Section III, H, 1. ..
Also during March 1937, Ann Mae Therney,_ employed as a mica
cutter in department' 7, was.approached while at work by Sarah
Martin, her supervisor. , Martin inquired whether she had attended
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of the mass meetings conducted by the United. Therney replied
that it was none of her business . Martin then said, If you don't
stop attending those meetings, you'll be fired." Therney continued
to attend the meetings of the United, and she was discharged for
this and other assistance rendered the United . The circumstances
surrounding this discharge, as well as those of Frank La Vecchia
and Margaret Gibbs, are discussed fully below in Section III, H, 1.
We have found that the February 19, 1937, contract was invalid
and that the Brotherhood was not the exclusive representative of
employees of the respondents subsequent to that date . It is unneces-
sary to decide , therefore , whether the assistance here discussed would
have been permissible if the Brotherhood had obtained majority
status without the assistance of the respondents and had then become
the beneficiary of a closed -shop contract . We think not, however,
for the Act guarantees to employees the freedom to choose repre-
sentatives , and this freedom involves the liberty to change representa-
tives. Clearly, an employer may not lawfully recruit membership
among his employees for any labor organization , save indirectly
through a closed-shop contract which falls within the proviso of
Section 8 (3) of the Act.
We find that by permitting supervisory employees to recruit them-
bers for the Brotherhood as described above and by discharging
Mary Lane, Ann Mae Therney, Frank La Vecchia, and Margaret
Gibbs for joining and assisting the United, the respondents, and
each of them ; have interfered with, restrained , and coerced their
employees in the exercise of the rights guaranteed to them in Section
7 of the Act.
G. The discharges
1. The discharges unconnected with the contract of February 19, 1937
During the initial period of operations in South ' Plainfield in
August 1936, no labor organization attempted to organize the em-
ployees of the respondents. When in December 1936 , the right to
self-organization and to engage in concerted activities was first exer-
cised, six of the employees involved were discharged for such activi-
ties within the space of a few days. It is alleged in the third
amended complaint that these discharges were discriminatory and in
violation of the Act.
• Edward Hughes. Edward Hughes was discharged on December
16, 1936 . He had been employed as head checker shortly after the
commencement of the South Plainfield operations . The other check-
ers were employed subsequently and were supervised by Hughes.
During several weeks prior 'to his' discharge , Hughes engaged in
conversations relative to pay scales with Reynolds, his immediate
CONDENSER CORPORATION OF AMERICA 387
superior, who was in charge of the purchase and sales department
of the respondent Condenser. Hughes maintained that the checkers
could not be held for competent work if their rate of pay was not
increased. Approximately 2 weeks prior to his discharge, Hughes
submitted his proposals in the form of 'a pay scale. In connection
with his particular interest in the problem of the checkers, Hughes
also reported to Reynolds that there was general, unrest among the
employees, and he discussed labor organizations with Reynolds
several times during the 3 weeks prior to his discharge.
The checkers who had been under Hughes' supervision met with
Hughes shortly after his discharge, and they invited the United early
in January 1937 to establish a local in' South Plainfield. Hughes
participated in these activities of the checkers, joined the United, and
on January 18, 1937, he was elected president of the local.
On -December 16, 1936, the day of his discharge, Hughes was sum-
moned from his work by Reynolds. Reynolds and Beyer 31 together
informed Hughes of his discharge. At the' time, Reynolds asserted
that the reasons for the discharge were irregularities in the checking
department. Hughes requested to know the nature of the irregular-
ities. Reynolds cited Hughes' failure to punch his own time card.-
' It is true that after his first week Hughes neglected to punch his
time card. He explained that 'since he was in charge of recording
time for the entire production staff, he felt that he could omit to
punch his own card, particularly since his duties required, and in
effect proved, his presence at work through the day. Hughes was
a supervisory employee paid on an hourly basis. No position in the
plant was parallel to Hughes' position, although some other super-
visors were also paid on an hourly basis. While other supervisory
employees on salary did not punch time cards, there seems to be
no custom in the plant exempting hourly paid supervisors similar
to Hughes from this duty. Nevertheless, it is not contended that
Hughes 'profited or sought to profit from the absence of mechanical
records of the time spent by him at work. Prior to the announcement
of his discharge, it had never been brought to Hughes' attention
that he was neglecting to punch a card, and he, had not been warned
that he would be discharged for omitting to do so. Moreover, the
employment records of respondent Condenser do not record an
irregularity as the cause for discharge. It was stipulated that an
employment record of the respondent Condenser lists the reason for
Hughes' discharge as "inaccurate records."
,Almost all of the production employees in the plant were paid
on an•incentive or bonus plan in addition to a minimum hourly wage.
81 Haim Beyer was the secretary and treasurer of the respondent Cornell ; his chief duty
was to act as inspector , for the respondent Cornell, of the respondent Condenser's
production.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A' piece-work standard of production was set up by time-study
methods. Employees were paid varying bonus or incentive rates
for production exceeding the standard. It was the 'duty of the
checkers to record for each employee both his working time and the
quantity of his production. Complaints of errors were regularly
received in the pay-roll department from employees. Hughes testi-
fied that numerous complaints arose from the complexity of the
method of wage computation and the consequent failure on the
part of many employees to understand it. That the respondent Con-
denser recognized this to be so is indicated by the change to a
similar but simplified system in February 1937. Instructions to em-
ployees on the use of this simplified method occupied more than three
columns in The C-D Condenser of February 11, 1937. Investigation
of the complaints indicated that some had merit and that errors,
called "shortages," were attributable to the checking department. In
such cases the employees received the additional compensation to
which they were entitled. There is no evidence and apparently no
contention that the checkers ever erred on the side of over-compen-
sating employees. There was no criticism or warning from the man-
agement to Hughes. Because of the difficulty of measuring the
varied and multifarious output on many of the operations, there
seems little reason to believe that the management was dissatisfied
with the services of Hughes or of his staff on this score.
The discharge of Hughes occurred at a time when he was seeking
an increase in the wages of the men he supervised. He had re-
ported to his superior that the employees generally were dissatisfied
with conditions, and he had forecast the possibility of the appear-
ance of a labor organization. Hughes' discharge appears to have been
an attempt by the respondent to prevent the inception of organized
and concerted activities on the part of its employees. The failure
of some of the employees to heed the warning of Hughes' discharge
led the respondent Condenser to fight at every turn their subse-
quent exercise of the right to organize. We cannot give credence
to the contentions of the respondent Condenser as to the reason for
the discharge of Hughes. The sole reason offered Hughes at the
time of his dismissal was his failure to punch his time card. Except
for his first week, Hughes had not punched the card, and had re-
ceived no warning, for a period of approximately 3 months. Since
there was no claim that Hughes thereby obtained any undeserved
compensation, it would appear that a warning or other less drastic
mode of discipline would have sufficed if the respondent Condenser
had been interested merely in correcting the irregularity. Further
doubt is cast upon the respondent Condenser's contention that this-
irregularity 'was the reason for the discharge by the presence of a
different reason for discharge on the employment record, viz, in-
CONDENSER CORPORATION OF AMERICA 389
accuracies in the records. We do not believe that these inaccuracies
in the records were the reason for Hughes' discharge. Hughes was
not confronted with this alleged reason at the time of his discharge,
and he had never been previously criticized, disciplined, or warned
in any way. We are left with only one reason for the discharge of
Hughes. By eliminating him and several others next to be dis-
cussed, the respondent Condenser inaugurated its campaign against
free and unhampered concerted activity, and its attitude soon de-
veloped into the struggle against the United which has been described
above.
We therefore find that Edward Hughes was discharged by the re-
spondents because of his action in attempting to obtain increased
wages for the checkers.
By discharging Hughes because he participated in concerted
activity for the purpose of collective bargaining, the respondent Con-
denser has interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed by Section 7 of the Act.32 In
addition, a discharge for that reason discourages concerted activity
for the purpose of collective bargaining, and has the effect of dis-
couraging the formation of and membership in a labor organiza-
tion, which is the customary instrument utilized by employees to
achieve collective bargaining.33
When the checkers under Hughes' supervision learned of his dis-
charge, they arranged the protest meeting, to which we have re-
ferred, at the home of Herbert Peterson, one of their number. On
December 17, 1936, this meeting took place. Among the checkers
present was Mitchell Zieborak, an industrial detective supplied by
S. H. Connors, Inc., as referred to above. Plans were made at the
meeting to approach the management and to contact the Committee
for Industrial Organization for the purpose of forming a permanent
labor organization with outside affiliation. Within the next few
days, according to the testimony of Zieborak, all the checkers were
discharged except himself and another.34 It is alleged in the third
amended complaint that on various dates in December 1936 the re-
spondents discriminatorily discharged the following checkers :
Lawrence Dowling, Joseph Russo, John Spisso, Joseph De Sepio,
and Herbert Peterson. It is also alleged that Arnold Dowling, who
was not a checker, was discharged for union activities during this
month. We will now discuss these discharges separately.
32 utter of Indianapolis Glove Company and Amalgamated Clothing Workers of Amer-
sca, Local No 145, 5 N. L. R. B. 231.
33 Matter of Stehli and Co, Inc and Textile Workers Union of Lancaster , Pennsylvania
and Vicinity . Local #133, 11 N. L. It. B. 1397
34 Theodore D'Addario, who was one of the checkers at that time, is alleged to have been
disciimmatorily discharged on or about January 8 , 1937. His case is discussed below.
283033-41-vol. 22-26
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lawyenee Dowling. Since approximately the middle of October
1936, the date of his employment, Lawrence Dowling had been as-
signed as head checker of department 9 where he recorded the time
and output of production employees. Lawrence Dowling was dis-
charged on December 18, 1936, the day following his attendance at
the checkers' first meeting. At that meeting, in the presence of
Zieborak, Dowling had been appointed a member of a committee of
four to contact an outside labor organization.
At about 6: 15 p. m. on the date of his discharge, Harry Chait,
the new head checker hired to replace Hughes, requested Dowling
to report to him as soon as he had finished work. Chait had been
head checker for 2 days previous to this time. What happened be-
tween Dowling and Chait is to be found in the testimony of Dowling.
Although it was stipulated that if called by the respondents, Chait
would deny the statements attributed to him by Dowling, we are
convinced by the straightforward and competent appearance of
Dowling's entire testimony that his account is trustworthy. Dowling
testified that Chait said:
I am sorry to do this, but we no longer need your services, .. .
Dowling then inquired of him the reason :
I says, "Is there anything wrong with my work?" and he says,
"No, there is nothing wrong with your work, in fact, I don't
even know why they are doing this. I just got orders to do it."
So he handed me my check and Mrs. Leary 35 called me over to
her desk and told me to give her my button.
Thornton, the general caretaker in the plant, came into the personnel
office, put his arm around Dowling and told him to come along
without making any fuss. Then Thornton and Munn 36 walked with
Dowling to the door.
With respect to the reasons of the respondent Condenser for dis-
charging Lawrence Dowling, it was stipulated by counsel for the
respondents and for the Board that "the employment record shows
that . . . the reason was unsatisfactory work, and it is marked `No
re-hire'." Leary testified that her own confidential records of the
reasons for discharges made at the time of the various discharges,
revealed nothing about Dowling except that "shortages" were reported
to her by operators. Walter Deutsch, assistant foreman of depart-
ment 9, testified that quite a few complaints had been lodged with
him against Dowling by employees, some as early as the month in
which Dowling was first employed. Deutsch testified that upon in-
" Clara S Leary was the personnel manager of the respondent Condenser
as Ed Munn was head supervisor of several departments in the plant
CONDENSER CORPORATION OF AMERICA 391
vestigation he found quite a number of "shortages," and that Hughes
verified these by independent inspection. Dowling readily admitted
that many complaints were made to supervisors by employees con-
cerning his work. There are many indications, however, which
negate the contention that this was the reason for the discharge. No
attempt was made to bring out whether the complaints concerning
Dowling were relatively few or numerous compared, for example,
with complaints concerning Zieborak, a checker who was not dis-
charged ; 37 there is no evidence of a reprimand from his superiors
at any time; neither Reynolds, Chait, nor Leary mentioned the
"shortages" to Dowling at the time of his discharge; and no one
informed Dowling of this, or any other, alleged reason for his dis-
charge. On the contrary, Chait informed Dowling at the time of
the discharge that he did not know the reason.
At the hearing, several questions were put to Dowling by counsel
for the respondent Condenser concerning his failure on one occasion
to punch the time card on his way in, and on another occasion on his
way out, and the absence of any record for lunch periods. The
irregularities were never called to Dowling's attention at any time,
and they were not recorded upon the records or advanced by any
witnesses as a reason for the discharge. We do not consider these
the true reason for the discharge.
Under the circumstances, we are satisfied, and find, that Dowling
was discharged on December 18, 1936, for his attendance at the meet-
ing of the checkers held on December 17, 1936. We cannot believe
that the proximity of the discharge to the concerted activity was
merely fortuitous and that the true reason can be laid to the
"shortages" which had commenced in October 1936.
We find therefore that Lawrence Dowling was discharged by the
respondent Condenser because of his part in the concerted activity
of the checkers for the purposes of protesting Hughes' discharge,
of bargaining collectively for increases in wages, and of inviting
and aiding the Committee for Industrial Organization to establish
the United in the respondents' plant.
I3y discharging Dowling because he participated in concerted
activity for the purposes of collective bargaining and other mutual
aid and protection, the respondent Condenser has interfered with,
restrained, and 'coerced its employees. in the exercise of the rights
guaranteed by Section 7 of the Act. In addition, his discharge dis-
couraged concerted activity for the purpose of collective bargaining,
37At one point, Munn , head foreman in charge of several of the departments, testified
.there were so many that came to me with shortages that that was the regular pro-
cedure , to fill out a form, the checker to take that upstairs and investigate it, trace it all
the-way back."
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and had the effect of discouraging the formation of and membership
in the United, a labor organization intended by employees to achieve
collective bargaining, which shortly after this discharge did attempt
to organize employees in the respondent's plant with the assistance
of the checkers.38
Joseph Russo. Joseph Russo was also discharged on December
18, 1936. He too attended the checkers' protest and organizational
meeting on December 17, 1936. At that meeting, in the presence of
Zieborak, Russo had been elected chairman of the recruiting com-
mittee and had been appointed a member of the committee of four
to contact outside labor organizations. Previous to December 17,
1936, Russo had discussed labor organization with various employees
in and outside the plant. Russo had been hired by Leary on Decem-
ber 2, 1936, and worked as a checker during the period of his
employment.
At 5: 30 p. m. of the day on which he was discharged, Chait, the
new head checker, told Russo to report to him before leaving. Russo
found Chait in the personnel office. Chait told Russo he was dis-
charged and handed him his pay checks . Russo asked for the reason.
Chait's reply, and the ensuing conversation, according to Russo's
testimony, was as follows :
"Well, for inefficiency." He says that was the reason and I
says, "Well, Mr. Chait, how do you know that I am inefficient,
you have only been here 2 days and you can't very well know
whether my work has been inefficient in that time." He says,
"Well, it is for economic reasons." I says, "Mr. Chait, I am
going to be replaced, am I not?" And he says, "Yes, you are
going to be replaced." I said, "Well, does the economic reason
fit in there?" And he says, "Well, for a thousand and one
reasons." I said, "Please , Mr. Chait, just give me one reason
and then I will be satisfied." He says, "Well, beat it."
Although Beyer, the secretary and treasurer of the respondent
Cornell , was present as Russo was escorted from the plant, Beyer
refused upon request to advance a reason for the discharge and told
Russo to leave the plant.
It was stipulated by counsel for the parties at the resumed hear-
ing that if Chait were called by the respondents, he would deny the
statements attributed to them by Russo, and he would testify that he
"did not in any way do anything or say anything which would tend
to indicate any hostility to the rights of the employees under the
33 Matter of Indianapolis Glove Company and Amalgamated Clothing Workers of Amer-
ica, Local No. 145, 5 N. L. R. B. 231; Matter of Stehli and Co., Inc. and Textile Workers
Union of Lancaster, Pennsylvania and Vicinity, Local #133, 11 N. L. R. B. 1397.
Y
CONDENSER CORPORATION OF AMERICA 393
Wagner Act, and would particularly deny any acts or conduct which
would tend to violate any provisions of that Act ." Nevertheless, the
.testimony of Russo appears to be straightforward and convincing,
and his account is substantially in agreement with the testimony of
John Spisso and Joseph De Sepio, discussed hereafter . We find the
facts in this respect to be in accordance with the testimony of Russo
as stated above.
It was stipulated by counsel for the respondents and for the Board
that the employment record shows that the reason for discharge was
"Unsatisfactory work," and that it was marked "No rehire."
Nicholas Tangney , head foreman in charge of departments 14, 15,
and 16, testified that although Russo's checking duties were confined
to department 14, he was constantly to be found wandering through
deparments 15 and 16 in the company of Joseph De Sepio and John
Spisso, the checkers for those departments . He also testified that
he saw these men smoking in the men's room several times. Tangney
testified that he cautioned the three men about smoking , and asked
Russo to keep out of departments 15 and 16. He also testified that
he received from operators six or seven complaints of mistakes in
Russo 's checking . Asked whether he ever talked to Russo about his
work, he replied : "Once or twice, I believe."
Although Tangney testified that he observed Russo wandering
from his department from the time Russo first began to work, he
also admitted that he had never complained to Hughes although
Hughes was Russo 's superior until replaced by Chait 2 days before
Russo's discharge . Although Tangney admitted that he made no
complaint to Hughes at any time in respect to any of the alleged
unsatisfactory behavior of the checkers , he testified that he did
inform Chait of the alleged delinquencies of Russo, De Sepio, and
Spisso . In the case of Russo, Tangney testified that he complained
to Chait that Russo was wandering from the department where he
belonged, and was making too many errors , and that this complaint
was indirectly responsible for Russo 's discharge . Chait took up
his duties at South Plainfield on December 17, 1936 , the day before
Russo was discharged.
Harold Schaefer , who was during the time under discussion the
chief inspector of the electrolytics test department , covering depart-
ments 14, 15, and 16 , also testified that he observed Russo, De Sepio,
and Spisso roaming about and smoking in the men's room. He
testified that he reported this to Hughes at least four or five times
and later to Chait. Schaefer stated that the chief complaint against
Russo was that he conversed with the girls who were testing and
thereby interfered with their work. Schaefer testified that Hughes
promised that he would attend to the matter which was the subject
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the complaint, but that Hughes took no action. Since Hughes
did, not see fit to take any action in the premises, it seems strange
that Chait, his successor, should have adopted, 2 days after assuming
his duties at South Plainfield, and apparently without warning, the
most drastic sanction at his command. If Schaefer's testimony con-
cerning complaints made to Hughes is to be credited, 'therefore, it
merely served to confirm a finding, based upon the circumstances
of Russo's assistance of the checkers' labor organization and the
circumstances surrounding his discharge, that the reason for the dis-
charge was not Russo's alleged unsatisfactory work or misconduct.
We are further impressed with Russo's testimony that prior to the
date of his discharge no superior at any time called inefficiency to
his attention; on the contrary, Hughes, his superior for all but the
last 2 days of employment, complimented him on his work.
We are also satisfied that Russo's failure to punch his ,time card
on 2 mornings and at 3 lunch times was not the reason for his
discharge. These omissions were-not recorded on the employment
record or advanced in the testimony of any of Russo's superiors as
the reason for his discharge. It was not contended that Russo
profited by these omissions.
The fact that Russo's discharge followed so closely upon his attend-
ance at the checkers' meeting of December 17, 1936, the conversa-
tions with Chait and Beyer at the time of the discharge, together
with the circumstances surrounding the discharges of Hughes, De
Sepio, and Spisso,39 all convince us that Russo's discharge was due
to his participation in concerted activities with the other checkers
on December 17, 1936, and negate the contention that Russo was
discharged for unsatisfactory work or misconduct.
We therefore find that Joseph Russo was discharged by the
respondent Condenser because of his participation in the concerted
activity of the checkers. By discharging Russo because he partici-
pated in concerted activity for the purposes of collective bargaining
and other mutual aid and protection, the respondent Condenser has
interfered with, restrained, and coerced the employees in the exercise
of the rights guaranteed by Section 7 of the Act. In addition, his
discharge discouraged concerted activity for the purposes of collec-
tive bargaining, and had the effect of discouraging the formation
of and membership in the United, a labor organization intended by
employees to achieve collective bargaining, which shortly after this
discharge did attempt to organize employees in the respondents' plant
with the assistance of the checkers.40
89 The latter two are more fully discussed below
40 Matter of Indianapolis Glove Company and Amalgamated Clothing Workers of Amer-
ica, Local No. 1115, 5 N. L. R . B. 231; , Matter of Stehli and Co, Inc and Textile Workers
Union of Lancaster, Pennsylvania and Vicinity, Local #133 , 11 N L R B. 1397.
CONDENSER CORPORATION OF AMERICA 395
The money Russo has made at odd jobs since his discharge will be
deducted in computing the back pay to which he is entitled. How-
ever, his activities as voluntary organizer for the United, for which
he was reimbursed only to the extent of expenses incurred, will not
be considered in computing his back pay.
JohnSpisso and Joseph De Sepio. Both Spisso and De Sepio-were
also discharged on December 18, 1936, the day following their at-
tendance at the checkers' meeting. Zieborak was present at the
meeting and observed their participation. Spisso and De Sepio were
both subsequently reinstated by the intervention of Diana on January
21, 1937, and they were again discharged on January 28, 1937. It
is alleged in the third amended complaint that both discharges of
both men were discriminatory.
Spisso was in charge of checking for departments 15, 16, and 19, and
De Sepio was his helper. On December 18, 1936, the day of the dis-
charge, Spisso conducted Chait, the new head checker, on a tour of
inspection. Chait expressed himself as well satisfied with the way
Spisso was handling his job, told him that he would get a second
helper, and stated that he would obtain an increase for Spisso be-
cause of the length of his service. Chait and Spisso separated at
5 o'clock on December 18, 1937. At about half past five, Chait told
Spisso to complete his work before leaving for home and to report
to him. Spisso found Chait in Leary's personnel office. De Sepio,
Russo, and Lawrence Dowling were also present. According to the
testimony of Spisso, Chait addressed De Sepio, Russo, and him as
follows : "I don't know how to do this . . . I really don't know you
fellows, I was just beginning to know you, I only knew you a few
days, but your services aren't needed here any more." Russo re-
quested to know the reason for the discharges, and Chait said : "I
really don't know . . . I believe it was inefficiency." De Sepio,
whose account of the circumstances of the discharge was substantially
the same as Spisso's, testified that Chait also said that he "had or-
ders" to discharge them. De Sepio then asked Beyer the reason for
his discharge. Beyer did not answer. Leary then took the identifica-
tion buttons of De Sepio and Russo, and they were escorted out of
the building. Spisso then sought an explanation from Beyer. Beyer
referred him to Reynolds. Spisso told Reynolds that he had been
discharged. Spisso testified :
He thought a minute and he said, "I believe it was ineffi-
ciency," so I talked to Mr. Reynolds every bit of half an hour
and I think, in fact I know, I proved that it was not inefficiency.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specifically, Spisso indicated to Reynolds that there were relatively
very few "shortages" attributed to him. Reynolds revealed to Spisso
neither a recorded nor oral description of the alleged inefficiency.
So Mr. Reynolds just thought a minute and he said "I don't
know," he said, "The whole checking system is not what it should
be in this place."
When Spisso pointed out that the checkers were not responsible
for the system employed, Reynolds, according to Spisso, "just did
not say anything, he said, `Well, I am sorry ..."' This conversa-
tion took place in the presence of Beyer and Leary.
In February 1937, the management in fact altered and simplified
the bonus or incentive system which had proved difficult for the
checkers to handle.
It was stipulated at the resumed hearing by counsel for the parties
that if Chait were called by the respondents, he would deny the
statements attributed to him by Spisso, and as we have noted above
in the discussion of Russo's discharge, that he would testify that he
did not violate in any way the rights of the employees under the Act.
Nevertheless, the testimony of Spisso and De Sepio appears to be
straightforward and convincing, and it is in large part mutually
corroboratory and substantially in- agreement with Russo's testi-
mony. We are convinced that the testimony of these men is en-
titled to greater weight than that of Chait, and we find it worthy of
credence.
The employment records of both Spisso and De Sepio show that
they were discharged on December 18, 1936, for a -reason given as
unsatisfactory work, and the comment recorded was "No re-hire."
Tangney, head foreman in charge of departments 14, 15, and 16,
testified that from about December 1, 1936, and thereafter, he noticed
that Spisso and De Sepio were loafers and were violating company
rules. He testified that he complained to Chait, but never to Hughes,
of the alleged difficulties with Spisso, De Sepio, and Russo.
We have already discussed, in relation to Russo's discharge the
testimony of Harold Schaefer that he observed Russo, De Sepio, and
Spisso roaming about and smoking in the men's room. He testi-
fied that Spisso was not at his desk when needed for checking. He
further testified that he reported these matters to Hughes several
times and later to Chait. Schaefer further testified that Hughes
informed him that he would attend to the matter which was the
subject of the complaint, but that Hughes took no action. We have
already observed that since Hughes did not see fit to take any action,
it seems strange that Chait, his successor, should have adopted, 2
days after assuming his duties, and apparently without warning,
the most drastic sanction at his disposal. If Schaefer's testimony
CONDENSER CORPORATION OF AMERICA 397
concerning his complaints to Hughes is to be credited, therefore, it
merely serves to confirm a finding, based upon the circumstances of
Spisso's and De Sepio's assistance of the checkers' labor organization
and the circumstances surrounding their discharge, that the reason
for these discharges was not their alleged unsatisfactory work or
misconduct.
It is also noteworthy that although both Tangney and Schaefer
testified that they made complaints to Chait about Spisso's and De
Sepio's alleged loafing and smoking, Chait could not give any details
when he discharged Russo, Spisso, and De Sepio for "inefficiency."
Leary, on the other hand, testified that the reason for De Sepio's
discharge on December 18, 1936, was for inaccuracies in his records
in the form of "shortages," and for failure to punch his time card.
Leary did not testify that these alleged shortcomings of De Sepio's
were called to his attention, or that his inaccuracies were relatively
numerous. At the time of De Sepio's discharge, Chait merely stated
without explanation that the reason was inefficiency. Although
Leary was present, she does not assert that she advanced an explana-
tion. There is no evidence that any explanation was given. We
are satisfied that the alleged shortages and failure to'punch his time
card were not the reason for De Sepio's discharge.- Moreover, the
fact that only these reasons were advanced by Leary for De Sepio's
discharge of December 18, 1936, casts further doubt upon the asser-
tions of Tangney and Schaefer that the true reason was loafing and
smoking.
Subsequent to their first discharge on December 18, 1936, both
Spisso and De Sepio maintained an active interest in the checkers'
labor organization. As a representative of that organization, Spisso
met one of the representatives of the United for the purpose of effect-
ing an affiliation. Spisso joined the United during the first half of
January 1937 when its organizational campaign began. At the mass
meeting of the United on January 18, 1937, Spisso was elected treas-
urer of the South Plainfield local. The fact of Spisso's election was
published on January 19, 1937, in the Plainfield Courier-News, a
newspaper widely read in South Plainfield.
De Sepio had also joined the United during the first half of Janu-
ary 1937, and prior to the election of officers of the local. At the
meeting of January 18, 1937, De Sepio was nominated for the offices
of vice president and treasurer of the United, but he was defeated.
Between January 18 and January 20, 1937, De Sepio was approached
by a man named Spinelli, a special policeman for the Borough of
South Plainfied, who told him if he wanted to go back to work "to
see Frank Diana and to forget about this union, so we would not
have any more trouble in town." De Sepio then informed Spisso
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Diana wanted to see all the South Plainfield employees who
had been discharged. On the night of January 20, 1937, as stated
above, Diana met with such a group of employees at a nearby night
club called the Silver Moon. Theodore D'Addario, one of the South
Plainfield employees present, testified that at this meeting Diana
"said he would give us our jobs back." He further testified:
And he also wanted to know why a person outside of South
Plainfield should come into town and try to organize the Con-
denser Corporation of America Union when we ourselves
couldn't do it. Well, I didn't see any harm in that, but he said
it would be our own local, not saying anything about company
unions. The next day we were supposed to meet him in front
of the Condenser Corporation to see Mr. Blake, trying to get
reinstatements.
De Sepio, who was also present at the Silver Moon meeting, testified
that D'Addario's testimony was substantially in accordance with his
own recollection of the meeting. Spisso also testified to the same
effect, adding that Diana stated that his purpose in starting an inde-
pendent union was to obtain increases in pay and to participate in
social activities. We find that these accounts accurately present
the facts.
On the morning of January 21, 1937, Diana ushered the discharged
South Plainfield workers into the plant for an interview with Blake
and Beyer. As we have indicated in Section III C, above, at this
conference Diana received permission to organize in the plant.
An account of the subsequent rise of the Independent, from the
beginnings here set forth, to the status of a company-dominated and
supported labor organization is set forth in Section III C, above.
It is enough to indicate here that it appears from the circumstances
surrounding the reinstatements that Blake, representing the respond-
ent Condenser, supposed that the men he was reinstating would
thereafter support the Independent and cease their active interest in
the United. In this he and Diana were disappointed.
The respondent Condenser reinstated all of the South Plainfield
checkers whom Diana had presented on January 21, 1937. None,
however, was reinstated as a checker, although several testified they
expressed their preference for continuing in their former positions.
As a result Spisso and De Sepio were placed in the stock or inventory
room. Although the respondent Condenser contends that this fact
is indicative of its judgment that these men had not performed their
checking duties satisfactorily, we are convinced on the basis of the
evidence that its purpose was to break up the closely knit group of
union-minded checkers and to place them in positions which would
not necessitate as much movement and contact with employees as
CONDENSER CORPORATION OF AMERICA 399
checking and w hich' would consequently diminish their union activi-
ties 41 except such as could be performed with the respondent's
permission.
During the week between January 21 and January 28, Spisso
continued to be active as treasurer of the United.
De Sepio continued his active membership between January 21 and
January 28, 1937, by attending the mass meeting of the United on
January 26, 1937. He also served actively and effectively on a com-
mittee of the United charged with the function of obtaining new
members from among the employees of the respondent Condenser.
On January 27, 1937, the day preceding the second discharge of
Spisso, De Sepio, and others of those who had been reinstated 6 days
before, Diana called four or five of the former checkers into the
poolroom across the street from the plant during the lunch hour.
Spisso and De Sepio were among this group. Diana appeared to
be angry. He said that he had been through the plant that morning
with blanks in an attempt to sign the men up for the Independent,
and that while in the factory :
. .. somebody told me that you fellows turned against me .. .
When I met you at the Silver Moon I took it for granted that
you were going to stick with me and when I walked into the
place this morning I found out differently . . . Now I want to
know just what is what, either you are going to stay with the
other, or you are going to be with us .. .
Diana requested that they meet with others in the poolroom at 5: 30
that night for the purpose of giving him their decision. He then
turned to De Sepio and said: "You, of all people, I never expected
it from you." Spisso, De Sepio, D'Addario, and others were present
at the poolroom at 5: 30 p. in., January 27, 1937. Diana had not
arrived, and they decided not to wait but to leave a message on the
back of a cardboard poster. D'Addario wrote the following agreed
statement :
We, the undersigned, wish to remain with the other group.
This was signed by all those present, including Spisso and De Sepio,
and it was left for Diana in the poolroom.
At 2 or 3 o'clock on the afternoon of January 28, 1937, there was
all announcement in the plant through the public-address system to
the effect that Diana wished to see Beyer. At 5: 30 on the same af-
ternoon, Joseph Chasm, supervisor in charge of the stock or inven-
41 Cf. Matter of Fansteel Metallurgical Corporation and Amalgamated Association of
Iron, Steel and Tin Workers of North America , Local 66, 5 N. L R. B 930, affirmed, so far
as material here, in National Labor Relations Board Y. Fansteel Metallurgical Corporation,
306 U. S. 240.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tory room where Spisso , De Sepio, and D'Addario had been put to
work upon their reinstatement on January 21, 1937, discharged all
three of them . De Sepio testified as follows in describing Chasm's
remarks :
"You fellows are discharged"; so he turned to me and he said,
"I am sorry to see you go, Joe," he said, "You were doing very
nice work and I like your work and I want to keep you ..."
So I said, "What are you firing me for? " "Well," he said, "I
have my orders ." Then he stated something to Spisso and
D'Addario.
Spisso testified that Chasm told him that although his work was
very promising, "I will have to fire you. " Chasm gave Spisso no
reason for the discharge . This testimony was corroborated by
D'Addario.
Counsel for the respondents and for the Board stipulated that if
Chasm were called as a witness by the respondents he would deny
the statements attributed to him by Spisso , De Sepio, and D'Addario,
and he would testify that he "did not in any way do anything or say
anything which would tend to indicate any hostility to the rights of
the employees under the Wagner Act , and would particularly deny
any acts or conduct which would tend to violate any provisions of
that Act." Nevertheless, the testimony of Spisso , De Sepio, and
D'Addario appears to be straightforward , convincing, and mutually
corroboratory . The actions which they attributed to Chasm seem to
fit easily into the pattern of events leading up to the discharges.
We therefore find the circumstances of the discharges to have oc-
curred in accordance with the testimony of Spisso, De Sepio, and
D'Addario discussed above.
For each employee discharged or laid off, the respondent Con-
denser customarily made out a pay order or discharge slip on which
was recorded the date of the dismissal , the reason, the name of the
supervisory employee making the discharge or lay-off, and further
remarks concerning rehiring the employee dismissed. Board Ex-
hibit No. 51 represents a compilation of the pay orders of the various
employees named in the complaint . The compilation was made by
Clara S: Leary, personnel director of the respondent Condenser, from
the original records of this respondent . Pay orders or discharge
slips for Spisso and De Sepio each list a dismissal on January 28,
1937, for the reason : "Loafing , wandering around." They are signed
"J. Chasm," and in the column concerning rehiring there is to be
found in each case the word "No."
Leary further testified that her private records revealed that De
Sepio 's second discharge was "for loafing and wandering around the
plant where he had no business to be. " But during the week in
CONDENSER CORPORATION OF AMERICA 401
which De Sepio worked in the stockroom no complaints were made
to him that he was loitering. Moreover, we have found that Chasm
did not advance any reason at the time of the discharge; on the
contrary, he stated that he liked De Sepio's work but had orders to
let him go. During the week in the stockroom Spisso was compli-
mented by Chasm for the way he performed his work and particu-
larly for the manner in which he supervised the two manual workers
tinder him. Although Spisso was questioned by counsel for the
respondent Condenser upon his omission on several occasions to
punch his time card, no contention was made by witnesses or on
the basis of the Company records that this was the reason for the
second discharge. Spisso's time card did contain three unpunched
spaces. This card, however, was dated for the week ending December
'12, 1936. Spisso was subsequently reinstated on January 21, 1937,
despite this defect, and it seems unlikely, therefore, especially since
no mention was made of the failures to punch at the time of either
discharge, that this was the reason for his second discharge.
The discharges of Spisso and De Sepio on December 18, 1936, fol-
lowing so closely upon their concerted activity of December 17, 1936,
and the significant tone of the conversations with Chait and Rey-
nolds at the time of the discharges, taken together with the circum-
stances of the subsequent reinstatements made for the purpose of
aiding Diana's organization of the Independent, the break with
Diana. on January 27, 1937, and the circumstances of the second dis-
charges of January 28, 1937, all considered in connection with the
discharges of Hughes, Lawrence Dowling, D'Addario, and others,
lead us to the conclusion that the discharges of Spisso and De Sepio
on December 18, 1936, and again on January 28, 1937, were effected
because of their participation in concerted activity with other check-
ers and because of their subsequent activities in support of the United.
.We find that they were in pursuance of a sustained campaign of
the respondent Condenser first to interfere with and restrain the
concerted activity of the checkers, and by the time of the second
discharges to discourage membership in the United and to encourage
membership in the dominated Independent.
By discharging Spisso and De Sepio on December 18, ' 1936, be-
cause they participated in concerted activity for the purpose of
collective bargaining and other mutual aid and protection, the re-
spondent Condenser has interfered, with, restrained, and coerced its
employees in the exercise of the rights guaranteed by Section 7 of
the Act. In addition, these discharges discouraged, concerted activity
for the purpose of collective bargaining, and had* the effect of dis-
couraging the formation of and membership in the United, a labor
organization intended by employees to achieve collective bargaining,
402 DECISIONS OF NATIONAL LABOR' RELATIONS'BOARD
which shortly after this discharge did attempt to organize employees
in the respondent's plant with the assistance of the checkers.42
We further find that these employees were discharged for the
second time on January 28, 1937, because of their refusal to support
the Independent and because of their former participation in the
concerted activities of the checkers and their continued activities in
support of the United. By these discharges on January 28, 1937, the
respondent Condenser has discriminated in regard to their hire and
tenure of employment, thereby discouraging membership in the
United, and encouraging membership in the Independent. By these
discharges on January 28, 1937, the respondent Condenser has inter-
fered with, restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act.
Spisso prefers to be reinstated to his former position as a checker
rather than as a stockman, and we will so order.
In order to effectuate the policies of the Act, we will order the
respondent Condenser to offer De Sepio a choice of reinstatement to
his former position as a checker, of reinstatement to his subsequent
position as a stockman, or of continued employment in his present
position.
Theodore D'Addario. Theodore D'Addario was discharged on
January 8, 1937, was reinstated on January 21, 1937, and was dis-
charged again on January 28, 1937. It is alleged in the third
amended complaint that both discharges were discriminatory.
D'Addario was a clock checker. His duty was to check cards
punched by the time clock against the time sheets kept by the rest
of the checkers and correct all discrepancies.
D'Addario attended three or four meetings of the checkers.
Zieborak attended the first of these meetings on December 17, 1936.
At one meeting, on Tuesday, January 5, 1937, a representative of the
United was present to confer with the checkers concerning organiza-
tion of the plant by the United. On Friday morning, January 8,
1937, Chait said he wanted to speak with D'Addario. D'Addario
testified, and we find, that the following conversation took place :
... he started to hem and haw, and so on, and I said, "What
is the matter, Mr. Chait?" "Can't you talk?" He said, "I have
bad news for you." I says, "I know. I am through." He said,
"That's right," and I asked him is there any reason for it and
he didn't give me any reason, so I said, "Well, let's go and see
.Mr., Beyers.411 I want to know why I am fired. I don't see any
reason for it."
42 See footnote 40 above.
13 Beyer.
CONDENSER CORPORATION OF AMERICA 403
D'Addario found Beyer. D'Addario testified, and we find, that
the following conversation took place :
I asked him for a reason for my dismissal and he said,
"Probably inefficiency." I said, "Mr. Beyers 43 there is no in-
efficiency about me. I have all my records of all discrepancies I
found and proof of all corrections in my little red book which is
in the record desk up in the office." And he says, "Well, I
haven't anything to do with your dismissal. Go and see Mr.
Reynolds."
D'Addario obtained an interview with Reynolds. D'Addario
testified, and we find, that the following conversation took place :
I told him, "I understand from Mr. Chait and Mr. Beyers 48
that it is through you that I am being discharged. Have you
any reason for it?" . . . He informed me that there were too
many shortages. He said there were thirty of them. I told him
I could account for eighteen of those shortages, which I can, and
he admitted, "Although it was not your fault, you in turn should
have caught these shortages," and I told him, "Is there any
chance for reinstatement?" He then said, "Well we are going
to leave your job open for a week and try it without you." I
then said, I asked him if it doesn't run right without a man
would I be reinstated and he said "no." The next day I found
out there was a man in my position.
At the resumed hearing, it was stipulated by counsel for the re-
spondents and for the Board that the employment record lists as the
reason for D'Addario's January 8, 1937, discharge the word "unsatis-
factory," and that the record was marked "No re-hire."
D'Addario was not responsible for 18 of the 30 "shortages" 44
because these were caused by the failure of the maintenance-depart-
ment checker to send up the labor time sheets necessary for D'Addario
to check against. As for the remaining 12 of the 30, D'Addario was
not confronted with a written record of these alleged discrepancies
nor was he given an opportunity to look into or discuss them. Again,
no evidence is presented to show that even if D'Addario was respon-
sible for the alleged shortages, his record was relatively poor as
compared with the rest of the checkers or his successor. Hughes had
called only one mistake to his attention. He had never been warned
about or disciplined for his mistakes. Hughes had complimented
him on his work. Moreover, in spite of his allegedly unsatisfactory
work, D'Addario was reinstated with the group sponsored by Diana
on January 21, 1937. As in the cases of Spisso and De Sepio, D'Ad-
41 Beyer.
"Insufficient pay checks
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dario was assigned to work as a stockman although he requested to
be returned to his former checking position.
We find that the refusal to reinstate D'Addario to his former
position as a checker was due, as in the case of the other checkers
discussed above, to a desire to place the former checkers in positions
circumscribing their previous widespread contacts with employees
in the course of their duties. The stockroom particularly was fenced
off from all other rooms and could not conveniently be left.45
Prior to his reinstatement on January 21, 1937, D'Addario had
joined the United. He was constantly active and successful in re-
cruiting members for that organization. He attended the mass meet-
ing of the United held on January 26, 1937.
We have already discussed the circumstances surrounding the short
period of employment of the group thus reinstated by Diana, their
break with Diana on January 27, 1937, when he requested support
for the Independent , and their discharge on January 28, 1937. It
was D 'Addario who wrote the note in the poolroom on January 27,
1937, which he and other reinstated employees signed, informing
Diana in effect that they would not cooperate in supporting the
Independent but would continue to support the United.
D'Addario was discharged by Chait on January 28, 1937, together
with Spisso and De Sepio. Chait gave no reason for the discharge
except that he had "orders" from his superiors . Chait did say to
D'Addario : ". . . and as for you, Ted, you fool around too much."
We are satisfied with D'Addario's testimony explaining that this
remark was in the nature of a jest. We have already discussed,
in connection with the cases of Spisso and De Sepio above, the
stipulation regarding what Chait would testify if called as a witness.
The circumstances of D'Addario's discharge of January 28, 1937,
have been more fully discussed above in connection with the discharges
of Spisso and De Sepio.
D'Addario's discharge slip listed as the reason for the discharge
of January 28, 1937, "Loafing in men's room ." It was signed "J.
Chait," and the comment in the column for remarks respecting rehir-
ing was, "No ." We are convinced that Chait was instructed by his
superiors to fill out the discharge slip in the manner described.
The discharge of D'Addario on January 8, 1937, following his
sustained activity in concert with the checkers, the inability of his
immediate superior , Chait, the head of the checking department, to
give a reason for the discharge , and the unconvincing reason advanced
by Chait's superior , Reynolds, taken together with the subsequent
reinstatement made for the purpose of aiding Diana's organization
45 See footnote 41, above.
CONDENSER CORPORATION OF AMERICA 405
of the Independent, the break with Diana on January 27, 1937, and
the circumstances of the second discharge of January 28, 1937, all
considered in connection with the discharges of Hughes, Lawrence
Dowling, Peterson, Spisso, De Sepio, and others, lead us to the con-
elusion that the discharges of D'Addario on January 8, 1937, and on
January 28, 1937, were the result of his participation in the concerted
activity of the checkers and of his support of the United. These
discharges were in pursuance of a campaign of the respondent Con-
denser to interfere with and restrain the United which it opposed, and,
by the time of the second discharge, to aid and encourage membership
in the dominated Independent.
We therefore find that Theodore D'Addario was discharged on
January 8, 1937, because of his participation in the concerted activi-
ties of the checkers. By discharging D'Addario on January 8, 1937,
because he participated in concerted activity for the purposes of col-
lective bargaining and other mutual aid and protection, the respondent
Condenser has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed by Section 7 of the Act. In
addition, his discharge discouraged concerted activity for the purpose
of collective bargaining, and had the effect of discouraging the forma-
tion of and membership in the United, a labor organization intended
by employees to achieve collective bargaining, which shortly after this
discharge did attempt to organize employees in the respondent's
plant with _the assistance of the checkers.46
` D'Addario was discharged for the second time on January 28, 1937,
for declining to support the Independent and because of his former
participation in the concerted activities of the checkers and his con-
tinuing activities in support of the United. By discharging D'Ad-
dario on January 28, 1937, the respondent Condenser has discriminated
in regard to his hire and tenure of employment, thereby discouraging
membership in the United and encouraging membership in the Inde-
pendent. By the discharge of January 28, 1937, the respondent
Condenser,has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
D'Addario prefers to be reinstated to his original position as a
clock checker rather than as a stockman, and we will order the
respondent Condenser to offer him reinstatement to the original
position.
Herbert Peterson. Herbert Peterson, a checker in department 11,
was discharged on December 23, 1936. The day of Peterson's dis-
charge followed his attendance at the second meeting of the checkers
on the previous night. The first and second checker's, meetings were
held at Peterson's home. Zieborak was present at the first meeting.
96 See footnote 40, above
253013-41-vol 22-27
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to his attendance at the checkers' meetings at his own
home, Peterson's efforts in furtherance of concerted activity had been
proceeding for about a month prior to his discharge. He had used
prevalent grievances, such as the lack of adequate water fountains
and the presence of smoke and fumes, as talking points in advocating
organization among the numerous employees with whom his check-
ing brought him in contact. During the week preceding his dis-
charge and between the first and-second checkers' meeting, -Peterson
had complained several times to Manny Sanchez, foreman in charge
of department 11, about the level of wages.
Peterson's interest in organizing the workers sprang from the same
motive to benefit the Borough of South Plainfield as Diana's interest
in organizing the Independent and aiding the Brotherhood. The
means adopted by the two men, however, were antithetic. Peterson
testified :
I did not think that the people in the plant were getting fair
play, they were being worked to death and they were only being
paid a very limited sum for their labor. I, too, am somewhat
interested in the town, due to the fact that my folks are heavy
taxpayers and this company wasn't bringing anything very ma-
terial to the town and with wages of that sort you don't build up
a town'very much and I personally think that . . . it is a sweat
shop.
At 5 o'clock on the afternoon of December 23, 1936, Chait, who
had become Hughes' successor as head checker, came to Peterson's
desk. Peterson testified that Chait waited until he had finished his
work and then said:
It is funny to leave all the dirty work to me . . . I am sorry,
but I have to discharge you . . . They are forcing me to do
it ... I have tried to keep you but they will not allow me to
do so .. . it is too bad they are letting you go because . . . I like
your work . . . This is a funny company . . . I don't know'
why you are being fired.
Peterson further testified :
Mr. Chait told me that he was very sorry that he had not made
my acquaintance at an earlier date because if he had he would
have told me to who to speak and to whom not to speak and what
to say and what not to say.
It was stipulated at the resumed hearing by counsel for the parties
that if Chait were called by the respondents, he would deny the state-
ments attributed to him by Peterson, and, as we have noted above
in the discussion of Spisso's discharge, he would testify that he did
not violate in any way the rights of the employees under the Act.
CONDENSER CORPORATION OF AMERICA 407
Nevertheless, we are persuaded by the candid and convincing nature
of Peterson's testimony, and the similarity it bears to the circum-
stances surrounding Lawrence Dowling's discharge by Chait, that it
is entitled to greater weight than Chait's testimony and we find it
worthy of credence.
It was stipulated at the resumed hearing that Peterson's employ-
ment record listed the reason for the discharge as "unsatisfactory"
and that it was marked with a notation "Never re-hire." - Bleich,
treasurer and plant superintendent of the respondent Condenser, tes-
tified that he caused Peterson's discharge by recommending such
action to Peterson's superior because of numerous complaints from
employees about his checking. We find this testimony to be untrust-
worthy. The questions put to Bleich concerning this point by coun-
sel for the respondent Condenser were leading ; moreover, it seems
highly unlikely that a ranking official like Bleich should feel called
upon to take a part in the discharge of a checker not immediately
under his supervision for a routine cause and whose alleged short-
comings would customarily have been reported by the employees to
the foreman in charge of their department rather than to the plant
superintendent. Munn, the foreman in charge of a group of depart-
ments of which Peterson's department was one, testified that he
received complaints about Peterson's shortages quite often. Specifi-
cally, however, Munn could recall only one case in which a shortage
complaint respecting Peterson's checking had been sustained. More-
over, Munn's testimony indicates that by the nature of the checking
system complaints and shortages were to be expected regularly.
Munn testified :
. . . there were so many that came to me with shortages that
that was the regular procedure, to fill out a form, the checker to
take that upstairs and investigate it, trace it all the way back.
We are impressed, moreover, with Peterson's testimony concerning
the difficulties of accurately checking unit production by scale weight,
the method employed in the plant. Errors were caused by the lack
of uniformity in the amounts of glue and windings on condensers,
by the sensitivity of the platform scale to drafts on windy days, and
by the fact that the scale was affected when other employees passed
it. Peterson complained to Chait several times about this condition.
It appears, therefore, that errors of calculation made by Peterson
were caused by equipment rather than by inefficiency. Moreover,
Peterson was not criticized for his work by Sanchez, foreman in
charge of the department in which Peterson checked production, or
any others. , Despite complaints as to shortages, we are convinced
that Peterson's work was not inferior and was not considered inferior
either by-Sanchez, Munn, Bleich,_or Chait. Despite the complaints,
408 DECISIONS OF NATIONAI. LABOR RELATIONS BOARD
Chait told Peterson lie did not know why Peterson was being fired,
and Peterson's record was not compared with that of Zieborak, a
checker who was not discharged. We find that the alleged inefficiency
was not the reason for Peterson's discharge.
Peterson was not later reinstated on January 21, 1937, when Diana
secured the reinstatement of the other South Plainfield checkers.
This was because Peterson was notified too late about Diana's desire
to see him. When he subsequently met Diana on the street, Diana
asked him if he would like to return to work for the respondent
Condenser. Peterson said he would first like to know the reason for
his discharge. Diana replied : "Well, they had their reason." Peter-
son,then informed Diana that a Plainfield lawyer had been instructed
to initiate proceedings before the Board in behalf of the checkers:
Diana replied that the Board could not help Peterson, and told Peter-
son to get in touch with him during the subsequent week. Peterson
did not attempt to see Diana. Although Peterson desired to return
to work, he did not care to cooperate with Diana because he did not
know Diana's status and he believed Diana's representations were "a
trick." As the facts brought out by the evidence indicate, Peterson
was entirely correct in his suspicions of Diana.
Under the circumstances, we are satisfied, and find, that Peterson's
activities in furthering from the beginning the cause of free collec-
tive action and organization among the employees, and his participa-
tion in at least two organizational meetings of the checkers' labor
organization held in his home, were the reasons for his discharge.
The circumstances surrounding his discharge, taken together with
the fact that his alleged inefficiency was not the cause of the dis-
charge, and considered in connection with the discharge of Hughes,
Lawrence Dowling, D'Addario, Spisso, and De Sepio, all lead us
inescapably to the conclusion that Peterson's discharge was but
another part of the campaign of the respondent Condenser to destroy
the labor organization of the checkers before it attained size or
power.
We therefore find that Herbert Peterson was discharged by the
respondent Condenser on December 23,'1936, because he participated
in concerted activity with the checkers. By discharging Peterson
because he participated in concerted activity for the purpose of col-
lective bargaining and other mutual aid and protection, the respond-
ent Condenser, has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed by Section 7 of the
Act. In addition, his discharge discouraged concerted activity for
the purpose of collective bargaining, and had the effect of discourag-
ing the formation of and membership in the United, a labor organiza-
tion intended by employees to achieve collective bargaining, which
CONDENSER CORPORATION OF AMERICA 409
shortly after this discharge did attempt to organize employees in
the respondent's plant with the assistance of the checkers.47
Arnold-Dowling. Arnold Dowling was discharged on Deco ibeir
.22, 1936. Lawrence Dowling, the checker who was discriminatorily
discharged on December 18, 1936, is his brother. Arnold Dowling
was not a checker. Prior to his discharge, he did not attend any
organizational meetings of the checkers or of any other labor organi-
zation. He discussed matters concerning the United only with his
brother, Lawrence, and he did not in any way lend assistance to
Lawrence in connection with union activities. The only semblance
of participation in concerted activities on his part appears in Arnold
Dowling's testimony concerning several conversations relating to
working conditions which he had with two or three of the super-
visors. Iii these conversations, which took place largely in Novem=
her 1936, Arnold Dowling testified that he requested the supervisors
to remedy the cold and wet conditions under which some of the
employees, who had complained to him, were working. However,
Arnold Dowling personally knew of no word or act on the part of
any supervisor or person connected with the management indicating
hostility to his rights under the Act. With respect to two of the
supervisors referred to, it was stipulated at the resumed hearing that
if called to testify they would deny any acts or conduct which would
tend to violate any provisions of the Act. Arnold Dowling joined
the United at its first mass meeting on January 14, 1937, 3 weeks
after his discharge.
Approximately 1 week before he was laid off, Arnold Dowling
was transferred from his position as solution mixer for the assembly
line in department 14 to a position as a packer of capacitors in de-
partment 8. This transfer occurred prior to his brother's labor
activities and discharge. It is clear, and Arnold Dowling himself
admitted, that his transfer was due in part to slack conditions in
department 14. It is probable that Dowling was selected for trans-
fer because of a suspicion on the part of Blake and Tangney 48 that
Dowling had deposited rubber bands in a solution he was mixing
which was required to be virtually without foreign impurities.
Arnold Dowling testified that after his brother's discharge, Harold
Brafman, head foreman of department 8, continually watched him.
Brafman denied that he was watching Dowling. He explained that
his desk was situated 6 feet behind the packing bench on which
Dowling was working. Arnold Dowling testified that Brafman
dismissed him on December 22, 1936, saying that he would have to
lay him off because there was not enough work left for him. This
47 See footnote 40, above.
'B Tangoey eras head foreman of department 14.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason, given at the time of the discharge, is in conformity with the
testimony of Brafman who explained that he hired Dowling merely
to work on a temporary 10-day job of packing a certain order for
shipment. Thereafter, on December 22, 1936, he sent Dowling to
Leary with instructions either to find him other work or lay, him off.
Arnold Dowling's discharge slip also listed that he was laid off.
Although Harold Brafman's name appeared on the slip, he testified
that he had nothing to do with placing the word "No" in the rehire
column. This, however, may be attributed to Leary who knew of
the rubber-band incident. She testified that her private records
revealed that Dowling's transfer even prior to the lay-off or dis-
charge was a precautionary measure taken because Blake believed
that Dowling was guilty of deliberately destroying the utility of the
solution he was mixing. Dowling was in fact never rehired.
Upon the basis of this evidence, it is not clear that Arnold Dowling's
lay-off or discharge was the. result of union activity. The allega-
tions of the complaint with respect to the discharge of Arnold
Dowling will therefore be dismissed.
Vincent Binicasso, William Wolf, Harry Burr, and John Mazza.
Vincent Binicasso was discharged on January 13, 1937, reinstated
with Diana's group of checkers on January 21, 1937, again discharged
with the group on January 28, 1937, and again reinstated on June 22,
1937. William Wolf was discharged on January 13, 1937, and never
reinstated. Harry Burr was discharged January 13, 1937, reinstated
with Diana's group on January 21, 1937, and again discharged with
the group on January 28, 1937. John Mazza was discharged on
January 14, 1937, reinstated with Diana's group on January 21, 1937,
again discharged with the same group on January 28, 1937. It is
alleged in the third amended complaint that each of these discharges
was discriminatory.
Of the four men, Wolf was the only checker. He attended several
of the meetings of the checkers which have been described above.
Wolf joined the United on January 11, 1937, the date which marked
the beginning of active organization on the part of the-United. ' Wolf
immediately became active in recruiting members for the United.
On January 12, 1937, Wolf approached Binicasso immediately
before Binicasso started work for the day and handed him several
application cards of the United. Binicasso left some of the cards in
his coat which hung in the stockroom. Beginning at about 11 o'clock
in the morning and continuing during the afternoon, Harold Braf-
man, head foreman of department 8, remained in the department
constantly, contrary to his custom, and followed Binicasso closely
and watched him. He was aided in watching Binicasso by Catherine
11
CONDENSER CORPORATION OF AMERICA 411
Heslin, '13 forelady in charge of departments 7 and 8. In the after-
noon of the next day after Binicasso had handed Burr a United
application , Binicasso and Wolf arrived together at the men's room.
Wolf had just lighted a cigarette and Binicasso was about to light
a cigarette when Harold Brafman, who was close behind them, said:
I gave you fellows warning, I am afraid we will have to let
you go, .. .
Binicasso testified, and we find, that the following conversation
ensued between him and Brafman :
"What am I being discharged for?," and he did not answer,
so I said, "I am pretty sure it is not for smoking," . . . so he
just shrugged his shoulders , so he said , "Punch your card," and
I went to punch my card .. .
Brafman spoke to Reynolds , head of the purchase and sales depart-
ment, and Reynolds called Wolf shortly after this incident. Wolf
testified ,'and we find , that the following conversation ensued between
them:
"I am sorry, I will have to let you go ..." I said, "What
for?" He says, "You were smoking." I said: "How about the
other members of the Company?" and he says: "Well, we will
take care of them later ." I said : "There is no sign up there,"
and he says, "No" and we talked and then he said, "Go up to
Mrs. Leary and get your check and get what belongs to you and
then leave. That is all."
Both Leary and Harold Brafman testified that Binicasso's dis-
charge was occasioned by his smoking in the men's room. Seymour
Brafman, Harold's brother and a supervisor on the transmitting
bench, added that another reason for his discharge was his ineffi-
ciency. We cannot accept Seymour Brafman's testimony to this
effect. The value of Binicasso's services were recognized by two pro-
motions to positions of increased responsibility in his first 2 or 3
weeks with the respondent Condenser. At the time of his discharge
on January 13, 1937, Binicasso was in charge of the returned-mate-
rials department . Moreover , Binicasso 's alleged inefficiency could
not have been known to the respondent Condenser prior to this dis-
charge because Seymour Brafman testified that the inspection of his
books from which he drew his conclusion was made subsequent to
Binicasso 's discharge of January 13, 1937.
There was a rule against smoking in the plant, and the employees
were aware of it. It was rarely if ever enforced except by orders
49 Mistakenly spelled Heffler from time to time in the transcript
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to cease and by warnings . Supervisory employees and non-super-
visory employees alike were accustomed to smoke regularly in the
men's room. Yet Harold Brafman testified that out of the 120 men
in his department , he discharged only Wolf and Binicasso for smok-
ing. About a week previous to his discharge , Harold Brafman
found a group of about 12 smoking in the men's room . This group
included the supervisor , Seymour Brafman . At that time , Harold
Brafman ordered Binicasso to extinguish his cigarette . At no other
time, except that of the discharge , had Harold Brafman spoken to
Binicasso about smoking . We cannot believe, on the basis of all the
evidence, that either Wolf or Binicasso was discharged for smoking.
As mentioned above, at 1 : 30 in the afternoon of January 13, 1937,
Binicasso handed Burr, while he was in the plant and on his job,
an application card for membership in the United. Burr signed the
card, put it in his pocket , and turned it in to Binicasso at the head-
quarters of the United on the same day. This, apparently, was the
extent of Burr 's union activity prior to his first discharge on Jan-
uary 13, 1937 . Since October 1936, Burr had been foreman of the
whole stock and receiving department with 22 men under him. On
January 13, 1937, after Burr had received the United application
from Binicasso , Chasm, his supervisor , called D'Amico, one of Burr's
subordinates , and informed him that the respondent Condenser de-
sired D'Amico's immediate dismissal . Burr testified , and we find,
that the following conversation took place:
[Chasm said ,] "That goes for you too , Burr." I says, "What
do you mean ?" "Well," he says , "just that. They asked your
immediate dismissal ." "Well," I says, "What is the reason for
it?" "Well ,"' he said, "They claim that you are inetl 'icient;' ' with-
the same breath he told me that, "You did a very good job."
Burr asked Beyer for an explanation the next morning , and Beyer
refused to give the reason for the discharge . Beyer admitted to
to Burr that it was the general policy of the respondent Condenser
to change the work of a person not suited for a particular job rather
than to discharge him, but he told Burr, "Not in your particular
case." Bleich, treasurer and production superintendent of the re-
spondent Condenser, testified that this was indeed the general policy
of the respondent Condenser.
Although it was stipulated that Chasm, if called as a witness, would
deny the statements attributed to him by Burr and would further
testify as noted above in the discussion of Spisso 's discharge, we are
convinced that Burr's testimony is entitled to credence not only be-
cause of its own nature but also because of the surrounding events
and because , as we have already found , Chasm's stipulated testimony
appears unreliable in the cases of Spisso , De Sepio, and D'Addario.
I
CONDENSER CORPORATION OF AMERICA 413
As for the allegation of Burr's inefficiency, although advanced
by Chasm to Burr as the reason he was ordered to discharge him,
and supported by the testimony of Mrs. Harold Brafman, we find
no record of the respondent Condenser in evidence advancing this,
or any other, lawful reason for Burr's discharge. At the hearing,
Burr} denied making the errors upon the existence of which rests the
claim that he was inefficient, and denied that any errors were brought
to his attention. It is clear that Burr was an exceptionally valu-
able employee who in his first 3 weeks of employment corrected, a
badly disorganized receiving department and was thereupon rewarded
by Chasm with the foremanship of the entire stock and receiving
department. In this position, Burr supervised 22 employees, and he
was placed on a salary. Upon the basis of all the evidence, we find
that Burr was not inefficient, and that on the contrary his work was
highly valued by the management. The reason for his discharge
on January 13, 1937, is not to be found in the alleged inefficiency
or irregularities.
Mazza joined the United during the week prior to his first discharge
on January 14, 1937. Prior to this discharge, he was very active in
organizational work and succeeded in recruiting many members for
the United. Employees were constantly solicited by him about the
plant before and after work and during lunch hour.
At about 11: 35 in the morning of January 14, 1937, Jimmy Morris,
Mazza's supervisor, told him that he had bad news and that he would
have to let Mazza go. We find, despite the stipulation to the effect
that if Morris were called to testify he would deny the statements
attributed to him, that the following testimony by Mazza accurately
presents the circumstances surrounding his discharge :
I said, "What's the idea ?" He said, "I don't know. Don't ask
me no questions." I said, "What is the matter with these new
fellows? Why don't you let them go instead of me? I have
more experience than they have." And Jimmy Morris told me
to go see Mr. Greenberg and see what it is all about, so I did, .. .
When Mazza questioned Greenberg, the head foreman in charge of
his department, about the reason for his discharge, Greenberg said,
"We are getting slow now."
There is conflicting evidence as to whether Mazza's molding section
of department 9 was suffering a slack period. Assuming that a lay-
off was necessary on January 14, 1937, for business reasons, it is
curious that Mazza was selected despite the fact that he was the
molder third in seniority and that 11 junior molders remained on the
job. There is no intimation that the reason for this discharge was
unsatisfactory work. On the contrary, Mazza had been designated
previously by Morris as an assistant supervisor and his duties in this
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
capacity were primarily to train other men for work as molders.
Moreover , since Leary demanded Mazza's employee's identification
button, it is apparent that his dismissal was intended as a discharge
rather than a lay-off.
Wolf,has never been reinstated.
Binicasso , Burr, and Mazza were reinstated by Blake with Diana's
group of checkers on January 21, 1937, under circumstances fully
described above.
On January 18, 1937, Burr was elected vice president and Bini-
casso, financial secretary and trustee , of the United at the mass meet-
ing of that date. These results were published in the Plainfield
Courier-News, the local newspaper; on January 19, 1937. Mazza was
appointed chairman of recruiting-for department 9, and many girls
aided him in systematic solicitation. Upon the basis of evidence dis-
cussed above , we believe that the subsequent reinstatement on Janu-
ary 21, 1937 , pursuant to the discussion had at the Silver Moon
meeting with Diana, was motivated by the desire to discourage mem-
bership in the United by attracting certain of its recently elected
leaders to the newly launched Independent . On January 26, Burr,
Binicasso , and Mazza attended the mass meeting of the United. On
January 27, 1937, Diana discovered that the reinstated men could not
be won over to, the support of the Independent. The reinstated men
were thereupon discharged on January 28, 1937. Burr, Binicasso,
and Mazza were among the group thus discharged. We will now
discuss the circumstances surrounding the second discharges.
On the afternooon of January 28, 1937, as Binicasso was leaving
the plant for the day, he saw Harold Brafman, Thornton , and Ten
Eyck, the latter being the lieutenant of the South Plainfield police
department . Brafman asked Binicasso for his identification and key.
Binicasso then said, "What am I getting fired for?" Brafman re-
plied, "I don't know anything about it, . . ." While Binicasso was
attempting to determine why he had been discharged , Ten Eyck sig-
nalled him to leave the plant.
Harold Brafman testified that he discharged Binicasso on January
28, 1937 , " for not keeping his records in the stockroom accurate."
He noted on Binicasso's discharge slip that he should not be rehired.
Despite this proscription , Leary nevertheless reinstated Binicasso on
June 22, 1937, without consulting Brafman, a fact which is con-
sistent with the theory that Binicasso 's employment was dependent
on reasons within the knowledge of the management as represented
by the head of the personnel department 50 and wholly apart from
the opinion of his supervising foreman who had information con-
cerning Binicasso 's value as a worker. Moreover , at the time of the
60 Leary
4
CONDENSER CORPORATION OF AMERICA 415
discharge, Brafman stated that he did not know the reason. Bini-
casso's discharge slip listed the reason for the January 28, 1937,
discharge as "Smoking," a notation which Brafman could not explain
at the hearing. We believe that Binicasso, as he testified, was not
warned of his alleged inaccuracy. Brafman admitted at the hear-
ing that the alleged inaccuracy consisted of "several small mis-
takes . . . that did not amount to very much, ...." We do not
believe that Binicasso was at fault or that inaccuracy was the reason
for his discharge.
Burr had been reinstated on January 21, 1937, to service purchase
orders in the purchasing department. His job was to follow up
purchase orders in order to remind vendors in a systematic fashion
of their obligations with regard to dates of shipment. On January
28, 1937, he, was discharged by Parry, an assistant in the purchasing
department. Parry followed Burr into the men's room after work
and informed him that the "Company" desired his discharge. Burr
testified, and it was apparently not denied, that "the reason given
was that they wanted to cut down expenses in that department." No
other reason was given Burr at the time of the discharge.
Burr's foreman during the interval from January 21 to January
28, 1937, was one Dawson, and his work was directly under the super-
vision of Mrs. Harold Brafman, wife of the foreman, and assistant
head of the purchasing department. She testified that in the absence
of Dawson, who was in charge of hiring and firing, she asked Parry
to discharge Burr because Burr was older than she. Mrs. Brafman
testified that she recommended Burr's discharge because of irregu-
larities in following up delayed shipments. She testified that accord-
ing to an inspection, on the day previous to her appearance at the
hearing, of 25 to 50 out of perhaps 200 orders serviced by Burr,
she found 4 of Burr's orders which were serviced 1 day or more
late. In view of the fact that Mrs. Brafman told Burr during the
week of January 21 to January 28, 1937, that he "was fitting in there
in fine shape," that no criticisms were made of his work that week,
and that Parry did not state the alleged reason at the time of the
discharge, we cannot believe that Burr's delay in servicing orders
was the'reason for his discharge on January 28, 1937.
In view of Burr's promotions, it is significant that Mrs. Brafman
not only allegedly found him unsatisfactory, but also allegedly
thought him unfitted for work in the plant and therefore did not
suggest a transfer to another department in preference to discharge.
It was, as we have noted, the general policy of the respondent
Condenser to transfer an employee rather than lay him off or
discharge him.
Mazza was reinstated on January 21, 1937, to his former position.
On January 28, 1937, Greenberg instructed Mazza to follow him.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When they entered Leary's office , Mazza realized that he was about
to be discharged , and he handed in his identification button and re-
ceived his pay. We find that the following testimony by Mazza accu-
rately presents the remaining circumstances surrounding the discharge.
Mazza said to Greenberg :
"What the hell is this getting to be? A game?" He said,
"Please don 't ask me no questions . I have nothing to say. Do
as you are told, . . ." He said he had no reasons , he doesn't
know what it is all about himself.
Virtually no reason is advanced by the respondent Condenser for
Mazza's second discharge . His discharge slip, signed by Greenberg,
lists "Unsatisfactory ," and with respect to reinstatement , "No." In
addition to Mazza's promotion to quasi-supervisory duty as evidence
that his work was highly satisfactory , we find that he has never been
criticized but has instead been complimented on his work by six super-
visors including Greenberg and Morris . We can only conclude that
Mazza's services were not unsatisfactory and that the listed reason was
not the real reason for his second discharge . There is no evidence
that Mazza was offered a transfer on January 28, 1937, and we find
that this is a suspicious circumstance in view of the respondent
Condenser 's policy in this regard.
Taking into consideration the circumstances surrounding the first
discharges of Wolf, Binicasso , Burr, and Mazza, following upon
Wolf 's participation in the concerted activities of the checkers and
the activities of all four in support of the United, and taking into
consideration also the respondent Condenser 's animus toward; those
activities as evidenced by its numerous discharges previously discussed,
and upon a thorough consideration of all the evidence discussed above,
it is apparent , and we find , that those discharges were due to the
union activities of the four employees . The reinstatements of Burr,
Binicasso , and Mazza on January 21, 1937, were, as we have found
in connection with the simultaneous reinstatements of Spisso, De
Sepio, and D'Addario , motivated by a desire to aid in the formation
of and encourage membership in the Independent , and at the same
time to discourage membership in and support of the United. The
discharge of Burr and Binicasso on January 28, 1937 , following
the publication of their election to office in the United , and their
refusal to desert the United in order to cooperate with Diana in
support of the Independent , parallel the discriminatory discharge of
Spisso, discussed above. The fact that the discharge of Mazza fol-
lowed his intensive recruiting drive as chairman of such activities
in department 9, and his refusal to cooperate with Diana in sup-
port of the Independent , leads us to find that he too was discharged
for his stand with respect to these labor organizations.
CONDENSER CORPORATION OF AMERICA 417
We therefore find that William Wolf, Vincent Binicasso, and Harry
Burr were discharged by the respondent Condenser on January 13,
1937, and John Mazza on January 14, 1937, because they joined
and assisted the United, and, in the case of Wolf, also because of
his former participation in the concerted activities of the checkers.
We further find that Binicasso, Burr, and Mazza were discharged
for, the second time on January 28, 1937, because of their refusal
to support the Independent and because of their continued activities
in support of the United. By discharging Wolf, Binicasso, Burr, and
Mazza, the respondent Condenser has discriminated in regard to
their hire and tenure of employment, thereby discouraging member-
ship in the United, and in the cases of the latter three, thereby en-
couraging membership in the Independent. By these discharges, the
respondent Condenser has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7, of
the Act.
In order to effectuate the policies of the Act we will order the
respondent Condenser to offer Burr a choice of reinstatement to
either of his former positions.
Binicasso was-reinstated to the employ of the respondent Conden-
ser on June 22, 1937. In order to effectuate the policies of the Act,
we will ordel the respondent Condenser to offer Binicasso, in addi-
tion to the amount of back pay lost, a choice of reinstatement to his
former position or of continued employment in his present position.
Mazza was reinstated to the employ of the respondent Condenser
on April 26, 1937. In order to effectuate the policies of the Act, we
will order the respondent Condenser to offer to Mazza the back pay
which he would have earned had he not been discriminatorily
discharged.
Joseph Zsamba. Joseph Zsamba was discharged on January 14,
1937. Prior to his discharge, he did not participate in the concerted
activities of the checkers. He testified first that he joined the United
at its first mass meeting on January 14, 1937, and later asserted that
he joined a week previous to that date, and was active in recruiting
members before his discharge. He testified that on January 13, 1937,
he approached an employee outside the factory during lunch hour.
This employee he identified only as "Bill." He further testified
that upon the following day, "Bill" disappeared during lunch hour
and refused to reveal where he had been. Subsequently that day,
he testified that Brafman reprimanded him for talking and for
"fooling around."
Both Brafman and Leary testified that they observed Zsamba.
roaming about and wandering away from his bench. This is cor-
roborated,by the evidence of Zsamba's discharge slip which Brafman
signed and on which there is the notation : "Laid off, roaming around."
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of evidence, it does not appear that Joseph Zsamba's
lay-off or discharge was the result of union activity. The allegations
of the complaint with respect to the discharge of Joseph Zsamba will
be dismissed.
Esther Locke. Esther Locke was discharged on January 20, 1937.
She had joined the United at the first mass meeting of January 14,
1937. She became active, prior to her discharge, in recruiting mem-
bership outside the plant during lunch hours. She kept application
cards with her in the plant but did not distribute them there except
when she signed up members in the ladies' room of the plant. Locke
-also attended the mass meeting of the United on January 18, 1937.
At about 2: 30 in the afternoon of January 19, 1937, Locke, in speak-
ing to another employee in the ladies' room, stated that she was a
member of the United. Sarah Martin, a supervisor or sub-super-
visor in department 7, happened to be present at that time, and she
overheard the conversation. She said: "Yes? Well, you want to
keep it under your hat."
Locke was a mica cutter in department 7. Catherine Heslin was
the forelady in charge of that department. There is substantial
agreement in the testimony of these two witnesses with respect to
the circumstances surrounding the discharge. Heslin told Locke
that the reasons for the discharge were decrease in' her average
quantity of production and the fact that she was quarreling with
another employee. Locke admitted that Heslin had reprimanded
her at 5:30 in the afternoon of the day previous to the discharge
for stirring up a personal quarrel with an employee named Troliam.
Locke further testified that she rejected Heslin's suggestion to
bring such matters to her, and that she asserted that she could
fight her own battles. Heslin testified that Troliam had reported to
her that she had been threatened, and that in the course of the morn-
ing she heard loud talking in the ladies' room and upon investigation
found Troliam and Locke and observed that Troliam was crying.
This quarrel apparently did not concern union affairs since Locke
testified it was the result of rumors about herself being spread by
Troliam.
Heslin testified that a third reason for the discharge was the poor
quality of Locke's work. Locke's discharge slip signed by Heslin,
also lists "Poor Work" as the reason for the discharge. Heslin testi-
fied that she had spoken to Locke several times about the quality
of her work. Although Locke denies having been criticized by
Heslin with regard to her work, we find that Heslin's testimony in
this regard, corroborated as it is by the stipulated testimony of Sarah
Martin, and by the testimony of Leary based upon her own records,
appears to be worthy of credence. We find that the reason for
CONDENSER CORPORATION OF AMERICA 419
Locke's discharge was the poor quality of her work, her quarrel, and
the 2-per cent decrease in the quantity of her production.
Upon the basis of this evidence, it is clear that Esther Locke's
discharge was not the result of union activity. The allegations of the
complaint with respect to the discharge of Esther Locke will there-
fore be dismissed.
Ann Coley and Phyllis Fisk. Coley and Fisk were regularly
employed as calibraters in department 9, known as the mica depart-
ment. It is alleged that the respondents discriminatorily ordered
them to undertake onerous tasks and duties for the purpose of dis-
couraging them in their employment, thus compelling them to leave
their-positions with the respondents on or about January 22, 1937.
We do not believe that the evidence sustains these allegations.
Coley and Fisk did quit work in the South Plainfield plant on
January 22, 1937. Several days before January 22, 1937,'the volume
of calibrating work decreased. Coley and Fisk were given other
work in their department until January 21, 1937. On, January 21,
1937, they were transferred over their protest to soldering :%vork• in
department 13. Soldering, particularly under the conditions existing
in department 13, was exceedingly disagreeable work. After work-
ing at soldering for part of January 22, 1937, Coley and Fisk
requested retransfer to department 9. This 'request was refused
because no work was available for them in department 9. Thereupon,
they, quit work.
'During the week before Coley and Fisk quit, many other employees
in department 9 were laid off because work was currently slack in
that department. Coley and Fisk were given other work first in de-
partment 9 and thereafter in department 13. Although they had
been recruiting membership for the United since prior to January
14, 1937, we conclude, upon the basis of all the evidence, that this
activity was not a reason for the transfers of either of these em-
ployees. The allegations of the complaint with respect to Coley and
Fisk will therefore be dismissed.
Lucy Dell'Olio. Lucy Dell'Olio was discharged on January 19,
1937, the day following her election as secretary of the United. The
information concerning her election to office was made public on the
day of her discharge by the Plainfield Courier-News. She was not
present at the first meeting of the checkers on December 17, 1936.
She was, however, elected by the checkers to act as a member of the
nucleus prior to her connection with the United. She joined the
United January 15, 1937, 4 days prior to her discharge. Deutsch,
assistant foreman of department 9, saw her as she was returning
from the mass meeting of the United on the evening of January 14,
1937, in the company of Gladys Del Pappa, another employee. Ac-
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cording to Deutsch's own testimony he asked whether they had been
to the union meeting and was answered by Del Pappa in the affirma-
tive. Deutsch's remarks to these employees at that time are dis-
cussed below in connection with the discharge of Del Pappa. On
January 18, 1937, the following incident took place as described in
the testimony of Dell'Olio :
The day before I was discharged, why this Mr. Reddey,," called
another girl and myself over to one of the tables and asked us if
we were told we had to join the uni01152 in order to keep our
jobs. So I told him that we were asked to join the union but we
were not told we had to do so, so he told us we did not have to
join the union to hold our jobs, so he said the company was very
bitter about it and that they would fire anyone who would join
the union, so when we told him they couldn't do that, he said,
the company would find a good excuse to do that.
At the mass meeting on the night of January 18, 1937, 1 day prior
to her discharge, Dell'Olio was elected secretary of the United., The
Plainfield Courier-News published her name and the fact of her elec-
tion in all editions on January 19, 1937. The first edition was dis-
tributed in South Plainfield between 3 and 4 o'clock in the afternoon.
Dell'Olio was discharged at 5:30 on the same afternoon.
At that time, Reddey told Dell'Olio to report to Leary. Dell'Olio
testified as follows :
... she 53 was speaking to someone in there and I waited
awhile, then she picked up this check from the desk and she asked
me if I was waiting for it and I said I didn't know, so they
handed me the check and asked me if I had trouble with the
foreman, and I said no, not that I knew of, except that I had
been reproved for a mistake I had made about 4:30, and she
said she didn't know anything about it. She asked me for my
button. She asked me to sign for it. She said she would have
to find out what it was all about,, that she didn't know why I
was being fired. She gave me no reason.
We find that Dell'Olio's testimony accurately presents the circum-
stances surrounding the discharge.
Dell'Olio's job was to stamp various information on condensers
and containers; she was the only employee who performed that type
of work. On each order, there was a specification listed from which
she would obtain the correct stamp. Tangney, foreman in charge
61 Hack Reddey , or Ready, was the assistant foreman of department 14 In which Dell'Olio
worked. Tangney was the foreman in charge of this department.
"The only union active in the plant on January 18, 1937, was the United.
Is Leary.
CONDENSER CORPORATION OF AMERICA 421
of the department in which Dell'Olio worked, testified that he contin-
ually received complaints from customers and inspectors about incor-
rect stamping. He testified that one incorrect stamping job, causing
a delay of 5 or 6 hours necessary to rub off and replace the stamp, was
the basis for his recommendation of dismissal. He made out a dis-
charge slip stating the reason as "Inefficiency, too many errors." He
signed his name and added in the rehire column the notation "No."
Leary testified that Tangney showed her the misstamping job which
allegedly caused the dismissal and explained that the error was made
because Dell'Olio did not look up the specification to see that the
number had been changed. Dell'Olio testified concerning this mis-
stamping that she had been given a specification number, had looked
for the proper stamp in the specification sheet in a book kept for that
purpose, and had stamped the order accordingly. Ten minutes after
handing in the stamped condensers, she was called to Tangney's 54
desk and told she had misstamped them. This occurred at 4:30 in
the afternoon, approximately an hour after the publication of
Dell'Olio's name in the Plainfield Courier-News as an officer of the
United. Dell'Olio referred back to the specification book and dis-
covered that another specification sheet indicating a different stamp
had been slipped into the book under the sheet she had first used.
There had never before been an instance where two sheets, one of
which superseded the other, had been in the book together. No one,
except foremen, places sheets in the specification book. We con-
clude, upon the basis of Dell'O1io's testimony and all the remaining
evidence concerning her union activities and discharge, that the mis-
stamping of the order in question was induced by Tangney and
Reddey in order to find an excuse for discharging her. Previous
to the "error" which resulted in her discharge, Dell'Olio had never
been criticized by her superiors, nor had she been disciplined for
improper work. We find that she was not inefficient, and that her
alleged inefficiency was not the reason for her discharge.
The fact that Dell'Olio's discharge on January 19, 1937, followed
so closely after she joined the United and had become an officer of
that union, the threatening conversation with Reddey, the previous
encounter with Deutsch on the night of the United mass meeting, and
the circumstances surrounding her misstamping and discharge, con-
sidered in connection with the campaign of the respondent Condenser
against the United as evidenced by the numerous discriminatory dis-
charges previous to January 19, 1937, all lead us to the conclusion that
Dell'Olio was discharged on that date because she joined and assisted
the United, and we so find.
a, Misspelled Tangenni from time to time in the transcript.
283033-41-vol 22-28
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By this discharge, the respondent Condenser discriminated in re-
gard to hire and tenure of employment, thereby discouraging member-
ship in the United, and interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the
Act.
Gladys Del Pappa.55 Gladys Del Pappa was discharged on Janu-
ary 21, 1937. She joined the United at the first mass meeting on Janu-
ary 14, 1937, in Plainfield. She left the meeting in the company of
Dell'Olio, and in a store four blocks distant she found Deutsch, the
assistant foreman of department 9, in which she then worked. Del
Pappa testified that when they entered the store, the following
conversation ensued :
[Deutsch asked,] "Oh, Gladys, have you been to the meeting?"
and- I said, "Yes, Mr. Deutsch," and lie kept arguing with me he
said it wouldn't do me any good . . . and he said, "Well, if you
have your job you had better stay away, if you value your job
you had better stay away from those meetings," and we kept
talking and then, oh, I was about to leave and he ... said, "Oh,
Gladys, do you know how to pray," and I said "Yes," and he
says, "Well pray that no one saw you there," so we went home.
Deutsch admitted that he asked whether these girls had been to the
meeting of the United, and did not deny the expressed warnings
attributed to him. He testified that he asked about their attendance
at the meeting out of mere curiosity, and he claimed that he told no
one of Del Pappa's attendance. The nature of the circumstances, the
testimony of Deutsch and Del Pappa, and the subsequent events con-
vince us that Del Pappa's version of the conversation accurately
presents what happened.
On January 15, 1937, the day following the encounter with Deutsch
in the candy store, Del Pappa was transferred from her work as a
foil separator in department 9 to department 12. The occasion for
her transfer was the acquisition of an automatic machine which made
Del Pappa's machine obsolete. Deutsch testified that she was stack-
ing in department 9 for a week before her transfer, but that he
desired the transfer because she did not know how to do the work.
Although approximately 100 to 150 employees were transferred from
department 9, only 10 were sent to work in department 12, and of
these, only 2, including Del Pappa, were given soldering work to do.
Del Pappa found that soldering was unpleasant work. She burned
her hand, and smoke caused her face to break into a rash which has
since left marks. She was therefore anxious to return to depart-
i
' The name of this individual was spelled in the complaint as "Gladys Del Capa " It
was amended to its present form during the hearing on motion of counsel tom the Board.
CONDENSER CORPORATION OF AMERICA 423
went 9. On January 21, 1937, about a week after her transfer to
department 12, she asked Leary for a transfer back to department 9.
Leary referred her to Deutsch. Both Deutsch and Greenberg 6s in-
dicated that they would take her back, and Del Pappa so reported
to Leary. Leary balked and said she had not told Del Pappa to
submit her name to Deutsch at that time . When Del Pappa ex-
plained that it was Greenberg who was agreeable, Leary became
enraged and swore :
To hell with Mr. Greenberg. I will slap his damned face.
Del Pappa then said she would rather be laid off until needed else-
where than to return to work in department 12. Leary replied:
I will give you a lay-off ... You are getting a good one .. .
In an attempt to refute this testimony, Leary testified that Del
Pappa heaped abuse upon her before the employees of department
12 charging that while others were being called back to department
9 she was being discriminated against. Leary testified that only
stackers were being returned to department 9, and that Del Pappa
was not a stacker . Leary testified Del Pappa refused to go back
to work in department 12, and she therefore told her to leave. Leary
also signed a discharge slip for Del Pappa listing as the reason for
discharge , "Insolence , disobedience , refused to work," and listing with
respect to rehiring the comment, "No." However, Leary did not
attempt to deny that Del Pappa told her that Deutsch and Greenberg
were willing to take her back to department 9. We therefore find
unworthy of credence Deutsch's testimony that after a week's trial,
Del Pappa did not know how to perform the stacking operation.
The great majority of the employees of South Plainfield were local
unskilled labor and were taught the various operations in the plant.
Del Pappa's transfer to an extremely objectionable job on the day
after she encountered Deutsch on her way from the mass meeting
of the United , and Leary 's refusal to return her to her previous posi-
'tiori although her foreman was willing to take her back along with
a group of other stackers being reinstated , considered in connection
with the campaign of the respondent Condenser against the United
as evidenced by the numerous discriminatory discharges previous to
January 21 , 1937, and the attempt to launch the Independent on that
date or the day before , all lead us to the conclusion that Leary took
advantage of slack work in the stacking department to relegate Del
Pappa to an obnoxious and inferior job because she joined and as-
sisted the United . Del Pappa might have accepted the discriminatory
transfer or demotion and subsequently filed charges alleging that
NGreenberg was the foreman in charge of department 9 He -eas Deutsch 's superior
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employer was engaging in an unfair labor practice. It was
equally justifiable for her to have refused to continue to perform the
relatively obnoxious work to which she had been discriminatorily
transferred and to have resigned. Thus her refusal to submit to
an unfair labor practice under these circumstances cannot be con-
sidered acts of insubordination and cannot justify her discharge.57
We therefore find that Gladys Del Pappa was discharged by the
respondent Condenser on January 21, 1937, because she joined and
assisted the United. By that discharge, the respondent Condenser
has discriminated in regard to her hire and tenure of employment
and the terms and conditions of her employment, thereby discourag-
ing membership in the United, and has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act.
John Higgins. John Higgins was discharged on January 27, 1937.
He joined the United in January 1937 prior to his discharge.
When he returned from lunch on the afternoon of January 27,
1937, he saw Rose Kent,511 supervisor in his department, distributing
application cards for the Independent. Higgins himself distributed
about 15 United application cards before the end of that lunch1peridd:'
Higgins testified with reference to Kent as follows :
It was after I started giving out my cards, she said to me, "you
better stop giving out these cards, you will get into trouble."
I said, "you were giving out cards, weren't you ?"
At quitting time at 5:30 that afternoon, Fidel, Higgins' foreman,
told him that Leary wanted to see him. Higgins testified that Leary
was at a loss to know why he was sent to her. Leary's secretary said
that she had some final pay checks for Higgins. Leary told Higgins
that he would have to see his foreman if he wanted an explanation
for his discharge.
Higgins worked as a tester to detect oil leaks in oil condensers.
Fidel, his immediate supervisor, was the chief tester. Fidel, ex-
plained to Higgins that there was some bad work of his that had
been rejected by customers. Higgins testified that he had not done
any bad work that afternoon and that he had not been criticized for
bad work that afternoon. But it is clear upon the basis of the testi-
mony of Fidel and Munn 69 that the unsatisfactory work which they
assigned as the reason for the discharge was performed weeks and
perhaps months prior to the discharge. Higgins was a, tester whose job
"'Matter of Waggoner Relining Company , Inc, and IV T Wagponet E5tnte and Interno-
tconal Association of Oil Field, Gas 1Vell and Refine) y Wo,teis of America . 6 N 1, R R
731
S' The name of this individual sometimes appeai s in the i e4_oi d as `Rump
69 Munn was the foreman in charge of Higgins ' department
A
CONDENSER CORPORATION OF AMERICA 425
was to inspect oil condensers and to reject those from which oil leaked.
It was vital that the oil be hermetically sealed in the condensers.
If Higgins allowed defective condensers to pass, they would be sold
to customers in that condition. The customers would not discover
the defect until the condensers were used in radio or telegraphic
instruments long after Higgins' inspection. Munn testified that he
had received a complaint from the Submarine Signal Company with
respect to defective oil condensers. The Submarine Signal Company
is one of 'the respondent Condenser's most important customers.
Upon receiving the complaint from the Submarine Signal Com-
pany, Munn immediately saw Fidel, the chief tester, and he also spoke
to Bleich. Munn testified that he then inspected the final test line and
the packing department and found further leaky units packed and
about to be packed for the Submarine Signal Company. Munn tes-
tified he showed some of the returned units and some of the defective
units taken from the packing department to Higgins. He later
signed a• discharge slip for Higgins stating as the reasons for dis-
charge, "Allowed leaks thru final test," and under the rehire column,
"No." This alleged reason for the discharge is supported by Leary's
records. Fidel testified that he had noticed that Higgins had passed
leaky condensers once or twice previous to the time of his discharge
and that Fidel had warned him of the gravity of this defect. Fidel
testified that he had not thought Higgins' carelessness sufficient cause
for discharge until Bleich spoke to him of the Submarine Signal
Company complaint and suggested the discharge.
During the period in question, Higgins was the sole tester for
leaks in oil condensers. The test for oil leaks was of such a nature
that no defective condensers could have been approved for shipment
if Higgins had clone his job properly.
We find that the testimony of Munn, Fidel, and Leary with re-
spect to the reason for Higgins' discharge is in accordance with the
facts.
At the beginning of April 1937, Higgins approached Diana for
.the purpose of reinstatement. Diana demanded that Higgins agree
to join the Brotherhood if he was reinstated and Higgins agreed
that he would. Diana sent him to Leary. Leary offered Higgins
reinstatement to a different testing position, which Higgins declined
on the ground of unsatisfactory hours and working conditions. The
wage for this position was lower than that he had formerly been
earning. Leary told Higgins that that was the best she could do at
the time. Higgins testified that when he again asked Leary for a
job, she said she had nothing for him. Leary testified that he never
returned after he declined reinstatement. In any case, since Higgins
was willing to submit to Diana's demand, it is clear that he was not
refused reinstatement to his former or an equivalent position on the
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ground that he belonged to the United or that he refused to join
the Brotherhood.
We find that John Higgins' discharge was not the result of union
activity. The allegations of the complaint with respect to the dis-
charge of John Higgins will therefore be dismissed.
Katherine Kane '60 Augusta Kane, and Beatrice Mundy. Kathe-
rine Kane, Augusta Kane, and Beatrice Mundy were laid off on
February 1, 1937, and have not since been recalled to work.
Katherine Kane joined the United on January 18, 1937. Sometime
within the next week, she persuaded Mundy to apply for member-
ship. Augusta Kane joined the United on January 14, 1937, at its
first mass meeting. She and Katherine Kane are sisters. On the
afternoon of Friday, January 29, 1937, Katherine Kane helped to
distribute copies of the People's Press, a newspaper described. on, its
masthead as the official organ of the United, on the sidewalk in front
of the plant of the respondent Condenser. She was arrested by the
South Plainfield police for distributing the papers.
Augusta Kane and Mundy were employed as stackers and Katherine
Kane as a clincher, all situated in department 9. At the completion
of the speech made by Diana in behalf of the Independent on Feb-
ruary 1, 1937, in department 9, Katherine Kane was handed an In-
dependent card by Rose Rosella, her forelady. When Rosella re-
turned a half hour after Diana's speech to collect the cards, Katherine
Kane had not signed hers. Katherine Kane testified, and we find,
as follows :
I told her I didn't have any intentions of signing and she
asked me why and I told her that in comparison with the outside
union"" the Independent Union had nothing for us,. and she
asked me why I thought so and I said, "In my estimation the
inside union is more or less a union for the bosses and not for
the workers." That is all that was said.
Rosella returned at about 4: 30 that afternoon and told Katherine
Kane that Greenberg, the head foreman, wanted to see her at his
desk.
Mundy and Augusta Kane, who worked side by side, encountered on
February 1, 1937, experiences similar to those related by Katherine
Kane. Cards were distributed in the morning by three persons close
to the management, viz, Deutsch, Henrietta Schaeffer,62 and one
"Gertie," supervisor of Mundy and Augusta Kane. On the afternoon
° The third amended complaint names Katherine Lane ; on motion of counsel for the
lioai (1, the name was amended to read "Katherine Kane."
61 The United
11 Henrietta Schaeffer was Greenberg's secretary.
lJ
CONDENSER CORPORATION OF AMERICA 427
of February 1, 1937, Deutsch, Schaeffer, and Gertie came to their
table. Augusta Kane testified :
Well, about 2: 30 on February 1 he [Deutsch] came around to
me and he asked me where my card was. I said, "Well, I am
not handing in my card, I am not signing this card, at all." He
said, "Why aren't you?" I said, "First of all, what are these
cards for?" He said, "Well, it's going to be an inside union."
Q. What else did Mr. Deutsch say?
A. Mr. Deutsch said to me, he said-it was going to be an
inside union and I said all right and he said that this inside
union, well, he said it was going to give us recreation such as
ball games and dances. And I said, "We are not going to be
foolish and sign up just for recreation." I said, "We are in-
terested in wages." I said that the C. I. O. guaranteed us more
wages, so he looked at me and he said, "Oh, you're one of them? "
I didn't know what he meant by that and this Miss Schaeffer,
she said, well she said, "If this C. I. O. gets in here" she said,
"We are going to pack up and get out of town." She said,
"That's what we did in New York."
Q. Just a minute. Was Miss Schaeffer standing alongside of
Mr. Deutsch when the statement was made?
A. Yes, there were three of us, Mr. Deutsch, Miss Schaeffer,
and Gertie."
Although Deutsch was beside Schaeffer, he remained silent thus
giving the impression that these were his sentiments as well. We
believe that Augusta Kane's testimony, just quoted, accurately pre-
sents the facts and that Deutsch's version of the same conversation
is iriacctirate. - Mundy also openly refused to sign her card although
urged to do so by Gertie. Like Katherine Kane, Augusta Kane
and Beatrice Mundy were summoned to Greenberg's office. Ann
Jacobs and Helen Mack were also called in.
Mundy testified :
... we went up to his desk and Mr. Greenberg told us that
we were being laid off because there wasn't any work and I didn't
think it could be possible to lay us off when we had been working
until 5: 30 the past week and usually when we were laid off, it
was for no work, and we would get off at 3: 30 and there seemed
to be plenty of work and I asked him, Mr. Greenberg, if the
reason that we were laid off was because we didn't sign these
cards and he said "No, it had nothing to do with it." And I
said, "Well, then, how come, we five girls didn't sign and we are
laid off," and the ones that did sign why, they were still kept on
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he didn't answer me, so he said, "Go into Mrs. Leary's office
and return your button and you will have your checks up to- date
of the same day, February 1st, all made out."
Mundy's testimony with respect to the circumstance of their dis-
charge by Greenberg is substantially corroborated by Katherine and
Augusta Kane, and we find it accurately presents the facts.
Although Leary informed them that they were merely being laid off,
it is clear that these three employees were permanently discharged
rather than temporarily laid off on February 1, 1937, because their
employees' identification buttons were taken from them by Leary, and
the references which they had submitted upon being employed were
returned to them. Although they were told they would be sent for
when work should become available, they have never been recalled to
work.
The pay orders of the Kanes and Mundy, signed by Deutsch, all
listed "Slack Period" or "no work" as the reason for the discharges.
Leary advanced the same reason. The pay orders also noted that
before these employees could be rehired, the person hiring them was
to "See Walter." 88
It is not clear whether it was necessary to reduce the staff of de-
partment 9 on February 1, 1937, particularly with respect to stackers
and clinchers.
Deutsch was asked, assuming that the reduction was necessary be-
cause of lack of sufficient work, the reason for selecting the Kaiies
and Mundy from the rest of the employees for dismissal:
Q. (By Mr. MASLOW) Assume for a moment they were all laid
off for lack of work, I am asking you now how did you select
them; did you select them for inefficiency or for bad conduct?
A. Bad conduct.
Q. Was Augusta Kane selected for inefficiency or bad conduct?
A. Bad, bad conduct.
Q. Katherine Kane?
A. The same reason.
Q. Katherine Fedoruk? 84
A. The same reason.
Q. All those four 61, were selected for bad conduct?
A. That's right.
11 Walter Deutsch.
e1 The name of this individual is incorrectly spelled "Feodorik" in the third amended
complaint There is no allegation in the complaint that her dismissal on February 1, 1937,
was because of her union activities.
0 Ann Jacobs had previously been associated with this group. There is no allegation in
the third amended complaint that her dismissal on February 1, 1937 , was because of her
union activities.
I
CONDENSER CORPORATION OF AMERICA 429
Q. How about Beatrice Mundy?
A. She was amongst those five or six girls laid off.
Q. Also selected because of bad conduct?
A. Yes, the very same reason.
Deutsch explained that their bad conduct consisted of talking too
loudly and laughing during working hours. He admitted that the
other girls also talked, but asserted that these girls "always started
the talking." He testified that he had warned them 150 times and
practically every day. He further testified that although this -bad
conduct might not interfere with speed, it lowered the quality of
the output.
In view of the refusals of the Kanes and Mundy to sign the Inde-
pendent application cards at the request of supervisory employees,
the nature of the remarks and threats made by the supervisory em-
ployees when the Kanes and Mundy stood firm in their refusals,
Katherine Kane's arrest for distributing the People's Press in front
of the plant, and the circumstances surrounding their discharges,
considered in connection with the campaign then being waged by the
respondent Condenser against the United and in behalf of the Inde-
pendent, we are convinced that the reason for selecting the Kanes
and Mundy for discharge was not "bad conduct" but rather the
forthright and open refusal by these three employees to submit to the
demands of the supervisory employees that they join the Indepen-
dent, and the fact that they had joined and preferred to continue to
support the United.
With respect only to the failure of the respondent Condenser to
reinstate Mundy, Leary testified that although Mundy was laid off
because-there was no work,* she never subsequently recalled her be-
cause she had a weak heart as indicated by the record of her physical
examination made at the time of her employment in October 1936.
We cannot believe Leary's testimony on this point because Mundy was
allowed to continue to work for a number of months after Leary had
knowledge of her heart condition. Moreover, Leary, in the follow-
ing testimony, virtually admitted that Mundy's condition need not
prevent her from working :
A. Well, systolic and mytrolic radiation means that there is
an organic condition in your heart.
Q. That condition, you say, is such that a person should not
work?
A. No, I don't say that, I say that it is such that I did not wish
to recall her.
The record is bare of evidence with respect to why neither of the
Kanes was subsequently recalled to work despite the fact that the
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay roll for their department climbed sharply at various times during
and after April 1937.
We therefore find that Katherine Kane, Augusta Kane, and Beat-
rice Mundy were discharged by the respondent Condenser on Febru-
ary 1, 1937, because they refused to join and assist the Independent,
and because they joined and assisted the United . By these dis-
charges, the respondent Condenser discriminated in regard to hire
and tenure of employment , thereby encouraging membership in the
Independent , and discouraging membership in the United , and inter-
fered with , restrained , and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act.
Marion Panzarella . Marion Panzarella was discharged on Febru-
ary 1, 1937 . He joined the United prior to January 29, 1937, but
his union activities were confined to attendance at union meetings.
On Friday , January 29 , 1937, without consulting the United, an
employee named Chliecthen canvassed the solderers, of which group
Panzarella was a member , and was assured by the men that they
desired to have him present their demand for a raise of 5 cents an
hour to Somers , their foreman. Somers promised to see Bleich,
production superintendent , that night and let them know his answer
on Monday morning, February 1, 1937. Somers was unable to see
Bleich that night, and when Panzarella approached him on Monday
morning at 8 o'clock, he promised to see Bleich in the course of the
day. By agreement among themselves , the solderers then checked
in and immediately thereafter refused to work. Somers told Pan-
zarella that they were checked in and therefore had to work. Pan-
zarella said they would refuse to work until they received an answer.
Somers then called Bleich and told him what had happened. Bleich
took the solderers , approximately 14 in number , into a stockroom
adjoining the department in which they worked, and asked for their
version of the difficulty . Panzarella , speaking for the group, an-
swered that they would not work until they received the increased
wage. Bleich then told the men that they were foolish in their
attitude , that they ought to go back to work, and that at the end
of the day 's work he would be glad to sit in with them and try to
iron out any difficulties . The solderers decided to resume work.
After the noon hour, they returned to their benches and again refused
to work . Upon inquiry , Somers was informed that the answer to
their demands must be forthcoming immediately . Somers called
Bleich again . Bleich ordered the checkers to check out all the men
who refused to work. Both Bleich and Somers testified that the
entire group including Panzarella , were discharged because of their
refusal to work. This is also the reason noted on Panzarella's
discharge slip.
CONDENSER CORPORATION OF AMERICA 431
In their briefs docketed February 1, 1940, counsel for both respond-
ents contend that Panzarella was "discharged" for engaging in an
unlawful sit-down strike. The record plainly shows that there was
never a refusal to leave the premises of the respondents upon request
to do so by any representative of the respondents.
As long as Panzarella refused to work, the respondents were free
to put a stop to his compensation and to replace him in the same
manner that any striking employees may be replaced during the
period when they are on strike. However, discriminatory measures
may not be taken against an employee because he has participated
in a concerted demand with other employees to better working con-
ditions or for other mutual aid and protection. Admittedly, Pan-
zarella was discharged, not replaced, at the very outset of his refusal
to work after the noon hour on February 1, 1937.
We therefore find that Marion Panzarella was discharged because
he participated in the concerted refusal by the solderers to work until
their wage rate should have been increased.
By discharging Panzarella because he participated in concerted
activity for the purpose of collective bargaining and other mutual
aid and protection, the respondents, and each of them, interfered
with, restrained, and coerced their employees in the exercise of the
rights guaranteed by Section 7 of the Act.66 In addition, a discharge
for that reason discourages concerted activity for the purpose of
collective bargaining, and has the effect of discouraging the forma-
tion of and membership in a labor organization, which is the cus-
tomary instrument utilized by employees to achieve collective
bargaining.61
Frank La Vecchia. Frank La Vecchia was discharged on March
31, 1937. He joined the United prior to February 1, 1937. He sub-
sequently joined the Independent and then the Brotherhood, in each
case at the solicitation of a supervisory employee. Nevertheless, he
continued his active interest in the United and his attendance at the
United meetings. Prior to March 31, 1937, La Vecchia, cSimon,68
and- De Filippo 68 consulted the president of the United local con-
cerning a strike proposed to be called in protest against discharges
of members of the United. During lunch hour on March 31, 1937,
La Vecchia, Simon, and De Filippo decided that the strike should
be called that afternoon. They spread word of the strike among the
United sympathizers in departments 15 and 16. At 2 o'clock that
afternoon, the same three men ceased work and walked about the
60 Matter of Indianapolis Glove Company and Amalgamated Clothing Workers of Amer-
sea, Local No 1y5, 5 N L R B. 231
67 Matter of Stehli and Co., Inc. and Textile Workers Union of Lancaster, Pennsylvania
and Vicinity , Local #133, 11 N. L R B 1397
' Two other employee members of the United
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two departments telling the other United sympathizers to quit also.
When they returned to their places, Avis, foreman in department-15,
called them to him. They explained that they were conducting a
protest strike and its purpose. Production was halted, in, bath de
partments for approximately 10 minutes. At the end of that time,
McCarthy, the chief of police of the Borough of South Plainfield,
arrived in the company of another policeman and arrested the three
leaders and led them into an alleyway on the plant property. The
rest of the employees resumed work as the leaders were led away.
La Vecchia, Simon, and De Filippo were held in the alley by the
police until Beyer e° arrived about 5 minutes later. We find that
the following testimony of La Vecchia accurately presents the facts :
Q. (By Mr. MASLOW.) What did Police Chief McCarthy say
to Mr. Beyers? i0
A. Do you want these boys to work or don't you?
Q. What did Mr. Beyers 70 say?
A. Mr. Beyers 70 says, the boys don't want to work. We said,
"no, we want to work." He said, "Well I don't want you to
work, you are fired."
Beyer then told McCarthy to take the men to Leary's office. There
their employees' identification buttons were taken and they were paid
their final wages.
Diana testified that he arrived at the plant after the men had been
taken to Leary's office, and that when they told him what they had
done, he notified Leary that they were suspended from the Brother-
hood and therefore subject to discharge under the closed- shop con-
tract of February 19, 1937. Leary was positive, nevertheless,
that she was not notified of any suspension and that La Vecchia °was
discharged for attempting to start a "sit-down" strike. We accept
Leary's version of the reason for the discharge in so far as she
asserts that La Vecchia was not discharged because of his suspension
from the Brotherhood. It should be noted , however, that the protest
strike involved no element of property damage or property seizure.
There was never a refusal to leave the premises of the respondents
upon request to do so by any representative of the respondents.
The employees merely participated in a peaceful stoppage of work
while in the plant.71
Upon the basis of the evidence, it is plain that La Vecchia was
discharged for his leadership in the strike called to protest against
the discriminatory discharges prior to and including March 30,
19 Beyer is the secretary and treasurer of the respondent Cornell
70 Beyer.
71Matter of Indianapolss Glove Company and Amalgamated Clothing Workers of Ame;-
sea, Local No 145, 5 N. L R B. 231, 236.
CONDENSER CORPORATION OF AMERICA 433
1937 . 72 His conversation with Beyer indicates that La Vecchia did
not choose to terminate his employment . With the exception of the
leaders, none of the striking employees were discharged , and in fact
they all resumed their work. We can only conclude that La Vecchia
was discharged , not because the strike which he attempted to start
was allegedly to be conducted in an unlawful manner, but because he
was a leader of and participant in concerted activity.
We therefore find that Frank La Vecchia was discharged by the
respondents on March 31 , 1937 , because he joined and assisted the
United and because he engaged in concerted activities for mutual
aid and protection . By discharging La Vecchia because he partici-
pated in concerted activity for the purposes of collective bargaining
and other mutual aid and protection , the respondents interfered with,
restrained , and coerced their employees in the exercise of the rights
guaranteed by Section 7 of the Act.73 By discharging La Vecchia
because he joined and assisted the United , the respondents , and each
of them, discriminated in regard to his hire and tenure of employ-
ment and the terms and conditions of his employment , thereby dis-
couraging membership in the United , and interfered with, restrained,
and coerced their employees in the exercise of rights guaranteed in
Section 7 of the Act.
Ann Mae Thee-ney. Therney was laid off on March 30, 1937.
Before reinstatement , and on April 7, 1937 , she was permanently
discharged from the employ of the respondent Condenser. Sarah
Martin , supervisor in charge of the presses, was her immediate
superior , and Catherine Heslin was the head forelady in charge of
the entire department.
Therney joined the United during January 1937. From the time
she joined , she participated very actively in its affairs . About Feb-
ruary 8, 1937, she was elected to the executive board of the United.
Zieborak was also a member of that board . She distributed circulars,
solicitedin_embers, and obtained signatures for application cards both
in the ladies ' room of the plant and at her press. ' She also attended
all mass meetings of the United from January 14 through April 6,
1937.
After February 15, 1937 , Martin requested Therney to sign a
Brotherhood application card. Therney signed the card and remained
a member of both labor organizations until the time of her discharge.
On one occasion , Martin approached Therney at her foot press to
ask whether she had attended one of the United mass meetings.
Therney replied that it was none of her business . Martin then said,
72 The discriminatory dhschaiges of several membeis of the United on March 18 and 30
1'134, because of their suspension from the Brotherhood, and discussed below in Section
III, G, 2
"See footnote 40, above.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"If you don't stop attending these meetings, you'll be fired." Not-
withstanding this threat, Therney attended a meeting held on the
night of March 29, 1937, at the Hubbard School in Plainfield, the
night before her lay-off and a little more than a week prior to her
discharge. On March 30, 1937, Martin informed Therney that the
head forelady, Heslin, wished to speak with her before Therney left
for home. Heslin told Therney that she was being laid off. Therney
asked whether this meant that she was fired. Heslin replied that she
did not know.
A pay order or discharge slip for Therney, signed "C. Heslin," lists
a dismissal on March 30, 1937, and states the reason as "Slow," mean-
ing that there was not enough work to warrant her employment.
However, a graph introduced by the respondent Condenser to show
the fluctuations in employment as they affected other employees, indi-
cates that on March 30, 1937, the pay roll of department 9 was
increasing and that thereafter the upward trend continued more
sharply during the entire month of April 1937. Department 7, in
which Therney worked, supplied the materials for department 9.
After her lay-off, she attended the mass meeting conducted by the
United at the Saengerbund Hall in Plainfield on April 6, 1937: On
April 7, 1937, she was discharged, and another pay order signed "C.
Heslin" was made out for her stating : "Do not recall, making fuss
outside." Leary testified that "do not recall . . ." is an instruction
not to rehire the individual involved. After her lay-off on March
30, 1937, Therney was never recalled to work. Heslin testified that
the reason for the discharge of April 7, 1937, was in conformity with
her notation that Therney had been "making fuss outside." Heslin
explained that during the few days of Therney's lay-off, her press
was used for several hours by Mary Lane, another production
employee, in order to bring up Therney's productions. Heslin
testified:
Mary Lane said that Anna Mae Therney 71 happened to be at
her house the'night before. I said "that is just fine, have Anna
Mae come in." She said, "Anna Mae Therney thinks," well, just
the words that Mary Lane used was, "that you have a hell of a
nerve to have anybody else working on her press.'' I said, "if
that's the case then I don't need Anna Mae Therney."
Q. Is that why you discharged her?
A. That's the reason I discharged her.
Heslin stated that she immediately reported Lane's remarks to
Leary, and that Leary agreed that this was sufficient ground for
Therney's discharge. This is corroborated by Leary, and it was
74 Ann Mae Therney.
CONDENSER CORPORATION OF AMERICA 435
stipulated that Heslin would also have been corroborated by Martin
if she had been called to testify. This testimony does not appear
plausible. The records of the personnel department and of the pay-
roll department of the respondent Condenser, indicate that Mary
Lane had left its employ as of April 2, 1937, fully 5 days in advance
of the date of Therney's discharge. Heslin was unable to make a
satisfactory explanation when confronted with the discrepancy :
Q. Now, can you explain why the records show that Many
Lane was discharged on April 2 and Anna Mae Therney for the
second time on April 7?
A. No.
Q. Mary Lane was not working at the time Anna Mae Therney
was discharged?
A. No.
Q. Mary Lane was not working at the time Anna Mae Therney
was discharged?
A. The date is wrong there some place.
These are the records of Mrs. Leary?
A. There is something wrong there.
Q. That's right, "making fuss outside" and it is signed C.
Heflin.75
A. That's right, but I don't know the date, maybe it was, I
can't explain that one very well.
On redirect examination by counsel for the respondent Condenser,
this witness attempted an explanation by venturing that she "may not
have made out the pay order that day." It seems improbable that
Heslin would immediately consult Leary about Therney's alleged
"fuss," and then delay at least 5 days before making out the pay order.
Within approximately 2 weeks of her discharge, Therney twice
visited the Brotherhood headquarters to obtain reinstatement through
the efforts of Diana. On the second occasion, Diana told Therney
he did not know why she had been laid off but that she had been
discharged for attending the meetings of the United and for being in
the company of persons associated with the "C. I. 0." Therney
was not suspended from membership in the Brotherhood.
We are satisfied that the respondents knew Therney's official posi-
tion in the United and her activities in its behalf prior to the con-
tract of February 19, 1937; that they learned from Diana, or another
11 Heslin.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
source, of her continued support of the United and particularly of
her attendance at its mass meetings on March 29 and April 6, 1937;
and that for these activities the respondents l aid her off on March
30, 1937, and discharged her on April 7, 1937.
We therefore find that Ann Mae Therney was laid off and dis-
charged by the respondents because she joined and assisted the
United. By the lay-off and the discharge , the respondents , and each
of them, discriminated in regard to her hire and tenure of employ-
ment, thereby discouraging membership in the United , and inter-
fered with , restrained , and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act.
Peggy TVatt. Watt entered the employ of the respondent Con-
denser on November 11, 1936, as a production employee in depart-
ment 8. During the course of her employment , she was transferred
to a position as a winder in department 16. She left the employ
of the respondent Condenser on March 23, 1937 , and was finally
discharged on April 2, 1937 , without having been again reinstated.
In the third amended complaint , it is alleged that she was discrimi-
natorily discharged on or about March 30, 1937 . Her pay order or
discharge slip is dated April 2, 1937. It contains the notation "Dis-
satisfied with job, quit " and is signed "J . Brafman." No remarks
are listed which might have impeded her reinstatement . Leary testi-
fied that her private records indicate that: "She, came to me and asked
me for a transfer . She did not like the work and I told her as soon
as I possibly could find an opening I would transfer her and she
did not give me an opportunity . She left of her own accord."
Due to the confused nature of Watt's testimony , it is difficult to
obtain a clear picture of her version of the circumstances surround-
ing the severance of her employment . She testified in substance
that she was laid off on Tuesday, March 23, 1937 ; that she was told
by Leary to apply for work on the next day; that on the next day
Leary informed her that she did not know when there would be
work for her ; that thereafter she joined the United for the first time;
that subsequently , and prior to her final discharge , she sold copies
of People 's Press, organ of the United, in front of the plant; that
Leary purchased two copies of this paper from her and told her to
report on the next day for her pay ; that on the next day she was
discharged by Leary who demanded the return of her employee's
identification button upon the receipt of her pay. Watt testified that
she did not return to the plant subsequent to the time she received
her last pay check, and apparently she had made no further effort to
obtain reinstatement.
Leary admitted seeing Watt and others selling copies of People's
Press outside of the plant , but she asserted that she had no conver-
CONDENSER CORPORATION OF AMERICA 437
sation with Watt at that time. She denied ordering Watt to present
herself at the plant for her pay.
Watt's testimony is somewhat confused . Leary 's testimony with
respect to Watt seems straightforward and plausible , and it is in
accordance with the reason for the discharge assigned on the pay
order. We are persuaded that Leary's testimony is in accordance
with the facts , and we do not credit Watt's testimony in so far as it is
inconsistent with Leary's testimony.
Upon the basis of all the evidence , it is not clear that Watt was
discharged for union activity . The allegations of the complaint with
respect to the discharge of Watt will therefore be dismissed.
Cecilia Dowling. Cecilia Dowling was laid off or discharged from
the employ of the respondent Condenser on March 30 or 31, 1937.
She had been employed as a solderer in department 8 since October
21, 1936, a time not long after the respondent Condenser commenced
operations in South Plainfield.
Cecilia Dowling is a sister of Lawrence Dowling, who , as we have
indicated above, was discharged on December 18, 1936, for his par-
ticipation in the concerted activity of the checkers. Shortly after
his discharge , Mrs. Elizabeth Burch, a supervisor in department 8,
informed Cecilia Dowling that she, Burch, would soon relinquish
her position with the respondent Condenser , and that before leaving
she would like to inform Dowling that Harold Brafman, head fore-
man of department 8, had indicated to her that Dowling was on his
lay-off list . Dowling testified with regard to Burch's conversation
with her as follows :
. . . Mrs. Burch wanted to know the reasons why he was
laying me , off . . . And Mr. Brafman said because of my
brother's activity in the union
Q. Which brother was that?
A. Lawrence ; he was a checker.
Q. Mrs. Burch said that because of Lawrence
A. No; she didn 't mention the name.
A. And Mrs. Burch said that I had done satisfactory work
and that I was the only one at the time that soldered coppers
on blocks and he had no reason -whatsoever to lay me off, just
because my brother was active in the union , he had no reason
to do it and it was no reflection on me.
Q. What else did Mrs. Burch tell you?
A. Well , she talked it over with Mr. Brafman and Mr. Braf-
man said that lie would reconsider my case and I was allowed to
stay on until March 30 or 31 when I was laid off.
283033-41-vol 22 29
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harold Brafman denied his part in these conversations with Mrs.
Burch. Since it appears improbable that Dowling constructed the
reported conversation out of whole cloth, and since her testimony
as a whole appears to us to be reliable, we credit the statements
attributed to Burch in the testimony quoted above.
Despite this warning, Dowling joined the United early in January
1937. In February 1937, she signed an application card for member-
ship in the Brotherhood . She nevertheless retained an active interest
in the United and attended its mass meeting at the Hubbard School
in Plainfield on March 29 , 1937. On March 30 or 31 , 1937, she was
laid off.
On the afternoon of her lay-off , Dowling was ordered by her super-
visor to report to Leary. Leary explained to her that she was on
the lay-off list because of the lack of work and that she would be
informed when there was further work. When Dowling returned
for her pay on the subsequent Friday, April 2, 1937, she was required
by a woman in Leary's office to surrender her employee's identification
button although she remonstrated that she had not been discharged.
The woman assured her that she was not discharged and that she
would receive a new button when she returned to work. Leary also
maintains that she has never been discharged . Nevertheless from
March 1937 through the hearing in October 1937 Dowling never
received word to report back to work.
Cecilia Dowling's pay order , dated April 2, 1937, stated: "Laid
off, slow season." With reference to rehiring , there appeared the
instruction "No." It was signed "H. Brafman ." Harold Brafman
was the foreman in charge of department 8 in which Dowling was
employed. He testified that Dowling was laid off by him in the
beginning of April 1937. He stated :
Well, just around that time we slacked up a little in work and
we had to cut out a few people in each line. She being one,
while being a pretty good worker, she was not as fast as some
of the other girls, so I just had to lay her off.
Brafman admitted that Dowling was the only employee in her
line laid off for lack of work. His choice was the more remarkable
because of Dowling's seniority , she having been employed shortly
after the respondents commenced production in South Plainfield.
We encounter great difficulty in finding an innocent explanation for
Brafman's notation on Dowling 's pay order or discharge slip that
she should not be rehired . If this were in truth a lay-off , due to^
the absence of work, of a satisfactory employee, such a proscription
I
CONDENSER CORPORATION OF AMERICA 439
would be inappropriate. Brafman himself was unable to advance
at the hearing a reasonable explanation for his ban on reinstatement:
Q. There was nothing wrong with her work, was there?
A. No.
Q. You can't explain that, can you?
A. The only thing is she was a little slower than the other
girls at her work.
Leary testified that Dowling had never been discharged and that
she has not been reinstated because the operation upon which she was
working has never been resumed. No attempt was made by Leary
to explain Brafman's recorded instruction not to rehire, or to indi-
cate how Dowling could be reinstated, in the face of Brafman's ban,,
if her operation had been resumed. Leary's testimony seems sub-
stantially inconsistent not only with Brafman's recorded instruction
not to rehire, but with much of the rest of Brafman's testimony. If
we should accept Leary's reason for the failure to recall Dowling to
her former operation, it would still appear strange that Dowling
was not offered work on other operations. Extensive training and
experience are not generally necessary for employment on the various
operations in the plant as indicated by the rapidity with which the
respondent Condenser initiated production in South Plainfield with a
preponderance of unskilled local labor. Moreover, Bleich, treasurer
and production superintendent of the respondent Condenser, testi-
fied that it was the policy of this respondent to transfer employees
in preference to laying them off. Employment must have been
available from time to time as openings occurred by reason of normal
labor turn-over.
Some further light is thrown upon Dowling's discharge by Frank
Diana. Diana testified that his records revealed that Cecilia Dowl-
ing was suspended from the Brotherhood on April 1, 1937. Accord-
ing to a notation appearing on the Brotherhood records for Cecilia
Dowling, she had been "talking C. I. O. to I. B. E. W. men and
going to meeting." Diana further recalled that she had been passing
out notices of meetings of the United. In the event of a suspension,
Diana's invariable practice, except in the case of Dowling, was to
give oral notification of that fact to Leary as a basis for discharge.
Both Diana and Leary testified that no notice of Dowling's suspen-
sion had been communicated, and Leary stated that she had been
unaware of the action of the Brotherhood with respect to Dowling.
When Diana attempted to find Dowling for the purpose of question-
ing her concerning her activities in behalf of the United, he found
that she "was not in the plant and never did come back." It is not
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
likely that Diana would have allowed an opportunity to remain for
the respondents to recall Dowling to work. We therefore interpret
his testimony to mean that he discovered , upon inquiry as to Dowl-
ing's status , that she had been discharged by the respondents and
that they intended never to reinstate her. This is an additional
indication that Dowling 's so-called lay-off was in fact a camouflaged
discharge and for that reason suspicious.
We are convinced that the alleged slack period in department 8
was of short duration if it existed at all, and that it was the occasion
rather than the cause for Cecilia Dowhng's discharge . After the
discriminatory discharges of Dowling's brother for concerted activ-
ities in December 1936, the respondent Condenser withheld discrimi-
natory action against her only until it was discovered that despite the
invalid closed -shop agreement in favor of the Brotherhood, the
United was carrying on its activities against heavy odds with re-
newed vigor , and that Cecilia Dowling was active in its behalf by
publicizing and attending its mass meeting of March 29, 1937.
We therefore find that Cecilia Dowling was discharged by the re-
spondent Condenser because she joined and assisted the United. By
that discharge , the respondent Condenser discriminated in regard to
her hire and tenure of employment , thereby discouraging member-
ship in the United, and interfered with, restrained , and coerced its
employees in the exercise of rights guaranteed in Section 7 of the
Act.
Mary Lane. Mary Lane was discharged on April 2, 1937. She
joined the United in January 1937 . On March 29 , 1937, she attended
the mass meeting of the United which was held at the Hubbard
School . Catherine Heslin, the forelady in charge of Lane's depart-
ment, spoke to her on the afternoon of March 29 , 1937, as indicated
in the following testimony of Lane :
The night that I went to the meeting, before I went home, she
told me that I belonged to the C. I. O. and I told her "No!"",
and she said "Mary," she said "watch your job" she said "You
can see those other girls losing their jobs."
Heslin denied this conversation , and it was stipulated that Sarah
Martin, a supervisor in the same department , would testify to the
same effect , but we find Lane's testimony to be worthy of credence,
and we are mindful of the other anti -union activities in which we
have found Heslin and Martin involved . Despite Heslin's warning,
Lane attended the United meeting of March 29, 1937 . On March
30, 1937, Heslin called Lane to her desk and asked whether Lane was
76 Despite this statement Lane was in fact a member of the United at the time.
CONDENSER CORPORATION OF AMERICA 441
one of those who had attended the meeting the night before. Lane an-
swered in the affirmative. Then, according to Lane, Heslin said :
You girls make me sick, . . . You are supposed to know where
your bread and butter is earned, you ought to know by this time,
you see one after another going out of here . . . Go back to your
press.
Heslin did not deny this conversation. We find that Lane's testi-
mony in this respect accurately presents the facts. The conversation
took place on Tuesday, March 30, 1937. Lane testified that she was
discharged on Friday, April 2, 1937, under the following circum-
stances :
A. Well, Kitty 77 told Sarah Martin to tell me to speed up my
work.
Q. (By Mr. ROSENBLUM.) How do you know that?
A. Because Sarah came to me, told me, she got the message to
me.
Q. Sarah carne over and told you to speed up your work on
Friday?
A. Yes.
Q. Well, did you have any argument with her about it then?
A. Well, I just told Sarah, I don't know what she means by
speeding up, that I was a way head of my work.
Q. Well, was that all?
A. Kitty came over and jumped all over me and said she
would lay me off.
Q. What do you mean by saying she "jumped all over" you,
did she have an argument with you?
A. She was chewing at me.
Q. She was what?
A. Fussing at me.
Q. What do you mean she was fussing with you?
A.... she fussed about going to these C. I. 0. meetings.
Q. You say she fussed at you and she scolded you and she
jumped all over you, -what else did she do, what did she say
which leads you to describe those things in that fashion?
A. She told me she was fed up with me. She told me what I
done things against the place and I asked her why, what did I do
against the place and she said "Well, you went to those
meetings."
" Catherine Heslin.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. And by "those meetings" you understood her to mean
C. I. O. meetings, is that right?
A. Yes.
Q. What time of the day did she tell you to go to Mrs.
Leary?
A. 11 o'clock in the morning.
Q. On Friday?
A. Yes.
Heslin's version of the argument described above, and it was stipu-
lated that Martin would corroborate her testimony, was that first
Martin and then Heslin criticised Lane because "she was going up
and down with her work, and one day she was good and the next
day she was bad, . . ." Heslin testified that when she thus criti-
cised Lane, Lane accused her of favoritism, raised her voice, pounded
on the table, and threatened to report her. Heslin further testified :
I told her to go ahead, I did not want her, so she went out and
that was the last I saw of the girl ...
Heslin testified that as soon as Lane left the floor, she made out a
discharge slip and sent it to Leary. The slip lists the reason for
termination of employment as "Quit." Heslin testified that Lane
voluntarily quit. She admitted, however, that she told her superiors
that Lane should not be rehired. She testified that her reason for
this action was because Lane walked off the floor and quit work.
Leary also testified that Lane quit. If there were any heated words
at the time of the discharge, we believe that Heslin delivered a share
of them without prior provocation other than Lane's exception to
the criticism leveled at her. It is at least clear that Lane was turn-
ing out 45,000 to 50,000 pieces of work per hour when her standard
of efficiency was set at 32,000 pieces per hour. We do not under-
stand the basis of Heslin's criticism, and we believe that there was
no legitimate ground for such criticism.
Upon all the evidence, we conclude that in the manner asserted
by Lane, Heslin either discharged Lane or deliberately picked a quar-
rel with her in order to cause her to leave believing that she had
been discharged. We find that Heslin desired Lane's discharge and
barred her reinstatement because of Lane's attendance at the meeting
of the United on March 29, 1937, and because of her previous mem-
bership in and assistance of the United.
We therefore find that Mary Lane was discharged by the respond-
ents' on April 2, 1937, because, she joined, and assisted the United.
By that discharge, the respondents, and each of them,' discriminated
in regard to her hire and tenure of employment and the terms and
conditions of her employment, thereby discouraging membership in
CONDENSER CORPORATION OF AMERICA 443
the United, and interfered with, restrained, and coerced their em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.
Margaret Gibbs. Gibbs was discharged on or shortly before April
2, 1937. In the third amended complaint, it is alleged that this dis-
charge occurred on or about March 28, 1937.
Gibbs joined the United in January 1937. Early in February
1937, she signed an Independent application card at the solicitation
of Martin, her supervisor. In the latter part of February, Gibbs
received a Brotherhood application card which had been distributed
by Virginia Connors, another supervisor in Gibbs' department.
Gibbs sought out Heslin, the head forelady in charge of her depart-
ment, and asked if she was compelled to sign the card. Gibbs testi-
fied, and we find, that the following conversation took place :
She said, "Well, what's your objection?" I told her I didn't
want to sign anything and she says, "Why not?" And I didn't
want to tell her why, I just didn't want to join any more unions.
So she says, "Well, I guess you'll have to sign or we won't be
responsible for the consequences."
Heslin undoubtedly had reference to the closed-shop contract between
the respondent Condenser and the Brotherhood which had been
executed on February 19, 1937. Gibbs then signed the Brotherhood
card. By her expressed reluctance to sign the Brotherhood card,
Gibbs marked herself in Heslin's eyes as an employee unsympathetic
with the labor policy of the respondents. At that time, and there-
after, Gibbs was in fact active in support of the United by reason
of her regular attendance at meetings. The Hubbard School meeting
of the United on the evening of March 29, 1937, was particularly
well publicized in advance. Heslin made a determined effort during
the day of March 29, 1937, to influence employees to refrain from
attending, as the following testimony of Gibbs reveals :
Q. . . . what did Kitty Hessler 78 say to you?
A. Kitty says, "Any of you girls that attended the meeting
will be discharged." She said, "We can't stand any of that."
Q. Now, did she speak to you individually or many girls?
A. Groups, she spoke to some groups.
Q. How many were in your group?
A. Well, I should say about six or eight. Just as far as her
voice would carry beyond the machines.
Q. Then did you see her talking to other groups?
A. Yes, she went on.
"Catherine Heslin
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Where?
A. To the different sections of the groups.
Q. About how many groups did you see her talking to?
The WITNESS : I should say about four.
Notwithstanding Heslin's warning , Gibbs attended the meeting of the
United on Monday, March 29, 1937 . Between Tuesday and Friday
of the same week, Heslin told Gibbs that she did not want her in the
department , and sent her to Leary. Gibbs testified :
... so I went into Mrs. Leary and I says, I told her that
Kitty Hessler sent me to her and she didn't want me in her
department , so she said , Well, she just threw up her hands and
looked at me and I said, "Does that mean I am discharged?"
She nodded her head and said, "Yes."
Heslin testified that she told Gibbs to report to Leary and that this
was tantamount to discharging her. Heslin asserted, however, that
she discharged Gibbs because she refused to work on a press to which
Heslin had ordered that she be shifted . Leary, on the other hand,
testified that Gibbs was dismissed because her children required too
much attention to allow her to work a sufficient number of hours.
Gibbs' discharge slip lists a severance of employment on March 22,
1937 , because of "Irregular Attendance " and the comment with respect
to rehiring is "No." Although this slip is signed "C. Heslin," Heslin
testified that this was but one reason -and that the immediate cause for
the discharge was Gibbs ' alleged refusal to obey Heslin's orders to
work on a certain press. Heslin could not explain why the alleged
immediate cause of the discharge was not listed on the discharge
slip.
In their briefs docketed February 1, 1940, counsel for both respond-
ents contend that the employer 's records show that Gibbs was dis-
charged on March 22, 1937, and that therefore she could not have
been present in the plant on March 29, 1937, to receive the warning
from Heslin described above. Counsel for the respondent Condenser
asserts in the aforesaid brief at page 64 that "the correctness of that
record (the afore -mentioned discharge slip ) is undisputed." On
the contrary , the statements of counsel are demonstrably unfounded
and the testimony of Gibbs is amply supported by the tabulations
prepared from the records of the respondent Condenser and intro-
duced in evidence by counsel for the respondent Condenser as Re-
spondent Exhibit No . 68b. A similar tabulation prepared in a simi-
lar way was introduced as Trial Examiner 's Exhibit No. 6a. Both
the aforesaid exhibits set forth beside the name of Margaret Gibbs and
in a column headed "Date of Discharge" the date April 2, 1937.
CONDENSER CORPORATION OF AMERICA 445
Approximately in the middle of April 1937, Gibbs applied to the
respondent Condenser for reinstatement. She was informed that no
position was available for her.
In view of the fact that Heslin knew Gibbs was not in sympathy
with the campaign to join and assist the Brotherhood, and in view of,
the fact that Gibbs',attendance at the March 29, 1937, meeting of the
United was contrary to the express orders of Heslin, considered in con-
nection with the other discriminatory discharges for attending the
March 29, meeting, the discrepancies with respect to the reasons for the
discharge between the records of the respondent Condenser and the
testimony of Heslin, and the other acts of interference and coercion
with respect to union activities in which Heslin and Martin have fig-
ured, we find that Gibbs' version of the circumstances leading up to
and surrounding her discharge are entitled to credence. We conclude
upon the basis of all the evidence that Gibbs was discharged for her
activities in support of the United.
We therefore find that Margaret Gibbs was discharged by the
respondents between March 30, 1937, and April 2, 1937, because she
joined and assisted the United. By that discharge, the, respondents,
and each of them, discriminated in regard to her hire and tenure of
employment and the terms and conditions of her employment, thereby
discouraging membership in the United, and interfered with,
restrained, and coerced their employees in the exercise of rights guar-
anteed in Section 7 of the Act.
Certain other individuals named in the complaint. We hereby
affirm the rulings of Trial Examiner Seagle granting motions to
dismiss 79 the third amended complaint with respect to 23 individuals
named therein.80 The evidence does not sustain the allegations of the
third amended complaint with respect to any of the said individuals.
2. The discharges pursuant to the contract of February 19, 1937
It is alleged that the respondents, in discharging and refusing to
reinstate 14 named employees, have discriminated against those em-
ployees in violation of Section 8 (1) and (3) of the Act. It is not
disputed that the respondent Condenser discharged said 14 employees
on the following respective dates : John Sedon on March 28, 1937;
Michael Santoro'81 Fred Vitto,82 Katherine Dolce,83 Mary Schumacher,
49 Several of these motions to dismiss were made by counsel for the Board, the remainder
by counsel for the respondents.
80 Joseph Morelli, Charles Longo, John Huyler, Lou Faigle; Michael Jankowy, Norman
Hinkle, Joseph J. Bruzdowski, Vito Morella,•Mike Mazza, Cono Morello, Dominio Ventrello,
John Serido, Arvella Horne, John Golden, Louis De Filipo, May Boland, Margaret Pipick,
Victoria Howell, Joseph Ejk, Thomas D'Amico, Carmen Ferrisi, Margie Dimuria, and Emily
Raczyniski.
81 Spelled "Michael Santora" in some exhibits
82 Spelled "Vitto" and "Viotti" in some exhibits
13 Spelled "Catherine Dolce" In some exhibits.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Arthur Chippendale on March 30, 1937; John DiVico,114 Ann
Jacobs, Caroline Callecchio,SS Tessie Appezzatio,86 Michael Sabino,
Herbert Rydberg, Katherine Fedoruk,87 and Frances Prohodka 88 on
April 7, 1937.
Motions were made by the respondents and the Brotherhood to dis-
miss the third amended complaint with respect to the cases of each
of the 14 employees named above, on the ground that they were dis-
charged pursuant to the closed-shop provision of the contract of
February 19, 1937.
Upon notification from the Brotherhood of the suspension of the
14 employees named above, the respondents, through supervisory
employees of the respondent Condenser, discharged the said em-
ployees.
The contract of February 19, 1937, provides :
SECOND. The Employer is authorized to hire all of its help
through its own personnel department but it is understood that
all workers in the production departments will become members
of the Union after completion of the satisfactory trial period of
two weeks as hereinafter set forth.
THIRD. All new workers hired as set forth in Paragraph Sec-
ond may be discharged by the Employer during the first two
weeks of their employmentt for any cause whatsoever.
The meaning of the contract, as indicated by the quoted portions,
is not entirely free from ambiguity. For reasons indicated below,
however, it is unnecessary to decide whether the closed-shop provi-
sion was applicable to persons already in the employ of the respond-
ents at the time of its execution. For the purposes of the case it
will be considered that such application was within its terms. This
is in accordance with the position taken in this proceeding by the
respondents and by the Brotherhood.
Section 8 (3) of the Act provides:
Sec. 8. It shall be an unfair labor practice for an employer-
(3) By discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage or
discourage membership in any labor organization : Provided,
that nothing in this Act . . . shall preclude an employer from
making an agreement with a labor organization (not established,
maintained, or assisted by any action defined in this Act as an
s+ Spelled "John DeVico " in Board Exhibit 51.
8 Spelled "Caroline Collechio" in Trial Examiner 's Exhibit 6.
5 Spelled "Tessie Appegata" in Trial Examiner 's Exhibit 6
87 Erroneously spelled "Katherine Feodorik " in- the third amended complaint and "Cath-
erine Fedorik" or "Catherine Fredoric" in exhibits.
11 Spelled "Frances Prehodka " or "Frances Prehadka" in exhibits
CONDENSER CORPORATION OF AMERICA 447
unfair labor practice) to require as a condition of employment
therein, if such labor organization is the representative of the
employees as provided in section 9 (a), in the appropriate col-
lective bargaining unit covered by such agreement when made.
There is no question but what the discharge and refusal to rein-
state the 14 employees named above because of their suspensions from
the Brotherhood were acts of discrimination in regard to tenure of
employment. The respondents 'thereby encouraged membership in
the Brotherhood and discouraged membership in its rival, the United.
The question remains whether, as the respondents and the Brother-
hood contend, the contract of February 19, 1937, protects the respond-
ents. We have found that the Brotherhood had been, prior to the
execution of the contract of February 19, 1937, established, main-
tained, and assisted by the respondents by acts defined in Section 8
(1) of the Act as • unfair labor practices, and therefore that the
closed-shop contract of February 19, 1937, was invalid. -Conse-
quently the discharge and refusal to reinstate the 14 employees named
above fall clearly within the prohibition of Section 8 (3) of the
Act and do not come within the protection of the proviso thereto.89
We find that the 14 employees named above were discharged on
the respective dates set forth because they had been suspended from
membership in the Brotherhood.
We find that by the above discharges the respondents, and each
of them, interfered with, restrained, and coerced their employees
in the exercise of the rights guaranteed in Section 7 of the Act.
We further find that by the above discharges the respondents, and
each of them, encouraged membership in one labor organization and
discouraged membership in another by discrimination in regard to
tenure of employment.
In view of these findings, motions made by the respondents and
the Brotherhood to dismiss the third amended complaint in so far
as it pertains to the cases of Katherine Dolce, Arthur Chippendale,
and John DiVico on the ground of the absence of proof, as to which
Trial Examiner Seagle reserved ruling, are hereby denied.
H. The respondent Condenser and the respondent Cornell as an
integrated enterprise
We have described above the close business relationship between
the respondent Condenser and the respondent Cornell.90 The re-
spondent Condenser has been using plant facilities supplied to it
89 Matter of Mt. Vernon Car Manufacturing Company, a corporation and Local Lodge
No 1256, Amalgamated Assocaattion of Iron, Steel and Tin Workers of North America, affil-
iated with the C. I. 0., 11 N. L. R. B. 500.
10 See Section I B, above.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and also used by the respondent Cornell, as well as manufacturing
materials and operating funds advanced to it by the respondent
Cornell.91 Both respondents were located in the South Plainfield
plant together prior to the commencement of any of the unfair labor
practices described above. The respondent Cornell has been pur-
chasing almost all of the respondent Condenser's capacitors, and the
respondent Cornell has been selling only capacitors manufactured by
the respondent Condenser. Intercorporation charges between the re-
spondents have been made at substantially the costs to the respective
corporations, the transactions being adjusted by bookkeeping entries.
The costs, upon which such charges have been based, have included
the cost of labor.
All manufacturing operations are performed by the respondent
Condenser alone, and all production workers in the South Plain-
field plant are directly employed by it. Nevertheless, the evidence
adduced at the resumed hearing concerning the labor relations be-
tween the respondents and the said production employees reveals a
unity of interest and action on the part of the respondents and an
active participation by the respondent Cornell, through its officers,
in the labor policies and activities affecting the said production em-
ployees. During the entire period with which we are concerned,
Haim Beyer was the secretary and treasurer of the respondent
Cornell. His chief duty was to act as inspector, in the interest of
the respondent Cornell, of the respondent Condenser's production
operations. We have already described the manner in which Beyer
himself discharged Frank La Vecchia, a production employee, on
March 31, 1937, because of his participation in concerted activities
and support of the United.92 We have also found that Beyer and
Reynolds together informed Edward Hughes of his discharge.93
Moreover, Diana's interview on January 21, 1937, at which reinstate-
ment was obtained for a group of checkers, was with Beyer and
Blake, both officers of the respondent Cornell, the latter being presi-
dent, and neither officially connected with the respondent Condenser.
We have described above the parallel activities of officers of both
respondents, particularly Blake, Beyer, Arnold, and Bleich,94 as well
as the activities of various lesser supervisory employees of the re-
spondent Condenser, which resulted in our conclusion that the Inde-
pendent was dominated and supported. We have also described the
.dealings between the United and the respondent Condenser which
were carried on entirely, until Arnold's letter of February 23, 1937,
by Blake, and which involved among other things a temporary, oral
91 See Seel ion I B, above.
92 See Section III, above.
m Id.
21 Treasurer and pi eduction superintendent of the respondent Condenser.
CONDENSER CORPORATION OF AMERICA 449'
status quo agreement between Blake and Carey providing that there
were to be no strikes, lock-outs, or discharges in the South Plainfield
plant and that past discharges claimed to be discriminatory were to
be adjusted.95 We have also described above in Section III C the
close relationship between the respondents in the publication of "The
C-D Condenser" with particular reference to the issue of February
11, 1937. It is not necessary to set forth in further detail the evi-
dence. The record plainly shows that since the respondents moved
into the South Plainfield plant, the respondent Cornell, through its
officers, has actively participated in and helped to formulate the labor
policies and practices of the respondent Condenser.
We find, on the basis of the record in the resumed hearing, that
the respondent Condenser and the respondent Cornell, since the
commencement of operations at the South Plainfield plant, have
functioned together as one integrated business enterprise.96
Section 2 (2) of the Act provides that the term "employer" as
used in the Act ". . . includes any. person acting in the interest of
an employer, directly or indirectly . .." Section 2 (1) of the Act
provides "The term `person' includes . . . corporations . . ." On
the basis of the considerations set forth above, we find that the
respondent Cornell acts directly and indirectly for the respondent
Condenser and that both respondents are employers of the employees
here involved.
06 See Section III D 2a, above
9b National Labor Relations Boas d v Pennsylvania Greyhound Lines, Inc, 303 U S. 261
Mattes of Consolidated Edison Company of New York, Inc and United Electrical and Radio
11 of kers of America, affiliated with the Committee for Industrial Organization, 4 N L.
R B 71, modified on other grounds and enforced as modified, 305 U S 197; Matter of
Todd Shipyards Corporation, Robins Dry Dock and Repau Co, and Tietlen and Lang Dry
Dock Co and Industrial Union of Marine and Shipbuilding Workers of America, 5 N L.
R B 20 , National Labor Relations Board v Wm Randolph Hearst, et al 102 F (2d) 658
(C C - 9th) , National Labor Relations Board v Christian A Lund, doing business as
C A Lund Co and Northland Ski Manufacturing Co (C C A 8th) 103 F (2d) 815;
Matter of Waggoner Refining Company, Inc . and 1V T. Waggoner Estate and
International Association of Oil Field, Gas Well and Refinery Workers of America, Matter
of Waggoner Refining Company, Inc, and 11' T Waggoner Estate and Waggoner Em-
ployees Federation, 6 N L It B 731 , Matter of Art Crayon Company, Inc. and its affil-
iated company, American Artists Color Works, Inc and United Artists Supply Workers,
7 N L R B 102 ; Matter of Bloedel-Donovan Lumber Mill and Columbia Valley Lumber
Company and International Woodworkers of America, Local No yG, 8 N L R B 230 ;
Matter of Kling Factories, an assumed title used by D D Kling, A J Kling, and C E.
Helgren iii the management of Chautauqua Cabinet Go , Brockton Furniture Co , Herrick
Furniture Co., John A Kling (successor to Crandall Panel Co ) and Frewsburgh Furniture-
Co, and Locals 12, 13, 14, and 15, Organized Furniture Workers of Jamestown, N Y,
8 N. L R B 1228; Matter of Swift and Company, Iowa Packing Company and Newton
Packing Company, Corporations and Local 630, Amalgamated Meat Cutters and Butcher
Workmen of North America and Detroit and Wayne County Federation of Labor, 10 N L.
R R 991, Matter of Watmman Steamship Corporation and Commercial Telegraphers
Union, Marine Division, A. F. of L, 10 N L R B 1079; Roemer Bros. Trucking Co., Inc ,
and Roemer Garage, Inc. and International Association of Machinists, Lodge 340, A. F_
of L, 13 N L R B 549; Matter of The Press Co. Inc, and The Garrett Company and
Tri-City Newspaper Guild of Albany, Troy and Schenectady, New York. 13 N L R B 630-
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent Cornell as set forth in Section III
above, without reference to the activities of the respondent Condenser
set forth in Section III G I above with respect to the individuals
listed in Appendix A, occurring in connection with the operations
of the respondents described in Section I above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the
several States, and have led and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
The activities of the respondent Condenser as set forth in Section
III above, occurring in connection with the operations of the respond-
ents described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
and have led and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have engaged in unfair labor
practices, we will order them 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 situation that existed
prior to the commission of the unfair labor practices.
We have found that the respondents have engaged in a course of
conduct which effectively discouraged their employees from joining
the United and unlawfully encouraged their employees to join, first,
the Independent, and later, the Brotherhood. We have found that
the respondents' course of conduct has established, maintained, and
assisted the Brotherhood by various unfair labor practices. We shall,
therefore, order the respondents to cease and desist from interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act. Moreover, in order to
restore the status quo and to permit the employees full freedom in
self-organization, without hindrance by reason of the respondents'
unfair labor practices, we find it essential, and shall order, that the
respondents cease and desist from recognizing the Brotherhood as a
representative of any of their employees pending final action upon
the petitions of the United for investigation and certification of
representatives, and cease and desist from recognizing the Brother-
hood as the exclusive representative of their employees unless and
until the Brotherhood is certified as such exclusive representative or,
after final action on the United's petition, the Brotherhood is
duly designated by a majority of the employees, in the unit herein-
after found appropriate, as their representative. We shall also
affirmatively order the respondents to withold such recognition.
CONDENSER CORPORATION OF AMERICA 451
In addition we have found that the contract of February 19, 1937,
entered into by the respondents, through the respondent Condenser,
with the Brotherhood, constituted an integral part of the respondents'
campaign to establish, maintain, and assist the Brotherhood and dis-
courage membership in the United by interference, restraint, and coer-
cion. The respondents should not be permitted to retain the advan-
tages of their unfair labor practices through the device of entering
into a contract or a series of contracts with an organization they
have unlawfully assisted. In order to restore the status quo and
create a situation in the South Plainfield plant where the employees,
who for at least 2 years have been subjected to the provisions of an
unlawful closed-shop contract favoring the Brotherhood, will feel
free to organize according to their own wishes, it is necessary that
the respondents cease giving effect to the contract of February 19,
1937, any renewal or extension thereof,97 and any successor contract
which may now be in effect. Although the Brotherhood's contract
of February 19, 1937, has by its terms expired on February 18, 1939,
any renewal or extension thereof pursuant to its terms set forth
above must be considered merely as a continuation of the original un-
lawful contract and unlawful plan. Moreover, in our opinion any
subsequent contracts negotiated between the respondents, or either
of them, and the Brotherhood stand in the same position as the con-
tract of February 19, 1937, unless the respondents have meanwhile
purged themselves of their unfair labor practices and the situation
in the plant has been such as to insure the employees full freedom of
expression in their choice of representatives. We cannot envisage
such a situation in the plant in view of at least 2 years of unlawful
closed-shop conditions favoring the Brotherhood under the original
unlawful contract. Under such circumstances, the objectives of the
Act can be secured only if the respondents cease giving effect to any
[successor] contract with the Brotherhood as is now in effect.
In their motions to reopen, the respondents and the Brotherhood
requested opportunity to introduce evidence set forth in affidavits
supporting these motions, to show that the respondent Condenser
had negotiated with the Brotherhood beginning some 60 days prior
to the expiration of the unlawful agreement of February 19, 1937, as
provided therein; that these negotiations extended beyond February
°' The contract of February 19; ' i937, although % it has expired by its terms on February
18, 1939, contains the following clauses looking to renewal
TWENTY-FOURTH.-Sixty days prior to the termination of this Agreement, either
party may submit to the other a proposed Agreement for an additional period of two
years. In the event that the parties are unable to agree upon terms and conditions of
said renewal agreement , then in that event the issues in dispute between the parties
shall be submitted to arbitration in the same manner as provided in Paragraph Eighth
hereof, proiided , however, that there shall be no changes in the provisions of Para-
graph Sixth, Ninth, and Twenty-second
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
18, 1939, the date of expiration; that the unlawful agreement was
extended pending the consummation of negotiations for a new
agreement; that such new agreement was finally consummated be-
tween the respondent Condenser and the Brotherhood under circum-
stances set forth; and that the said new agreement had been in effect
for almost a year on January 30, 1940; and to show generally the
nature of the labor relations and conditions in the South Plainfield
plant since the execution of the contract of February 19, 1937. In
our opinion, as we have pointed out above, subsequent contracts
negotiated between the respondents, or either of them, and the
Brotherhood stand in the same position as the contract of February
19, 1937, unless the respondents have meanwhile purged themselves
of their unfair labor practices and the situation in the plant has been
such as to insure the employees full freedom of expression in their
choice of representatives. No such showing is made in the papers
supporting the motions to reopen and we must presume that the
conditions shown to exist at the hearing continue. As stated above,
we find that under such circumstances the objectives of the Act can
best be secured only if the respondents cease giving effect to such
contract with the Brotherhood as is now in effect.98
Hereinafter we have directed that an election be held among the
employees of the respondents in an appropriate unit to determine
whether they desire the Brotherhood, the United, or neither of these
labor organizations, to be their exclusive collective bargaining agency.
That election is to be held after a period shall have elapsed sufficient
to permit the respondents' employees to consider and determine free
from any and all employer compulsions, restraints, and interference,
which of the two labor organizations, if either, they wish to have
represent them for collective bargaining purposes.
Although we have found that the Independent was dominated by
the respondents, in view of our finding that the Independent has not
been in existence since February 1937, it will not be necessary to,
order the respondent to disestablish that organization although we
shall order them to refuse it recognition lest it be revived.9°
We have found that the respondent Condenser discriminatorily
discharged or laid off 17 employees listed in Appendix A. Since we
have considered some or all of the evidence adduced at the former
hearing in sustaining the allegations of the complaint with respect
to the individuals listed in Appendix A, we shall dismiss the allega-
98 Matter of Pilot Radio Corporation and United Electrical d Radio Workers of America,
14 N L R B 1084.
ss Matter of American Manufacturing Company, Inc and International Association or
Machinists, Local Union No. 79, 7 N. L. R. B. 375, Matter of Yates-American Machine
Company and Amalgamated Association of Iron, Steel and Tin Workers of North America,.
Lodge 1787, 7 N. L. R. B. 627.
CONDENSER CORPORATION OF AMERICA 453
Lions with respect to said individuals in so far as the respondent
Cornell is concerned. But we find that, to effectuate the policies of
the Act, these employees must be restored to their status before the
respondent Condenser's discrimination against them by an offer of
full reinstatement to their former or substantially equivalent posi-
tions, with back pay. Our order with respect to the employees listed
in Appendix A will be directed, however, only against the respondent
Condenser.
We have further found that the respondent Condenser and the
respondent Cornell discriminatorily discharged or laid off the 19
employees listed in Appendix B. We shall order the respondents
to offer them immediate and full reinstatement to their former or
substantially equivalent positions, with back pay.
Such reinstatement shall be effected in the following manner : All
employees hired after the respective lay-off or discharges which we
have found to be discriminatory shall, if necessary to provide posi-
tions for those to be reinstated, be dismissed. If thereafter, by rea-
son of a reduction in force there are not sufficient positions available
for the remaining employees, including those to be reinstated, all
available positions shall be distributed among such remaining em-
ployees in accordance with the respondents' loo usual method of re-
ducing their force, without discrimination against any employee
because of his union affiliation or activities and following a system
of seniority to such extent as has heretofore been applied in the con-
duct of the respondents' business. Those employees remaining after
such reduction, for whom there are then no available positions, 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
substantially equivalent positions at the respondents' plant as such
employment becomes available and before other persons are hired for
such work, provided, however, that an employee shall remain on the
preferential list until he accepts an offer of employment of the re-
spondents in his former or substantially equivalent employment, or
declines an offer of employment in his former or substantially equiv-
alent employment.
This proceeding was transferred and continued before the Board
on October 18, 1937, and no Intermediate Report has been filed by
either trial examiner. Pursuant to stipulation, further testimony was
taken on October 30, 1937, by deposition on behalf of the respondents.
The Proposed Findings of Fact, Proposed Conclusions of Law, and
100 As used in this paragraph, the word "respondents" has reference only to the respond-
ent Condenser in so far as we have found that certain employees have been discriminated
against only by that respondent.
283033-41-vol. 22--30
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Proposed Order was issued on December 2, 1939. The United, the
Brotherhood, and both respondents argue that the delay has preju-
diced each of them. Such delay as there has been since the inception
of this proceeding has been occasioned in part by the injunction pro-
ceedings in the United States District Court for the District of New
Jersey brought by one respondent and invoked by the other respond-
ent as stated above in Statement of the Case. At the commencement
of the former hearing the respondent Condenser moved to hold the
hearing in abeyance pending the first Supreme Court rulings on the
constitutionality of the Act. The length of the record accounts for
much of the time which elapsed between October 30, 1937, and Decem-
ber 2, 1939. Taking into account all of the circumstances we shall
order that the amount of back pay which would be due for the period
from October 30, 1937, to the date of this decision if computed in
the usual fashion shall be reduced by one-half. Before such reduc-
tion the back pay to which the employees listed in Appendices A and
B would be entitled would be sums equal to the respective amounts
which they would normally have earned as wages from the date of
the respective discharges or lay-offs to the date of the offer of rein-
statement, less their respective net earnings 101 during the said period.
In computing the amount of wages which would normally have been
earned by the employees listed in Appendix C (all of whom are listed
also in Appendices A or B), it will be taken into account that the
said employees, if they had not been discriminatorily discharged or
laid off, would have received an increase of 3 cents per hour after
February 15, 1937, pursuant to the general increase effective in the
plant on that date.
VI. THE QUESTION CONCERNING REPRESENTATION
We have found that the United represented prior td February 19,
1937, a substantial number of employees in the respondent's South
Plainfield plant. On January 19, 1937, and January 25, 1937, the
United requested recognition:' as the exclusive bargaining representa-
tive of employees in the South Plainfield plant. The respondents
have never recognized the United or bargained collectively with it as
the exclusive representative of employees in an appropriate bargain-.
101 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill 117orlers Union , Local 2390, 8 N L. R B . 440 Monies received
for work performed upon Federal , State , county, municipal , or other work -relief projects
are not considered as earnings , but as provided below in the Order, shall be deducted from
the sum due the employee , and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal , State, county, municipal , or other government or governments
which supplied the funds for said work -relief project.
CONDENSER CORPORATION OF AMERICA 455
ing unit in the South Plainfield plant. On February 19, 1937, and
thereafter, the respondents did recognize the Brotherhood as the
exclusive bargaining representative of employees within the unit
claimed by the United to be appropriate. Upon the basis of the
evidence it is clear that at least by February 19, 1937, on which date
the United filed two petitions requesting an investigation and certi-
fication of representatives pursuant to Section 9 (c) of the Act, a
question had arisen concerning representation with respect to em-
ployees at the South Plainfield plant of the respondents. Since we
have found that the Brotherhood was not entitled to recognition as
the exclusive representative for the purpose of collective bargaining
of employees in an appropriate bargaining unit in the South Plain-
field plant of the respondents, the fact that the respondents have
accorded the Brotherhood such exclusive recognition gave rise to
rather than resolved a question concerning representation.
The United and the Brotherhood each here claims to have been
designated as collective bargaining representative by a majority of
the respondents' employees 'in an appropriate unit, and, accordingly,
to constitute the exclusive collective bargaining representative of all
the employees in such unit. These units are substantially identical.
We are unable upon the evidence adduced to determine whether either
labor organization represents a majority of the respondents' em-
ployees in the unit hereinafter found to be appropriate. Both or-
ganizations appear to have been designated by a substantial number
of the plant employees, and a material amount of duplication in their
membership exists. Moreover, the contention of the Brotherhood
regarding representation cannot be considered seriously because of
the respondents' above-described unlawful assistance to the Brother-
hood as a result of which that organization cannot presently con-
stitute a freely chosen representative.102
We find that a question has arisen concerning the representation
of employees of the respondents. While it may be that there now
exists an agreement between the Brotherhood and the respondents,
or either of them, granting the Brotherhood recognition as exclusive
representative of the South Plainfield plant employees within a unit
substantially identical with the unit hereinafter found to be ap-
propriate, and/or providing for membership in that labor organiza-
tion as a condition of employment, such an agreement, for the reasons
set forth above, cannot be taken as resolving the question concerning
representation here presented.103 Any existing contract between the
102 Matter of Pilot Radio Corporation and United Electrical & Radio Workers of America,
14 N L R B 1084
103Matter of Pacific Greyhound Lines and Imalganiated Association of Street, Electric
Railway and Motor Coach Employees of America, etc, 0 N L R B 557, Matter of Pilot
Radio Corporation and United Electrical & Radio Workers of America, 14 N. L R B. 1084.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood and the respondents, or either of them, not made with
recognition of the Brotherhood as exclusive representative of the
South Plainfield plant employees within the unit hereinafter found
to be appropriate is, of course, no bar to an election held to resolve
that issue."' In any event, an agreement made subsequent to the
commencement of representation proceedings before the Board con-
stitutes no bar to a determination of such a question.105
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respond-
ents described in Section I above, has a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and tends to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
VIII. THE APPROPRIATE UNIT
The respondents' production process at the South Plainfield plant
is an integrated one involving a virtually continuous and interdepend-
ent service of operations from the inception of production operations
until the finished products arrive at the shipping department.
The first collective agreement between either of the respondents
and a labor organization at the South Plainfield plant was the Feb-
ruary 19, 1937, agreement between the Brotherhood and the respond-
Ent Condenser. That agreement provides, with reference to the em-
ployees at the South Plainfield plant, as follows :
This agreement shall apply to workers in production depart-
ments and shall not apply to engineering, laboratory, shipping,
receiving departments, watchmen, maintenance, office, foremen,
supervisors, and clerical.
The United admits to membership in its organization all produc-
tion employees at the South Plainfield plant excluding precisely the
categories of employees listed in paragraph nineteenth of the Brother-
hood's said agreement as those to whom the said agreement shall not
104 Matter of Northrop Corporation and United Automobile Woileri, Local No 229,
3 N L. R B. 228
10 Matter of Wilmington Transportation Company and Inland Boatmen's Union of the
Pacific, San Pedro Division , 4 N. L. R. B 750; Matter of American -West African Line, Inc.
and National Marine Engineers ' Beneficial A ssociation, 4 N. L. R . B. 1086; Matter of
California Wool Scouring Company and Textile Workers Organizing Committee, 5
N L R B 782 ; Matter of Pilot Radio Corporation and United Electrical & Radio Workers
of America , 14 N L R B 1084
CONDENSER CORPORATION OF AMERICA 457
apply. Checkers are admitted to membership by the United although
their duties include clerical, in addition to manual work. Manual
work performed by checkers involves aiding production workers to
obtain material. The remaining duties of the checkers, which have
been amply described above, are intimately associated with the opera-
tions of the production departments. The checkers perform their
duties in and about the departments where the production employees
are stationed. The history of labor relations at the South Plainfield
plant, as described above, indicates clearly that the checkers identi-
fied their interests with those of the production workers generally and
have constantly joined with production workers in concerted activi-
ties looking toward collective bargaining and mutual protection.
The Brotherhood and the respondents neglected to express any
viewpoint with respect to the appropriate unit at the hearings.
On the basis of these facts we are of the opinion, and find, that all
the production employees of the respondents in the South Plainfield
plant, excluding engineers, laboratory employees, shipping- and
receiving-department employees, watchmen, maintenance, office and
clerical employees, supervisory employees and foremen, but includ-
ing checkers, constitutes a unit appropriate for the purposes of col-
lective bargaining and that this unit will insure to employees of the
respondents the full benefit of their right to self-organization and to
collective bargaining and otherwise effectuate the policies of the Act.
IX. THE DETERMINATION OF REPRESENTATIVES
For reasons already sufficiently appearing we are unable upon the
record to determine the question which has arisen concerning repre-
sentation of employees of the respondents. We find that this question
can best be resolved by means of an election by secret ballot .1011 In
view of the desirability of affording to the employees within the
appropriate unit an opportunity freely to consider and determine
their choice of representatives, the election will be held at such time
as we shall in the future direct. At the time the date of the election
is set we shall determine the pay-roll date as of which eligibility to
vote shall be calculated.
Upon the basis of the above findings of fact and upon the entire
record in the case, except in so far as the record prior to the resumed
hearing is being applied only to the respondent Condenser, the Board
makes the following :
106 Matter of The Cudahy Packing Company and United Packinghouse Workers of Amer-
ica, Local No 21, of Packinghouse Workers Organizing Committee , affiliated with the Con-
gress of Industrial Organizations , 13 N L R. B 526.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The respondent Cornell -Dubilier Electric Corporation is an "em-
ployer" of the employees here involved within the meaning of Section
2 (2) of the Act.
2. The respondent Condenser Corporation of America is an "em-
ployer" of the employees here involved within the meaning of Section
2 (2) of the Act.
3. United Electrical and Radio Workers of America, Local No.
1041-B, International Brotherhood of Electrical Workers, and Con-
denser Workers Independent Union, are labor organizations within
the meaning of Section 2 (5) of the Act.
4. By dominating and interfering with the formation and adminis-
tration of Condenser Workers Independent Union, and contributing
support thereto , the respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (2) of the
Act.
5. By discriminating in regard to hire, tenure , and terms and con-
ditions of employment of the employees listed in Appendix A, and
thereby discouraging membership in the United Electrical and Radio
Workers of America, the respondent Condenser has engaged, in and
is engaging in unfair labor practices, within the meaning of Section
8 (3) of the Act.
6. By discriminating in regard to hire, tenure , and terms and con-
ditions of employment of the employees listed in Appendices A and
B, and thereby discouraging membership in the United Electrical and
Radio Workers of America , the respondents , and each of them, have
engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
7. By interfering with, restraining , and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 ( 1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 9 (c) and Section
2 (6) and (7) of the Act.
9. The contract of February 19, 1937, between the respondents,
in the name of the respondent Condenser , and Local No. 1041-B,
International Brotherhood of Electrical Workers , having been entered
into as a part of the respondents ' interference with, restraint, and
coercion of their employees in the exercise of the rights guaranteed
by Section 7 of the Act , is invalid.
10. The provision in the contract of February 19, 1937, between
the respondents , in the name of the respondent Condenser, and Local
No. 1041-B , International Brotherhood of Electrical Workers , requir-
CONDENSER CORPORATION OF AMERICA 459
ing membership in the, latter as a condition of employment by the
respondents, having been made with a labor organization established,
maintained, or assisted by unfair labor practices within the meaning
of Section 8 (1) and (3), is invalid by reason of Section 8 (1) and (3)
of the Act.
11. By discharging, laying off, or transferring their employees
listed in Appendix D the respondents have not engaged in unfair
labor practices within the meaning of Section 8, (1) or (3) of the
Act.
12. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondents within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
13. All the production employees of the respondents in the South
Plainfield plant, excluding engineers, laboratory employees, watch-
men, maintenance, office and clerical employees, supervisory employ-
ees and foremen, but including checkers, constitute a unit appropriate
for the purpose of collective bargaining, within the meaning of
Section 9 (b) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondents; Condenser Corporation of America, and Cornell-
Dubilier Electric Corporation, and their officers, agents, successors
and assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Con-
denser Workers Independent Union, or with the formation or admin-
istration of any other labor organization of their employees, and
from contributing support to Condenser Workers Independent Union,
or to any other labor organization of their employees;
(b) Recognizing Condenser Workers Independent Union as the
representative of any of their employees for the purpose of dealing
with the respondents, or either of them, concerning grievances, labor
disputes, wages, rates of pay, hours of employment, and other
conditions of employment ;
(c) Discouraging membership in United Electrical and Radio
Workers of America, or any other labor organization of its employees,
by discharging or laying off their employees, or any of them, or in
any other manner discriminating in regard to hire or tenure of
employment, or any term or condition of employment, of their
employees;
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Encouraging membership in Local No . 1041-B, International
Brotherhood of Electrical Workers, in Condenser Workers Inde-
pendent Union , or in any other labor organization of their employees,
by discharging or laying off their employees , or any of them, or in
any other manner discriminating in regard to hire or tenure of
employment , or any term or condition of employment , of their
employees ;
(e) Recognizing or in any manner dealing with Local No. 1041-B,
International Brotherhood of Electrical Workers, as the representa-
tive of any of their employees for the purpose of dealing with the
respondents , or either of them, concerning grievances , labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment , pending final action upon the petitions of United Elec-
trical and Radio Workers of America for investigation and
certification of representatives.
( f) Recognizing or in any manner dealing with said Local No.
1041-B as the exclusive collective bargaining representative of any
of their employees , unless and until said labor organization is certi-
fied as such exclusive representative by the Board or unless and until,
after final action upon the aforesaid petitions by the Board, said
labor organization is duly designated by a majority of the respond-
ents ' employees within an appropriate unit to be their representative
for purposes of collective bargaining;
(g) Giving effect to the contract of February 19, 1937, with Local
No. 1041-B, or to any extension or renewal thereof, or to any
successor contract with Local No. 1041-B which may now be in effect;
(h) In any other manner interfering with, restraining , or coercing
their employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations , to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes 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 ; except, however , that, with
respect to employees listed in Appendix A, paragraphs (d) and (e)
of the Order below shall apply only to the respondent Condenser
and its officers , agents, successors , and assigns :
(a) Refuse to recognize Condenser Workers Independent Union as
the representative of any of their employees for the purpose of deal-
ing with the respondents, or either of them, concerning grievances,
labor disputes , wages, rates of pay, hours of employment , or other
conditions of employment;
CONDENSER CORPORATION OF AMERICA 461
(b) Withdraw and withhold recognition from Local No. 1041-B,
International Brotherhood of Electrical Workers, as the representa-
tive of any of their employees for the purpose of dealing with them,
or either of them, concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment,
pending final action by the Board upon the afore-mentioned peti-
tions ;
(c) Withdraw and withhold recognition from said Local No.
1041-B as the exclusive collective bargaining representative of any
of their employees, unless and until said labor organization is certi-
fied as such representative by the Board or unless and until, after
final action by the Board upon the aforesaid petitions, said labor
organization is duly designated by a majority of the respondents'
employees within an appropriate unit to be their representative for
such a purpose;
(d) Offer to those employees listed in Appendices A and B, and
to each of them who has not since been fully reinstated, immediate
and full reinstatement to their former or to substantially equivalent
positions in the South Plainfield plant of the respondents, or place-
ment upon a preferential list, without prejudice to their seniority
rights or other rights or privileges in the manner set forth in the
section entitled "The remedy" above; and place 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;
(e) Make whole the employees listed in Appendices A and B for
any loss of pay they have suffered by reason of their respective dis-
charges, lay-offs, and transfers, by payment to each of them of a sum
of money equal to an amount which each would normally have earned
as wages during the period from the date of the discrimination
against him to the date of an offer of reinstatement or placement
upon a preferential list in accordance with 2 (d) above, determined
in the manner set forth in the section entitled "The remedy" above,
provided, however, that the respondent shall deduct from the amount
otherwise due to each of said employees, monies received by said
employees during said respective periods for work performed upon
Federal, State, county, municipal, or other work-relief projects and
shall pay over the amounts so deducted to the appropriate fiscal
agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for such work-relief
projects;
(f) Immediately post, and keep posted for a period of at least
sixty (60) consecutive days from the date of posting, in conspicuous
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
places throughout their South Plainfield plant, notices to their em-
ployees stating that the respondents will cease and desist in the man-
ner set forth in 1 (a), (b), (c), (d), (e), (f), and (g), and that the
respondents, with the exception noted for the respondent Cornell,
will take the affirmative action set forth in 2 (a), (b), (c), (d), and
(e) of this Order;
(g) Notify the Regional Director of the Second Region in writing
within fifteen (15) days from the date of this Order what steps the
respondents have taken to comply therewith.
IT IS FURTHER ORDERED that the third amended complaint, in so far
as it alleges that the respondent Cornell discriminatorily discharged,
laid off, or otherwise altered the terms or. conditions of employment
of the employees listed in Appendix A, thereby discouraging mem-
bership in a labor organization, be, and the same hereby is, dismissed.
AND IT IS FURTHER ORDERED that the third amended complaint, in so
far as it alleges that the respondents discriminatorily discharged,
laid off, or otherwise, altered the terms or-conditions-of employment
of the employees listed in Appendix D, thereby discouraging mem-
bership in a labor organization, be, and the same hereby is, dismissed.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for collective bargaining with Conden-
ser Corporation of America and Cornell-Dubilier Electric Corpora-
tion, South Plainfield, New Jersey, an election by secret ballot be
conducted under the direction and supervision of the Regional Di-
rector for the Second Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Section
9, of said Rules and Regulations, at such time as the Board in the
future shall direct, among all the production employees of the re-
spondents in the South Plainfield plant, excluding engineers, labora-
tory employees, shipping- and receiving-department employees,
watchmen, maintenance, office and clerical employees, supervisory
employees and foremen, but including checkers, to determine whether
they desire to be represented by United Electrical and Radio Workers
of America, or by Local No. 1041=B, International Brotherhood of
Electrical Workers, for the purpose of collective, bargaining, or by
neither.
CONDENSER CORPORATION OF AMERICA
APPENDIX A
Edward Hughes
Lawrence Dowling
Joseph Russo
John Spisso
Joseph De Sepio
Theodore D'Addario
Herbert Peterson
Vincent Binicasso
William Wolf
Harry Burr
John Mazza
Lucy Dell'Olio
Gladys Del Pappa
Katherine Kane
Augusta Kane
Beatrice Mundy
Cecilia Dowling
APPENDIX B
Marion Penzarella
Frank LaVecchia
Ann Mae Therney
Mary Lane
Margaret Gibbs
John Sedon
Michael Santoro
Fred Vitto
Katherine Dolce
Mary Schumacher
Arthur Chippendale
John DiVico
Ann Jacobs
Caroline Callecchio
Tessie Appezzatio
Michael Sabino
Herbert Rydberg
Katherine Fedoruk
Francis Prohodka
APPENDIX C
Lawrence Dowling
Joseph Russo
John Spisso
Joseph De Sepio
Theodore D'Addario
Herbert Peterson
Vincent Binicasso
William Wolf
John Mazza
Lucy Dell'Olio
Beatrice Mundy
Marion Panzarella
APPENDIX D
Joseph Morelli
Charles Longo
John Huyler
Lou Faigle
Michael Jankowy
Norman Hinkle
Joseph J. Bruzdowski
Vito Morella
Mike Mazza
Cono Morello
Dominio Ventrello
John Serido
Arvella Greve
John Golden
Louis DeFillipo
May Boland
Margaret Pipick
Victoria Howell
463
464 DECISIONS OF NATIONAL
Joseph Ejk
Thomas D'Amico
Carmen Ferrisi
Margie Dimuria
Emily Raczyniski
Arnold Dowling
LABOR RELATIONS BOARD
Joseph Zsamba
Esther Locke
Ann Coley
Phillis Fisk
John Higgins
Peggy Watt
MR. WILLIAM M. LEIsERsoN took no part in the consideration of
the above Decision, Order, and Direction of Election.